MR. SWAPAN KUMAR DAS

This Case was heard in the Ld. DCDRC, Jalpaiguri (henceforth to be referred as Ld. Lower Commission ) in connection with A/44/2022 while the judgement was passed by the then President of the Ld. Lower Court, who is now the Presiding Member of the State Consumer Disputes Redressal Commission, Siliguri Circuit Bench. Hence, for the sake of natural justice, he is not to hear the same Case which came to the State Forum being first Appeal vide A/44/2022 on the same issues seeking the execution of the order of Ld. Lower Forum (J.C.D.R.C) dated 13/1/2020 in connection with C.C. No.04/2021. Hence, the request was made to the President of the WBSCDRC vide his Office Memo No.85/SCB/3J-3/2023 dated 17/02/2023 for the constitution of single bench and the Hon’ble President, WBSCDRC vide his Office memo no. 480 (25)/SC/2J – 14/08 (Vol. I) dated 27/03/2023 was kind enough to have given the approval/permission to form the Single Bench. Accordingly, Single Bench was constituted with the undersigned as Presiding Member.

The case in brief is that one Shri Indrajit Das, S/o Late Phani Bhusan Das of Gairkata East, Sakoyajhora, PS – Banerhat, Dist. – Jalpaiguri, PIN – 735212 filed a case (C.C. No.04/2021 dated 13/1/2020) under section 35 C.P. Act, 2019. The case was heard by the then President, DCDRC, Jalpaiguri who now happens to be Presiding Member, Siliguri Circuit Bench of WBSCDRC. The claim of the applicant for the loss/damage/theft of his car being No.WB-74Z-7053 duly insured under National Insurance Company Ltd. (NICL) was repudiated by the said Insurance Company on the ground of the condition no.5 of the policy which says “Insurers shall take all reasonable steps to safeguard the vehicle from loss or damage.” As a result, the said Indrajit Das filed application in Siliguri Circuit Bench of WBSCDRC being no. A/44/2022 (Date of Filing – 21/9/2022) against the order of the Ld. Lower Forum dated 12/7/2022.

The appeal petition was admitted on 28/2/2022 and final arguments/counter arguments took place on 05/10/2023 and thereafter the final judgement was passed. On perusal of the records and papers kept in the file, it transpires that the said applicant who was driving the said car (Maruti Suzuki Swift Desire VD1) having valid Insurance Policy being No.153902311810005003 with the insurance cost of Rs.3,03,333/- (Rupees three lakhs three thousand thirty-three) only (validity period from 19/11/2018 to midnight of 18/11/2019. On 22/05/2019 at about 8 A.M. the appellant was driving his car from his residence for Cooch Behar to reach his sister’s house at New Town, Cooch Behar and on his way, he felt dizziness, discomfort and extreme uneasiness near “Mora Torsha Bridge”. Being distrusted by his physical condition he somehow managed to call his sister on mobile phone and parked the car by roadside and stepped down from the car keeping the ignition key and other important documents including mobile phone inside the car due to inadvertence since the appellant accorded his life the “TOP PRORITY” than the ignition key, other documents & papers including the car itself. He became “Black-Out”. Subsequently, his relatives including his sister reached the spot and nursed him and as soon as he fell unconscious and fainted, he was taken to Cooch Behar Medical College & Hospital by his relatives including his sister, at that time the car was stolen from the roadside where it was parked. In the instant case, it is also to be borne in mind that the appellant/complainant (Insured) had deposited one key out of 2 (two) keys. He could not deposit the second key because the car was driven out by the miscreants/thieves and the police has filed FRT to that effect. After admitting in the CBMC&H he was under the treatment of Dr. Sudip Ranjan Saha who in his medical prescription dated 22/5/2019 clearly noted that the appellant had suffered dizziness with vertigo and chest discomfort and blood pressure was at that time was 190/100 and advised various medical tests like ECG/blood CBC/LFT/Lipid profile, city scan etc.

After getting back physical stability he lodged an FIR with Kotowali PS, Dist. – Cooch Behar being Case no.282/19 dated 22/5/2019 under section 379 of the IPC.

On 23/5/2019 the appellant intimated the concerned Insurance Company about the whole incidents in writing including herewith a copy of the complaint lodged with the police station.

Opposite Party (Insurance Company) demanded ignition key and FRT vide its no.153902 – Claims – KKS -2020 dated 16/6/2020.

Meanwhile, the appellant bearing his letter dated 02/9/2019 requested the M.V. Department to close the registration of his said missing vehicle.

The authorized surveyor and law assessor of the Respondent/OP (Mr. Keshab Kumar Kharge) by his letter dated 18/11/2019 asked the appellant to submit various documents in support of his claim and he complied with all the documents and requirements by his letter dated 26/2/2020, and then the appellant complained thereto. Meanwhile, the appellant informed the Respondent/OP that he had already submitted one ignition key and FRT could not be submitted due to lock-down.

The Respondent/OP vide its letter no. 153902/Claims/KKS/2020 dated 17/8/2020 informed the appellant that all his claims was repudiated on the grounds that only one ignition key was deposited and appeal failed to comply condition 5 of the terms and conditions of the policy bond. The appellant in response wrote a letter on 28/8/2020 requesting the Respondents to re-consider their decision as his claims were genuine and he had not committed any act of negligence or willful/intentional, violation of the condition 5. Again, the Appellant wrote to the Divisional Manager, NICL requesting to set aside the repudiation vide his letter dated 25/9/2020 and to re-consider his genuine claim.

The Ld. Lower Forum, Jalpaiguri disposed of the case no.DD/4/21 dated 12/7/22 stating interalia that the Complainant (Indrajit Das) was attended by his sister and her husband at the place of occurrence (Mora Torsha Bridge). The condition of the patient has not been so serious as unconscious and alarming that his sister and her husband could fail to collect the keys of the car after locking the same, knowing fully well the above vehicle would be unmanned on a highway for an indefinite period of time. Ld. Lower District Forum also mentioned the discrepancies in the complainant’s case appeared to be quite enormous that fails to inspire confidence in the veracity of the complainant’s version and ordered the dismissal of the case ex-parte without cost.

As a result, being dissatisfied and aggrieved by the order of the Ld. Lower Forum, the complainant filed application for the revision of the judgement passed by the Ld. Lower Forum dated 12/7/22 on different grounds citing different judgements of Hon’ble Supreme Court and the Hon’ble NCDRC, New Delhi.

                                                           Decisions with Reasons

It is undisputed that the said vehicle was under insurance coverage at the pertinent point of time (i.e., theft) and the appellant/Complainant (Indrajit Das) the owner of the car had valid driving license. It is also undisputed that he was driving the car carefully and not recklessly. He showed his intelligence and prudence of mind when he stopped the car by roadside when he was feeling unwell as driving the car during physical infirmity/unwellness which might have led to any collision/accident/ clash thereby causing injury including death which is more disastrous and irreparable both for the appellant as well as other nearby commutes near “Mora Torsha Bridge”. The appellant stepped down from the car since he was feeling discomfort, uneasiness, etc. and to save the car as well as his life at that time of driving, while feeling unconscious, unwell which could lead to serious accident/collision and this may result in damage of the car, injury to the driver (appellant) even the loss of his life. Thus, he showed a sign of maturity by stepping from the car, after stopping the driving to save the car as well as his life. The only point is that he forgets to collect the ignition key and the important documents including his mobile phone at the time of stepping down from the car. But this was not intentional, willful, omission or commission of these acts since he could not foresee that by taking the advantage of his physical infirm condition, the miscreants could drive away the car from the spot by stealing. It is also undisputed that his physical condition was not normal as his BP 190/100 that was diagnosed by Dr. Saha after long passage of time. So, at that critical juncture of time, his mental and physical conditions were much more worsened. The point is not whether he was brought to the hospital unconscious, semi-conscious or in conscious position, but it is to be considered whether was his mental as well as physical conditions were O.K. and normal or not at the time of stepping down from his car? The obvious replies to the question, is in the negative. Moreover, it was not duty of his sister and her husband to collect the ignition key and other documents/papers as they were very busy to nurse his brother because the medical help/assistance and hospitalization were topmost priority to them  than any other material priority including his car and ignition key

It also appears from the FRT submitted by the Kotowali PS, Cooch Behar accepted by the CJM, Cooch Behar dated 13/7/2020 which interalia stated “I am inclined to accept the report (FRT) so submitted by the I.O. of this case. Thus, the instant proceeding G.R. case no.483/2019 is thus disposed of and the accused person, if any, be discharged from this case and seized Alamut, if any, be disposed of accordingly.” Thus, it appears that the CJM of the said G.R.O case no 282/19 dated 22/05/2019 also accepted the F.R.T. after his full satisfaction without any reason, objection of finger at any point including police. So, there appears to be no foul play outwardly by the applicant.

Moreover, it was not duty of sister of kind men of the appellant to collect the key from the case since they were busy nursing the deteriorating health condition of his brother (the appellant) after the arrival at the spot, they became nursing for bringing him to the hospital. They could not be held responsible for any lapse/failure for collection of the ignition key from the car the health hazards/conditions of the appellant of the appellant became top priority than the ignition key.   

Hon’ble Supreme Court in Civil Appeal no. 3409 of 2008 in National Insurance Vs. Nitin Khandelwal, Justice Tarun Chatterjee and Dalbir Bhandari held “The law seems to be well settled that in case of theft of the vehicle, nature of use of the vehicle cannot be looked into and Insurance Co. cannot repudiate the claim on that basis.” Moreover, in United India Insurance Co. Vs. Gian Singh the Commission held that in a case of violation of the condition of policy as the nature of use of the vehicle, the claim ought to be settled on non-standard basis (75% of the sum assured) here the appellant was driving the car carefully having valid license. Hence, the Insurance Co. is liable to indemnify the owner of the vehicle and the Insurance Co. cannot repudiate the claim in toto in case of loss of vehicle due to theft. In this case he insured (appellant/complainant is entitled to get 75% of the total insured amount on non-standard basis).

In Bazaz Allianz, GIC Ltd. Vs. Sagarpur Tours & Travels (in C.W.P. no.8380 dated 8/3/1980) Hon’ble Justice Khanna commenting on Clause 5 of the Insurance Co. observed that the insured shall take all reasonable steps for protection/retention of a key in the car ought to not to be of times taken as constituting so serious a breach as to its entitlement the insured (applicant) to meet the claim under the policy. It all depends on the facts of the case for indemnification if no willful intentional act could attribute to the insured, this Clause cannot operate to exclude the liability of the insures to meet up the claim of the insured. Insurance Company for making payment. A human fallibility to forget is not the same as committing violation/terms and conditions of the Policy.

 In Sukbinder Singh Vs. Chollomandalam – MSGIC Ltd. case the Hon’ble NCDRC, New Delhi (754/2013) contended that it is no longer res-integra that the driver of the vehicle is not accepted to carry the case of the vehicle with him while getting down from the vehicle to answer the call of nature. In case of theft of the vehicle, issue of breach of policy condition has no bar of the Insurance Claim of the insured. Though it is accepted that the insured will take reasonable steps for claim of the insured vehicle from any loss or damage, but leaving the ignition key in the car cannot be termed as so serious breach so as to the entitled, the insured from seeking claim under the insurance policy, whether or not there is breach of condition is always dependent on the facts of the case and in the instant case, driver/owner (appellant) himself fell unconscious, discomfort and he should be praised for steppeing down from the car in order to save his life as well as the car and the lives of the nearby commuters. Keeping the ignition key in the car was not at all intentional, whimsical, willful omission or commission of his deeds.

The Ld. Lower Forum failed to understand the medical emergency and seriousness of the medical problems of the owner/driver (appellant) who was feeling unwell and therefore stepped down from car to check further deterioration of his health condition & to avoid accident both to car & himself. Thus, he saved his life and the car. He could have met the accident/collision if he ventured to drive during his unwellness, dizziness, discomfort, which may be more vulnerable than his life and the car. Law cannot be construed or explained in its words only, but from the view point of spirit, welfare, of the consumers, and the society as a whole. Every incident should be judged in its proper perspective & when mechanical way. The Ld. Advocate on behalf of the Respondent/OP(NIC) cited one judgement of Lokesh Kapoor Vs. NIC Ltd. & Anr. (CPJ 31/2022) wherein it was held that the petitioner cannot take the benefit of his own wrong and he is supposed to take reasonable and proper care of his vehicle. The Insurance Co. cannot be compelled to pay wrong of the complainant. But in the instance case, the appellant (insured) did commit no wrong, by stopping the car on the roadside and stepped down from the car, but he forgot to take ignition key since he fell unconscious, discomfort and dizziness which was extremely medical emergency and exigency. He was rather compelled to stop the car and he cannot be held responsible for his omission to take ignition key with him at the time of stepping down since his physical and mental condition was not normal at the time of getting down from the car. This health condition should be considered with top priority then other factors since former is related with human life which is most valuable than any other material factors since he was feeling uneasy, discomfort of driving and dizziness at the time of driving and therefore he got down from the car to save his life as well as the life of others passersby & to avoid the damage/loss of the car.

Moreover, if we go through the Private Package Policy of N.I.C. Ltd. carefully, especially section 1 (loss or damage of the vehicle insured), we can see that the Company will indemnify against the loss or damage to the vehicle insured hereunder and/or its accessories which thereon by burglary/house breaking/theft.

In the instant case, the car was covered under theft and a specific case was registered under sec. 379 of IPC (Case No.282/19 dated 22/5/2019 under Kotwali PS, Dist. Cooch Behar). The I.O of this case, finally submitted F.R.T which was accepted by the Ld. C.J.M, Cooch Behar dated 13/7/2020. So, it appears that there is no procedural lapse/gap in this process.

The Ld. Advocate on behalf of the Respondent argued that sec. 4 of the Private Package Policy, which is applicable here, is as follows, “The insured shall take all reasonable seps to safeguard the vehicle from the loss or damage……….” According to his argument, section 4 is applicable in the instant case. But in my humble opinion, section 1 i.e., burglary/house breaking/theft is more suitable and applicable in the instant case as the enquiring authority of Kotowali PS, Dist. Cooch Behar rightly applied section 379 IPC which is related with theft and nothing else. Section 4 is only applicable in case of loss or damage when the car faced accident due to the negligence of the driver (appellant). So, Sec. 1 (i.e., THEFT) is more relevant, appropriate, reasonable and rational which can be suitably applied in the instant case.

Moreover, this theft took place not due to the negligence, indifference of the appellant but due to medical and health ground since he was feeling dizziness, discomfort, uneasiness, etc. which was to be attended and looked after with topmost priority at that pertinent point of time.

Hon’ble Supreme Court in the NIC Ltd. Vs. Nitin Khandelwal (2008 II, SC Case no. 259) & in similar other cases like Jitendra Kumar Vs. Oriental Insurance Co. Ld. (2003, 6 SCC, 420), NIC Ltd. Vs. Swaran Singh (2004, 3 SCC, 297) and NIC Ltd. Vs. Kusum Rai (2006, 4 SCC, 250) observed that in the case of the theft of the vehicle, matter of the use of the vehicle cannot be looked into and the Insurance Co. cannot repudiate the claim on that basis. Here, the appellant (insured) is to be indemnified by the Respondent (Insurer) to the extent of 75% of the insured amount on non-standard basis due to negligence, unfair trade practice etc. on the part of respondent (NIC Ltd.)

It is also undisputed that the said vehicle had sufficient valid insurance coverage (Rs.30,33,33/-), it was not the case of negligent and rash driving and the driver/owner had valid driving license and it was not the case of third-party risk. Even section 148 of the MV Act, 1988 does not come to the much felt to the Insurance Co. Section 149 (2) (G) (II) of the MV Act, 1988 empowered the Insurance Co. to repudiate the claim for loss or damage where driver does not have valid DL and is directly responsible for such loss or damages. But Insurance Co. cannot repudiate the claim if the driver is not at all directly responsible for such damages or loss.

In the instant case Driver-cum-Owner (appellant) had valid DL and was not driving the car recklessly and he was alone in the car and he cannot be held responsible either directly or indirectly for such theft, if any. Moreover, in the instant case “burglary/theft” is more appropriate than “loss/damages” and compensation/indemnification is to be considered and to be taken into account on the basis of the former i.e., on theft than “loss” or “damage” as the said car under reference met no accident, collision, clash but was stolen away.

In Bazaz Allianz Insurance Co. Ltd. Vs. M/s. Sagar Tours & Travels, (CWPN 8380 of 2010, 2011, SCC) Hon’ble Supreme Court observed that the insured shall take all positive steps for protection/retention of the key in the car ought not to be at all times

taken as constituting so serious a breach as to this entitled the insured to make claim under the policy.

If there is no intentional act which could be contributed to the insured, then this loss cannot operate to exclude the liability of the Insurance Co. a human fallibility to forget is not the same as committing violation/terms and conditions of the policy.

 In Sukhbinder Singh Vs. Chollamondalam M S GIC Ltd., Hon’ble NCDRC, New Delhi observed that it is no longer res integra that the diver/vehicle is not expected to carry the keys of the vehicle with him while getting down from the vehicle to answer the call of the nature. In the instant case driver (insured) brought down from the car on medical/health ground which is very serious and grave. He was more concerned with his life than taking the ignition key from the car at the time of stepping down. Entire matter is to be judged from the total perspective, facts and circumstances of the case. Moreover, it is also to be considered whether the mistake if any, is intentional, willful mistake or not. In the instant case even if we accept the arguments on behalf of the Respondent it cannot be said that the driver/owner committed mistake by not taking the key with him at the time of stepping down from the car with willful intention. Omission, if any, was due to health/medical ground which was corroborated vide his prescriptions from both Government doctors and private doctors (Exhibit 55 & 56). So, there is sufficient ground in favour of the appellant to succeed the case.

Hence,

                                                     It is ordered

 That the instant case be and the same is allowed on contest with cost.

The Respondent/OP (Insurance Co. NIC Ltd.) is directed to pay 75% total sum of the insurance careenage, Rs.3,03,333/- (Rupees three lakhs three thousand three hundred thirty-three) i.e. Rs.2,27,500/- (Rupees two lakhs twenty-seven thousand five hundred) only and Rs.5000/- (Rupees five thousand) only as legal expenses and Rs.5000/- (Rupees five thousand) only  as compensation to be paid to the appellant for mental pain and agony and deficiency in service etc. within 30 (thirty) days from the receipt of the order failing which 10% simple interest will be charged on the date of payment after the expiry of one month till realization.

Let the Copies be served to all the concerned parties free of cost.

Let the Copy of the order be sent to the Ld. Lower Forum/Court for information and necessary action. 

Thus, the order of the Ld. Lower Court/Forum dated 12/7/2022 is quashed and is hereby set aside.

The case is hereby dropped.