This revision petition has been filed by the petitioner M/s. Royal Sundaram General Insurance Co. Ltd. against the order dated 02.02.2017 passed by the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) in FA No.1015 of 2012.

2.      Brief facts of the case are that the vehicle of respondent No.1/complainant was insured with the petitioner Insurance Company and the insurance was valid from 01.07.2009 to 30.06.2010.  The vehicle was stolen on 03.02.2010.  The FIR was lodged on 05.02.2010 and intimation to the Insurance Company was given on 06.02.2010.  The Insurance Company appointed an investigator, who submitted his report on 11.03.2010.  On the basis of the investigator report, the Insurance Company repudiated the claim on 02.06.2010.

3.      Aggrieved, the complainant filed a consumer complaint bearing No.1039/10 before the Consumer Disputes Redressal Forum-VI, Distt. New Delhi, (in short ‘the District Forum’).  The complaint was resisted by the opposite party/Insurance Company on the ground that the vehicle was stolen due to negligence on the part of the driver of the vehicle as ignition key was left inside the vehicle and the vehicle was left unattended.  It was further claimed that even the cabin was not locked as no cabin keys could be provided to the investigator. The District Forum, however, allowed the complaint vide its order dated 20.09.2012 and directed the opposite party to pay IDV of Rs.11,50,000/- along with 9% interest from the date of denial, and to pay compensation of Rs.50,000/- for harassment and litigation expenses.

4.      Aggrieved by the order of the District Forum, the opposite party Insurance Company preferred an appeal bearing No.1015 of 2012 before the State Commission.  The State Commission vide its order dated 02.02.2017 dismissed the appeal.

5.      Hence the present revision petition.

6.      Heard the learned counsel for the parties and perused the record.

7.      Learned counsel for the petitioner stated that ignition key was left in the vehicle in the ignition socket.  In this regard the driver has given a statement before the investigator.  The driver has made the following statement before the investigator:-

“Around 6.00 p.m. I gave the key of the said truck to conductor and went away to barber shop for shaving.  After half an hour, conductor Raju had gone for toilet.  The Ignition Key was inserted at ignition point.  Around 7.00 p.m. when I came back from the market I noticed that the said truck was missing from the parking place and the conductor was also not there at that moment.  After massive search the conductor met me at the gate of the company and told me that he was looking for me.  He thought that I had gone somewhere with the truck.”      

8.      Moreover, even the insured has given the following statement:-

“One Ignition Key of my vehicle was fitted in the ignition of the vehicle at the time of theft and stolen along with the vehicle and one no.cabin key was misplaced from my cleaner after theft of my vehicle during searching of the above truck.  And second No.Ignition Key is lying with the finance and the second N.cabin key lying in my office and at present not traceable.”

9.      Learned counsel further mentioned that even the cabin lock was open at the time of theft, which facilitated the theft.   From the above statement of the insured, it is clear that one cabin key was lost by the cleaner and other cabin key was in the office of the insured but the same was also not traceable.  The driver in his statement has also confirmed that cabin key was lost.  Both the fora have given a finding that the cabin was locked and this finding is without any basis and without any evidence.  Clearly, there has been violation of condition Nos.1 and 5 of the policy.  According to the condition No.1, immediate intimation was required to be given to the police. However, the incident of theft had happened on 03.02.2010, whereas FIR was lodged on 05.02.2010.  Thus, no immediate intimation to the police was given.  Even the intimation to the Insurance Company has been given on 06.02.2010.  Thus, no immediate information was given to the police and even the Insurance Company was informed with a delay of 3 days.  Thus, here has been clear violation of condition No.1. The condition No.5 demands that the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it properly.  In the present case, clearly there has been negligence on the part of the driver and conductor who have left the ignition key inside the vehicle and the cabin lock open.  These negligent acts have been admitted by the driver as well as by the insured.  Thus, there has been a clear violation of condition No.5 as well.  Learned counsel contended that both the fora below have overlooked these aspects and have allowed the insurance claim of the insured, which is totally illegal. In support of his arguments learned counsel referred to the judgment of this Commission in Oriental Insurance Co. Ltd. Vs. Shyam Sunder, 2014 SCC OnLine NCDRC 319, wherein this Commission has allowed the revision petition of the Insurance Company against the concurrent orders of the fora below and has dismissed the insurance claim of the complainant on the basis of the fact that the driver was negligent as the driver left the ignition key in the ignition socket. 

10.  To support his arguments, learned counsel for the petitioner further relied upon the judgment of this Commission in Universal Sompo General Insurance Co. Ltd. & anr. Vs. Chander Singh & anr., 2016 SCC OnLine NCDRC 1790.

11.    On the other hand learned counsel for the respondent No.1/complainant stated that the Insurance Company has itself accepted that the Cabin was locked as mentioned in para 11 of the written statement of the opposite party, it has been mentioned that:-

“11.   …… no prudent man shall leave the keys of the vehicle fitted in the ignition of the vehicle and locked the cabin and leave the vehicle on road unguarded..”

12.    It was argued by the learned counsel for the complainant that both fora below have given concurrent finding of fact that the cabin was locked and in a revision petition facts cannot be reassessed, therefore, the question of cabin lock cannot be raised presently before this Commission.  The learned counsel further stated that the State Commission has clearly recorded the fact that when cleaner went to the toilet, he locked the cabin.  Thus, the locking of the cabin has become an undisputed fact. 

13.    It was further stated by the learned counsel for the complainant that there was no delay in reporting the matter to the police as police take some time to accept the FIR, which has been lodged on 05.02.2010.  Even the Insurance Company was informed the next day as they required copy of the FIR.  Thus, the condition No.1 of the policy is fully satisfied.  The police have finally filed “no trace report” therefore, the incident of theft is confirmed.

14.    Learned counsel for the respondent No.1 stated that breach of conditions is not germane in the matter of theft of the vehicle.  Learned counsel relied upon the judgment of Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008 (7) SCALE, wherein the following has been held:-

“13.  In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle breach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

15.    Learned counsel for the respondent No.1 further relied upon the following judgments:-

(1)      New India Assurance Company Ltd. & Anr. Vs. Girish Gupta, III (2014) CPJ 663 (NC).  It has been held that:

“21……  The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the Insurance Policy.

(2)      National Insurance Company Ltd. Vs. Ajay Kumar Amichand Kheera, I (2014) CPJ 430 (NC).  It has been held that:-

“7.     Learned counsel for the revision petitioner argued that the petitioner was not liable to pay the claim as the key of the vehicle was left within the vehicle which amounted to violation of condition No.5 of the policy.  This was mentioned by the driver and the cleaner in the statement before the police on the same day. The FIR shows that the key, along with original papers of the vehicle and some cash, were left in the cabin tool box of the bus.  In our view this needs to be seen together with the reports of the investigator appointed by the OP, mentioned above.  It is clearly reported therein that the vehicle was parked in a place where such transport buses and tourist vehicles are normally parked on the station road.  Thus, the case for violation of condition no.5 is negated by the evidence led on behalf of the OP/Insurance Company itself.” 

16.    Learned counsel for the respondent No.2 stated that the respondent No.2 is the financier of the vehicle and Rs.5,17,538/- was due on the complainant on 18.03.2016.  Hence, whatever amount is approved, the dues of the financier should be cleared first by the Insurance Company. He stated that he supports the Insurance claim of respondent No1. 

17.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.  The vehicle was stolen on 03.02.2010 and the FIR has been lodged on 05.02.2010 and the intimation was given to the Insurance Company on 06.02.2010.  The Insurance Company also appointed the investigator, who submitted its report on 11.03.2010. So far as the condition No.1 is concerned lodging of FIR within two days and intimation being given to the Insurance Company within 3 days cannot be considered to be as much delayed so as to disallow the total insurance claim as the person owning the vehicle will spend some time in searching the vehicle on his own.  Hon’ble Supreme Court in Om Prakash Vs. Reliance General Insurance and another, Civil Appeal No.15611 of 2017, decided on October 4, 2017 has accepted this fact and the delay of 8 days in filing the FIR and delay of 8 days in giving intimation to the Insurance Company has been condoned for considering the Motor Insurance Claim. Hence in my view, the violation of condition No.1 is not that serious in the present case so as to deny the total Insurance claim.  Coming to the condition No.5, it is seen that the driver had left the ignition key inside the vehicle and therefore, this is clearly a negligent act on the part of the driver, which he has admitted in his statement given to the investigator.  Even the insured has given a statement corroborating the same.  Thus, this fact is not in dispute that the ignition key was left inside the vehicle.  The ignition key is an important instrument which will facilitate the starting of the motor vehicle and the vehicle can be taken away easily by any person who has an intention to steal the vehicle. By leaving the ignition key inside the vehicle, the driver and the conductor have facilitated the theft of the vehicle.  So far as the question of cabin key is concerned, though the argument advanced by the learned counsel for the petitioner fully support the view that the cabin was not locked, yet because both the fora below have given concurrent finding that the cabin was locked, I do not intend to reverse the concurrent finding of fact recorded by the fora below in the light of the decision of the Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been 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 that 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 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 finding of two fora.”

18.    In my view, this does not make any difference whether the cabin was locked or not because if the person knows that the ignition key is inside the vehicle, he can definitely break the cabin door to reach to the ignition key.  Therefore, the main issue is of ignition key, which was definitely left inside the vehicle, which facilitated the theft of the vehicle.  In a similar case this Commission in Mahabir Singh, Vs. Reliance General Insurance Company Ltd. & Ors., RP No.735 of 2013 decided on 16.01.2018 (NC) has observed and decided the following:-

“12. In a similar case of key being left inside the vehicle, in New India Assurance Company Ltd Vs. Girish Gupta, RP No.590 of 2014, decided on 31.07.2014 (NC), this Commission has agreed with the order of the State Commission allowing the claim on non-standard basis, by observing the following:-

“21.  This condition in our considered view requires insured to take reasonable steps for protection of the insured vehicle from any loss or damage.  The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy.  Whether or not there is breach of condition will always depend upon the facts of the case.  The car is said to have been stolen when the driver parked the vehicle at road side and went to ease himself, forgetting to remove the keys from ignition.  This lapse on the part of the driver cannot be treated as wilful breach of condition no.5 on the part of the driver.  If in the hurry to answer the call of nature the driver forgot to remove keys from the ignition switch he cannot be said to have committed wilful breach violation of the terms of the above condition no.5.  In our aforesaid view we are supported by judgment of Punjab & Haryana High Court in the matter of Bajaj Allianz General Insurance Company Ltd. Vs. M/s Sagar Tour & Travels & Anr. P.L.R. Vol. CLX IV- (2011-4)”

13.  As the facts are similar in the present case, the decision in New India Assurance Company Ltd. vs. Girish Gupta (supra) can safely be applied in the instant case.

14. Hon’ble Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) has opined that even in cases where there is any breach of warranty/conditions of policy, an amount upto 75% of the admissible claim can be agreed to.  In the case of  New India Assurance Company Ltd. vs. Girish Gupta (supra) the vehicle was an Indica car whereas in the present case a truck is involved which would have required more care and precaution as the value of IDV was much higher. In these circumstances, we deem it appropriate to partly allow the revision petition and to order that 60% (sixty percent) of the IDV along with interest at the rate of 6% p.a. from the date of order of the District Forum i.e. 02.06.2010 be paid as settlement of the claim by the Insurance Company.  Accordingly, the order dated 19.10.2012 of the State Commission is set aside and the order dated 02.06.2010 of the District Forum stands modified accordingly.”

19.    In the above referred case also, the driver had left the vehicle unattended with ignition key inside the truck.  In the present case, the driver entrusted the truck and the key to the conductor who in turn again went for answering the call of nature without removing the ignition key or without entrusting the truck to any other person.  Though the result is the same in both the case that the truck was left unattended with ignition key inside, the difference between the two cases is that in the above referred case it was negligence of one employee i.e. the driver, whereas in the present case, there has been negligence on the part of two employees i.e. the driver and the conductor.  Hence, in my view greater negligence on the part of complainant’s employees is there in the present case.  Hence, in my view even if the above referred case is applied in the facts and circumstances of the present case, keeping greater negligence in the present case in mind, I deem it appropriate to allow 50% of the insurance claim in the present case.

20.    Based on the above discussion, revision petition no.796 of 2017 is partly allowed and the order of the District Forum dated 20.9.2012 is modified to the extent that the Insurance Company would be liable to pay only 50% of the insurance claim i.e. Rs.5,75,000/- (50% of Rs.11,50,000/-) to the complainant. Remaining order of the District Forum remains unchanged.  Accordingly, the order of the State Commission also stands modified. The order dated 20.09.2012 as modified by this order be complied by Insurance Company within a period of 45 days from the date of receipt/service of this order.