1.      This Order shall decide both Revision Petitions Nos. 216 and 217 of 2022 filed by Shri Pratap Singh/Complainant under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) arising from the impugned Order dated 12.11.2021 passed by the learned State Consumer Disputes Redressal Commission, Uttar Pradesh (‘State Commission’) in FA Nos. 873/2018 and 1068/2018 respectively, wherein the State Commission partly allowed the FA No.873/2018 of the Respondents No.1 to 3/Insurance Company and dismissed the Appeal No.1068/2018 of the Petitioner/Complainant. In turn, the District Consumer Disputes Redressal Forum-II, Agra (‘District Forum’) vide Order dated 01.02.2018 allowed the CC No.01/2014.

2.      For convenience, the parties are referred to as placed in the original Complaint before the District Forum. Sh. Pratap Singh is the Complainant and IFFCO Tokio General Insurance Co Ltd. is referred to as the OP-1 to 3 and Indus Ind Bank Limited is denoted as OP-4.

3.      Brief facts, as per the Complainant, are that the Complainant is the registered owner of a truck Regn No. RJ-05GA-4307 insured by the Respondent No.1 to 3/OP-1 to 3/ Insurance Company from 17.08.2012 to 16.08.2013. Only a cover note No. 81008173 was issued and no booklet of terms and conditions was provided. On 28.02.2013, the truck was parked by the driver at Shadara Chungi, NH-2, PS. Eitunadaula, Agra around 7.00 - 8.00 PM. The driver left for about 30 minutes to have dinner, during which the truck was stolen. The driver promptly informed the Complainant, who attempted to file FIR at P.S. Eitunadaula, but was unsuccessful. He then sent a letter on 01.03.2013 to the SSP via registry regarding the stolen truck, but the report still wasn't registered. He filed an application under Section 156(3) of the Cr.PC. before the court, resulting in court ordering registration of FIR on 25.03.2013 (Case Crime No. 325/ 2013). After investigation, a Final Report dated 09.05.2013 was filed, which the court accepted on 25.08.2013. He filed a claim with the insurance company, which was repudiated on 29.10.2013. Being aggrieved, he filed a Consumer Complaint.

4.      In reply before the District Forum, OP- 1 to 3 averred that the claim was repudiated based on the terms of the policy. The insured vehicle was left unattended with its cabin doors open and unlocked, which constituted negligence on part of the insured/driver.  The claim was rejected citing Term No. 4 of the policy, which mandates that the insured must take all reasonable steps to secure the vehicle from any loss or damage.  The OP4 is a Performa Party in the present case.

5.      The learned District Forum vide Order dated 01.02.2018, allowed the complaint with the following findings:

"The complaint of the complainant is allowed against the respondent no. 01 to 03. Respondent numbers 01 to 03 are ordered to pay the insured declared value of the vehicle in question is Rs.9,80,000/- and pay interest on this amount to the complainant within one month of this decision from the date of filing the complaint till the date of payment of interest at the rate of 06 per cent per annum. As complainant litigation expenses Rs. 5000/- is entitled to be received from the respondents.”              (Extracted from translated copy)

6.      Being aggrieved by the District Forum Order, the Petitioner/ Complainant filed Appeal No. 1068 of 2018 and the State Commission vide Order dated 12.11.2021 dismissed the same with the following observations:-

“6. The appellant states that the learned District Forum has passed an order for mental, physical and financial compensation to the complainant, ignoring the mental distress caused to the complainant and the financial loss due to the rejection of the claim of insurance. Apart from this, the complainant had demanded 24% annual interest on the sum insured and according to the story of the complainant/appellant, at least 18% annual interest was to be given to the complainant, but this fact has also been ignored by the learned District Consumer Forum. On this basis, this appeal has been presented with a prayer to increase the amount of interest and get mental, financial and physical compensation. No concrete reason has been shown by the appellant/complainant to prove that the learned District Consumer Forum has wrongly paid the amount of less interest. On the other hand, perusal of the evidence presented in the concerned Appeal No. 873/2018, it is clear that there has been negligence and negligence in the safety of the vehicle by the driver of the complainant Mr. Anil for which the complainant himself is indirectly responsible, so in such a situation it is also not appropriate to get the full sum insured to the complainant. The learned District Consumer Forum has appropriately given the prevailing rate of interest of the present bank at 6% per annum interest on the undisclosed amount, which cannot be said to be unfair in any way. Due to the involvement of the complainant himself in the complete damage of the vehicle, it does not seem appropriate to give mental, physical and financial damage to the complainant, so the appeal in question is liable to be dismissed completely.

Order

The Appeal is dismissed.

In appeal, the parties will bear their own expenses.’’

7.      Being dissatisfied by the District Forum Order, the OP-1 to 3 have also filed Appeal No. 873 of 2018 and the State Commission vide Order dated 12.11.2021 partly allowed the same as follows:

“9. In this case the appellant insurance company has accepted the claim of insurance in respect of the total damage i.e. theft of the respondent's truck on the ground that his vehicle in question was not fully protected and thus the condition no.4 of the insurance policy has been violated. From the perusal of the insurance policy, it is clear that the condition number 4 has been given in such a way that the insured shall take all measures to safeguard the vehicle so as to avoid loss or damage to the vehicle in question. This condition is as follows:-

"Insured shall take all reasonable steps to safeguard the vehicle 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 in short 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 repair are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."

10. It is clear from the perusal of the Repudiation letter dated 29/10/2013 that the claim of insurance has been denied on the ground that the driver of the vehicle Mr. Anil Kumar had not properly locked the cabin door of the vehicle in question from the conductor side. Due to this, the theft criminal got full opportunity to steal the vehicle. Thus, the complainant himself is responsible for the damage to the vehicle and the denial of insurance is justified as the policy is in violation of No. 4 above. The learned District Consumer Forum has written in its decision:-

11. "Respondent Insurance Company has rejected the claim on the basis of surveyor report, Surveyor report has been filed but no affidavit has been filed in support of it. On what basis did the surveyor conclude that the cabin of the truck in question was unlocked? The driver had gone to eat food at the dhaba after parking it. No satisfactory evidence has been filed by the respondent insurance company to make it clear that the driver had left the vehicle unattended without locking it but on perusal of the evidence available on the records it is clear from this that the complainant himself has accepted the above fact in his statement, it is clearly mentioned in the statement of the complainant Pratap Singh attached with the surveyor report.

12. "But the conductor's side door was neither latched from inside nor locked from outside and without locking the conductor's side cabin door leaving the truck alone and unattended, went to eat at Ashish Dhaba on the roadside at some distance from there and at around 8:00 when driver Anil came back after having dinner, he saw that my above truck RJ 05 GA 4307 was not parked there."

13. Similarly, this type of mention has come in the statement of the driver Anil son Raghuveer, in which it is said that "And I locked the driver side door of the truck cabin with the key but without locking the conductor side door the above vehicle was allowed to stand alone." Leaving it went to eat food at Ashish dhaba which is some distance away and when I came back after having dinner, I saw that the above truck was not parked. My mobile number 9999270036 with the truck which was kept in the cabin of the truck also got stolen."

14. Both the above statements have been notarized and filed. In respect of these statements, no such rebuttal of the complainant has come that he or his driver Anil had not made any such statement, which is clear from the evidence presented that the fact is established in favor of the complainant in keeping the vehicle in question safe. Negligence has been committed but this negligence does not appear to warrant rejection of the claim of whole insurance on this ground. For the said negligence, it is justified to reduce the claim of Insurance in this regard it would be pertinent to refer to the judgment passed by the Hon'ble Supreme Court, National Insurance Company Limited Vs. Nitin Khandelwal IV CPJ Page I (S.C.), in which the Hon'ble Supreme Court has held that if the complainant has contributed towards the loss of the insured item in connection with the claim of insurance, then it would be appropriate to get 75 percent of the sum insured on a non-standard basis by not paying the entire sum insured.

15. The above decision of the Hon'ble Supreme Court was followed by the Hon'ble Court again in the judgment AmarendraSahu Per Oriental Insurance Co. Ltd Published II (2010) CPJ Page 09 (S.C.). In this decision also, it has been decided by the Hon'ble Supreme Court that in case of violation of the condition of insurance, instead of cancellation of the entire claim, 75 percent of the insurance claim amount can be provided on non-standard basis.

16. Keeping in view the above decisions of the Hon'ble Supreme Court, it is appropriate to get 75% of the total amount of insurance in the form of claim of insurance to the respondent number 1/complainant. The learned District Consumer Forum in its decision has not included the fact that the complainant's driver was also responsible for the entire loss of the insured article in question, for which the complainant is not indirectly liable and due to this also the entire amount of insurance is paid to the complainant is not a good idea. Thus, the appeal is partly allowed.

ORDER

The appeal is partly allowed. The impugned order and decision of the learned District Consumer Forum is changed in such a way that on non-standard basis, the insurance company should provide 75 percent of the sum insured to the complainant and on this amount, the complainant will also get 6% annual simple interest from the date of complaint.

In appeal, the parties will bear their own expenses.”

8.      Dissatisfied by the State Commission order dated 12.11.2021, the Petitioner/Complainant filed the present Revision Petitions before this Commission for enhancement of the compensation.

9.      It needs to be mentioned that the OP-1 to 3 did not file any Revision Petition against the State Commission order of 12.11.2021.

10.    Heard the Learned Counsel for both the parties. Perused the entire material on record inter-alia Orders of both the fora.

11.    Considering the fact that OP-1 to 3 have not challenged the State Commission Order dated 12.11.2021, the same is final with respect to the said OPs.

12.    The only remaining dispute is whether the learned State Commission rightly partly allowed the Appeal filed by the Insurance Company and dismissed the Appeal of the Petitioner/ Complainant seeking enhancement of compensation vide order dated 12.11.2021 in Appeal Nos.873 and 1068 of 2018 respectively? In this regard, it is an admitted position that with respect of the statement of the driver of the vehicle in question, no rebuttal of the Complainant is on record. The Petitioner/Complainant has not brought anything substantial which would entail scope for enhancement of compensation that has already been allowed.

13.    It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019, (which is pari materia to Section 21(b) the Consumer Protection Act, 1986) confers very limited jurisdiction on this Commission. In the present case there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. From the facts emerged and the arguments made, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned District Forum and the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Act. In this regard, I rely upon the decision of Hon'ble Supreme Court in 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

14.    The Hon'ble Supreme Court in 'Sunil Kumar Maity Vs. State Bank of India & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022, it was held that the revisional Jurisdiction of this Commission is extremely limited by observing as under: -

"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the OP-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

15.    Similarly, the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held:-

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally  or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

16.    Based on the discussion above, I do not find any illegality or material irregularity with the well reasoned orders passed by the learned State Commission. Therefore, both the present Revision Petitions No.216 and 217 of 2022 are dismissed.

17.    There shall be no order as to costs.

18.    All pending Applications, if any, stand disposed of accordingly.