1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 01.06.2017 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter to be referred as “the State Commission”), in Consumer Complaint No. 80 of 2016, wherein the Complaint filed by the Complainant (Appellant herein) was dismissed.

2.      As per office report, there is a delay of 10 days in filing the present appeal by the Appellant. For the reason stated in the application being IA/13966/2019, the same is condoned.

3.      For convenience, the parties in the present matter being referred to as mentioned in the Complaint before the State Commission. Jitendra Sharma is referred to as the Complainant (Appellant herein) whereas Magma HDI General Insurance Co. is denoted as the Opposite Party (OP - Respondent herein).

4.      Brief facts of the case, as per the Complainant, are that the Complainant insured his dumper bearing Registration No.RJ-32-GB-2145 with the OP  from 18.06.2015 to 17.06.2016, paying a premium of Rs.52,528. The vehicle was stolen on 22.01.2016. An FIR No.26 dated 24.01.2016 was lodged at PS Shahajahanpur and claim intimation was promptly given to the insurance company.  A claim was lodged to the Insurance Company dated 25.01.2016. However, on 08.06.2016, the insurer repudiated the claim on ground of violation of condition No.5 of the Insurance Policy as the driver of the vehicle left the ignition key in the unattended vehicle. Being aggrieved, the complainant filed a consumer complaint before the State Commission seeking insured amount along with interest.

5.      In reply before the State Commission, the OP contended that the claim was repudiated on the specific terms and conditions of the insurance policy. The theft of the insured vehicle was due to the negligence of the owner or driver is not covered. The driver’s negligence in leaving the vehicle unattended with ignition key in it had directly led to the theft, which is a clear breach of policy. The driver, admitted to the investigator that he had left the vehicle with the ignition key inside and unattended went to have tea. During this time, the vehicle was stolen. Based on the same and Condition No. 5 of the general exceptions the Insurer repudiated the claim. This excludes coverage for theft resulting from negligence such as leaving the key in an unattended vehicle. Their actions were in full compliance with the policy terms. Thus, there is no deficiency in service. The decision to repudiate the claim was within the scope of the policy.

6.      The State Commission, vide Order dated 01.06.2017 dismissed the complaint with following observation: -

 “There is no dispute about the fact that vehicle was insured with the non-applicant and on 22.1.2016 it was stolen from National Highway 8 where it was parked. It is also admitted case of the complainant that at the time of the incident the driver left the keys in the vehicle to stay on the parking lights as there was heavy fog on that day. Both owner of the vehicle and driver has stated so in the investigation undertaken by the insurance company.

 The contention of the complainant is that driver was vigilant and keys were left only to avoid any accident as there was heavy fog on that day. Be that may be the case but the negligence of the driver is apparent as he has left the keys in the vehicle and due to sheer negligence of the driver the vehicle was stolen and respondent has rightly relied upon II (2014) CPJ 10 (NC) Oriental Insurance Co. Vs. Delhi Assam Roadways Corpn., I (2013) CPJ 630 (NC) Balbir Singh Vs. New India Assurance Co. , II (2014) CPJ 567 (NC) Oriental Insurance Co. Vs. Shyam Sunder, II (2016) CPJ 385 (NC) Shamsur Alam Vs. Reliance General Insurance, IV (2016) CPJ 412 (NC) Universal Sompo General Insurance Vs. Chander Singh where on the same facts the National Commission has held that repudiation is justified as the driver was negligent and keys were left in the ignition. Here in the present case situation is similar that the driver has left the vehicle unattended and having left the keys in the vehicle and due to negligence of the driver the vehicle has stolen.

 The respondent has further relied upon I (2013) CPJ 38 (NC) New India Assurance Co. Vs. Panchsheel Jewellers where the National Commission has held that the terms of the policy have to be strictly construed and the policy condition no. 5 is being violated and repudiation is justified.

 In view of the above, the complaint is dismissed.”

7.      Being aggrieved by the impugned order of the learned State Commission, the Complainant (Appellant herein) filed this present Appeal no. 1507 of 2017 with the following prayer:

a. In light of the facts and circumstances mention above it is most humble respectfully prayed that this Hon'ble Commission may kindly be pleased to:-

b. Set aside the impugned order judgment dated 01-06-2017 passed by the state consumer dispute redressal commission Rajasthan Jaipur in Complaint No.80/2017 and granted the relief which ever is seeked by the complainant.

c. This Order passed by State Commission in appeal 80/2017 Should be set aside and modified with the relief which is demanded by petitioner in consumer complaint.

d. Award the costs of the present proceedings in favor of the Petitioner.

e. Pass any other and further order(s) direction(s) which this Hon'ble Commission many deem it and proper in view of fact and circumstances of the instant case.

8.      The Appellant raised mainly the following grounds:

A. The State Commission committed a legal mistake by failing to give due consideration to the judicial instances and precedents presented. As a result, the order issued by the District Forum be cancelled, and the Appellant's reply should be recorded.

B. The complainant had provided details in the complaint that, at the time of the incident, the truck was parked around 12 AM in January in dense fog. The driver took all necessary precautions by keeping the parking lights, indicators, and emergency lights on and locking the vehicle from the outside, despite leaving the key inside for safety reasons. However, the truck was still stolen. The Appellant asserts that this does not constitute negligence by the driver, and the complaint was wrongly dismissed by the State Commission, ignoring these crucial facts.

C. The State Commission dismissed the complaint on technical grounds. However, the Appellant followed all required procedures, including immediate filing of FIR after the incident and cooperated with police investigation. The Appellant fulfilled all obligations under the insurance policy, and there was no violation of any terms. The State Commission’s dismissal of the complaint is, therefore, legally incorrect, and the Appellant should be granted compensation as described in the original complaint.

D. Their claim could have been resolved using the insurance company's maximum standard rule. The State Commission overlooked this possibility and wrongly rejected the claim itself. This decision is unlawful. They sought appropriate compensation.

9.      In his arguments, the counsel for Appellant/Complainant argued that the Complainant insured his dumper bearing Registration No.RJ-32-GB-2145 with the OP from 18.06.2015 to 17.06.2016, paying a premium of Rs.52,528/-. The vehicle was stolen on 22.01.2016. An FIR No.26 dated 24.01.2016 was lodged at P.S. Shahajahanpur and claim intimation was promptly given to the insurance company. A claim was lodged to the Insurance Company dated 25.01.2016. However, on 08.06.2016, the insurer repudiated the claim on ground of violation of condition No.5 of the Insurance Policy as the driver of the vehicle left the ignition key in the unattended vehicle. He contended that even in cases of willful breach of conditions, the OP should have paid the insured amount.  He sought to set aside the State Commission order and allow the complaint.  He has relied upon the following judgments:

i. New India Assurance Co. Ltd. & Anr. vs. Girish Gupta, R.P. No.590 of 2014, decided on 31.03.2014 by NCDRC;

ii. Mahabir Singh vs. Reliance General Ins. Co., R.P. No.735/2013 decided on 16.01.2018 by NCDRC;

iii. Oriental Insurance Co. Ltd. through Chief Manager, vs. Sabbir, decided on 13.04.2018 by NCDRC;

iv. Oriental Insurance Company Ltd. vs. Shiv Dayal Agencies

Pvt. Ltd., 13.09.2004 by NCDRC.

10.    The learned Counsel for the Respondent Insurer argued that no material irregularity in the learned State Commission order. There is negligence on the part of the complainant and the driver of the vehicle. The burden is on the complainant to prove his allegations in the complaint. He breached the conditions No.5 stipulated in the Insurance policy. He has relied upon Batta Valji Laxman versus ICICI Lombard General Insurance Co. Ltd., 2015 SCC Online NCDRC 1679; and Bajaj Allianz vs. Astha Cement, 2020 SCC Online NCDRC 811 in support of his arguments.

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the parties.

12.    The central issue is whether leaving the key in the vehicle constituted a fundamental breach of Condition No. 5 of the insurance policy, warranting a total repudiation of the claim?

13.    It is an admitted position that the Complainant insured his dumper vehicle with the OP from 18.06.2015 to 17.06.2016, paying a premium of Rs.52,528. The vehicle was stolen on 22.01.2016, and an FIR was lodged promptly. There is no dispute that the IDV of the insurance vehicle is Rs.21,80,250 as per the Policy in question. The insurance claim was filed on 25.01.2016, but the insurer repudiated the claim on 08.06.2016, citing a violation of Condition No. 5 of the insurance policy because the driver left the key in the vehicle. The Complainant's Counsel argued that even if there was a breach of the policy, the insurer should have settled the claim under the principle of non-standard settlement. The Counsel relied on various judgments to support the claim that the repudiation was unjustified. On the other hand, the Respondent's Counsel defended the repudiation, arguing that the complainant had breached Condition No. 5 of the policy by leaving the key in the vehicle, and that this negligence justified the rejection of the claim. They cited relevant judgments supporting their stance that the insurer was justified in its actions.

14.    In the recent judgment, the Hon’ble Supreme Court in the case of Ashok Kumar versus New India Assurance Co. Ltd., 2023, LiveLaw (SC) 587 has held as under:

“14) It is well settled in a long line of judgments of this Court that any violation of the condition should be in the nature of a fundamental breach so as to deny the claimant any amount. [see Manjeet Singh vs. National Insurance Company Limited and Another, [(2018) 2 SCC 108]; B.V. Nagaraju vs. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, [(1996) 4 SCC 647], National Insurance Co. Ltd. Vs. Swaran Singh and Others, [(2004) 3 SCC 297] and Lakhmi Chand vs. Reliance General Insurance, [(2016) 3 SCC 100] ]

15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-

“378. Theft.—Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.”

As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative. It is noticed in the repudiation letter that the driver Mam Chand had, after alighting from the vehicle, gone to enquire about the location of Mittal’s Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away. The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle.

16) The Court of Appeal in England, in the case of David Topp vs. London Country Bus (South West) Limited, [1993] EWCA Civ 15 had occasion to consider the issue, though in the context of liability of the owner of the vehicle for a fatal accident. The facts as set out in the judgment are as follows:-

 “In accordance with usual practice, the driver, Mr. Green, left the bus in that lay-by at the bus stop at about 2.35 p.m. on 24th April 1988. He left it unlocked, with the ignition key in it. He had then a 40 minute rest period before resuming his duties, driving a different bus. There was an arrangement under which the drivers could spend their rest period in the hospital. 23 The expectation was that another driver, about eight minutes after Mr. Green had left the bus in the lay-by, would pick the bus up and drive the same route. But the other driver, who should have picked the bus up at about 2.43 p.m., did not do so because he was feeling unwell. His shift would have been non-compulsory overtime, and he did not report for his overtime. The bus therefore remained in the lay-by. Mr. Green saw it there later and reported that it was still standing there. Therefore, there is no doubt that the depot knew that the bus was there. But, possibly because of shortage of drivers or available staff, nothing was done to pick the bus up that evening. It was taken by somebody who has never been traced just before 11.15 at night, driven for a relatively short distance until the point where Mrs. Topp was knocked down and killed, and it was abandoned round the corner from there.”

 Referring to the judgment of Lord Justice Robert Goff in P.Perl (Exporters) Ltd. vs. Camden London Borough Council [1984] QB 342, the Court of Appeal held as under:-

“In so far as the case is put on the basis that to leave the bus unlocked and with the key in the ignition on the Highway near a public house is to create a special risk in a special category, it is pertinent to refer to a passage in the judgment of Lord Justice Robert Goff (as he then was) in P. Perl (Exporters) Ltd. V. Camden London Borough Council [1984] QB 342 at page 359E-F where he said:

“In particular, I have in mind certain cases where the defendant presents the wrongdoer with the means to commit the wrong, in circumstances where it is obvious or very likely that he will do so – as, for example, where he hands over a car to be driven by a person who is drunk, or plainly incompetent, who then runs over the plaintiff…”

But the sort of cases to which Lord Justice Robert Goff was there referring are far different from the present case. It may be added that that there is no evidence that the malefactor had been frequenting the public house that is shown in the picture; we do not know who he was, nor is there any evidence or presumption that persons who do frequent that particular public house are particularly likely to steal vehicles and engage in joy-riding.”

(underlining is ours)

The above reasoning appeals to us to conclude that the present case was an eminently fit case, where the claim at 75% ought to have been awarded on a non-standard basis. Even if there was some carelessness, on the peculiar facts of this case, it was not a fundamental breach of Condition No.5 warranting total repudiation. It was rightly so ordered by the District Forum and affirmed by the State Commission.

17) Learned counsel for the Insurance Company, in his written submissions, has placed before us an unreported order dated 29.03.2022 passed by this Court in SLP (C) No. 6518 of 2018 titled Kanwarjit Singh Kang vs. M/s ICICI Lombard General Insurance Co. Ltd. & Anr. to support his case on the breach of Condition No.5. We have carefully perused the order. In the said order, it is recorded that concurrently the Claimant lost before the fora below and it is also recorded that the State Commission did not find the ground of leaving the ignition keys in the vehicle to be a valid reason to repudiate the claim. However, on the ground of unexplained and inordinate delay in lodging the FIR, the repudiation was upheld. In that case, while the loss was on 25.03.2010, the intimation to Police was only on 02.04.2010 so clearly it was a breach of Condition No.1. No doubt, in the penultimate paragraph of the order it is recorded that the want of reasonable care on the part of the petitioner in that case operated heavily against the petitioner and it was concluded that the repudiation could not be faulted. However, the primary reason for repudiation was the violation of condition No.1 viz. the delay in intimation to the Police. Further since there was a fundamental breach of Condition No.1, there was no occasion to raise points for settlement of claim on non-standard basis. There is no whisper about the breach of Condition No.5 being not a fundamental breach. We find the present case, on facts, completely different as there is no breach of Condition No.1 because the intimation to the police was immediate. There have been concurrent awards by the District Forum and State Commission on non-standard basis by applying Nitin Khandelwal (supra) and Amalendu Sahoo (supra). Hence, the order will in no manner assist the respondent-Company.

18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct. We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.”

15.    Applying the Hon’ble Supreme Court's reasoning, this Commission determined that although there was some carelessness in leaving the key in the ignition, this did not constitute a fundamental breach of the insurance policy. Therefore, the Complainant is entitled to 75% of the Insured Declared Value (IDV) of the vehicle (75% of Rs.21,80,250).

16.    In view of the foregoing discussions, the impugned order of the State Commission dated 01.06.2017 in C.C. No.80/2016 is set aside and the First Appeal No.1507 of 2017 is partly allowed. The Respondent Insurance Company is directed to pay 75% of the IDV of the insured vehicle (75% of Rs.21,80,250) to the Complainant, along with simple interest @ 7% per annum from the date of filing the complaint before the State Commission. This payment be made within a period of one month from the date of this order. In case of delay, the simple interest rate applicable for such extended period shall be @ 9% per annum.

17.    The F.A. No.1507 of 2017 is accordingly disposed of.

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