Manager, Bajaj Allianz General Insurance Company Limited v. Chairperson, Permanent Lok Adalat
2017-03-28
BISWANATH RATH
body2017
DigiLaw.ai
JUDGMENT BISWANATH RATH, J. - This writ petition has been filed assailing the award dated 30.6.2016 find place at Annexure-4 where the Permanent Lok Adalat allowed the application filed by the opposite party No.2 under Annexure-1 directing therein the present petitioner to pay 3/4th of Rs.11,25,162/- as compensation to the opposite party No.2 for loss of his vehicle under insurance cover of the present petitioner. 2. Short back ground involved in the case is that the opposite party No.2 is the registered owner of TATA TIPPER bearing Registration No.OR-07-Z-7677 being insured with the present petitioner-company under Commercial Vehicles Package Policy bearing No.OG-14-2413-1803-00001426 remaining valid from 29.3.2014 till 28.3.2015 mid night. It appears, during validity of the Insurance Policy, indicated hereinabove, the vehicle of the opposite party No.2 was stolen in the night of 26th January 2015 on which a F.I.R. was lodged with B.N. Pur Police Station in the district of Ganjam on 28.1.2015.Subsequently, on 11.2.2015 the opposite party No.2 also informed the petitioner-Insurance Company in writing regarding the loss of the vehicle and making thereby a claim for the value of the vehicle being covered under the policy stated hereinabove. Upon receipt of the claim, the petitioner-Insurance Company requested the opposite party No.2 for submission of original documents involving the truck for surrendering of two number of ignition keys and further asked the opposite party No.2 to submit an explanation as to why the claim will not be repudiated for violation of conditions contained in the Insurance Policy, particularly, keeping in view the violation of condition No.5 of the Insurance Policy. It is that finding the negative attitude of the Insurance Company, the petitioner approached the Permanent Lok Adalat under the provision of Legal Services Authority Act, 1987 for appropriate compensation. The proceeding was registered as P.L.A. Case No.8 of 2015. The proceeding was disposed of on contest of the parties but with an order in favour of the opposite party No.2 thereby directing the present petitioner to pay 3/4th of the value of the TATA TIPPER of Rs.11,25,162/- involving Insurance Policy No.OG-14-2413-1803-00001426 towards loss of the insured vehicle.
The proceeding was registered as P.L.A. Case No.8 of 2015. The proceeding was disposed of on contest of the parties but with an order in favour of the opposite party No.2 thereby directing the present petitioner to pay 3/4th of the value of the TATA TIPPER of Rs.11,25,162/- involving Insurance Policy No.OG-14-2413-1803-00001426 towards loss of the insured vehicle. While declining to grant any interest on compensation, the Permanent Lok Adalat also further directed if the amount, as directed is not paid within a period of two months, the opposite party No.2 shall be entitled to get interest @ 9% per annum from the date of filing of the application till the date of release of the amount. Being aggrieved by the award passed by the Permanent Lok Adalat involving P.L.A.Case No.8 of 2015, this writ petition is filed in this Court assailing the impugned order. 3. The petitioner has contended that there has been gross violation of the condition No.5 of the Insurance Policy as both the ignition keys of the vehicle could not be surrendered to the Insurance Company as a matter of specific condition in the policy. Further, for keeping the ignition keys of the vehicle as well as the original papers of the vehicle inside the cabin, which are all being taken away along with vehicle, violation of condition No.5 of the Insurance Policy is well established leaving any scope in entertaining the claim of the petitioner. It is further contended by Sri Adam Ali Khan, learned Counsel appearing for the petitioner-Insurance Company that apart from violation of condition No.5, the petitioner has also violated the condition No.1 of the Insurance Policy by not lodging F.I.R. as well as giving intimation to the Insurance Company immediately after the loss of the vehicle. Sri Khan, learned Counsel for the Insurance Company-petitioner taking help of the decisions rendered in the cases of ICICI Lombard General Insurance Co. Ltd. & Ors. v. Sh. Pawan Kumar,2014 (2) CRP 623 (NC), Branch Manager, United India Insurance Company Limited v. Mr. Jogendra Singh, 2014 (4) CPR 454 (NC), Cholamandalam Ms. General Insurance Company Ltd. V. Mahesh Kumar & Anr., 2016 (1) CPR 141 (NC) as well as in the case of Reliance General Insurance Company Limited v. Vinod Kumar,2016 (3) CPR 502 (NC) requested this Court for interference in the award passed by the Permanent Lok Adalat and settlement of the issue. 4.
General Insurance Company Ltd. V. Mahesh Kumar & Anr., 2016 (1) CPR 141 (NC) as well as in the case of Reliance General Insurance Company Limited v. Vinod Kumar,2016 (3) CPR 502 (NC) requested this Court for interference in the award passed by the Permanent Lok Adalat and settlement of the issue. 4. Sri Ashok Das, learned Counsel appearing for the opposite party No.2 registered owner of the vehicle on the other hand submitted that the delay in lodging the F.I.R. as well as the complaint before the Police and the Insurance Authority was bonafide. Justifying the delay, Sri Das submitted that after the delivery of goods on the particular date, the vehicle was kept inside the boundary i.e. in the premises of Sri Aurobinda Ashram, Ankoli, Berhampur. The vehicle was stolen in the night of 26.1.2015 where after initially searching for the vehicle here and there though submitted the F.I.R. on 27.1.2015 but the Police registered the same on 28.1.2015. As per the practice the driver of the opposite party No.2, the driver used to sleep in the cabin of the vehicle. So, as a normal practice, the key and original documents were kept in the Fast Aid Box placed inside the cabin behind the driver seat. Due to ill health, the driver of the vehicle on the said night slept in the Guest House of the Ashram and could not notice the theft of the vehicle. Justifying the delay in making the complaint to the Insurance Company, Sri Das, learned counsel for the opposite party No.2 submitted that since the Police was investigating the matter, the opposite party No.2 could not feel it necessary to report the matter to the Insurance Company immediately and when he found that the Police is unable to track the TIPPER, the stolen vehicle, he was forced to inform the Insurance Company though at a belated stage and thus contended that the delay is bona fide and his claim shall not be turned down on mere ground of delay. Referring to the decision rendered in the cases of Amar Singh v. National Insurance Company Limited, I (2009) CPJ 6 and United India Insurance Co. Ltd. & Anr.
Referring to the decision rendered in the cases of Amar Singh v. National Insurance Company Limited, I (2009) CPJ 6 and United India Insurance Co. Ltd. & Anr. v. Ravikant Gopalka, 2007 STPL 17937 NC, Sri Das, learned Counsel appearing for the opposite party No.2 submitted that the decisions have the support to the case of the opposite party No.2 and justifies the award passed by the Permanent Lok Adalat. Accordingly, he claimed for not interfering in the award passed by the Permanent Lok Adalat and dismissing the writ petition. 5. Admitted fact involved in the matter is that the opposite party No.2 is the owner of the TATA TIPPER bearing Registration No.OR-07-Z-7677 and the petitioner is the insurer of the vehicle owned by the opposite party No.2 indicated hereinabove. There is also no dispute with regard to the fact that the vehicle was stolen on the night of 26.1.2015. F.I.R. was lodged on 28.1.2015 and a written complaint was made to the Insurance Company on 11.2.2015. Sole question arise here for determination is as to whether there is violation of condition contained in the Policy involving the TIPPER and thereby if the Permanent Lok Adalat is justified in passing the award in favour of the opposite party No.2 ? Before proceeding to decide other aspects, it is now necessary to deal with the condition in the Insurance Policy involving the vehicle stolen. Annexure-5 to the writ petition is a standard form of Commercial Vehicle Package Policy to have been attached to the Insurance Policy appended as Annexure-A in the trial court proceeding. Conditions available at page 32 therein, particularly, the condition No.1 and condition No.5 therein read as follows : “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy.
Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under the policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.” 5. The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk. 6. Reading of the aforesaid two conditions, it became crystal clear that not only a notice is required to be given to the Insurance Company in writing on the theft of the vehicle or damage of the vehicle but it also mandates that such intimation should be made to the company immediately after the occurrence of any accidental loss of damage or in the event of any other claim with further attachment of further notice to the Police by the insurer itself. From the facts scenario narrated hereinabove, since the theft took place on 26.1.2015 and theft F.I.R. being lodged on 28.1.2015 and also the intimation to the Insurance Company being made on 11.2.2015 it is apparent that there has been violation of the condition No.1 contained in the Insurance Policy. Now coming to the condition attached to condition No.5, reading of the condition quoted hereinabove it becomes apparent that it is also the duty of the owner of the vehicle, who should take all reasonable steps to safeguard the vehicle from loss or damage.
Now coming to the condition attached to condition No.5, reading of the condition quoted hereinabove it becomes apparent that it is also the duty of the owner of the vehicle, who should take all reasonable steps to safeguard the vehicle from loss or damage. The facts narrated hereinabove clearly reveal that the opposite party No.2 remain careless in leaving the key as well as the original documents of the TIPPER inside the vehicle even when the vehicle remain totally idle and thereby failed to safeguard the vehicle insured from loss or damage. The plea of the opposite party No.2 that one of the key of the vehicle was damaged and he left the only key inside the vehicle is a clear admission that the opposite party No. 2 did not take sufficient measures to safeguard the vehicle insured from loss. Conditions in the policy are binding in nature on both the sides and violation of the binding condition debars a person from being entitled to compensation on account of loss of the vehicle. Even though the parties have referred to several decisions in their favour, this Court finds no necessity for referring to those decisions for difference in the factual scenario therein on the position of law, this Court finds the Hon’ble Apex Court in the case of Oriental Insurance Company Limited v. Parvesh Chander Chadha, Civil Appeal No.6739 of 2010 decided on 17.8.2010, held as follows : “12. Since the terms and conditions of the Insurance policy which the insured had issued to the complainant in Parvesh Chander (supra), had not been reproduced in the order of the Hon’ble Supreme Court, we perused the order passed by this Commission in the above referred case. However, the terms and conditions of the policy were not reproduced even in the judgment of this Commission. It however, became evident from a perusal of the judgment that the insurance policy was issued for the period from 17.1.1995 to 16.01.1996. On further examination of the issue, we found that standard form for private car policy was prescribed by the Tariff Advisory Committee from time to time, which is binding upon all the insurance companies.
It however, became evident from a perusal of the judgment that the insurance policy was issued for the period from 17.1.1995 to 16.01.1996. On further examination of the issue, we found that standard form for private car policy was prescribed by the Tariff Advisory Committee from time to time, which is binding upon all the insurance companies. The relevant clause of the insurance policy, applicable at the time the complainant in Parvesh Chander (supra) took the insurance policy, reads as under : “Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter, claim, writ, summons and/or process or a copy thereof shall be forwarded to the Company immediately on receipt of the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, Inquest or Fatal Inquiry in respect of any occurrence which may given rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.” This Court finds the case at hand has the full support of the decision referred to hereinabove and thus finds there is force in the submission of Sri Khan, learned Counsel appearing for the petitioner-Insurance Company. 7. Considering the rival contention and taking into consideration the decision of the Hon’ble Apex Court referred to hereinabove and also on perusal of the impugned order, this Court finds the award passed by the Permanent Lok Adalat is wrong not only for improper appreciation of the binding conditions involved in the Insurance Policy but also contrary to the decision of the Hon’ble Apex Court. 8. Under the circumstances, this Court has no hesitation in interfering in the impugned award of the Permanent Lok Adalat passed in P.L.A. Case No. 8 of 2016 appearing at Annexure-4 and quash the same. In the result the writ petition stands allowed. No order as to cost. Petition allowed.