ASHOK KUMAR versus NEW INDIA ASSURANCE CO. LTD.

Citation: [2023] 9 S.C.R. 1240 · Decided: 31-07-2023 · Supreme Court of India · Bench: J.K. MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 9 S.C.R.
[2023] 9 S.C.R. 1240 : 2023 INSC 659
1240
ASHOK KUMAR
v.
NEW INDIA ASSURANCE CO. LTD.
(Civil Appeal No. 4758 of 2023)
JULY 31, 2023
[J. K. MAHESHWARI AND K. V. VISWANATHAN, JJ.]
Consumer Protection Act, 1986: s. 24 A – Insurance Claim –
Repudiation of – Theft of insured vehicle of the appellant – FIR
lodged by the appellant – Insurance company intimated about the
theft on the sixth day – Complaint filed by the appellant before the
district forum alleging that the Insurance Company was delaying
the settlement of the claim – During pendency, repudiation of the
claim by the Insurance Company – Thereafter, the complaint
dismissed as withdrawn– Filing of the fresh complaint – Award of
75% of the sum assured to the complainant on a non-standard basis
– Upheld by the State Commission – However, the National
Commission set aside the same – On appeal, held: Having not
argued, before the State Commission, as regards the complaint being
barred in view of the withdrawal of the earlier complaint, the
National Commission not justified, in allowing the Insurance
Company to urge that point   – Moreover, the National Commission
was under the wrong impression that the earlier complaint had
challenged the order of repudiation – Complaint was withdrawn by
the counsel on the pretext of the case being prolonged by the
advocate of the Insurance Company, without having express
instructions for withdrawal – For the fault of the counsel, the
complainant cannot be made to suffer – Thus, the complaint cannot
be thrown out on the threshold of Or.XXIII r.1(4) – Any violation of
the condition should be in the nature of a fundamental breach –
There was timely intimation to the insurance company about loss or
damage – Time gap between the driver alighting from the vehicle
and noticing the theft, was very short – It cannot be said that leaving
the key of the vehicle in the ignition was an open invitation to steal
the vehicle – Even if there was some carelessness, it was not a
fundamental breach of the condition warranting total repudiation
– On facts, fit case to award the claim at 75% on a non-standard
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basis –   District Forum and State Commission rightly ordered so –
Code of Civil Procedure, 1908 – Or. XXIII r. 1(4).
Allowing the appeal, the Court
HELD : 1.1 Having not argued, before the State
Commission, the point of the present complaint being barred in
view of the withdrawal of the earlier complaint, the National
Commission was not justified, on the facts of the instant case, in
allowing the respondent-Insurance Company to urge that point
therefrom. It is very clear from the order of the State Commission
that only two points were argued by the Insurance Company. [Para
5][1250-D-E]
1.2 In any event, interest of justice requires that the
appellant, in the peculiar facts and circumstances of this case,
should not be non-suited on the ground that his earlier complaint
was withdrawn. The National Commission was under the wrong
impression that the original Complaint was filed in respect of
repudiation of the insurance claim and it proceeded on the
erroneous premise that having challenged the repudiation in the
Complaint, the withdrawal of the complaint unconditionally on
22.11.2010 was fatal to the appellant. The original Complaint was
filed on 11.06.2009 and the respondent-Insurance Company
repudiated the claim only on 15.10.2009. The complaint was filed
after theft due to non–settlement of claim by the Insurance
Company. The repudiation of the claim was made during the
pendency of the said complaint, purportedly due to breach of
condition no. 1 and 5. The said complaint was withdrawn by the
advocate of the complainant on the pretext of the case being
prolonged by the advocate of the Insurance Company, without
having express instructions for withdrawal of the said complaint.
However, for the fault of the advocate, the complainant cannot
be made to suffer. Finally, the dismissal of the complaint was made
by the National Commission under the wrong pretext that the
earlier complaint had challenged the order of repudiation. Thus,
the complaint cannot be thrown out on the threshold of Order
XXIII Rule (1)(4) CPC and in the peculiar facts, it requires
consideration on merits. [Paras 7, 8][1250-G; 1252-A-E]
1.3 A careful perusal of Condition No.1 shows that notice is
to be given in writing to the Insurance Company immediately
ASHOK KUMAR v. NEW INDIA ASSURANCE CO. LTD.
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