(PER MR. JUSTICE RAM SURAT RAM (MAURYA), MEMBER)

1.      Heard Mr. Puneet Raj, Advocate for the petitioner and Mr. Navneet Kumar, Advocate, for the respondent.

2.      The complainant has filed above revision against the order of State Consumer Disputes Redressal Commission, Delhi, dated 31.08.2017, allowing First Appeal No.93 of 2013 filed by the opposite party/the respondent and setting aside the order of District Consumer Forum (V), North West District, Delhi, dated 10.10.2012 passed in Consumer Complaint No.1527 of 2009 and dismissing the complaint.

3.      The office has reported 167 days delay in filing the revision. The impugned order was passed on 31.08.2017 and the revision was filed on 28.05.2018. The petitioner has stated that although the impugned order was passed 31.08.2017 but its free certified copy was not received. The petitioner applied for issue of certified copy on 22.01.2018, which had become ready on 01.05.2018 and received on the same day. From the date of issue of certified copy, the revision is within time.  

4.      Ajit Singh (the petitioner) filed CC/1527/2009, for directing M/s. Reliance General Insurance Company Limited (the respondent) to pay (i) Rs.1900000/- as insurance claim, for theft of his insured vehicle and business loss; (ii) litigation costs; and (iii) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

5.      The complainant stated that he had purchased a dumper (Tata Hiwa) Engine No.60J62505045 J-T-J 221528 and Chassis No.396522, Registration No HR-69-6832 with the financial assistance of Magma Leasing Limited, Karnal, for approximately Rs.1700000/-. The complainant obtained Motor Vehicle Package Insurance Policy No.2005372343100053 from M/s. Reliance General Insurance Company Limited for the period of 16.10.2007 to 15.10.2008, for IDV Rs.1340000/-. The complainant employed Ratan Lal S/o Sh. Sukhdeve, R/o village Khadod, P.O. Belhar, district Banka, Bihar, as the driver on the above dumper, who had a valid driving licence. The dumper was attached with Om Construction Company Biswa Mill Rai, Sonepat, Haryana. In the night of 12/13.04.2008 at about 24:00 hours, the driver Ratan Lal parked the dumper by the side of G.T. Road near a transformer, at village Singhola and went to attend the call of nature. When he came back after 10 minutes, the dumper was not found at the place, where it was parked. He searched the dumper but its whereabouts were not traced. On information, the complainant and the driver both searched the dumper but it was not found. It was stolen by some unknown person. On the complaint of the driver Ratan Lal, FIR No.83/2008, under Section 379 IPC was registered on 14.04.2008 at 12:15 hours at Police Station Alipur, North West Delhi. The police submitted report dated 22.06.2008 that the dumper was not traceable. The complainant informed the Insurer about the theft of the dumper on 24.04.2008 and later on submitted claim form. The opposite party, vide letter dated 07.01.2009, repudiated the claim on the ground that the driver had left the ignition key in the ignition switch at the time of the theft, which was violation of Condition No. 4 of the Terms of the policy. The complaint was filed on 12.10.2009, alleging that the claim was wrongly repudiated, which amounts to deficiency in service.

6.      M/s. Reliance General Insurance Company Limited (the respondent) filed its written reply, in which the material facts as stated in the complaint are not disputed. The respondent stated that after receiving the claim, the Insurer appointed an Investigator, who recorded the statement of the complainant who stated that the driver Ratan Lal had left the ignition key in the ignition switch at the time of the theft. This amounts to gross negligence on the part of the driver, which facilitated theft of the dumper. There was violation of Condition No. 4 of the Terms of the policy. Therefore the claim was repudiated vide letter dated 07.01.2009. There is no deficiency in service on the part of the Insurer.    

7.      District Forum, vide order dated 10.11.2012, held that as the opposite party had not filed Affidavit of the Investigator as such its report could not be read in evidence. The complainant, in his Affidavit of Evidence, has stated that the Investigator had neither taken statement of the complainant nor his driver Ratan Lal, which remained un-rebutted. On this finding, the complaint was allowed and the opposite party was directed to pay Rs.1340000/- with interest @10% per annum from 15.10.2009 till the date of payment, Rs.30000/- as compensation for mental agony and harassment and Rs.10000/- as litigation cost.

8.      The opposite party filed First Appeal No.93 of 2013, against the aforesaid order. State Commission, by the order dated 31.08.2017, found that the statement of the complainant as recorded by the Investigator was filed along with Affidavit of Evidence of Satyan Kapur, Deputy Manager Legal of the opposite party and exhibited. District Forum has illegally ignored this document. The complainant admitted this document but stated that this statement was given on the assurance of the Investigator for early settlement of the claim. But the complainant has not taken any such plea in the complaint as such his explanation regarding his statement was an afterthought. As the driver Ratan Lal had left ignition key in ignition switch of the dumper at the time of the theft, there was violation of Condition No. 4 of the Terms of the policy and there was no illegality in repudiation letter dated 07.01.2009. On these findings the appeal was allowed and the order as stated above was passed. Hence this revision has been filed.

9.      We have considered the arguments of the counsel for the parties and examined the record. Before District Forum, Satyan Kapur, Deputy Manager Legal of the opposite party, filed his Affidavit of Evidence annexing copy of the statement of the complainant as recorded by the Investigator as exhibit OP1/2. The complainant, in his Affidavit of Evidence, has not disputed his statement. In pagaraph-6 of the Affidavit of Evidence, the complainant stated that the Investigator came to his office to take relevant information and the documents, where the complainant gave him the key of the dumper. When he asked about the second key of the dumper, the complainant informed that it was misplaced. Then he suggested that if the complainant wants to get the claim easily and speedily, he has to give a statement to the effect that when the vehicle was stolen, the key of the same was lying in the vehicle. On the aforesaid assurance and advice of the Investigator, the complainant has given the statement that at the time of theft, the key of the vehicle was lying in the vehicle, while the real fact is that the key of the vehicle was not in the vehicle at the time of the theft.   

10.    In view of the admission of the complainant, in his Affidavit of Evidence, about his statement as recorded by the Investigator, District Forum was not justified to ignore his statement, which was filed along with Affidavit of Evidence of Satyan Kapur, Deputy Manager Legal on the ground that the Affidavit of Evidence of the Investigator was not filed.     

11.    Admittedly, the second key of the dumper was misplaced and could be produced by the complainant. State Commission found that as the complainant has not stated in the complaint that his statement as recorded by the Investigator that the driver Ratan Lal had left ignition key in ignition switch of the dumper at the time of the theft, had been recorded on the false assurance of early settlement of the claim, as such his explanation in this respect in his Affidavit of Evidence, is not liable to be believed. The petitioner has also filed a copy of FIR No.83 dated 14.04.2008 lodged on the basis of oral information of Ratan Lal (the driver) in which it has been mentioned that on 12/13.04.2008 at about 12:00 PM, I had parked the dumper at G.T. Road, near Singhola Village Transformer and gone for natural call/toilet and about 12:10 PM when I came back, I saw that the dumper was not there. Finding of fact recorded by the appellate authority on appreciation of evidence on record that at the time of theft ignition key of the vehicle was left in it, cannot be interfered by this Commission, in exercise of revisional jurisdiction.

12.    Now the question arises for consideration that as to whether leaving ignition key in the vehicle for about 10 minutes in the night and going of the driver of attending nature’s call amounts to breach of clause-4 of the Insurance Policy, which is quoted below: -

“The insured shall take all reasonable steps & safeguard the vehicle from loss or damage and to maintain in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle 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.”

13.    This Commission in RP/1896/2008 M/s New India Assurance Company Limited vs. Ajit Kumr (decided on 04.09.2013); RP/1893/2016 Cholamandalam MS General Insurance Company Limited vs. Ashish Kumar Walccha (decided on 20.04.2017) and Supreme Court in SLP (Civil) No.6518 of 2018 Kanwarjit Singh Kang vs. M/s ICICI Lombard General Insurance Company Limited (decided on 29.03.2022) held that leaving ignition key in the vehicle at the time of theft amounts to breach of the terms of the policy and the claim is liable to be repudiated.

14.    Supreme Court in Ashok Kumar vs. New India Assurance Company Ltd., AIR 2023, SC 3622 reversed the judgment of this Commission and distinguished judgment in Kanwarjit Singh Kang’s case (supra) and held that leaving ignition key in the vehicle for a short period and theft of the vehicle in the meantime is not fundamental breach of the terms of the policy even if there was short carelessness of the driver. Relevant paragraph-15 of the judgment is quoted below: -

“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.”

15.    Condition No.4 of the terms of policy requires that the insured shall take all reasonable steps to safeguard the vehicle from loss. The reasonable means something that is fair. Salmond in law of Torts defined “accident, like mistake” is either culpable or inevitable. It is culpable when due to negligence but inevitable, when, avoidance of it would have required a degree of care exceeding the standard demanded by the law. Inevitable accident is commonly a good defence both in civil and criminal law.       

16.    In National Insurance Company Limited vs. Nitin Khandelwal (2008) II SCC 259, the driver of a Mahindra Scorpio, a private vehicle, stopped the vehicle in the way to lift some unknown person, who snatched the vehicle and stolen it, Supreme Court held that in case of theft of the vehicle breach of condition is not germane. In Manjeet Singh vs. National Insurance Company Limited (2018) 2 SCC 108, the driver of the truck, picked up the passenger from the road, who later on, snatched the truck and stolen it, Supreme Court held in a cold wintery night, the driver gave lift to the passenger on humanitarian gesture, who later on snatched the truck, it was not breach of the terms of policy.

17.    Supreme Court in Ashok Kumar’s case (supra) found that leaving ignition key in the vehicle by the driver for a short period, during which, the vehicle was stolen is not a breach of the condition of the policy. The counsel for the insurer tried to distinguish this case, as in this case, the driver was nearby the vehicle at the time of theft. But that is not the real test for breach of the condition. The driver left the vehicle with ignition key to attend the call of nature. Supreme Court found that it was carelessness of the driver and does not amount to breach of the terms of the policy. The counsel for the insurer lastly submitted that settlement of claim on “Non-standard Basis” was the policy of New India Assurance Company Limited, which was not a government company. Its policy cannot be imposed upon private insurance companies. If the act was found as not amounting to the breach of condition, then full insurance amount is payable.

                                              O R D E R

In view of the aforesaid discussions, the revision petition is allowed. The order of the State Commission dated 31.08.2017 passed in FA/93/2013 is set aside. The order of District Forum dated 10.10.2012 passed in CC/1527/2009 is modified and the respondent is directed to pay Rs.1340000/- with interest @ 6% per annum from October, 2008 till the date of payment, within a period of two months from the date of this judgment.