CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE





FIRST APPEAL NO.1179/2008 Date of Filing:- 26/08/2008

IN CONSUMER COMPLAINT NO.43/2008 Date of Order:- 18/08/2009

DISTRICT CONSUMER FORUM, ADDITIONAL THANE





Smt.Kiran Rajeev Sharma,

R/at E-6/11, Annapurna CHS,

Sector-48, Nerul,

Navi Mumbai-400 706 ... Appellant (Org. Complainant)

-Versus –



1) Divisional Mamger,

M/s. United India Insurance Company Limited,

Vindhya Commercial Complex,

3rd Floor, Plot No.1, Sector-11,

CBD Belapur,

Navi Mumbai-400 614



2) ICICI Bank Limited,

RPG Tower, 248, Andheri-Kurla Road,

J.B.Nagar,

Andheri(East),

Mumbai ... Respondents (Org.Opponents)





Corum :- Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member,

Smt.S.P.Lale, Hon’ble Member.



Present :- Mr.Nagraj Hoskari, Adv. for the Appellant.

Mrs.Urmila Sanil, Adv.for the Respondents



O R D E R



Per Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member



1) Being aggrieved by the order of dismissal passed by the Additional District Consumer Forum, Konkan Bhavan, Navi Mumbai in Consumer Complaint No.43/2008 decided on 19/7/2008, the original complainant has filed this appeal.



2) Facts to the extent material may be stated as under :



3) Complainant Smt.Kiran Rajiv Sharma had filed consumer complaint against United India Insurance Company Limited/O.P.No.1 and against O.P.No.2/ICICI Bank Limited, Andheri(East), Mumbai. She pleaded in her complaint that she is having business in the name and style Kiran Kool Cab Services. She gives on hire the taxies or kool cabs to the parties. She had purchased Tata Indica car No.MH-43-D-2658 for Rs.4,56,405/-. She had purchased for this car Passenger Carrying Commercial Vehicle Package Policy from O.P.No.1. Said policy was in force from 27/9/2006 to 26/9/2007. She had paid annual premium for this policy. She had taken the vehicle on the car loan given by O.P.No.2. According to the complainant on 14/4/2007, she had given the car to Tripati Travels Nerul, Navi Mumbai on hire who had give it to Mr.Rajesh Singh, the traveler who wanted to go to Mahabaleshwar. However, said passenger asked the driver to take vehicle to Andheri via Dadar. From Andheri he directed to take the vehicle to Sahar. The traveler asked the driver to bring for him one bottle of water and some cigarettes. After a while he brought those articles. He then asked the driver to go and bring breakfast for him and since those were summer days he directed the driver to keep A.C. of the car on. The driver kept A.C. on and left the key of the car in the car itself and went to bring to breakfast. When he came back with the breakfast to his surprise the car was missing. He immediately told this fact to the complainant and lodged report of theft in Vile Parle Police Station where F.I.R. was registered U/s 406 & 379 of I.P.C. After car theft, the complainant sent three letters to the insurance company. She had lodged insurance claim with the O.P.No.1 but her insurance claim was rejected by repudiation letter dated 3/12/2007. Hence, she filed consumer complaint claiming amount of Rs.4,56,000/- with interest at the rate of 18% and also claimed Rs. 1 Lakh for loss of business and further another amount of Rs.1 Lakh towards mental agony.



4) The O.P.No.1/insurance company filed written statement and contested the complaint. O.P.No.1 admitted that the vehicle was insured with it and while policy was in force, the complainant reported about the theft of vehicle. She had also lodged F.I.R. in Vile Parle Police Station. She had lodged claim with them. They therefore appointed Surveyor. The Surveyor submitted survey report. They had appointed M/s.Thee Escorts to investigate the claim. The Investigator submitted the report and opined that the driver of the vehicle left vehicle with engine running and kept ignition key in the vehicle itself and it is because of this the passenger took away the vehicle. So, there was gross negligence on the part of driver of the vehicle. The driver of the vehicle committed breach of condition No.5. He had not taken all reasonable steps to safeguard the insured vehicle from any loss or damage. The insurance company also repudiated the claim on the ground that owner had hired the vehicle to Tirupati Travels, Nerul which attracts general exception No.2 of the policy under which any claim arising out of contractual liability is not payable. The insurance company therefore pleaded that they had rightly repudiated the claim and they were not guilty of deficiency in service. The insurance company therefore prayed that the complaint should be dismissed with cost.



5) On the basis of documents and affidavits placed on record, the Forum below held that driver of the vehicle belonging to the complainant was irresponsible. He had kept vehicle at the mercy of unknown passenger. He was also negligent in keeping the ignition key of the car in the car itself. He left the car with A.C. and engine of the car on and therefore he facilitated commission of the theft of the car by unknown passenger. Therefore, the Forum below laid all the blame on the driver of the complainant. The Forum below also held that the complainant committed breach of term No.5 of the policy and therefore it was pleased to dismiss the complainant. Aggrieved thereby, the complainant itself filed this appeal.

6) We heard submissions Mr.Nagraj Hoskari, Adv. for the appellant and Mrs.Urmial Sanil, Adv. for the respondent/insurance company.



7) We are finding that the Forum below rightly decided the complaint. The driver of the car was very much negligent in leaving the car at the mercy of unknown person with ignition key left in the car itself. Thereby he invited unknown passenger to steal the car. So, this was recklessness, utter negligence on the part of the driver of the complainant. So, complaint can not escape from the charge that her driver was negligent in leaving the car with ignition key in the car itself with engine on though the passenger was unknown to him. It is for this reason the Forum below rightly held that there was breach of term No.5 of the policy by the owner of the vehicle. Hence, the insurance claim was rightly repudiated by the insurance company. We are also agreeing with the finding recorded by the learned District Consumer Forum. Mr.Hoskari, relied upon the judgment of Hon’ble Supreme Court, delivered in Civil Appeal No.3409/2008 National Insurance Company Limited –Versus— Nitin Khandelwal delivered on 8/5/2008. The said judgment in our considered view is not applicable to the facts of our case even to give 75% of insurance claim on non standard basis. In our view, the Forum below rightly dismissed the complaint and we are finding no substance in the appeal. Hence, we pass following order.

O R D E R

1) Appeal stands dismissed.

2) Parties are left to bear their own costs.

3) Copies of this order be sent to the parties free of cost.





( Smt.S.P.Lale ) (P.N.Kashalkar )

Member Presiding Judicial Member

Malve/-