BHARTI AXA GENERAL INSURANCE COMPANY LTD. vs SARVJIT DHANDA

This appeal has been filed by appellant against order dt. 24.03.2014 passed by State Commission in complaint No. 73/2012 Sarvjit Dhanda vs. Bharti Axa General Insurance Company Ltd. by which complaint was allowed and opposite party was directed to pay Rs. 2676150 with 7.5 % per annum interest and was further directed to pay Rs. 20,000/- as cost of litigation.

Brief facts of the case are that complainant / respondent purchased Audi car No. PB10CT-2929 on 31.12.2010 for a sum of Rs. 2817000/- and got it insured from opposite party / petitioner for a period of one year commencing from 31.12.2010 to 30.12.2011 with insured value of Rs. 2676150. It was further submitted that at 10:00 pm, on 03.09.2011, car was parked near hotel Imperial from where it was stolen. Inspite of search, car could not be searched. Complainant intimated to police on 04.09.2011 in writing. Complainant also informed opposite party on 05.09.2011. It was further submitted that FIR was registered on 10.09.2011. Opposite party appointed M/s Glide Investigation and Security Services to investigate the matter to whom complainant gave original and duplicate key. Inspite of repeated requests, claim was not settled and opposite party vide letter dated 20.07.2012 repudiated claim. Alleging deficiency on the party of opposite party, complainant filed complaint before State Commission. Opposite party resisted complaint and submitted that case requires voluminous evidence so consumer fora has no jurisdiction to entertain the complaint and only civil court is competent to decide the matter. It was further submitted that claim was rightly repudiated on account of violation of terms and conditions of policy. It was further submitted that complainant was given three keys whereas he was in possession of only two keys and he left third key in the car so, claim was rightly repudiated and prayed for dismissal of complaint. Ld. State Commission, after hearing both the parties allowed complaint as mentioned above. Opposite party filed appeal alongwith application for Condonation of delay.

Heard Ld. Counsel for the parties finally at admission stage and perused record.

Appellant has filed application for Condonation of delay of 79 days whereas as per office report, there is delay of only 61 days. In application for Condonation of delay, appellant submitted that certified copy of order was received on 11.04.2014 which was sent to Delhi office on 25.04.2014 and advocate provided opinion on 07.05.2014 and documents were sent to legal cell of appellant''s company at Banglore on 09.05.2014. It was further submitted that legal cell requisitioned some more documents on 20.05.2014 which were sent on 27.05.2014 and legal cell granted approval for filing appeal on 04.06.2014. It was further mentioned that counsel for appellant took some time in drafting appeal and on account of vacations, appeal could be filed on 11.07.2014 and in such circumstances, delay in filing appeal be condoned.

Appellant has given proper explanation for Condonation of delay and as there is delay of only 61 days in filing appeal, I deem it appropriate to condone delay in the light of latest judgment of Hon''ble Apex courts (1) Civil Appeal Nos. 10120-10121 of 2014 - Jeevanti Devi Vs. Commercial Motors & Anr., (2) Civil Appeal No. (s) 10289 of 2014 - A.T.S. Govindarajane Vs. Chief Manager, State Bank of India , (3) Civil Appeal No. 5071 of 2014 - Taipen Traders Ltd. & Anr. Vs. M/s. Bhawani Cold Storage & Ors. , by which delay of 135 days, 149 days and 218 days, respectively, in filing revision petition was condoned, subject to payment of Rs. 5,000/- as cost to respondent.

Ld. Counsel for appellant submitted that inspite of proof of delay in lodging FIR and delay in intimation to appellant and not delivering third key of the car to surveyor, Ld. State Commission committed error in allowing complaint hence, appeal be allowed and impugned order be set aside. On the other hand, Ld. Counsel for respondent submitted that order passed by Ld. State Commission is in accordance with law hence, appeal be dismissed.

As far theft of vehicle is concerned, Glide Investigation Services who was entrusted investigation by appellant observed as under "Statements of all are true and in line with each other and confirm the theft of car audi no. PB10CT-2929". Thus it becomes clear that car was stolen. As far delay in lodging FIR is concerned Ld. Counsel for appellant submitted that car was stolen on 03.09.2011 whereas FIR was lodged on 10.09.2011 but Ld. Counsel for respondent submitted that intimation to police station was given on 04.09.2011 but case was registered by police on 10.09.2011 hence, there is no delay in lodging FIR. Ld. Counsel for respondent has drawn my attention towards letter dated 04.09.2011 addressed to SHO police station, Division No. 5, Ludhiana in which he mentioned that he parked his car on road side on 03.09.2011 at 10:00 pm and when he returned back from hotel, he did not find his car. This letter bears stamp of police station. In such circumstances, it can very well be presumed that intimation of theft was given to police station on 04.09.2011. No doubt, FIR No. 230 registered on 10.09.2011 reveals information was received at 05:20 pm on 10.09.2011 but at the same time, in column no. 8 pertaining to reason for delay, it mentions that there was no delay. It appears that intimation regarding theft was given by complainant to police station on 04.09.2011 but FIR was not registered and after search when vehicle was not traced, formal FIR was lodged and registered on 10.09.2011. Perusal of record reveals that intimation of theft was also given to the dealer of vehicle and by email message dated 05.09.2011 details of chasis number, engine number etc. of stolen car were also sent by complainant to dealer of the car. Perusal of record further reveals that written intimation to opposite party was also given on 04.09.2011 regarding theft of car. If complainant was vigilant enough to give intimation to the dealer as well opposite party regarding theft of vehicle, why will he not intimate to police immediately. Merely because, reference of earlier intimation has not been given in FIR registered on 10.09.2011, it cannot be held that intimation to police regarding theft of vehicle was not given on 04.09.2011, particularly in the light of intimation given to opposite party as well dealer and intimation dated 04.09.2011 addressed to SHO bearing stamp of police station. In the light of above discussion, I do not find any delay in intimation of theft to police.

As far delay in intimation to opposite party is concerned, Ld. Counsel for appellant submitted that intimation to opposite party was given on 12.09.2011 and on account of delayed information, claim was rightly repudiated. On the other hand, Ld. Counsel for respondent submitted that intimation was given to opposite party on 05.09.2011 as 04.09.2011 was Sunday so, there was no delay in intimation to opposite party. Ld. Counsel for respondent has drawn my attention towards intimation dated 04.09.2011 given by complainant to opposite party which was received by opposite party on 05.09.2011. This letter bears stamp of opposite party as well signature of receiving person. Complainant in para 9 of the complaint specifically pleaded that opposite party was intimated through writing on 05.09.2011 which was duly signed and stamped by concerned official. Opposite party in reply to this para, denied contents of para no. 9 of the complaint and simply stated that intimation was given after six days. No answer has been given regarding stamp and signature of concerned official on intimation dated 04.09.2011 received by opposite party on 05.09.2011. Merely because reference of earlier intimation dated 04.09.2011 has not been given in intimation dated 12.09.2011, earlier intimation dated 04.09.2011 cannot be treated as fabricated specially, when it bears stamp of opposite party with signatures of receiving person. In such circumstances, it becomes clear that intimation regarding theft of car was given by complainant to opposite party immediately after theft and there was no delay in intimation to opposite party and on this ground opposite party committed deficiency in repudiating claim.

Ld. Counsel for appellant submitted that three keys were provided to the complainant but he handed over only two keys to the investigator meaning thereby third key was left in the car on account of which car was stolen. In support of his contention, he has drawn my attention towards Glide Investigation Services report in which it was mentioned that investigator has taken two keys in his possession. He has also drawn my attention towards delivery note which bears signature of complainant in which list of items including duplicate key has been given to the complainant. Nowhere it has been mentioned that complainant was provided two original keys and one duplicate key but it appears that one original key and one duplicate key was given to the complainant by the dealer at the time of delivery of possession of the vehicle. "Ld. Counsel for appellant has drawn my attention towards Annexure R7 at page 81 of the paper book in which set of keys has been shows in the diagram of keys. According to this figure, diagram A denotes two remote control key with integrated emergency key and diagram B denotes space key. It has further been mentioned that emergency key is integrated in remote control key which is shown at page 33 but Ld. Counsel for appellant has not filed page 33. Not only this, last para of annexure R7 runs as under: "you can check how many keys are initialised for your vehicle = page 10. This feature enables used car buyers to make sure they have received all of the keys" which makes it clear that different models of car are having different number of keys and in such circumstances merely on the basis of annexure R7, it cannot be presumed that complainant was provided two original keys and one duplicate key, particularly, in the light of statement of complainant that he received only two keys, In such circumstances, it cannot be held that complainant left one key in the car on account of which car was stolen.

Ld. Counsel for appellant further submitted that Audi car cannot be started without original or wallet key since car has been fitted with Vin specific advanced technology system. It is nowhere case of the complainant that car was stolen after starting it. Complainant submitted in the complaint that he parked his car, went inside the hotel and returned after some hours and did not find car. Whether car has been stolen by starting it or by lifting it, complainant is not aware and in such circumstances merely because car has been fitted with Vin specific advanced technology system, it cannot be presumed that car could have been stolen only by leaving wallet key in the car.

Ld. Counsel for appellant has placed reliance on judgment of Hon''ble Apex Court in 2013(1)scale410, Export Credit Guarantee Corpn. Of India Ltd. Vs. Garg Sons International in which it was observed that it is not permissible for the court to substitute terms of the contracts itself and terms of the contract have to be construed strictly. I agree with the law laid down by Hon''ble Apex Court but this judgment does not help to the appellant because in the case in hand, appellant failed to prove that there was any delay in intimation to police or insurance company or there was negligence on the part of complainant in leaving key in the car.

In the light of aforesaid discussion, I do not find any illegality in the impugned order and appeal is liable to be dismissed.

Consequently appeal filed by the appellant is dismissed at admission stage with no order as to cost.