1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 28.01.2019  of the State Consumer Disputes Redressal Commission Haryana (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 685 of 2017 in which order dated 17.03.2017 of District Consumer Disputes Redressal Forum Rohtak (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 86 of 2013 was challenged, inter alia praying for setting aside the order dated 28.01.2019 of the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as Complainant was Respondent and the Respondent (hereinafter also referred to as OP was Appellant in the said FA No. 685 of 2017 before the State Commission, the Revision Petitioner was Complainant and Respondent was OP before the District Forum in the CC no. 86  of 2013.

3.       Notice was issued to the Respondent on  11.10.2019 Parties filed Written Arguments/Synopsis on  27.09.2022 and 16.02.2022 respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant purchased a Scorpio vehicle bearing registration no. HR-11-C-0117 Model 2007 and got the same insured with OP through its representative on 11.01.2010.  The policy was valid w.e.f. 04.1.2010 to 03.01.2011 and OP received a sum of Rs.16,722 from the complainant.   The said vehicle was being used by the complainant for  his personal use.  On 29.10.2010 complainant had gone to Haridwar and while he was sitting at a Dhaba and taking tea, one person showed his interest to purchase his vehicle and had taken the key for test drive.  However, the said person did not return with the vehicle and complainant and his associate traced out the said vehicle.  FIR was got registered a Police Station Tatavi.  Application regarding breach of trust was submitted to the said Police Station on 29.10.2010 upon which official of the police post advised the complainant to trace out the vehicle otherwise case would be registered after 2-3 days.   Intimation regarding the said incident was given to the OP well in time and OP demanded various documents from time to time from the complainant.  However, the OP repudiated the claim vide letter dated 24.05.2011 on the ground that  Mr.Parmender and Krishan Kumar ( Driver ) had left the ignition key in the ignition switch, leaving the vehicle in drivable condition which led to the theft of the vehicle which was violation of condition no.4 of the terms and conditions of the policy.  Being aggrieved of the repudiation, complainant filed a CC before the District Forum which allowed the complaint in his favour.   Aggrieved by the decision of District Forum, the OP – Insurance Company filed an  Appeal before the State Commission which was allowed.  Hence the Complainant is before this Commission now in the present Revision Petition.

5.       Vide Order dated 17.03.2017 in the CC no. 86  of  2013 the District Forum has directed the Opposite Party to pay the insured declared value of vehicle i.e. Rs.5,00,000/- along with interest @ 9% p.a. from the date of filing the present complaint i.e. 14.06.2013 till its actual realization and Rs.5000/- as litigation expenses to the complainant.

6.       Aggrieved by the said Order dated 17.03.2017 of District Forum, OP appealed in State Commission and the State Commission vide order dated 28.01.2018 in FA No. 685   of 2017  allowed the appeal, set aside the order dated 17.03.2017 of the District Forum and dismissed the complaint of the complainant.

7.       The Petitioner has filed IA No. 15324 of 2019 for condonation of delay in filing the RP.  However, during the hearing it was found that as per the report of the  Registry, there was no delay.  A further report was also sought from the Registry which confirmed that there was no delay in filing the RP.  Accordingly, this IA stands disposed off with a finding that RP has been filed within the limitation period.

8.       Petitioner / Complainant has challenged the order dated 28.01.2019 of the State Commission mainly / interalia on the following grounds :

1. The State Commission allowed the appeal of the OP on the ground that there was delay in filing FIR .  However there was  no delay on the part of the Petitioner to inform the police as incident had taken place on 29.10.2020 and Complainant informed the police on the next day i.e. 30.10.2020 and police investigated the case and after searching and initial investigation police registered the case and lodged FIR on 04.11.2010 and, therefore, delay of four days in noting the FIR has occurred due to lethargic attitude of the police.

2. There is no evidence on record that ignition key was left inside the vehicle at the time of theft. 

3. The Complainant has not deliberately done an act that resulted in theft and has relied on the findings of this Commission in New India Assurance Company Ltd. Vs. Subhash Kumar 1 (2010 ) CPJ 272.

4. Information to the police in any form including DD report is sufficient requirement and once the report is lodged with the police in any form, the Insurance Company is  barred from appointing investigator to investigate whether theft took place or not. Complainant has relied on the order of the State Commission Panchkula in Shriram Genral Insurance Company Ltd. Vs. Rajesh Kumar.

5. Retention of key in a car ought not be at all times taken as constituting so serious breach as to disentitle the Complainant to make the claim under the police and has relied on the order of the State Commission in United India Insurance Co. Vs. Anirudh Singh.

9.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

9.1     Counsel for the Petitioner apart from the repeating the points which are stated in para 8,  argued that in Civil Appeal No. 505 of 2021 Dharmender Vs. United India Insurance Co. Ltd., Hon’ble Supreme Court in view of the judgment reported in ( 2020 ) 1 SCC 612 Gurshinder Singh Vs. Shriram General Insurance Company Ltd. & Anr., held that when an insured has lodged the FIR immediately after the theft of the vehicle occurred and when the police had lodged a final report after the vehicle was not traced and when the surveyor / investigators appointed by the Insurance Company have found the claim of theft to be genuine, mere delay in intimating the insurance company about the occurrence of theft cannot be ground to deny the claim of the insured.  It was argued that in First Appeal No. 1034 of 2015 New India Assurance Co. Ltd., Vs. Tirath Singh Awatar Singh Bhatia this Commission held that insurance policy covered the loss of vehicle by burglary,  house breaking or by malicious act. 

9.2.    Counsel for the respondent argued that in contract of insurance the liability of the insurance company is only as per terms and conditions of the insurance policy.   Counsel has relied on the order of the Hon’ble Supreme Court in Ravneet Singh Bagga V KLM Royal Dutch Airlines ( 2000) 1 SCC 66).  Counsel further argued that terms of an insurance policy are to be strictly construed and insured cannot receive a benefit which was not envisaged by the contract of insurance.  Counsel has relied on the following judgments of the Hon’ble Supreme  Court :

1. United India Insurance Co. Ltd. Vs.  Harchand Rai Chandan Lal ( 2004) 8 SCC 644
2.  Surajmal Ramniwas Oil Mills Vs. UIIC 2010 ( 10) SCC 567
3.  Oriental Insurance Co. Ltd. Vs. Sony Cheriyan ( SCC P 455 Para 17)
4. General Assurance Society Ltd. Vs. Chandumull Jain
5. Vikram Greentech ( I)  Ltd.  Vs.   New India Assurance Company ( 2009 ) 5 SCC 599.

          It was further submitted that this Commission has got no jurisdiction to try, entertain and adjudicate the present complaint and present complaint involves determination of complicated question of fact and law. He has relied on the following judgments of the Hon’ble Supreme Court and National Commission :

1. Synco Industries Vs. State Bank of Bikaner and Jaipur ( 2002) 2 SCC 1
2.  TRAI Food Ltd. Vs. National Insurance Co. ( 2004 ) 13 SCC 656
3. Bombay Dying and Manufacturing Co. Vs. Union Bank of India 1 (2001) CPJ 1 ( NC)
4. NEPA Vs. Madhya Pradesh Electricity Board 1 ( 2003 )  CPJ  138 ( NC)
5. R D Papers Vs. New India Assurance  Co. Ltd. 1 ( 2004 ) CPJ 101 ( NC)

          The insured should have taken reasonable steps to safeguard the vehicle from loss or damage and should not have handed over keys to an unknown person.  The driver of vehicle should have taken reasonable steps at least sit and accompany the person to whom the keys were handed over. Counsel for the respondent contended that in New India Assurance   Co.Ltd. Vs. T V Sarathi RP No. 2555 of 2005, National Commission held that insurance company would not be liable to loss / damage of unattended property if insured was found negligent in safeguarding the said property. 

10.     Heard both sides.

11.     In this case, the claim of the petitioner has been repudiated vide letter dated 24.05.2011 on the ground that insured has not taken reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition, by stating that driver had left the ignition key in the ignition switch, thus leaving the vehicle in the drivable condition, which has directly contributed to the theft of the vehicle, which is violation of the policy terms and conditions, namely, policy condition no. 4.  Further, the repudiation letter states that vehicle was voluntarily handed over to some unknown person, which has resulted into loss of vehicle as unknown person fled away with the vehicle.

12.     It was contended by the petitioner that State Commission has gone beyond the grounds taken by respondent / insurance company in their repudiation letter as the appeal of the respondent / insurance company has been allowed by the State Commission on the grounds of delay in filing FIR.  In support of his contention, he has relied on the decision of Hon’ble Supreme Court in JSK Industries Pvt. Ltd. Vs.  Oriental Insurance Company Limited  2022 SCC Online SC 1451. The petitioner further stated that in the complaint, date of going to Haridwar as 04.11.2010 is a typographical error and should be read as 29.10.2020.  He further stated that in the affidavit Ex. CW1/A date has been correctly mentioned as 29.10.2010, yet the State Commission has wrongly concluded that date is mentioned as 04.11.2010 in both complaint as well as affidavit. Counsel for the petitioner further stated that police has already filed an untraced report and relying on the judgment of Hon’ble Supreme Court in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. 2020 SCC Online SC 80 that vehicle has been stolen cannot remain in dispute.

13.     Counsel for the respondent / insurance company on the other hand contended that there is a clear violation of policy condition no. 4 as petitioner on a visit to Haridwar, away from his normal place,  hands over his vehicle to some unknown person for test drive. He / driver could have either verified the credentials of the prospective buyer or atleast sat with him in the vehicle for the purpose of said test drive.  Counsel for respondent also stated that intimation dated 30.10.2010, which is claimed to have been given to the police has not been produced before the State Commission / District Forum.

14.     In Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd. [(2019) 19 SCC 70], Hon’ble Supreme Court has held  as  under :

“23.   Hence, we are of the considered opinion that the law, as laid down in Galada ( Galada Power & Telecommunication Ltd. Vs. United India Insurance Co. Ltd. ( 2016) 14 SCC 161 : ( 2017) 2 SCC ( Civ 765) on  Issue ( 2), still holds the field.  It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation.  If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC.”

The ratio of the decision in this case was applied by the Hon’ble Supreme Court in the case of JSK Industries ( supra ). In Gurshinder Singh ( supra ), Hon’ble Supreme concurring with the view taken by it in Om Parkash Vs. Reliance General Insurance and Anr. ( Civil Appeal No. 15611 of 2017) decided on 04.10.2017, observed that if the claimant is denied the claim merely on the ground that there is some delay in intimating the Insurance Company about the occurrence of the theft, it would be hyper technical view.  Accordingly, the Hon’ble Supreme Court in Gurshinder Singh  (supra) held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced, …….. then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.

15.     In its order dated 28.01.2019, State Commission has observed “ the delay on the part of the complainant to lodge the report with the police at the earliest goes to the very root of the case, more so when we find from the complaint as well as the affidavit Ex. CW1/A tendered by the complainant before the learned District Forum that it was on 04.11.2010 he had gone to Haridwar along with his associates and not on 29.10.2010.”.  Hence in view of the observations by  Hon’ble Supreme Court in Saurashtra Chemicals ( supra ) we find merit in the contentions of the Petitioner, as perusal of repudiation letter dated 24.05.2011 shows that this was  not the ground for repudiation, not even one of the grounds. Further, we find that the explanation of the complainant acceptable that date 04.11.2010 mentioned in the complaint is a typographical error, as in the affidavit accompanying the complaint, the date is seen correctly mentioned as 29.10.2010, and not 04.11.2010, as has been wrongly  mentioned in the order of the State Commission.  If we go by observation of the State Commission that the date of incident is 04.11.2010 and not 29.10.2010, then there is no delay in filing the FIR, as lodging the FIR on 04.11.2010 and intimation to Insurance Company on this date is not in dispute.  In the instant case, keeping in view the reasons for repudiation mentioned in the letter dated 24.05.2011, we do agree with the contention of the respondent that the action of the petitioner in handing over of the vehicle at a  Dhaba, to an unknown person for a test drive, without checking the credentials of the prospective purchaser, shows that he has not taken reasonable steps to safeguard the theft of the vehicle.  The least he could have done in the given circumstances, is to sit in the vehicle along with the prospective purchaser for the purpose of test drive.  However, considering that theft of the vehicle is not in dispute and intimation of same was given to police immediately and there is a valid insurance policy otherwise, such a lapse on the part of insured / his driver, may not be sufficient to repudiate the claim in toto.  The respondent / Insurance Company in such circumstances could  have considered the claim atleast on non-standard basis.  Hence,  the petitioner / his driver’s such careless action has been a contributory factor for the theft. However, we do not find that State Commission had enough evidence before it to conclude that “…… possibility of theft / incident having taken place a long before the institution of FIR or intimation being submitted to the Opposite Party cannot be ruled out.” 

16.     In view of the foregoing, and after considering all the facts and circumstances of this case, we aside the order dated 28.01.2019 of the State Commission. However, considering the aspects of contributory negligence on the part of insured as stated in the preceding paras, we are of the view that order of District Forum also need to be modified as insured cannot get the full IDV of the vehicle in view of his contributory negligence.  Interest of justice will be met, if we restrict the entitlement of the claim of the insured to 50% of IDV only.  Accordingly, the order of District Forum is modified to that extent and rest of the order of the District Forum is upheld.

17.     Revision Petition is disposed off accordingly.

18.     The pending IAs in the case, if any, also stand disposed off.