Avm Jonnalagadda Rajendra, Avsm, Vsm (Retd), Member

The present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 ("the Act") against the Haryana State Consumer Disputes Redressal Commission, Panchkula (the State Commission) order dated 09.10.2017 in FA No.1251/2016 dismissing the Appeal filed by the OP/ Petitioner and affirmed the District Consumer Disputes Redressal Forum, Yamuna Nagar (the District Forum) order dated 20.10.2016 in C.C. No.362/2013.

2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3. Brief facts of the case, as per the Complainant, are that the complainant, Rajiv (respondent herein), is the registered owner of tractor bearing registration No. HR-02Z-3842, which he had insured with IFFCO TOKIO General Insurance Co. Ltd ("the Insurance Company"/ "the Opposite Party - OP") vide Policy No. 78669789 for the period from 23.12.2011 to 22.12.2012, with the Insured Declared Value (IDV) of Rs. 4,75,000. During the intervening night of 26/27.04.2012, the tractor was parked outside the house of the complainants driver, but in the morning of 27.04.2012 at about 7:00 A.M., it was found missing, having been stolen by unknown persons. FIR No.168 dated 27.04.2012 was promptly lodged at Police Station City Yamuna Nagar. The Insurance Company was also duly informed and supplied with all requisite documents. However, vide letter dated 04.03.2013, the Insurer repudiated the claim. Consequently, the complainant filed a complaint before the District Forum under Section 12 of the Consumer Protection Act, 1986 seeking a direction to the OP to honour the insurance claim, along with compensation of Rs.3,00,000/- and litigation expenses of Rs. 15,000/-.

4. The OP Insurer, in written version, raised preliminary objections regarding the complainants locus standi, territorial jurisdiction of the District Forum Yamuna Nagar, and maintainability of the complaint. While admitting issuance of the policy for the relevant period with IDV of Rs. 4,75,000, the OP contended that upon receipt of intimation of theft, the claim was registered and Shri Sonu Bhola, Advocate, was appointed as Investigator. The Investigators report revealed violation of policy conditions, specifically that the tractor was being used for hire and reward. Relying on the said report, the OP repudiated the claim, terming it a "no claim" case on the ground of breach of policy terms. It was asserted that the complainant is not entitled to any relief, and dismissal of the complaint with costs was prayed for.

5. The learned District Forum vide Order dated 20.10.2016 partly allowed the complaint and relevant portion is as under:-

                        "Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs.3,56,250/- i.e. 75% of the insured value of Rs.4,75,000/- on non-standard basis within a period of 30 days after preparation of copy of this order failing which the OP Insurance Company shall also be liable to pay interest at the rate of 6% per annum from the date of filing of complaint till its realization subject to submission of subrogation letter and indemnity bond and other necessary documents which are required to transfer the ownership of traction question in the name of OP Insurance Company. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance."

6. Being aggrieved by the District Forum order, the Petitioner/OP-Insurer filed Appeal No.1251/2016, and the State Commission vide order dated 09.10.2017 dismissed the Appeal and affirmed the order dated 20.10.2016 of the District Forum with the following observations:

                        "9 . We have heard learned counsel for the appellant and perused the case file.

                        10. During the course of arguments, there was no controversy of any type that the complainant being the registered owner of the tractor vehicle bearing registration No. HR-02Z-3842, got insured the same with the opposite party for the period December 23rd, 2011 to December 22nd, 2012 mentioning IDV of the vehicle as Rs.4.75.000/-, During the intervening night of April 26th/27th, 2012, the tractor vehicle was stolen by some unknown person, FIR No.168 (Annexure C-1) was lodged in Police Station City Yamuna Nagar on April 27th, 2012 without any delay. It is evident from Annexure C-5 order passed by the learned Chief Judicial Magistrate, Yamuna Nagar dated December 10th, 2012 that the Final Untraced Report (Annexure C-4) was accepted. The stolen vehicle could not be traced. It is evident from the repudiation letter dated March 04th, 2013 (Annexure R-1) that the insurance claim of the complainant was repudiated on the ground that the insured vehicle was being used otherwise than in accordance with the limitation as to use. The insurance policy covers use of vehicle for any purpose other than hire and reward.

                        11. The repudiation letter (Exhibit R-1) is based on the investigation report Annexure R-4 prepared by Shri Sonu Bhola, Advocate, on the basis of statement of complainant (Annexure R-5) and contents of the FIR Annexure C-1. In the copy of FIR, on the basis of statement of complainant, it is mentioned in clear words that the tractor trolley vehicle was being used for supply of fuel (Ballan) to a plywood factory. The complainant in his statement before the investigator (Annexure R-5) has also stated like this. So situation is very clear that the tractor trolley vehicle was being used for hire and reward. Now we are required to give findings as to whether in this situation, the impugned order passed by the learned District Forum awarding 75% of the total IDV on the basis of non-standard basis is valid and justified or not. It will be pertinent to mention here that although in those days, the tractor trolley vehicle was being used on hire and reward but the vehicle was stolen during night hours when the same was parked in front of the house of driver of the complainant. Thus, when the occurrence took place, at that time the vehicle was not being used for hire and reward. Anyhow, the complainant is fully satisfied with the relief granted to him by the learned District Forum on non-standard basis and did not prefer to file appeal.

                        12. Learned District Forum has based its findings mainly on the latest decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case New India Assurance Company Limited versus Niranjan Singh, 2015(3) CPR 533. Facts and circumstances of the case in hand are similar to the facts and circumstances of the above cited case law. Apart from it, view of the Hon'ble Supreme Court in case law National Insurance Company Limited versus Nitin Khandelwal, IV(2008) CPJ 1 (SC), to award 75% of the IDV on non-standard basis also supports the version of the complainant. No other case law was cited during the course of arguments.

                        13. During the course of arguments, learned counsel for the appellant-opposite party also argued that the complainant has violated the terms and conditions of the insurance policy as the tractor vehicle was left un-attended during night hours which made it easier for the offender to commit theft of the vehicle. We are not much impressed with this contention of the learned counsel for the appellant-opposite party on this point of controversy. We feel the insurance claim of the complainant should not have been repudiated merely because the tractor vehicle was parked during night hours in front of the house of driver of the complainant. In this case, the ignition key of the tractor vehicle was with the driver and the driver of the complainant has not done any act of carelessness and negligence. We cannot overlook this ground/reality also that now-a-days most of the vehicles are kept during night hours outside. The vehicles are kept during night hours in garage and locked premises very exceptionally. These days there may be so many vehicles in a single family that owners of the vehicles certainly cannot afford construction of garages for each and every vehicle. In these circumstances, merely due to this reason that the tractor vehicle was parked outside the house of the driver, the insurance claim of the complainant cannot be declined.

                        14. No other point was raised during the course of arguments.

                        15. As a result, as per discussions above in detail, we find no illegality or invalidity in the impugned order dated October 20th, 2016 passed by the learned District Forum. Accordingly, findings of the learned District Forum stand affirmed and the appeal stands dismissed.

                        16. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any."

7. Being dissatisfied by the impugned Order dated 09.10.2017 passed by the State Commission, the Petitioner/OP filed the instant Revision Petition bearing No.1171 of 2018.

8. The learned Counsel for the Petitioner/OP argued that the this RP impugns the State Commission order dated 09.10.2017 in FA No.1251 of 2016, affirming District Forum order dated 20.10.2016 in CC No.362 of 2013, wherein the Petitioner's repudiation of the theft claim was interfered with, despite clear violation of the "Limitation as to Use" clause. The learned counsel argued that the Complainant/ Respondent insured his Mahindra Tractor (HR-02Z-3842) under a private-use policy for an IDV of Rs.4,75,000/-, but undisputedly employed the vehicle for hire and reward for transporting boiler fuel to a plywood factory, which stood expressly excluded under the policy conditions. Upon theft of the vehicle on 26.04.2012 from outside the drivers residence, the Petitioner, after due investigation, the OP repudiated the claim on the ground of fundamental breach. However, the District Forum, despite acknowledging the breach, erroneously directed for settlement of the claim on a non-standard basis at 75%, and the State Commission mechanically upheld the same by wrongly observing that mere parking of the vehicle at the drivers residence could not justify repudiation. He vehemently argued that both fora failed to adhere to the settled principle that insurance contracts must be strictly construed as held in Oriental Insurance Co. Ltd. v. Soni Cheriyan, (1999) 6 SCC 451 and Polymat India (P) Ltd. v. National Insurance Co. Ltd., (2005) 9 SCC 174, which mandate that the insured is bound by the policy terms and cannot claim beyond the contractual scope. He further argued that the reliance by the fora on National Insurance Co. Ltd. v. Nitin Khandelwal to justify non-standard settlement is wholly misplaced, as the said principle is inapplicable to private insurers, as clarified in IFFCO Tokio General Insurance Co. v. Gaurav Bhargava, R.P. No.4290/ 2010, wherein this Commission categorically held that nonstandard settlement norms applicable to erstwhile public sector insurers do not bind private insurance companies. The impugned orders therefore overlook the judicially recognised distinction between private and public sector insurers as enunciated in United India Insurance Co. Ltd. v. Manubhai Dharmasinhbhai Gajera, (2008) 10 SCC 404, and fail to appreciate that the Respondents engagement of a privately-insured vehicle for commercial hire constituted a fundamental breach vitiating the contract and extinguishing any liability of the insurer.

9. On the other hand, the Respondent/Complainant did not appear on 01.12.2025 and thus, he was placed ex-parte.

10. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for the Petitioner.

11. The main issues arising for determination is whether the alleged use of the tractor for hire and reward constitutes a fundamental breach disentitling the Complainant to any claim? Whether the claim has been rightly allowed on a non-standard basis by the fora below?

12. The legal position governing theft claims has been extensively settled by the Honble Supreme Court in the case of Ashok Kumar vs. New India Assurance Co. Ltd., 2023 LiveLaw (SC) 587, the Honble Supreme Court reiterated that only a fundamental breach of policy conditions can justify denial of the claim and it has been 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 persons 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 persons 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 Mittals 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 nonstandard 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:-