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TMI Blog2023 (7) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s total negligence in not safeguarding the said vehicle properly. It is quite clear that had the said Dumper would not have been left un-attended and further the key of the said Dumper would not have been left inside the key hole of the said Dumper, then, the same could not have been taken away by any person. In view of above contraventions and violations of the terms and conditions of the subject insurance policy, the Co. is not liable to pay any claim in respect of the said Dumper. Therefore, the competent authority of the Co. has repudiated your claim. It may please be noted." g) When the matter stood thus, the complaint CPA No. 515 of 2009 came up before the District Forum on 22.11.2020 when the following statement appears to have been recorded of the advocate for the appellant, in CPA No. 515 of 2009: "I, Surender Kumar Gulia, Advocate, state that I do not want to proceed with my case. It may be dismissed. Sd/- &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009. It also contended that the terms and conditions of the insurance policy were violated. Apart from this, the plea of limitation was also taken. j) The objections were overruled by the District Forum. The plea of the complaint, being barred by limitation, was addressed by recording a finding that the delay, if any, was already condoned, by the Forum, by order dated 06.03.2012 under Section 24A of the Consumer Protection Act. The plea about violation of the conditions of the policy was overruled and on non-standard basis, a sum to the extent of 75% of the sum assured was awarded. No finding was recorded on the aspect of the bar in filing the present complaint after the order dated 22.11.2010 dismissing CPA No. 515 of 2009 as withdrawn. The Insurance Company carried the matter in Appeal to the State Commission. k) Before the State Commission, only two contentions were urged. There was no contention raised on the issue of the withdrawal of the earlier complaint. It was contended that the intimation of the theft was given to the Insurance Company only on 02.07.2008 i.e., six days after the theft, therefore it was argued that Condition No.1 of the insurance policy was violated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company was informed. It was also recorded that no cogent evidence was produced by the Insurance Company to prove that there was a delay of six days in giving intimation. Going further, the State Commission recorded that Condition No.1 of the Insurance policy applied only to occurrence of an accident and not to theft cases. Insofar as Condition No.5 was concerned, it was held relying on the judgments of this Court in National Insurance Company Limited vs. Nitin Khandelwal, [(2008) 11 SCC 259] and Amalendu Sahoo vs. Oriental Insurance Company Limited, [(2010) 4 SCC 536] that even if there was a breach of that clause, the claim could not have been repudiated in toto and, applying the yardstick in Amalendu Sahoo (supra), 75% of the claim as the admissible amount, on non-standard basis, was awarded. Holding thus, the State Commission dismissed the Appeal of the Insurance Company. n) Undaunted, the Insurance Company carried the matter in revision to the National Commission. Here, it was primarily argued that the withdrawal of Complaint No. 515 of 2009 foreclosed the Complainant from filing a fresh complaint. This plea was accepted relying on the bar under Order XXIII Rule (1) (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had complained of not rendering "sufficient service"; (ii) Secondly, pending that complaint, it was on 15.10.2009 that the repudiation letter was issued on purported breach of Condition Nos. 1 & 5 of the Policy; (iii) Thirdly, we find that a separate proceeding has been drawn up recording the statement of only the lawyer of the Complainant. The statement of the lawyer stated that "I, Surender Kumar Gulia, Advocate, state that I do not want to proceed with my case. It may be dismissed". (iv) Fourthly, in the complaint filed on 06.03.2012, the appellant avers that since the lawyer for the opposite party - Insurance Company was taking numerous dates for arguments, his counsel getting annoyed with the attitude of the advocate of the opposite party withdrew the above said case by mistake. (v) Fifthly, the appellant further avers that the withdrawal was unfortunate and he ought not to have prejudiced for the deeds of his lawyer. (vi) Sixthly, the finding of the National Commission is also factually erroneous, on this score. The learned counsel for the appellant drew our attention to para 9 of the order of the National Commission wherein the following erroneous finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purview of breach of Condition No. 1 and also whether on facts there was breach of condition No. 5 of the insurance policy to justify the rejection of the claim in toto? 9) A careful perusal of Condition No.1 shows that notice is to be given in writing to the Insurance Company immediately upon occurrence of any accidental loss or damage. The later part of the clause says that in case of theft or criminal act, which may be subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the Insurance Company in securing the conviction of the offender. In support of this interpretation to Condition No.1 and to bolster her plea that the appellant-Claimant did not breach Condition No.1, learned counsel for the appellant relied on the recent judgment of this Court in Jaina Construction Company vs. Oriental Insurance Company Limited and Another, [(2022) 4 SCC 527], wherein relying on and reiterating the judgment of a three- Judge Bench in Gurshinder Singh vs. Shriram General Insurance Co. Ltd. [(2020) 11 SCC 612], this Court held as follows:- "10. At the outset, it may be noted that there being a conflict of decisions of the Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle. 15. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. 16. *** 17. That the term "cooperate" as used under the contract needs to be assessed in the facts and circumstances. While assessing the "duty to cooperate" for the insured, inter alia, the court should have regard to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of "duty to coope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afeguard 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). 12) 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. 13) A reading of the facts of the case in Nitin Khandelwal (supra), reveal 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. 14) It is well settled in a long line of judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 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 concurr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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