1.         The present Revision Petition (RP) has been filed by the Petitioners against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 04.10.2017 of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 988/2016 in which order dated 04.08.2016 of District Consumer Disputes Redressal Forum, Faridabad (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 130/2014 was challenged, inter alia praying for setting aside the order dated 04.10.2017 and 04.08.2016 of the State Commission and District Forum respectively.

2.         While the Revision Petitioner(s) (hereinafter also referred to as Opposite Party) was Appellant before the State Commission and Opposite Party before the District Forum and the Respondent(s) (hereinafter also referred to as Complainant) was Respondent before the State Commission and Complainant before the District Forum.

3.         Notice was issued to the Respondent(s) on 11.07.2018. Parties filed Written Arguments on 04.09.2023 (Petitioner) and 22.08.2023 (Respondent) respectively. Additional written arguments/copies of case laws were also filed by the Parties on 22.04.2024 (Petitioner) and 22.05.2024 (Respondent).

4.         Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:

(i)        The Respondent/Complainant took an Auto Secure Commercial Vehicle Package Policy bearing No. 015239961200 for his TATA LPT Truck (registration No. HR-38-R-8473) from the Petitioner Insurance Company for a value of Rs. 14.00 lacs, valid from 27.03.2013 to 26.03.2014.

(ii)       On 04.08.2013, while the truck was being driven by Shaukat, he parked it near Shikrawa Lake to answer nature’s call, leaving the cabin unlocked and the ignition key at the ignition point. When he returned, the truck was missing. The next day, 05.08.2013, he filed a complaint (FIR No. 324 under Section 379 IPC) for the theft of the said truck at PS Punhana, District Mewat.

(iii)     On 08.08.2013, after a delay of 4 days, the Respondent/Complainant informed the Petitioner Insurance Company about the claim. The Petitioner registered it as Claim No. 657642 and appointed Vikaas Kumar & Associates to investigate. The investigator's report, dated 24.09.2013, concluded that the theft occurred due to the negligence and carelessness of the Respondent/Complainant's driver, who left the ignition key in the ignition and the cabin unlocked while attending to nature's call. Based on this report, the Petitioner issued a show cause notice to the Respondent. Upon receiving no response from the Respondent/Complainant, the Petitioner, via  letter dated 25.02.2014, repudiated the claim for not adhering to Condition No. 5 of the Insurance Policy.

(iv)      On repudiation of the claim, the Respondent filed a complaint before the District Forum, seeking the claim amount along with compensation, interest, and litigation expenses. The District Forum, after reviewing the evidence, observed that the grounds for rejecting the claim were without any basis and cogent reasons. District Forum noted that the driver’s statement did not indicate a lack of care for the vehicle. Furthermore, the Forum stated that leaving the key in the ignition on all occasions cannot be considered a serious breach warranting denial of the insurance claim. Therefore, the rejection of the claim was deemed a deficiency in service by the Insurance Company, and the complaint was allowed and Opposite party was directed to pay Rs.14,00,000/- with interest @9% p.a. from the date of filing of this complaint till realization of amount along with Rs.5500/- as compensation towards mental agony, harassment and Rs.2200/- as litigation expenses to the complainant.

(v)       Dissatisfied with the District Forum's decision, the Petitioner Insurance Company filed an Appeal with the State Commission to set aside the District Forum's order. After reviewing the case, the State Commission upheld the District Forum's order and dismissed the appeal.

5.         Petitioner(s) have challenged the said Order dated 04.10.2017 of the State Commission mainly/inter alia on following grounds:

(i)        The State Commission and District Forum failed to appreciate the fact that the theft of said insured Truck took place due to own negligence and carelessness of the Respondent/Complainant under which the Driver of the said Truck without taking proper precaution and safety of his vehicle left the ignition key of the said Truck at Ignition point and further left cabin of said truck unlocked while he parked it at road side and went for nature's call and due to easy access to the ignition of the said Truck, the thief stole the said Truck.

(ii)       The State Commission and District Forum failed to appreciate the fact that the Respondent/Complainant has failed to produce/submit original ignition key of the said Insured Truck with the Revisionist.

(iii)     The State Commission and District Forum have erroneously interpreted the clause of insurance policy.

(iv)      The State Commission and District Forum did not consider catena of judgement passed by this Hon’ble Commission by which it has been held that such act of leaving the key at ignition point and/or leaving the insured vehicle unattended without any safety and precaution amounts to negligence and careless in terms of insurance policy and disentitled the insured to the claim amount.

6.         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.

            6.1       In addition to the averments made under the grounds (para 5), the petitioner contended that the driver of the Respondent/Complainant did not take proper safety and care to safeguard the said Truck, in terms of the Condition No. 5 of the Insurance policy, the Respondent was not entitled to the claim amount and accordingly, the Revisionist vide its letter dated 25.02.2014 repudiated the claim of the Respondent/Complainant in terms of clause 5 of the Insurance Policy. It is further evident from the hand written statement of Shaukat, Driver of the said Truck, that he left the original ignition key of the said truck at ignition point without locking the cabin of said truck while went for nature’s call. In view of the foregoing, petitioner relied upon the following judgements:

(i)        Bachhu Singh Vs. National Insurance Co. Ltd. & Ors. In FA No. 36 of 2017 decided on 27.04.2017.

(ii)       Tata AIG General Insurance Co. Ltd. Vs. Mahendra Singh & Anr. in RP No. 1239 of 2018 decided on 21.05.2019.      

(iii)     United India Insurance Co. Ltd. Vs. Roshanlal Oil Mills & Ors. (2000) 10 SCC 19

(iv)      Suraj Mal Ram Niwas Oil Mills Private Limited Vs. United India Insurance Company Limited and Another, (2010) 10 SCC 567

(v)       Oriental Insurance Co. Ltd. Vs. Sony Cheriyan, (1999) 6 SCC 451

(vi)      National Insurance Co. Ltd. Vs. Vinod Puri, 2014 SCC OnLine NCDRC 997

            6.2       On the other hand Respondent contended that the said vehicle was insured with an Insured Declared Value of Rs.14.00 Lacs. The truck was stolen on 04.08.2013, and a police complaint was filed. Inspite of this, the insurance claim was denied citing violation of condition no. 5 of the terms and conditions of the policy. Respondent filed a complaint under Consumer Protection Act, 1986 seeking Rs.14.00 lacs with interest, compensation for harassment, and litigation expenses as the terms and conditions of the insurance policy have not been adduced in evidence to make it clear that what particular precautions, the respondent and the driver were required to take to save the vehicle from commitment of theft or burglary. In support of their contentions, respondent relied upon the following judgements:

(i)        National Insurance Company Limited Vs. Nitin Khandelwal, 2008 (3) CPC 559

(ii)       Reliance General Insurance Company Limited and another Vs. Rajesh Kumar in Civil Writ Petition No. 23209 of 2011

7.         We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties. In this case, the claim has been repudiated by the Insurance Company mainly on the ground of violation of condition 5 of the policy relating to taking all reasonable steps to safeguard the vehicle, contending that the driver had left the ignition key in the vehicle and left the vehicle open while going for nature’s call. Learned counsel for respondent on the other hand disputes the statement of the driver stating that it does not bear any date or does not state as to whom such a statement has been given. The petitioner on the other hand contends that even the claim form filed by the respondent and the report of the surveyor appointed by them shows that the key of the vehicle was left inside. Extract of relevant portion of letter dated 25.11.2013 issued by Petitioner-Insurance Company to the Respondent-Complainant is reproduced below:

“We invite reference to your claim, against theft as reported to us on 08.08.2013 and our earlier letter dated 25.11.2013. We again would like to bring to your notice that, in written statements by you and your driver (Mr. Shaukat), it has been categorically mentioned that on that fateful day while your driver was going to Nangal, Rajasthan, had stopped the vehicle near Shikrawa Canal and went on to attend to nature’s call; leaving the ignition key at the ignition point. Here we would like to draw your attention to the policy condition no. 5, which states that:

       “The 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 time 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 left unattended without proper precaution being taken to prevent the further damages or loss and if the vehicle driven before the necessary repairs are affected any extension of the damages or any further damage to the vehicle shall be entirely at the insured’s own risk”.

              We regret, therefore, that we are unable to entertain this claim.

The foregoing declination of insurer liability is issued on the facts as presently known. We reserve the right to extend or modify this declination should additional facts or circumstances become known to us.”

8.         Although delay in intimation was not mentioned in the above stated letter dated 25.11.2013, State Commission duly and appropriately addressed this contention of the Insurance Company raised before the State Commission. As regards negligence on the part of the driver in leaving the ignition key in the vehicle and leaving the vehicle unattended, State Commission has observed as follows.

“13. In fact, as per version of the opposite party main cause of repudiation of insurance claim is the violation of condition No.5 of the terms and conditions of the policy stating that the vehicle was left un-attended and the ignition key was also left when the driver had gone to a nearby field after parking the vehicle on one side of the road. The complainant in his complaint has not mentioned that ignition key was in the vehicle. In FIR also it is not mentioned that the ignition key was in the vehicle when theft was committed. Version of the opposite party is that driver of the vehicle has stated in his statement before the surveyor of the Insurance Company that when he parked the vehicle and went in a nearby field to answer the call of the nature, the ignition key was in the vehicle. Learned counsel for the opposite party has argued that the driver of the vehicle made it easy for the offender to commit theft of the vehicle by parking the vehicle un-attended and leaving the ignition key in the vehicle. In support of his this contention, learned counsel for the opposite party has placed his reliance upon a decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4887 of 2013 titled as National Insurance Company Limited versus Ram Singh Gurjar, decided on September 18^th, 2015.

14. We have closely perused the above cited case law. In this case only insurance cover note Exhibit C-1 has been adduced in evidence. The terms and conditions of the insurance policy have not been adduced in evidence to make it clear that what particular type of precautions, the complainant and the driver were required to take to save the vehicle from commitment of theft or burglary. The complainant in his complaint has not stated that the ignition keys were in the vehicle when the driver went to a nearby field to answer the call of nature. The complainant at the time of recording FIR has also not stated like this. Version of the opposite party in this case is that theft of the vehicle became easy as ignition keys of the vehicle were left in the vehicle by the driver. Version of the opposite party is based upon the report of the surveyor who gave his opinion on the basis of statement of Rajender Singh, registered owner as well as Shokat-driver of the vehicle. In the statement of complainant Rajender Singh (Annexure R-3) it is mentioned that he received information that ignition key was in the vehicle when the driver went outside to answer the call of nature after parking the vehicle on one side of the road. In the statement of Shokat, which has not been tendered in evidence, it is mentioned that the ignition key was in the vehicle and the cabin was not locked when he went to answer the call of nature. Version of the complainant throughout in this case is that the ignition key was with the driver. Complainant Rajender Singh in his affidavit (Exhibit CW1/A) has also not stated that the ignition key was in the vehicle. The opposite party did not tender affidavit of the driver in evidence to prove that the driver had actually told to the surveyor that the ignition key was in the vehicle and that the cabin of the vehicle was not locked. Moreover, in these statements allegedly recorded by the surveyor, even it is nowhere mentioned that on which date and when these statements were recorded. Even the surveyor has not put his signatures and even did not mention that the statements were recorded by him or in his presence. In these circumstances, it will not be safe to give findings that the ignition key was left in the vehicle at the time of theft of the vehicle.

15. Moreover, even if findings are given that the ignition key was in the vehicle when the same was parked on one side of the road, in that eventuality also it will not be proper to give findings that the driver of the vehicle had shown carelessness and negligence and did not take precautions as per terms and conditions of the insurance policy. The occurrence took place after 6:30 P.M. in the month of July and we can say that the occurrence had taken place in the broad day light at a place where so many public persons and vehicles were available on that road and near the road where the vehicle was parked. In such circumstances, it cannot be expected that the offender will show so much courage to commit theft of the vehicle by using duplicate keys or other tactics and technology. It appears that the driver of the vehicle had taken necessary precautions at the time of parking of the vehicle, as expected from a man of ordinary prudent. A man of ordinary prudent cannot be expected to think that in such a situation there is expectation of commitment of theft of the vehicle. Moreover, only due to this reason, findings cannot be given that theft of the vehicle could be possible only because the vehicle was unlocked. Frankly speaking, professional persons involved in cases of theft do not need original ignition keys for opening lock of the vehicle for commitment of theft because for them it is not an impossible task to prepare duplicate master keys and to use other technology to commit theft of vehicles. In these circumstances, from any angle findings cannot be given in this case that cause of commitment of theft of the vehicle was negligence or of not using precautions by the complainant and his driver. On this point of controversy, case law cited as National Insurance Company Limited versus Nitin Khandelwal, 2008(3) CPC 559 and Civil Writ Petition No.23209 of 2011 Reliance General Insurance Company Limited and another versus Rajesh Kumar, decided on 14^thDecember, 2011 (Punjab and Haryana High Court), also support the version of the complainant. Resultantly, findings are given that on this ground the insurance claim of the complainant cannot be declined.

16. As a result, as per discussions above in detail, we have no hesitation in giving findings that cause of theft of the vehicle was not an act of negligence on the part of the complainant or his driver. The complainant and driver of the vehicle took all necessary precautions as can be expected from a man of ordinary prudent in such like circumstances. In these circumstances, we have no hesitation in holding that the findings given by the learned District Forum while passing the impugned order appears to be valid and justified. Awarding of an amount of Rs. 14.00 lacs on account of monetary loss caused to the complainant due to theft of the vehicle, rate of interest and compensation amount as well as litigation expenses appear to be justified. We find no illegality and invalidity in the impugned order dated August 04^th, 2016 passed by the learned District Forum. Accordingly, findings of the learned District Forum stand affirmed and the appeal stands dismissed.”

9.         District Forum in its order has observed as follows:

“5. We are of the opinion that the ground of rejecting the claim of complainant is without any basis and any cogent reason. From the statement of the driver it does not come out that the driver did not take due care of the vehicle, when he left the ignition key in the vehicle. The driver went to answer nature’s call and would not have gone far off. In “New India Assurance Company ltd. & Anr. Vs. Girish Gupta” 111 (2014) CPJ 663 the Hon’ble National Consumer Disputes Redressal Commission, has observed that leaving of key in ignition of car on all occasions cannot be termed as so serious a breach so as to disentitle insured from seeking claim under insurance policy. Lapse on the part of driver not willful breach. So repudiation is not justified. In view of these observations of Hon’ble National Commission even if the key left in the ignition then no breach of condition of insurance policy can be concluded. In these circumstances, rejection of claim of the complainant amounts to deficiency in service on the part of opposite party. Hence complaint is allowed.

6. Opposite party is directed to pay Rs.14,00,000/- with interest @9% p.a. from the date of filing of this complaint till realization of amount within 30 (thirty) days from the date of receipt of this order to the complainant. Opposite party is also directed to pay Rs.5500/- as compensation towards mental agony, harassment alongwith Rs.2200/- as litigation expenses to the complainant. Copy of this order be given to the parties free of costs and file be consigned to record room.”

10.       In New India Assurance Co. Ltd. & Anr. Vs. Girish Gupta RP/590/2014 decided on 31.07.2014, this Commission observed as follows:

“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).

22. Similar question came up before the coordinate Bench of this Commission in the matter of National Insurance Co. Ltd. Vs. Kamal Singhal IV (2010) CPJ 297 (NC) wherein National Commission while dealing with the issue of breach of condition for not taking reasonable care of not safeguarding the insured vehicle observed thus: “True it is that, had there been such evidence, the discrepant statement made by passengers of the insured as quantum of hire and reward was not a significant issue. Repudiation of claim made by Insurance Company was also found to be invalid for the reason that since driver was not expected to carry key of the vehicle with him while getting down from the vehicle to answer nature’s call, particularly, when the vehicle was within his sight.

23. In the case of Bajaj Alianz General insurance Company Ltd., vs M/s Sagar Tour and Travels and Another, the High Court of Punjab and Haryana decided on 11.08.2011 has held that his clause, I would understand, would mean that the insured shall take reasonable steps for protection. Retention of a key in the car ought not to be at all times taken as constituting so serious breach as to disentitle the insured to make the claim under the policy. It all depends on facts of the case. The car was said to have been lost at the time when the driver had taken the vehicle and parked the vehicle in front of the house of his relative but did not remove keys. The particular Clause 5 extracted above shall be read in the context of a person deliberately doing an act that resulted in theft. If no willful act could be attributed to the insured then, in my view, this clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. The permanent Lok Adalat had taken care to case some portion of liability on the insured and has denied to him the 25% of the sum insured under the policy. Thankfully for the insurance company, claimant himself has not come by means of any writ petition seeking for the entire amount.

11.       This Commission in FA/36/2017 Bachhu Singh Vs. National Insurance Company Ltd. decided on 27.04.2017 and RP/1239/2018 TATA AIG General Insurance Co. Ltd. Vs. Mahendra Singh & Anr. decided on 21.05.2019 observed as follows:

“9.      A similar issue recently came up for consideration of this Commission in RP No.1893 of 2016 & RP No.3198 of 2016 Cholamandalam MS General Insurance Company Ltd. Vs. Ashish Kumar Walecha and Ashish Kumar Walecha Vs. Manager, Cholamandalam MS General Insurance Company Ltd. & Anr. decided on 20.04.2017.  In Cholamandalam MS General Insurance Company Ltd. (supra), the complainant had left the key of the vehicle in the ignition while going to meet a friend residing nearby.  When he returned after 30 minutes, the vehicle was found missing.  The theft was later reported to the police and intimation of the theft was also given to the insurer. The claim was rejected by the insurer vide a repudiation letter dated 09.07.2012 which read as under:

"With reference to the claim documents submitted it has been observed that on 20.10.2011 as usual you have gone to your friend's residence and parked the vehicle opposite to his residence at Garba ground, Samata Colony.  Leaving the key in the ignition itself you have gone to meet your friends.  Upon returning after half an hour it was noticed that the vehicle was missing from the parked place.  This has lead to your vehicle being stolen.

          This constitutes breach of policy condition No.5 which is reproduced below for reference:

Condition No.5 -

The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time 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 damages or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".

       Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint.  The complaint having been dismissed by the District Forum, but having been partly allowed by the State Commission, the insurer approached this Commission by way of a revision petition.  This Commission inter-alia observed and held as under:

"6.     By leaving the key of the car in the ignition and not locking the vehicle, the complainant failed to take reasonable steps for safeguarding the vehicle from loss, since leaving the key in the ignition of the vehicle would tempt any thief to commit theft of the vehicle, when the vehicle is left unlocked.  The complainant therefore, contravened condition no.5 of the insurance policy in the aforesaid manner.  In view of the breach of the above referred condition, the insurer is not liable to reimburse the complainant for the loss suffered by him on account of his own negligence.

7.  A similar issue came for consideration of this Commission in Reliance General Insurance Company Limited Vs. Vinod Kumar, RP No.157 of 2016 decided on 20.07.2016 where the ignition key was left inside the ignition switch of the vehicle and the door of the vehicle was also open.  Dismissing the complaint, this Commission inter-alia held and observed as under:

"5.     ........If the driver of the vehicle leaves the key in the ignition and also does not lock the door of the vehicle while going to a place from where the vehicle would not be visible to him, such an act in my opinion, amounts to a failure to safeguard the vehicle from loss or damage. The driver knew that if he left the key in the ignition and the door unlocked, anybody could commit theft of the vehicle taking advantage of his being away from the vehicle. Therefore, it would be difficult to dispute the negligence on the part of the driver of the vehicle.

6.      In Arjun Lal Jat Vs. HDFC Irgo General Insurance Co. Ltd. & Anr., Revision petition No.3182 of 2014, decided on 28.8.2014, the driver of the truck left the truck in start condition near All India Institute of Medical Sciences and went out to ease himself. When he returned after 10-15 minutes, the vehicle was found missing. The claim having been rejected, the complainant approached the concerned District Forum by way of a complaint. The District Forum held in favour of the complainant but the State Commission ruled against him. The matter was then agitated by the complainant before this Commission. Dismissing the revision petition, it was interalia held that if the driver leaves the key in the ignition, he would be negligent and the theft taking place on account of his negligence, the insurer cannot be made liable to reimburse the insured."

12.       In Reliance General Insurance Co. Ltd. and Anr. Vs. Rajesh Kumar, CWP No. 23209 of 2011 decided on 14.02.2011, Hon’ble High Court of Punjab and Haryana observed as follows.

“1. The insurance company challenges the order of the Permanent Lok Adalat, which had found that the insurance company was liable to indemnify the loss caused to the owner of a vehicle. There had been admittedly an insurance for theft and the contention was that the driver had left the key in the car parked in an open space and had gone to answer the nature’s call. The insurance company took the defence that since the owner of the vehicle had been careless in keeping the key in the car, it will not be liable. I would find this contention of the insurance company to be outrageous, for a person that loses the car by keeping the key in car does not commit any violation of terms of the policy nor could he be expected to keep it in the safe deposit vault when he had to go to answer to the compulsions of nature’s call. I would find the defence taken by the insurance company to be irresponsible and I will find no justification for interfering with the order that is passed by the Permanent Lok Adalat.”

13.       In Ashok Kumar Vs. New India Assurance Co. Ltd., (2024) 1 SCC 357 decided on 31.07.2023, Hon’ble Supreme Court observed as follows:

26) The above judgments put the matter and the controversy to rest. There was no breach of Condition No.1 in the present case. In the present case, after the incident of theft on 26.06.2008, FIR was registered on 27.06.2008. The intimation was also given to the Insurance Company admittedly on 02.07.2008. The Police have also reported the vehicle as untraced as the records indicate.

27) Insofar as the alleged breach of Condition No.5 is concerned, it is seen from the record that the driver of the claimant left the key in the keyhole of the vehicle when he got down to search the location of "Mittal Farm", where he had to unload the stone dust. The investigator recommended the repudiation of claim because, according to him, steps to safeguard the vehicle insured were not taken by the driver. It is contended by the appellant that breach of condition No.5, if any, cannot result in total repudiation of the claim. It is argued that the claim ought to be settled on non-standard basis, as was ordered by the District Forum and the State Commission. Reliance is placed on Nitin Khandelwal (supra) and Amalendu Sahoo (supra).

28) The learned Counsel for the Insurance-Company vehemently opposed these submissions and prayed for dismissal of the Appeal. It is argued by him that, while in Nitin Khandelwal (supra) and in Amalendu Sahoo (supra) the cause of repudiation was not germane to the theft, in the present case, the cause was germane to the theft. The learned Counsel supported the findings as recorded in the order impugned.

29) A reading of the facts of the case in Nitin Khandelwal (supra), reveals that the repudiation was on the ground that the vehicle was being used as a taxi and in Amalendu Sahoo (supra), it was on the ground that the vehicle was being used on hire. In our view, that would not make any difference to the ratio that is deducible from those judgments.

30) 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 Co. Ltd; B. V. Nagaraju vs. Oriental Insurance Co. Ltd., National Insurance Co. Ltd. Vs. Swaran Singh and Lakhmi Chand vs. Reliance General Insurance]

31) 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."

32) 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.

33) 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.

***

40) 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.

41) 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.

42) 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.”

14.       In view of the foregoing, we are of the considered view that Insurance Company was not justified in repudiating the claim on the grounds of negligence on the part of the driver. In this case, there are concurrent findings of both the fora below against the Petitioner-Insurance Company. It has been held by Hon’ble Supreme Court in catena of judgments^[1] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when 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 so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity.  It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, RP is dismissed.

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