Dr. Inderjit Singh, Presiding Member

1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21(b) of Consumer Protection Act, 1986 against the order dated 17.01.2017 of the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench Udaipur (hereinafter referred to as the 'State Commission')/ in First Appeal (FA) No. 119/2014 in which order dated 13.03.2014 of District Consumer Disputes Redressal Forum, Udaipur (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 215/2013 was challenged, inter alia praying for setting aside the order dated 17.01.2017 passed by the State Commission in FA/119/2014.

2. While the Revision Petitioner (hereinafter also referred to as OP/Insurance Company) was Appellant before the State Commission and Opposite Party before the District Forum, the Respondent (hereinafter also referred to as Complainant) was Respondent before the State Commission and Complainant before the District Forum. Notice was issued to the Respondent(s) on 05.05.2017. Parties filed their Written Arguments on 10.09.2024 (Petitioner) and 11.12.2024 (Respondent) respectively. For the sake of convenience, parties will also be referred to as they were arrayed before the District Forum.

3. Brief facts of the case as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -

The Complainant/Respondent herein got his Ashoka Leyland Trailer No. RJ-27-GA-4921 insured with the Petitioner/Insurance Company for a sum of Rs.13.00 lakhs for the period from 18.04.2012 to 17.04.2013. The vehicle in question was loaded with cement bags from Gujarat to Udaipur on 11.11.2012 and said vehicle reached the factory in the night of 12.11.2012. Due to holidays for 3 days on account of Diwali, unloading could not be done and the driver parked the vehicle on the main road near the Roadways Depot. On 15.11.2012, when the driver came to the RP 1063 OF 2017 Pagel of 10 place where the vehicle was parked, the said vehicle was found stolen and FIR was registered with Gordhan Vilas, District Udaipur on 15.11.2012. On receipt of intimation, the Petitioner/Insurance Company appointed Mr. A.Y. Sheikh to investigate the claim. The investigator after carrying out detailed enquiries and investigations submitted his report on 14.12.2012. On 24.12.2012, the Police issued the final report as the vehicle could not be traced. On 12.04.2013, the insurance company repudiated the claim on the ground that the Complainant did not take care of the vehicle as the vehicle was left unattended for a period of 3 days and the vehicle was not locked and keys were left in the vehicle.

Aggrieved by the repudiation of claim, the Complainant filed complaint before the District Forum.

4. The District Forum allowed the Complaint and directed the OP/Insurance company to pay Rs. 13,00,000/- to the complainant in respect of his stolen vehicle within a period of two months from the date of order, failing which, the amount shall carry interest @18% p.a. till realization.

5. Aggrieved by the order passed by the District Forum, the Insurance Company/Petitioner herein preferred an Appeal before the State Commission. The State Commission dismissed the Appeal filed by the Petitioner herein vide its order dated 17.01.2017.

6. The Petitioner/Insurance Company has challenged the order of the State Commission on the following grounds:

                          i) The claim of the Complainant/Respondent herein was repudiated on the ground that no reasonable care was taken by the insured in as much as the truck was not locked and the keys of the vehicle were left inside the truck. Besides that, the vehicle was left unattended for about 3 days without watch and ward. The vehicle was parked on the road side near the Roadways Depot, when the driver reached the spot, the truck was not found. The complainant has an office about 3 kms. from the place where the vehicle was parked. As a prudent insured, it was expected that the vehicle was parked at the office of complainant rather than at a distance of 3 kms. on the road unattended and unguarded. The driver and the cleaner in their statements given to the investigator of insurance company have admitted that the locks and glasses of windows were out of order for last two years and the key of the vehicle was left inside the truck. The driver in the statement to police also admitted that key of the vehicle was inside the truck. In view of the matter, the insurance company was justified in repudiating the claim.

                          ii) The orders passed by the Fora below are against the settled law laid down by this Commission in New India Assurance Co. Ltd. Vs. Ajit Kumar, IV (2013) CPJ 137 (NC), Jagdish Prashad Vs. ICICI Lombard General Insurance Co. Ltd. II (2013) CPJ 578 (NC), wherein the Commission held that where the ignition key was left inside the vehicle and the vehicle is stolen, it was a clear case where the insured has not taken reasonable care and the insurance company would not be liable.

                          iii) The State Commission erred in holding that it cannot be said that truck was left unattended at lonely place as vehicle was parked opposite Roadways Depot and the driver was checking the vehicle from time to time. The State Commission lost sight of the fact that there was an office of the Respondent/ Complainant 3 kms. from the place where the vehicle was parked for 3 days.

                          iv) The State Commission erred in holding that leaving the keys in the vehicle is of no consequence as it cannot be proved that truck was stolen by using keys which were left under the seat of the vehicle. The question for consideration was not whether the vehicle was stolen by using the said keys and rather the question was whether the insured had taken reasonable care by leaving the keys inside the truck.

                          v) The State Commission has not exercised the jurisdiction vested in it and has acted in exercise of its jurisdiction with material irregularity as they have tried to distinguish the decisions of this Commission on facts.

7. Heard counsel for both the parties.

                          7.1 Counsel for the Petitioner/Insurance Company contended that as per the statement of driver and the cleaner made before the police and investigator, vehicle was left unattended for about 3 days from 12.11.2012 till 14.11.2012 and no reasonable care was taken by them as the truck was left unlocked and the keys and documents were left inside the truck beneath the driver seat on the date of theft on 15.11.2012. It is further contended that the driver and cleaner also stated that the lock of the gate of the vehicle was not working since 2 years and its glasses were jammed. It was the festival time and the vehicle was not parked in office premises even though the office of the firm was 3 kms. before Udaipur. It is also contended that judgment and order of District Forum was upheld by the State Commission by a cryptic order on the ground that the driver was checking the vehicle from time to time, and words 'proper care and security' do not mean that vehicle should be before eyes around the clock and it was further held that it could not be proven that the theft of vehicle was due to keys of the truck. It is also contended by the Insurance Company that once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor in a manner prescribed by the Regulations as to the code of conduct and the report is not based on adherence to code of conduct and is not subject to arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop and surveyor's report cannot be overruled.

                          7.2 On the other hand Complainant/Respondent herein contended that the Complainant got his truck insured with the Insurance Company for the sum of Rs. 13,00,000/- which was valid from 18.05.2012 to 17.04.2013. The insured vehicle was stolen in the night of 14.11.2012 during the period of insurance. FIR was registered immediately on 15.11.2012. The statement of the driver Roshan Lal was recorded by the IO U/s 161 of CrPC. The driver parked the vehicle at the left side of Udaipur to Ahmedabad Road near his house opposite Roadways Depot on 12.11.2012 and door of the vehicle was properly locked after closing the window and the key was taken by him. Wife of driver runs a tea shop near Roadways Dept. The investigation was carried out by the Petitioner Insurance Company. Signatures of the driver and cleaner were taken on the blank paper and false statement, which was contrary to the statement made to the police in the enquiry report. The claim was repudiated on the ground that the vehicle was not parked at proper place and the key was kept in the vehicle and not locked and no security was provided to watch the vehicle and hence there was violation of terms and conditions of the policy of the insurance. It is further contended that the District Forum out of the two investigation reports, one by the police and another by the petitioner company, has rightly admitted the report of the police, being procedural as per rules. The District Forum has rightly rejected the arguments of the Petitioner that the vehicle was parked at a secluded place and observed that the said place where vehicle was parked is not an isolated place and it was parked there so that driver could keep a watch on the vehicle. It is also contended that the site plan clearly shows that vehicle was parked in front of Roadways Depot and in the side there is an office of Deptt. of Mines and Earth Sciences and temples are situated on both sides. It is also contended that the two keys were submitted to the Insurance Company and door was properly locked and nowhere in the investigation it is stated that after locking the door, the door of vehicle could have been opened. In support of its contentions, the Complainant has relied upon the judgment of this Commission in the case of New India Assurance Company Ltd. vs. Pravin Krushna Tatkari, (RP No. 3119 of 2016 decided on 13.07.2017), wherein it was held that when vehicle was parked in an open space and the door had no lock, the insurance company was unjustified in stating that complainant ought to have appointed someone as security personnel for the vehicle.

8. We have carefully gone through the order of the District Forum, State Commission and other relevant records. There are concurrent findings of both the Fora below as regards deficiency in service on the part of Petitioner Insurance Company is concerned. As has been held by Hon'ble Supreme Court in catena of judgments1 the revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in cases 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 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 1 Ruby ( Chandra ) Dutta Vs. United India Insurance Co.Ltd. [(2011) 11 SCC 269, Sunil Kumar Maity Vs. State Bank of India and Ors. (2022) SCC OnLine SC 77, Lourdes Society Snehanjali Girls Hostel and Another Vs. H & R Johnson ( India ) Limited and Ors. (2016) 8 SCC 286, T.Ramalingeswara Rao ( Dead) Through Legal Representatives and Anr. Vs. N. Madhava Rao and Ors. (2019) 4 SCC 608, Rajiv Shukla Vs. Gold Rush Sales and Services Limited and Anr. (2022) 9 SCC 31 found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisonal 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. The State Commission after considering the evidence before it, has come to a finding that the truck was not left unattended as alleged by the Insurance Company as driver's house was at some distance from the place where the truck was parked, driver's wife runs a small tea stall near the road, driver was checking the truck, it was parked opposite Roadways Depot, which cannot be a secluded place, it was not proved that truck was stolen by using the keys found under the seat. In this regard extract of relevant portions of order of District Forum is reproduced below:

                          "Z So we have perused the site plan Ex. 10 prepared by the police. The vehicle was parked at the place "A ", from where it was stolen. In front of the said place there is a Roadways Depot and in the side there is a office of Deptt. of Mines & Earth Science. In front side there is a temple of Goddess and in the side there is a temple of Mahadev and the highway from Udaipur to Ahmedabad can be seen from there. The copy of statement of driver Roshan Lal recorded U/s 161 Cr.P.C. by the police is filed on record and same is Ex.2. According to the same when he came to Udaipur loaded with the cement in vehicle, it was not possible to be unloaded because the labours were not available due to Deepawaii and Khekhra. There were holidays of three days and that is why he parked the trailer in front ofRoadways Depot. Deepawaii was on 13.11.2012 and Khekhra was on next day. He also cleaned the vehicle on the day of Deepawaii. He sent the cleaner after paying his salary. His wife is running a tea shop in front of the place where the vehicle was parked and therefore, he was at the shop. He came to open the shop on 1^ and remained there for all the day and the trailer was parked in front of him. At 8.00 P.M. on the night he went to his house along with his wife and after taking the food he again came to check the trailer at about 12 midnight. He kept the key and original documents below the seat of the trailer and came back after dosing the window and slept at home. When he went in the morning the trailer was not there. Accordingly, he reported the matter to the police and he informed the owner of the vehicle. From the above facts we find that the vehicle was parked by the driver about 2 furlong away from his house and the same was not an isolated place. On the other hand, as per the site plan Ex. 10 the office of Deptt. of Mines & Earth Science is situated near the place. There is a Roadways Depot in front of the same and the wife of the driver is running a hotel on the opposite side. Thus the driver Roshan Lai Acharya has parked the vehicle at the place where he can keep a watch on the vehicle. With regard to the arguments as to why the vehicle was not parked in front of the office of its owner, we can say that by using the common prudence he has parked the vehicle where he could have kept a watch on it. If there would have a person available to keep a watch on the vehicle in the office he would have parked the same there. Thus in our opinion, Roshan Lal has rightly parked the vehicle at the place from where he could have kept a watch thereon. The vehicle is insured with the respondent and not the place and as such the claim could not have repudiated on the basis ofparking place. So far as the question of with regard to security of vehicle is concerned, the same appears to be usually appropriate. It is not possible to keep the trailer locked in the garage and it is usually parked in open. Thus it was parked at the road side which shows no irregularity. There is residence and offices. The security can be said to be appropriate only when there remains a guard for 24 hours, this argument is not admissible. There is no clause of continuing guarding in the policy. Moreover, if the owner would have employed a guard for 24 hours in that case there will be no necessity of the insurance of the vehicle and in that case it will be a case of robbery. In these circumstances, it was not necessary to park the vehicle at the place of continuous watch. It was a heavy vehicle and Roshan Lal has parked the same at the place so that he may have keep watch on it which appears to be correct. The findings of the respondent's investigator about the broken locks andjammed glasses is not admissible because when the vehicle has already been stolen, from where he has made this finding. The statements of driver and cleaner recorded by the investigator has no value as against the statements recorded by the police. There is no error in keeping the documents in the vehicle as the same are being usually kept in the vehicle. There is only one issue as to where was the key infect? As per the statement of Roshaniai Ex. 12, he kept the key below the seat and after dosing the window he went to his home. One letter dated 14.02.2013 Ex. 18 was written by the complainant to respondent, wherein it was stated that two keys were deposited in the office of respondent. It bears the postal seal but the signatures of recipient or receipt number is not there. Hence there is contradiction with regard to the key. How many keys were there? If there were two keys and both were given to respondent, then there should have been third key kept below the seat. Thus though there is contradiction with regard to the key, but to admit that after putting key below the seat the door was dosed and the door could be opened, this fact has not come in the statement of Roshaniai recorded by police. In these circumstances the driver of complainant has kept watch and care of the vehicle, but the vehicle got stolen on the midnight of 14.11.2012 and 15.11.2012. The incident of theft is true. This fact is proved by the final report ofpolice and even the investigator of respondent has not concluded that the vehicle was not stolen. Thus because of this small contradiction, it is not appropriate to hold that there was lack of due care. The vehicle was in usual care. Thus there is no justification in holding that there was lack of care on the part of complainant or that the vehicle was left unattended. The fact of theft of the said vehicle is true. Hence the ground oflack of care is not admissible....."

9. After careful consideration of entire facts and circumstances of the case, we are of the considered view that both the Fora below have passed well-reasoned orders and we find no reason to interfere with their findings. The contentions of Petitioner Insurance Company about lack of due care on the part of the insured/driver lack merit. There is no illegality, material irregularity or jurisdictional error in the order of the State Commission. Accordingly, order of the State Commission is upheld and the Revision Petition No. 1063 of 2017 is dismissed.

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