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SUPREME COURT OF INDIA
J.K. MAHESHWARI, K.V. VISWANATHAN, JJ.
Ashok Kumar - Appellant
Versus
New India Assurance Co. Ltd. - Respondent
Civil Appeal no. 4758 of 2023 [Arising Out Of SLP (Civil) No. 25256 of 2018]
Decided on : 31-07-2023
(A) Consumer Protection Act, 1986 – Section 23[Consumer Protection Act, 2019 – Section 67] – Motor Insurance Policy – Breach of – Theft of insured Truck – Any violation of condition should be in nature of a fundamental breach so as to deny claimant any amount – Theft occurs when any person intended to take dishonestly any moveable property out of possession of any person without that person’s consent, moves that property in order to such taking – It is not the case of Insurance Company that Claimant consented or connived in removal of vehicle in which event that would not be theft in eye of law – Time gap between driver alighting from vehicle and noticing theft is very short – It cannot be said, in such circumstances, that leaving key of vehicle in ignition was an open invitation to steal vehicle – Present case was an eminently fit case where claim at 75% ought to have been awarded on a non-standard basis – Even if there was some carelessness, it was not a fundamental breach warranting total repudiation – It was rightly so ordered by District Forum and affirmed by State Commission – Judgment of National Commission set aside and that of District Forum as affirmed by State Commission restored. (Paras 14, 15, 16 and 20)
(B) Civil Procedure Code, 1908 – Order XXIII Rule 1 – Withdrawal of consumer complaint – Having not argued, before State Commission, point of present complaint being barred in view of withdrawal of earlier complaint, National Commission was not justified, on facts of present case, in allowing respondent-Insurance Company to urge that point therefrom – Interest of justice requires that appellant should not be non-suited on the ground that his earlier complaint was withdrawn. (Paras 5 and 7)
Facts of the case:
Present appeal arises from the final judgment and order dated 24.01.2018 passed by National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 3415 of 2016. By said judgment, National Commission reversed the concurrent judgments of the District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission. Fora below, while allowing the original complaint had directed New India Assurance Company Limited to indemnify the Claimant on non-standard basis to the extent of 75% of the sum assured, which was Rs.8,40,000/-.
Main question that falls for consideration is: Whether delay of 6 days in intimating Insurance Company about theft comes within purview of breach of Condition No. 1 and also whether on facts there was breach of condition No. 5 of insurance policy to justify rejection of claim in toto?
Findings of Court:
Even if there was some carelessness, on peculiar facts of this case, it was not a fundamental breach of Condition No.5 warranting total repudiation. It was rightly so ordered by District Forum and affirmed by State Commission.
Result : Appeal allowed.
JUDGMENT :
K.V. Viswanathan, J.
1. Leave granted.
2. The present appeal arises from the final judgment and order dated 24.01.2018 passed by the National Consumer Disputes Redressal Commission (for short “the National Commission”), New Delhi in Revision Petition No. 3415 of 2016. By the said judgment, the National Commission reversed the concurrent judgments of the District Consumer Disputes Redressal Forum (for short “the District Forum”) and the State Consumer Disputes Redressal Commission (for short “the State Commission”). The Fora below, while allowing the original complaint had directed the New India Assurance Company Limited (for short “the Insurance Company”) to indemnify the Claimant on non-standard basis to the extent of 75% of the sum assured, which was Rs.8,40,000/-.
Facts
3. The brief facts, necessary for adjudication of this Appeal, are as follows:-
a) The appellant was the owner of the truck (dumper) (hereinafter referred to as “the vehicle”) bearing Registration No. HR-55C-5385 and had a valid insurance policy (Policy No. 354101/31/07/01/00013342) for the Insured Declared Value of Rs.8,40,000/- for the period 20.02.2008 to 19.02.2009.
b) On 26.06.2008, the appellant’s driver – Mam Chand had to unload stone dust at Mittal’s Farm at Shankar ki Dhani. He parked the vehicle to find out the address. The admitted case is that he left the key in the key hole when he got out of the vehicle to look around for the address.
c) In the letter of repudiation which referred to the statement of the driver Mam Chand, it was mentioned that Mam Chand alighted from the vehicle and went to enquire about Mittal’s Farm, after leaving the key of the said vehicle inside the key hole. When he had gone some distance, he heard the sound of starting of the vehicle and he came back and noticed that two persons were sitting on the driver’s seat of the vehicle and a car was at the back of the said vehicle in which three persons were there. He had further stated that they stole and took away the vehicle.
d) On 27.06.2008 itself, the appellant registered an FIR No. 77 at the Bilaspur Police Station, Gurgaon under Section 379 of the IPC. On 02.07.2008, the Appellant intimated the respondent-Insurance Company about the theft. On 11.06.2009, the appellant filed a complaint CPA No. 515 of 2009 before the District Forum, Gurgaon alleging that the respondent was delaying the settlement of the claim and, as such, committed deficiency in service. Para 4 of the said complaint and the prayers made are important, which are set out herein below:
“4. That the complainant had already been submitted all the relevant papers/forms with the opposite party, but illegally, malafidely and without any right, title and interest, lingering the matter on one pretext to the another while the complainant has hired the services of the Opp. party by paying consideration of the premium for insured amount of Rs.8,40,000/-and therefore, the Opp. party has totally failed to render sufficient services to the complainant.”
xxx xxx xxx
"a) Direct the opposite party to pay the insured amount of the theft vehicle i.e Rs. 8,40,000/-along with interest @ 18% per annum from the date of theft till realization.
b) Direct the opposite party to pay, a sum of Rs.20,000/-on account of mental agony, delay, the harassment etc. suffered by the complainant."
e) What is significant is that on the date of the complaint, the Insurance Company had not repudiated the claim. It appears from the record that the Insurance Company had appointed an agency named “Delta Detectives” to investigate the matter and the said agency, on 27.10.2008, had recommended repudiation of the claim.
f) After the complaint CPA No. 515 of 2009 was lodged on 11.06.2009, it was only on 15.10.2009 that the respondent-Insurance Company issued a letter repudiating the claim. The relevant portion of the repudiation letter reads as follow
(1) Definition of Fundamental Breach – An insurance company can only deny a claim in its entirety if there is a “fundamental breach” of policy conditions. A delay in reporting is generally considered....
An insurance claim for theft cannot be settled on a non-standard basis (partial payment) unless the insurer proves a fundamental breach of policy conditions or clear contributory negligence by the in....
(1) Non-Standard Settlement – In cases of theft where there is a contributory factor or breach of warranty (like limitation as to use) that is not fundamental to the loss, the claim should be settled....
Intimation – the delay in intimation to the Insurance Company as also the purported transfer of the vehicle to a third party by entering into a sale agreement is no more a factor for the insurer to d....
Insurance Company cannot repudiate claim in toto, made by owner of vehicle which was duly insured with Insurance Company, in case of loss of vehicle due to theft, merely on the ground that there was ....
(1) The insurer is required to enquire from the claimant as to what was the reason or the delay in submission of the claim. The claim should be rejected only where the insurer finds that it was liabl....
Insurance Policy – Theft – Delay in intimating theft of vehicle to insurance company – Insurance Company could not have repudiated the claim.
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