Vajsurbhai Amarabhai Vala vs ICICI LOMBARD GENERAL INSURANCE CO LTD

REVISION petition no.1546 of 2012 has been filed against the judgment/order dated 15.11.2011 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (''the State Commission'') in First Appeal no. 1759 of 2010.

THE brief facts of the case as per the petitioner/complainant are that the petitioner was engaged in transport business and had insured his truck no. GJ 3Y 9807, against comprehensive risk with the respondent/ opposite party Insurance company. The said truck was stolen on 10.06.2008 when it was parked on the road in a loaded condition in front of the branch office of the petitioner at Goregaon. The said truck remained in a parked condition for a whole day due to heavy rain. The truck was last seen by Mr Kamlakar Tukaram Joshi at about 04.00 A M on 11.06.2008. The truck was found stolen and the same was brought to the notice of the employee of Shah Roadways at about 07.30 a m on 11.06.2008.

MR Kritibhai D Shah, one of the partners of Shah Roadways was informed by the Manager of Goregaon Branch about the incident of theft and who in turn reported the matter to Goregaon East Police Station and lodged a formal complaint. The policy authorities registered the complaint vide FIR no. 225 of 2008 dated 11.06.2008 under IPC 379 and made enquiry thereof after recording a detailed statement of Mr Kirtibhai Shah. The event of theft was reported to the respondent/insurance company''s office on the same day, i.e., 11.06.2008 and the respondent had assigned claim no. MOT 00812782 and registered a formal claim in their claim registers. The petitioner submitted the claim form, RC Book and other claim papers as demanded by the respondent in two lots, one on 25.06.2008 and the second one on 13.09.2008. After submitting the claim papers the petitioner kept on waiting for payment of claim from the respondent''s side. However, to the surprise of the petitioner, instead of getting the claim paid, the petitioner received a letter dated 22.10.2008 from the respondent stating that the claim was repudiated due to the following reasons: "Failure to take reasonable care and precaution of vehicle which a prudent man ought to have taken".

THE petitioner has therefore, prayed that the complaint be allowed and the respondent be directed to pay: Rs.5,95,910/ - with cost and interest till realisation of payment; Pay Rs.10,000/ - to the petitioner as compensation for harassment and hardship caused to the petitioner'' Pay any such other amount as this forum is pleased to find just and proper to the petitioner;

IN their written statement before the District Consumer Disputes Redressal Forum at Rajkot (''the District Forum'') the respondent/ opposite party/ insurance company have stated that from the policy papers and the investigation report, it was found that the truck was stolen when the keys were lying in the said truck. The above facts was also confirmed by the statement given by Kirtibhai Devibhai Shah Partner of the present complainant given before the police Sub -Inspector, Goregaon (East) police station, Mumbai on 11.06.2008.

THE claim of the petitioner was repudiated for "Failure to take reasonable care and precaution of vehicle which a prudent man ought to have taken". As stated earlier, the driver of the petitioner had left the above vehicle unattended on a highway road and the key was lying in the said truck when the truck was stolen. Looking to the terms and conditions of the policy, the petitioner had not taken precaution as per the terms and conditions. Hence, repudiation of the claim by the respondent was in order.

THE respondent concluded by stating that Vajsurbhai Vala had stated in his written statement that on 09.06.2008 their driver Rajkumar took the loaded truck no. GJ 3Y 9807 from Rajkot to Mumbai. The driver paid Octroi at Mumbai and went at Goregaon office and parked the truck in front of their office. On 11.06.2008, somebody stole the truck with loaded goods, Kiritbhai, his partner had lodged an FIR for the same. The petitioner had further stated that the following documents had been kept in cabin of truck no. GJ 3Y 9807 at the time of theft; (i) insurance policy (ii) original invoice (iii) key of truck (iv) national permit (v) Gujarat fitness (vi) Gujarat tax receipt and (vii) service book. The RC book he had stated would be submitted as soon as possible as it was with police. The petitioner had submitted all the requisite documents for claim procedure except keys, spot panchanama and the police final report. Even statement recorded during the investigation was also produced with the list of documents and based on the above documents and policy papers the claim of the petitioner was found not payable.

THE District Forum while allowing the complaint vide order dated 30.11.2010 held as under: "We gone through the above citations, but in view of the factual aspects of the case as we discussed above, it is very clear that looking to the affidavit of the Driver Rajkumar Chaule and the Watchman as well as Police papers and Mr. Kiritbhai Shah who lodge the Police Complaint regarding theft of the disputed vehicle, it is clear that it is not true that the ignition key of the vehicle was left in the vehicle, or doors of the cabin of the vehicle was not locked especially in view of the unchallenged affidavits Mark -13/1 and Mark -13/2 and further in absence of rebuttal evidence or explanation in respect of production of ignition keys, diesel tank keys and keys of the doors of the truck at Mark -13/3, at least opponent Insurance Company had no legal and valid reason to contend that complainant failed to take reasonable care and precaution which ought to be taken by prudent man and thereby committed deficiency in service and illegally repudiated complainant''s claim. Therefore, we hold point No. 1 in the Affirmative. Though, it is the contention from opposite party that insurance was taken for commercial purpose namely the transportation business of the opponent firm, but in view of the decision reported in 2005 (I) CPR 1 (NC), it is the settled position of law that "insurance policy is only for indemnification of actual loss and it is not intended to generate profit". Therefore, this contention from the opposite party legally cannot sustain. In the result, answer to point No. 1 would be in the Affirmative. Issue No. 2 : Complainant has claimed Rs.5,95,910/ -/ - with cost and interest till realization of payment. In view of affirmative answer to point No. 1, complainant is entitled to Rs.5,95,910/ - towards the value of the stolen truck/ -, the declared value of the insured as per insurance policy with running interest @ 8% p.a. from the date of repudiation i.e. 27 -10 -2008. The complainant has claimed Rs.10,000/ - compensation on the ground of harassment and hardship, but complainant did not give any detail to justify his plea on this ground in the complaint as well as could not adduce any sufficient evidence. Therefore, complainant is not entitled to any amount of compensation. Accordingly, we hold this point in the affirmative only for the amount of vehicle Rs.5,95,910/ - with running interest @ 8% p.a. from the date of repudiation i.e. 14 -12 -2009. In the result following is the order:

: ORDER : Complaint is allowed. Opponent do pay Rs.5,95,910/ - with interest @ 8% interest from the date of repudiation i.e. 27 -10 -2008 to the complainant within 1 month period from the date of this order. Failing which, it will carry 10% interest. Opponent to incur its own cost and should pay Rs.2,000/ - towards cost to the complainant".

AGGRIEVED by the order of the District Forum the respondent filed an appeal before the State Commission. The State Commission vide their order had allowed the appeal and observed as under: "There is a photocopy of statement of complainant Mr Vajsurbhai Vala given before the investigator. The date of this statement is. 15.06.2008, which is very much important for decision of this question. In this statement the complainant states that the truck bearing number stated above was stolen from Mumbai. Along with this truck the document stated in statement were also stolen. At S no. 3, there is a mention of key of the vehicle. The statement is recorded after three days of incident of theft. On reading the statement as it is, it is clear that the key of the vehicle was in the vehicle itself at the time of incidence. In this statement it does not appear that the driver has locked the vehicle and kept the key in the office. After incident of theft a person named Kirtibhai D Shah lodged FIR in Goregoan police station. The copy of FIR is in Marathi it is at page 44 and 45. The translated English copy of FIR is at page 74 and 47. And on page 46, there is a further statement of Mr Kirtibhai D Shah wherein it is stated that the truck was stolen along with the goods loaded in the truck. Considering all the three documents stated above prima facie there is a reason to believe that the driver of the complainant''s truck had parked the truck in front of their office. And at that time when truck was stolen the key was in the vehicle. Thereafter because of what so ever reasons on 13.09.2008, i.e., after the statement dated 15.06.2008, the complainant came out with the fact that the original key and the duplicate key have been misplaced and apparently the above two statement are not consistence with each other. And therefore, at any how in order to get the claim paid the complainant stated that original and duplicate keys were misplaced.

Now, it is also to be noted that on receiving intimation of the claim of the complainant, the opponent have appointed Sun Investigation Bureau as investigator. This report is on page 31 to 40. And as per statement of the policy holder the vehicle went to Mumbai from Rajkot. And the said vehicle was parked by his driver Rajkumar Shivraj Chaule in front of their office and the said truck was stolen at about 4 clock in the morning. The investigator in his report stated that no key was produced by insured. Insured stated that keys were kept in cabin. Investigator has mentioned in conclusion paragraph that as per the statement of policy holder, the truck driver after reaching to Mumbai he parked the vehicle outside the office at Goregaon on 11.06.2008. The investigator has also filed his affidavit in support of his investigation report. After repudiation of the claim by the opponent insurance company on 22.10.2008, a person named Kamlakar Tukaram Joshi filed his affidavit on 23.10.2008 which is produced at page no. 97 and states on oath that the driver Rajkumar Shivraj Chavle parked the truck in front of office at Goregaon and thereafter he locked both the door of the cabin and took out ignition key, cabin door key and bunch of papers and kept all these things in the office room and thereafter he went to his home. Similarly, on 25.10.2008 driver Rajkumar Shivraj Chaule also made affidavit before notary. It is not incorrect to state that both the affidavit has been filed after repudiation of claim. So that it can be said that reasonable care have been taken by driver and policy holder but both the facts are contrary to the statement of Vajsurbhai. Till the date of statement of Vajsurbhai dated 13.09.2008 before the investigator, the case of the complainant was that the keys and duplicate keys and other documents were in the truck. One fact is clear that the statement made by Vajsurbhai before the investigator is as per the information supplied to him by their person at Mumbai. Now the complainant says that the Vajsurbhai did not have personal knowledge and therefore his statement should not been taken as concrete evidence. From the above discussion, it is clear that as per the evidence on record and as per the statement immediately after the incidence (First in Time) the driver of the truck did not lock the truck and key were inside the truck along with other documents. And therefore, the opponents have repudiated the claim on just and proper reasons. The Forum has not considered above facts and therefore, the judgment/ order of Forum is not just and proper and require intervention and therefore, this appeal is allowed and we pass final order as under: The appeal is allowed. The order of Rajkot District Consumer Disputes Redressal Forum dated 30.11.2010 under complaint no. 113 of 2009 is set aside and as a result the complaint is disallowed".

HENCE , the present revision petition.

WE have heard the learned counsel for the petitioner and the respondent and have carefully gone through the records of the case.

LEARNED counsel for the petitioner has stated that as per the repudiation letter the ground for repudiation are that the "petitioner had failed to take reasonable care and precaution of vehicle which a prudent man ought to have taken", because as per the respondent, the driver had parked the truck leaving the key in the cabin which permitted an easy access and facilitated theft of the vehicle. Learned counsel for the petitioner has vehemently argued that the keys had not been left in the cabin of the truck, but in the office room and after repudiation of the claim they had made hard efforts and intensive search and could find out both the ignition keys, diesel tank keys and truck cabin keys and the same were submitted before the District Forum. He further argued that even if it is accepted, for arguments sake, that the keys had been left in the cabin of the vehicle, the claim should have been settled on non -standard basis as per the judgment in the case Amalendu Sahoo vs Oriental Insurance Co. Ltd., 2010 2 CPJ 9 .

LEARNED counsel for the respondent has however, stated that it was very clear from the papers on record that the keys of the truck had been lost/ stolen along with the truck. He drew our attention to the report of Sun Investigation Bureau which states that "Remarks on keys of the vehicle No key produced by insured. Insured stated that the keys were in the cabin". Further as per the report of Sun Investigation Bureau, the petitioner had stated that the following had been kept in the cabin of the truck no. GJ 3Y 9807 when the theft took place :(i) insurance policy (ii) original invoice (iii) key of truck (iv) national permit (v) Gujarat fitness (vi) Gujarat tax receipt and (vii) service book. In the list of documents submitted and verified by the investigator at S no. 20 ''Keys of vehicle'' it had clearly been mentioned that "NO". This fact is further supported by a letter of Sun Investigation Bureau addressed to Vajsurbhai Vala dated 25.06.2008 wherein they have acknowledged the receipt of the documents given to them. The receipt of keys are not mentioned.

LEARNED counsel for the respondent also drew our attention to the statement of Vajsurbhai Vala, wherein he had stated that "I am the owner of truck bearing no. GJ 3Y 9807 and ownership of the above bearing number truck is my own which has been stolen from Mumbai, with the below mentioned original documents which was kept in the cabin of the truck at the time of theft; Copy of insurance (ii) original invoice (iii) key of vehicle (iv) national permit (v) Gujarat fitness (vi) Gujarat Tax receipt and (vii) service book of vehicle. The original RC Book is in my possession which is at present kept in the police station, which shall be presented as and when it is given to Vajsurbhai Vala".

SHRI Vajsurbhai Vala had also given a statement dated 13.09.2008 which read as under: "TATA Truck GJ 3Y 9807 which had been stolen from Mumbai Goregaon office, the original key of that vehicle had been lost, moreover the duplicate key had also lost. I give clarification for the same".

HE also drew our attention to the statement of Shri Vajsurbhai Vala dated 13.09.2008 on Rs.50/ - non -judicial stamp paper which reads as under: "I Vajsurbhai Vala do hereby confirm that following things have been lost with truck no. GH 3y 9807: National Permit (ii) Insurance Policy (iii) Fitness Certificate (iv) Key of the said truck (5) Tax paid receipt and (vi) Service record".

WE have also gone through the case of Amalendu Sahoo vs Oriental Insurance Co. Ltd. As per the guidelines, it was only applicable where the violation of the terms and conditions did not directly contribute to the cause of action. Here, it cannot be said that leaving the key in the cabin of the said vehicle did not directly contribute to its theft.

IN view of the above, we are of the considered view that the petitioner has failed to give any evidence to show that the keys of the vehicle were not left in the vehicle at the time of its theft and that in fact, the keys had been left in the office room of the petitioner as claimed. There is no explanation as to why the keys were not given to the respondent/ investigator and were only produced much later before the District Forum. In fact all the statements made by the petitioner and his partner point to the key having been left in the vehicle. We agree with the observations of the State Commission: "After repudiation of the claim by the opponent insurance company on 22.10.2008, a person named Kamlakar Tukaram Joshi filed his affidavit on 23.10.2008 which is produced at page no. 97 and states on oath that the driver Rajkumar Shivraj Chavle parked the truck in front of office at Goregaon and thereafter he locked both the door of the cabin and took out ignition key, cabin door key and bunch of papers and kept all these things in the office room and thereafter he went to his home. Similarly, on 25.10.2008 driver Rajkumar Shivraj Chaule also made affidavit before notary. It is not incorrect to state that both the affidavit has been filed after repudiation of claim. So that it can be said that reasonable care have been taken by driver and policy holder but both the facts are contrary to the statement of Vajsurbhai. Till the date of statement of Vajsurbhai dated 13.09.2008 before the investigator, the case of the complainant was that the keys and duplicate keys and other documents were in the truck. One fact is clear that the statement made by Vajsurbhai before the investigator is as per the information supplied to him by their person at Mumbai. Now the complainant says that the Vajsurbhai did not have personal knowledge and therefore his statement should not been taken as concrete evidence".

THE Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

IN view of the above, we find that there is, no jurisdictional or legal error or misrepresentation of facts have been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.