Full Text
Date of Decision: 13.05.2025
MOBIN MOHAMMAD
S/O ALI MOHAMMAD R/O KHASRA NO. 431, SATYANAND COLONY, BEHIND CORPORATION BANK, SATBARI, CHHATARPUR, MEHRAULI, NEW DELHI. .....Appellant
(Through: Mr. Tarique Siddiqui, Mr. Abhishek Kumar, Mr. Mohd.
Bilal, Mr. Fajallu Rehman and Ms. Lakshmi, Advs.)
(Through: Ms. Vandana Kahlon and Mr. Rudra Kahlon, Advs.)
PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
This first appeal has been preferred by the appellant-plaintiff, assailing the
ORDER
KUMAR KAURAV
Additional District Judge, South District, Delhi (hereinafter referred to as the trial court). By the impugned judgment, the suit for recovery instituted by the appellant-plaintiff has been dismissed.
2. The facts of the case would indicate that the appellant-plaintiff is the owner of the truck vehicle no. HR 55 P 0226 (hereinafter referred to as vehicle). The respondent-defendant is an insurance company, with whom the appellant-plaintiff had obtained an insurance policy covering the said vehicle.
3. The case of the appellant-plaintiff is that the vehicle was stolen on 28.12.2012. Immediately upon discovery of the theft, the appellant-plaintiff claims to have informed his insurance adviser regarding the incident. It is further stated that a First Information Report (FIR) bearing No. 1006/12 was promptly registered at the Police Station, Sahni Gate, Ghaziabad. Thereafter, the Investigating Officer (I.O.) filed an untraced report with respect to the said theft. Subsequent thereto, the appellant-plaintiff submitted an insurance claim with the office of the respondent-defendant after a delay of 13 days from the date of the incident. The requisite documents were furnished to the surveyor appointed by the respondentdefendant for assessment of the claim.
4. The grievance of the appellant-plaintiff is that, despite repeated follow-ups, including an e-mail dated 23.10.2013, the surveyor failed to take necessary steps and kept providing false assurances under various pretexts. The appellant-plaintiff further alleges that the surveyor delayed the inspection of the vehicle for approximately one month.
5. According to him, upon eventually visiting the appellant-plaintiff, the surveyor allegedly conducted himself in an arrogant and improper manner. The surveyor is also stated to have interrogated the nephew of the appellantplaintiff, i.e., Mr. Firoz Khan. The appellant-plaintiff further contends that it was the surveyor who had dictated a statement to the nephew, and in the statement, it was purportedly alleged that the driver and the cleaner had left the ignition mode and cabin keys inside the vehicle at the time of the theft. Additionally, the appellant-plaintiff contends that the surveyor refused to accept the second set of keys tendered by him and, in alleged collusion with the respondent-defendant, acted with mala fide intent to repudiate the insurance claim.
6. The grievance of the appellant-plaintiff emanated from the letter dated 25.06.2013, from the respondent-defendant, whereby, his insurance claim was repudiated. The appellant-plaintiff asserts that the reasons cited for the rejection of the claim were baseless, untenable, and lacking in substance.
7. A perusal of the record reveals that the trial court, vide order dated 07.07.2014, framed the following issues:-
8. In order to prove his case, the appellant-plaintiff examined himself as PW[1] and tendered his evidence by way of affidavit, exhibited as (Ex. PW1/A). He also placed on record documents exhibited as Ex. P[1] to Ex. P[7], along with documents marked as Mark A and Mark B. PW[2], Zakir, submitted his evidence through affidavit, exhibited as Ex. PW2/A, and produced document Ex. P[8]. PW[3], Afzal, also filed his affidavit, marked as Ex. PW3/A, and relied upon the document already exhibited as Ex. P[8].
9. On behalf of the respondent-defendant company, two witnesses were examined. DW[1], Ms. Niddi Kalra, Assistant Manager, tendered her evidence by way of affidavit, exhibited as Ex. DW1/A, and placed on record documents exhibited as Ex. D[1] to Ex. D[6]. She also relied upon the document previously exhibited as Ex. P[1]. DW[2], Mr. Vikas Kumar, submitted his evidence through affidavit, marked as Ex. DW2/A, and produced document exhibited as Ex. DW2/B.
10. Upon consideration of the evidence on record, the trial court concluded that the appellant-plaintiff had failed to deposit the ignition mode key at the time of submitting the insurance claim. The trial court further observed that, according to the appellant-plaintiff‟s own version, the ignition mode keys were allegedly stolen along with the vehicle. In this context, the trial court found that the assertion of having deposited the keys under cover of a letter (Ex. P[5]) appeared to be an afterthought, ostensibly made at the instance of the insurance advisor.
11. Consequently, the trial court dismissed the suit, primarily on two grounds. Firstly, it held that the appellant-plaintiff had failed to report the incident of theft to the insurance company within a reasonable time, noting an unexplained delay of approximately 13 days. Secondly, the trial court found that the appellant-plaintiff had acted negligently by leaving the vehicle in ignition mode, thereby, creating an opportunity for theft. This conduct, in the view of the trial court, amounted to a failure to take reasonable care of the vehicle. Submissions
12. Mr. Tarique Siddiqui, learned counsel appearing on behalf of the appellant-plaintiff, assails the impugned judgment as being wholly perverse and contrary to the settled principles of law. He contends that the vehicle in question was stolen on 28.12.2012 and that the incident was reported to the police on the very same day. In support of this contention, learned counsel has placed on record the relevant documentary evidence. Placing reliance on the decision(s) of the Supreme Court in the cases of Gurshinder Singh v. Shriram General Insurance Co. Ltd.[1] and Jaina Construction Co. v. Oriental Insurance Co. Ltd[2], learned counsel also submits that where prompt intimation of theft is given to the police, the timing of submission of the insurance claim assumes diminished significance.
13. With respect to the alleged negligence attributed to the driver, learned counsel for the appellant-plaintiff submits that even if such negligence is presumed, it ought not to constitute the sole basis for the wholesale repudiation of the insurance claim. It is contended that, on the facts of the present case, the evidence on record clearly establishes that the driver and the conductor had momentarily alighted from the vehicle to attend to a nature‟s call, during which time the vehicle was inadvertently left in ignition mode for a period of approximately 20 to 30 minutes and it was during this limited window that the vehicle was allegedly stolen. On the aforesaid aspect, learned counsel places reliance on paragraph no.33 of the decision of the Supreme Court in Ashok Kumar v. New India Assurance Co. Ltd.3, and submits that, according to him, under the same circumstances, the Court was granted compensation to the extent of 75% of the claim amount, notwithstanding the presence of contributory negligence.
14. Learned counsel appearing for the respondent-defendant vehemently opposes the submissions advanced on behalf of the appellant-plaintiff and contends that, although the delay in reporting the incident to the insurance company is not seriously disputed, the more significant and determinative factor is the gross negligence exhibited by the driver of the vehicle. It is also submitted that the loss of the insured vehicle was a direct consequence of such negligence, which cannot be attributed to the defendant. Accordingly, the respondent-defendant contends that the repudiation of the insurance claim stands justified.
15. I have heard learned counsel for the parties at length and perused the record.
16. Upon the conspectus of the submissions made by learned counsel hereinabove, the Court is of the view that the findings rendered by the trial court warrant scrutiny, particularly with respect to two pivotal issues, i.e.,
(i) the alleged negligence of the appellant-plaintiff‟s driver and (ii) the purported delay in intimation of the theft to the insurer. Accordingly, a seriatim analysis of the findings rendered by the trial court on the two aforementioned issues is undertaken, in order to determine whether the conclusions drawn by the trial court are sustainable in law. The alleged delay in the intimation of theft
17. A perusal of the findings rendered by the trial court indicates that it took note of certain facts which were either admitted or undisputed in the pleadings. The theft of the said vehicle on 28.12.2012 was not in dispute and was substantiated by the registration of an FIR on the same date. Moreover, it was also admitted that the insurance claim was submitted to the insurer, i.e., respondent-defendant herein, after a delay of 13 days. However, the trial court observed that the case of the appellant-plaintiff was inconsistent, particularly in light of his pleading that on the subsequent immediate intimation to the insurer, the insurance advisor informed him of a delay having occurred. Furthermore, the trial court held that the appellantplaintiff failed to specify the mode of communication or produce any corroborative call detail records. During cross-examination, as per the findings rendered by the trial court, the appellant-plaintiff admitted making a phone call to the advisor but could not clarify whether the advisor was an official representative of the insurer or an independent agent. The Trial Court found that there was no contemporaneous written intimation to the insurer.
18. It is seen that the explanation offered by the appellant-plaintiff for the alleged delay is that he had orally informed the insurance advisor immediately after the occurrence of the incident. While no evidence to that effect has been placed on record to corroborate this assertion, the explanation, in the absence of any allegation of mala fides or deliberate suppression, cannot be summarily discarded. The position of the insurance advisor, whether as an official representative or an intermediary, is of limited consequence if, in the perception of the insured, he was acting in a capacity appropriate for such communication.
19. Furthermore, the trial court has erred in giving undue significance to inconsistencies which, upon close scrutiny, are minor, immaterial, and do not strike at the core of the case of the appellant-plaintiff. The reference in the plaint to an email dated 23.10.2013, though the actual copy of the email was not placed on record, cannot, by any reasonable standard, be treated as a deliberate misstatement. Likewise, the failure of the appellant-plaintiff to lodge a formal complaint regarding the alleged misconduct of the surveyor cannot be construed as tacit acquiescence. These observations of the trial court are, in the considered view of this Court, peripheral and incapable of dislodging the merits of the appellant-plaintiff‟s case.
20. Concerning the issue of delay in reporting the matter to the Insurance Company, it is well settled in law, as held by the Supreme Court in Gurshinder Singh and Jaina Construction Co, that such delay, by itself, is not fatal to the claim, particularly when the incident of theft is promptly reported to the police. In this context, reference may be made to paragraphs 12 to 23 of the decision in Gurshinder Singh, wherein, the Court comprehensively considered the nature of insurance contracts, and held that the timing of intimation to the insurer must be assessed in light of the surrounding facts and circumstances, and not in a rigid or mechanical manner. The relevant paragraphs are reproduced hereunder: -
12. In our view, applying the aforesaid principles, Condition 1 of the standard form for commercial vehicles package policy will have to be divided into two parts. The perusal of the first part of Condition 1 would reveal that it provides that “a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage”. It further provides that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides that every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy.
13. A perusal of the wordings used in this part would reveal that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides that any letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter, claim, writ, summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle.
14. We find that the second part of Condition 1 deals with the “theft or criminal act other than the accident”. It provides that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on 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. As observed by the Bench of two learned Judges in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759], after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen.
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 cooperate” of the insured.
18. We concur with the view taken in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759], that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hypertechnical view. We find that this Court in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759] has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.
19. We find that this Court in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759] has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759] this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
21. We, therefore, answer the reference accordingly.
22. In the present case, the facts are undisputed. The theft had occurred on 28-10-2010. The FIR was lodged at PS Nakodar, Jalandhar, Punjab on the same day i.e. 28-10-2010. The police have admittedly lodged the final report. The investigators appointed by the insurance company have submitted their investigation report on 25-2- 2011, finding the claim of the appellant to be genuine. In this background, the National Commission was not justified in reversing the concurrent orders of the District Forum and the State Commission. The appeal is, therefore, allowed. The impugned judgment and order dated 17-3-2015 [Shriram General Insurance Co. Ltd. v. Gurshinder Singh, 2015 SCC OnLine NCDRC 700] passed by the National Commission is quashed and set aside. The order of the District Forum dated 9-5-2012 as maintained by the State Commission vide order dated 26-3-2013 is maintained.
23. The amount i.e. 75% of the claim amount deposited by the respondents, pursuant to the orders of this Court dated 9-1-2018 [Gurshinder Singh v. Sriram General Insurance Co. Ltd., (2020) 11 SCC 621], in this Registry shall be permitted to be withdrawn by the appellant herein along with interest accrued thereon. The remainder shall be paid by the respondents within a period of six weeks from today along with interest @ 12% p.a. on the entire amount of Rs 4,70,000 from the date of the order of the District Forum till its realisation.”
21. Furthermore, in Jaina Construction Co, the Supreme Court stated that mere delay in intimation, absence of any mala fide intention, or demonstrable prejudice to the insurer, cannot form the sole basis for repudiation of a valid claim. The said relevant paragraphs are reproduced hereunder:-
mandated immediate notice to the insurer of the accidental loss/damage, and that the complainant had intimated about the loss on 11-4-2008 i.e. after the lapse of more than five months and, therefore, the Insurance Company had disowned their liability on the claim of the complainant.
7. The District Forum allowed the said claim of the complainant by holding that the complainant was entitled to the insured amount on non-standard basis i.e. Rs 12,79,399 as 75% of the IDV i.e. Rs 17,05,865 with interest @ 6% p.a. from the date of filing of the complaint till realisation from the Insurance Company. The District Forum also awarded compensation of Rs 10,000 and litigation expenses of Rs 5000 to the complainant. The aggrieved Insurance Company preferred an appeal being Appeal No. 612 of 2015 before the State Consumer Disputes Redressal Commission (Haryana), Panchkula.
8. The complainant also preferred an appeal being Appeal No. 537 of 2015 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing rate of interest awarded by the District Forum from 6% to 9% vide the judgment and order dated 16-12-2015. The aggrieved Insurance Company preferred the revision petition before NCDRC which came to be allowed [Oriental Insurance Co. Ltd. v. Jaina Construction Company, 2016 SCC OnLine NCDRC 2443] as stated hereinabove.
9. Since Respondent 1 Insurance Company has repudiated the claim of the complainant on the ground that the complainant had committed the breach of Condition 1 of the insurance contract, it would be beneficial to reproduce the said condition, which reads as under:
10. At the outset, it may be noted that there being a conflict of decisions of the Bench of two Judges of this Court in Om Prakash v. Reliance General Insurance [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724: (2017) 4 SCC (Civ) 759] and in Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha [Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha, (2018) 9 SCC 798: (2018) 4 SCC (Civ) 592], on the question as to whether the delay occurred in informing the Insurance Company about the occurrence of the theft of the vehicle, though the FIR was registered immediately, would disentitle the claimant of the insurance claim, the matter was referred to a three- Judge Bench.”
22. It is well established that the doctrine of uberrimae fidei i.e., utmost good faith, governs insurance contracts and imposes reciprocal duties on both the parties. In the present case, where the factum of theft is undisputed and the FIR was registered without delay, a mere procedural lapse in formally intimating the insurer, particularly in the absence of any demonstrable prejudice caused to the insurer, cannot, in the view of this Court, constitute the sole basis for repudiating an otherwise genuine claim. Repudiation of a claim under a vehicle insurance policy cannot be expected to follow a mechanical or rigidly formulaic approach that is against the very purpose of insuring the claimant in adversity. The insurer is bound to assess each claim on the touchstone of good faith, the materiality of the breach, and the proximate cause. A denial devoid of appreciation of facts or premised solely on technical infractions vitiates the principle of reasonableness.
23. In view of the aforesaid, and the settled legal position, the finding of the trial court insofar as it pertains to the dismissal of the claim on the ground of delayed intimation to the Insurance Company is patently contrary to established principles of law, and is, therefore, set aside. The purported negligence of the appellant-plaintiff’s driver
24. The finding of negligence rendered by the trial court in paragraph NO. 20 of the impugned judgment, the same reads as under:-
25. A perusal of the aforesaid findings indicates that the trial court has recorded a categorical finding that the driver of the appellant-plaintiff had left the vehicle in ignition mode and unattended for approximately 30 minutes during night-time hours and that such conduct constituted negligence leading to the theft of the vehicle.
26. The trial court has held that a perusal of Ex. PW1/D[1], the Intimationcum-Preliminary Claim Form dated 20.03.2013, revealed that the appellantplaintiff had stated, therein, that his driver, Zakir, had parked the truck at the location mentioned and left to attend to the call of nature along with the conductor Afzal, leaving the keys in the ignition mode. The trial court held that when the driver returned after approximately half an hour, the vehicle was missing, thereby, indicating that the driver had left the ignition mode key inside the truck.
27. The trial court further held that the appellant-plaintiff also admitted his signatures on the document marked „B‟, i.e., the statement dated 20.03.2013, exhibited as Ex. PW1/D[2], and confirmed that the contents were in the handwriting of his son, Abid, who was also a witness to the document. The trial court observed that Ex. PW1/D[2] further confirmed that the driver and khalasi of the vehicle had left the keys in the ignition mode and the vehicle unattended for half an hour, during which time the theft occurred. Accordingly, the trial court held that the aforenoted document established negligence on the part of the appellant-plaintiff‟s driver. It was held that the respondent-defendant, vide letter dated 13.05.2013 (Ex. P[4]), had specifically drawn the attention of the appellant-plaintiff to policy condition no. 5 regarding the duty to take reasonable steps to safeguard the vehicle and pointed out that the vehicle had been stolen along with the ignition mode key. The trial court noted that the appellant-plaintiff did not deposit the ignition key along with his claim.
28. The trial court also held that the appellant-plaintiff admitted in his cross-examination that he had deposited the keys with the insurer only later, by way of letter Ex. P[5] dated 04.06.2013. It was further held that the appellant-plaintiff possessed three trucks of the same make and model, and during cross-examination, a specific suggestion was made to him that the key submitted was substituted from another truck of identical make after the claim was repudiated, a suggestion that the appellant-plaintiff denied, but failed to disprove by any corroborative evidence. The Trial Court held that the appellant-plaintiff could not show that the key submitted on 04.06.2013 indeed belonged to the stolen vehicle.
29. The trial court also held that the appellant-plaintiff admitted in crossexamination that the letter depositing the keys was written on the advice of his insurance advisor, thereby supporting the conclusion that the purported deposit of the ignition mode key was an afterthought, lacking evidentiary value.
30. As regards the testimony of PW[2] Zakir, the trial court held that while he claimed in his affidavit that the surveyor had, with mala fide intent, fabricated the statement attributed to him, he was unable to state in crossexamination when he came to know about this alleged fabrication. Similarly, the trial court held that PW[3] Afzal made identical assertions in his affidavit, denying the statement allegedly recorded by the surveyor, but admitted during cross-examination that he learnt of this allegation only on the last date of hearing from his counsel.
31. The trial court, therefore, held that both PW[2] and PW[3] were unaware of the details they had deposed in their affidavits, and their statements concerning the disputed content of the report of the surveyor, were unreliable. Accordingly, it held that their testimonies on the question of whether the ignition mode and cabin keys were in the vehicle, were untrustworthy and not worthy of credit.
32. However, when the above findings are examined in light of the observations made by the Supreme Court in Ashok Kumar, particularly paragraph 33 thereof, it becomes evident that the factual matrix in the present case is closely comparable to the circumstances considered in the said case.
33. In Ashok Kumar, the vehicle had been left unattended by the driver for a duration of approximately 15 to 20 minutes, while the driver therein was attempting to identify the delivery address. The Supreme Court, after considering the totality of facts, concluded that such conduct, though arguably negligent, did not justify a total repudiation of the claim. Reference can be drawn to paragraphs nos. 27, 30, 33, and 36 of the said decision:- “27. Insofar as the alleged breach of Condition 5 is concerned, it is seen from the record that the driver of the claimant left the key in the keyhole of the vehicle when he got down to search the location of “Mittal Farm”, where he had to unload the stone dust. The investigator recommended the repudiation of claim because, according to him, steps to safeguard the vehicle insured were not taken by the driver. It is contended by the appellant that breach of Condition 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 [National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259: (2009) 1 SCC (Cri) 127] and Amalendu Sahoo [Amalendu Sahoo v. Oriental Insurance Co. Ltd., (2010) 4 SCC 536:
***
30. 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 v. National Insurance Co. Ltd. [Manjeet Singh v. National Insurance Co. Ltd., (2018) 2 SCC 108: (2018) 1 SCC (Civ) 623]; B.V. Nagaraju v. Oriental Insurance Co. Ltd. [B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647], National Insurance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297: 2004 SCC (Cri) 733] and Lakhmi Chand v. Reliance General Insurance [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100: (2016) 2 SCC (Civ) 45].) ***
33. 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 Mittal's 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 mode was an open invitation to steal the vehicle. ***
36. 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 5 warranting total repudiation. It was rightly so ordered by the District Forum and affirmed by the State Commission.”
34. In the present case also, the driver had temporarily gotten out of the vehicle to attend to the call of nature. It is, thus, seen that even on this ground, the finding rendered by the trial court deserved to be set aside.
35. Therefore, the explanation offered by the appellant-plaintiff and his witnesses, that the vehicle was momentarily parked to allow the driver to respond to a call of nature, does not amount to gross negligence of such a nature so as to justify total repudiation of the insurance claim under the terms of the policy.
36. Moreover, while the trial court has heavily relied on the contents of the Intimation-cum-Prelimnary Claim Form (Ex. PW1/D[1]) and the handwritten statement (Ex. PW1/D[2]), however, it failed to appreciate that both documents were prepared post-incident, for procedural compliance, and do not ipso facto amount to a conclusive admission of gross negligence. The driver merely stepping away for a bodily necessity does not, in law, amount to culpable or reckless disregard. The conduct described is, at worst, a minor lapse, not a fundamental breach of duty.
37. Accordingly, the finding of the trial court on this ground also is found to be unsustainable and deserves to be set aside.
38. In view of the aforementioned delineation of the relevant principles, the claim ought to have been allowed to the extent of 75% on a nonstandard basis.
39. In view of the foregoing discussion, the impugned judgment and findings of the trial court are hereby set aside. The claim of the appellantplaintiff is allowed to the extent of 75%, along with interest at the rate of 6% per annum from the date of filing of the civil suit until the date of realization.
40. In light of the aforesaid directions, the present appeal stands allowed and is accordingly disposed of.
41. Let the decree sheet be drawn accordingly. Parties to bear their own costs.
PURUSHAINDRA KUMAR KAURAV, J MAY 13, 2025/aks/mj/sp