United India Insurance Company Ltd vs Maya

-THIS petition challenges the order dated 10. 1. 2007 of the Delhi State Consumer Disputes Redressal Commission, Delhi (hereafter, ''the State Commission'') in F. A. No. 11 of 2007. By this order, the State Commission dismissed the appeal of the petitioner Insurance Company against the order dated 8. 11. 2006 of the District Consumer Disputes Redressal Forum (East III), Delhi (hereafter, ''the District Forum'' ). By the last-mentioned order, the District Forum upheld the complaint of the complainant (respondent here) and directed the petitioner Insurance Company to pay her a sum of Rs. 1 lakh towards the insurance claim of the complainant for the loss of her truck (heavy goods vehicle - HGV) due to theft and, in addition, Rs. 5,000 by way of compensation and costs.

BRIEFLY, the facts are that a truck owned by the complainant was covered by the petitioner through a comprehensive insurance policy for Rs. 1 lakh during the period 24. 7. 2003-23. 7. 2004. On 11. 4. 2004, i. e. , within the validity of the insurance coverage, this truck, while being driven by one Pawan Kumar (the complainant''s son), ran out of diesel. Pawan left the truck by the roadside and went to buy diesel and also fetch a mechanic to repair the leaf springs of the truck. The ignition key of the truck was also left on the dashboard. When Pawan returned after about two hours, he found the truck missing. A complaint was lodged with the police on 12. 4. 2004. After investigation, the police registered the FIR on 23. 4. 2004 and finally reported in July 2004 that the truck was "untraced". The complainant filed a claim with the petitioner-company on 1. 5. 2004. The Surveyor appointed by the petitioner on 7. 5. 2004 made spot inquiries on 9. 5. 2004 and after further detailed inquiries, including recording fresh statements of the complainant and others concerned, assessed the loss at Rs. 98,500 on ''total loss'' basis but also reported that the insurance claim was not admissible because the terms and conditions of the policy had not been complied with when the truck went missing. Based on the Surveyor''s report, the Insurance Company repudiated the claim by its letter dated 23. 11. 2004 on three counts, viz. , (i) Pawan did not have an effective and valid driving licence to drive the truck (an HGV) when the incident took place and the HGV licence that he produced later turned out to be fake on inquiry with the Licensing Authority concerned; (ii) he did not take the requisite care to safeguard the truck in accordance with the terms of the insurance policy as he left the truck unattended with the ignition key on the dashboard; and (iii) the theft of the truck was itself questionable, as varying statements on the sequence of relevant events were made by Pawan and the complainant at different points of time. In its judgment and order mentioned above, the District Forum held that whether or not Pawan possessed an effective and valid driving licence for an HGV at the relevant time leading to the theft of the truck had no nexus with the cause of loss of the insured truck, namely, theft, that the Insurance Company did not produce a copy of the official communication regarding Pawan''s driving licence for HGV being a fake, that the theft of the truck had been established by the police report and that the negligence of the person at the wheel in leaving it unattended with the ignition key was not proved by the Insurance Company by producing the statement (s) of the complainant, as reported to have been recorded by the Surveyor. Accordingly, the District Forum passed the order as summarized above.

The State Commission turned down appeal of the Insurance Company on the same grounds as in the District Forum''s order.

WE have heard the learned Counsel for the parties and also considered the documents and pleadings on record. We find, however, that there is substance in the grounds advanced by the Insurance Company while repudiating the claim. Findings: (i) According to the Surveyor''s report, among the facts stated in the complaint filed by the complainant''s son with police, the FIR recorded by the police thereafter and the insurance claim filed by the complainant, it was stated that Pawan, the son of the complainant was driving the truck on the day of the theft. However, in her statement recorded by the Surveyor on 6. 7. 2004 and her reply dated 19. 8. 2004 to the Surveyor''s written queries of 9. 7. 2004 (followed by a registered letter of 2. 8. 2004 to the complainant) she stated that on the date of the theft, Pawan accompanied one Om Prakash who was the regular driver engaged by the complainant for commercial use of the truck and was actually driving the truck on the relevant date. In the complaint, on the other hand, the first-mentioned stand of the truck being driven on the date of theft by her son, Pawan was repeated. It is noteworthy that in his queries, the Surveyor had inter alia observed that Pawan had an LMV driving licence, which did not entitle him to drive the truck (HGV ). It is thus quite clear that the "induction" of Om Prakash on the scene was the result of this observation of the Surveyor.

(ii) More important than the point whether Pawan alone (or, Om Prakash accompanied by Pawan) was driving the truck on the date of the theft is the fact of negligence of the person at the wheel in leaving the truck unattended. The Surveyor''s finding that the ignition key was left in the truck (which was also not locked) has not been countered anywhere by the complainant in her complaint, which describes the loss of the vehicle as merely "unfortunate". However, the District Forum has chosen to ignore the detailed report of the Surveyor on this point by observing that the Insurance Company failed to produce a copy of the statement of the complainant recorded by the Surveyor on this issue or of her reply dated 19. 8. 2004. In our view, if the District Forum had reasons to doubt this finding in the Surveyor''s report (or, if this point had been seriously contested by the Counsel for the complainant in the course of the proceedings before that Forum), the Forum should have recorded the reasons for such doubts (or, the contentions on behalf of the complainant) and then called upon the Insurance Company to produce the said document (s) instead of merely observing as it did. A catena of judgments of both the Apex Court as well as this Commission has noted the point that a Surveyor''s report should not be dismissed summarily, as the Surveyor has the role of an independent and qualified person appointed under the relevant provisions of the Insurance Act, 1938, as amended from time-to-time. Further, condition No. 5 of the "conditions" stipulated in insurance policy clearly requires, "the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage" That the complainant''s son and/or driver of the vehicle at the time and on the date of the incident did not meet condition No. 5 quoted above cannot, therefore, be in serious doubt. And, that the ignition key was left behind has to be also believed, for without that key the truck could just not have been restarted when there was no diesel in the fuel tank.

(iii) Further, if indeed the truck was being driven on the date of the theft by Om Prakash and not Pawan (assuming that Om Prakash did possess a valid driving licence for HGV), the charge of gross negligence in leaving the truck unattended by the roadside at an isolated place with the ignition key on the dashboard becomes even more serious. For, it was quite easily possible for one of them to stay back with the truck while the other went to get diesel and/or fetch a mechanic to attend to the leaf springs.

(iv) The fact that Pawan subsequently produced a licence for an HGV is also not without significance. Even if we agree with the District Forum''s finding that the Insurance Company failed to substantiate, with a copy of the official communication from the Licensing Authority concerned with which it made inquiries, that this was a fake licence, the question remains as to why Pawan did not produce his ''genuine'' HGV driving licence in the first place along with the insurance claim or, for that matter, why the driving licence of Om Prakash was never produced.

(v) Further, it is not, as has been made out by the lower Fora in their findings, that in this case the validity of the driving licence of the person at the wheel before the theft of the truck has no nexus at all with the loss of the vehicle. In circumstances where the case is otherwise bona fide on all other counts, this conclusion could have held some water. In this case, the varying statements of the complainant and associated interested persons cast a reasonable doubt on their overall bone fides and, therefore, the validity of the driving licence of the person at the wheel immediately prior to the incident and the fact that the theft would not have perhaps occurred at all had the vehicle not been driven to the spot of the theft assumes some importance. In any case, it cannot be the stand of any Consumer Forum that in the task of protecting the rights of a consumer, its finding should smack of encouraging, directly or indirectly, plying of a motor vehicle by a person not in possession of a valid and effective driving licence for that type of a vehicle.

IN view of the foregoing discussion, we allow this revision petition and set aside the order dated 8. 11. 2006 of the District Forum as well as the impugned order dated 10. 1. 2007 of the State Commission. There shall be no order as to costs. Revision Petition allowed.