Mohan Lal Yadav vs Oriental Insurance Co. LTD

M. Shreesha, Presiding Member

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 04.10.2016, passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal preferred by the Oriental Insurance Company Limited (hereinafter referred to as "the Insurance Company") and set aside the order of the District Consumer Disputes Redressal Forum, Jaipur III, Jaipur (in short "the District Forum"), consequently dismissed the Complaint.

The facts in brief are that the Complainant insured his Truck covering the period from 23.08.2004 to 22.08.2005 for IDV value of 11,51,000/- by paying a premium of 29,915/-. While so, it is averred that the Vehicle was stolen on 29.09.2004 at 10.00 p.m., when the driver parked the vehicle and had gone to attend natures call in the Agricultural field. It was pleaded that the FIR was lodged on the very next day stating that the insured with his helper Santosh Kumar Saini parked the Truck at NH 71, when the culprits speed away with their Truck towards Rewari. It is averred that Mr. Santosh Kumar Saini had lodged the FIR at Police Station Rohdai, District Rewari. It is further pleaded that the claim was lodged immediately with the Insurance Company but there was no response and hence the Complainant approached the District Forum seeking a direction to the Insurance Company to pay an amount of 11,51,000/-, which is the IDV of the vehicle together with compensation of 20,000/- and costs of 5,000/-.

It is significant to mention that the Insurance Company did not file their Written Version as the District Forum did not accept it as it was not supported by a relevant Vakalatanama. It was also recorded in the order that till 19.03.2012 several opportunities were given to the Insurance Company to file the Written Version but none had appeared. Thereafter on 10.12.2014, an Application was filed by Mr. G.B. Srivastava, Advocate for grant of opportunity to file the Written Version on behalf of the Insurance Company, which was rejected vide order dated 08.04.2015. It is pertinent to mention that this order dated 08.04.2015 was not challenged before the State Commission and the District Forum proceeded on merits and allowed the Complaint in part directing the Insurance Company to pay the Claim of the Complainant with interest @ 12% p.a. from the date of filing of the Complaint till the date of realisation together with compensation and cost of 20,000/-

On an Appeal, preferred by the Insurance Company the State Commission has observed that the Driver of the vehicle had left the vehicle unattended violated the policy conditions; that the claim was repudiated vide letter dated 14.09.2006 but the Complaint was filed on 29.03.2011 and therefore the Complaint is time barred and that the keys were left in the vehicle and therefore no reasonable steps were taken to safe guard the vehicle from loss of damage.

Learned Counsel appearing for the Complainant vehemently contended that the repudiation letter was never given to the Complainant; that it was produced for the first time on a direction of the National Commission and that there is absolutely no evidence on record that the repudiation letter was ever served on the Complainant.

Learned Counsel appearing for the Insurance Company argued that the State Commission was justified in holding that the Complaint was time barred. At this juncture, we are constrained to observe that the Insurance Company has admittedly filed the repudiation letter only after filing of the Complaint by the insured. On a query from the Bench, as to when the repudiation letter was dispatched to the insured and the mode of dispatch of the letter, the learned Counsel appearing for the Insurance Company submitted that only because the District Forum did not permit them to file the Written Version the said repudiation letter could not be filed. Even if we take this argument into consideration, it is not understood as to why the repudiation letter dated 14.09.2006 was filed for the very first time subsequent to the filing of the Complaint. In the absence of any evidence much less the mode of despatch to substantiate that the repudiation letter was indeed communicated to the insured, we are of the considered view that there is continuing cause of action and viewed from any angle, the Complaint cannot be considered to be time barred.

It is also relevant to mention that the cause of action that is the theft of the subject Truck took place on 29.09.2004, whereas, admittedly the repudiation was only on 14.09.2004, which is two years subsequent to the date of theft and is in violation of Regulation 9 of the Insurance Regulatory and Development Authority (Protection of Policy holder's Interests) Regulations, 2002, which stipulates the time frame for settlment/ or otherwise of the claim to be one month. For the latches committed by the Insurance Company, the Complainant cannot be made to suffer.

Now we address ourselves to the contention of the learned Counsel appearing for the Insurance Company that the theft was never informed to them. A brief perusal of the Intimation Letter (page- 57 of this Revision Petition) clearly shows that the said theft was informed to the Insurance Company together with the FIR details dated 30.09.2014 and there are remarks made by the official of the Insurance Company together with the stamp and seal. The remarks state that the said Complaint ought to be registered and the necessary papers be sent for investigation by Surveyor. It is relevant to mention here that though the date of accident intimation is not mentioned, the remark made by the official is dated 11.10.2004 on the same intimation letter. The remark establishes that the intimation was given within 10 days of the date of cause of action. The Hon'ble Supreme in a catena of judgments has stated that any reasonable delay in intimation cannot be construed as a fundamental breach. A Surveyor was appointed, who assessed and recommended loss of 10,35,615/-. The State Commission has also observed that the keys were left in the vehicle and therefore the reasonable care was not taken. It is relevant to mention here that no such grounds were taken in the repudiation letter and as per the ratio laid down by the Hon'ble Supreme Court in M/s. Galada Power Telecommunication Limited Vs. United India Insurance Company Limited & Anr. (Civil Appeal No. 884-8890 of 2010 dated 28.07.2016), the Insurance Company cannot travel beyond their grounds of repudiation.

Hence, we are of the considered view that the claim was not time barred; the alleged delay in intimation was not established by the Insurance Company keeping in view the Letter of Intimation stamped and signed by the official of the Insurance Company; that the Insurance Company cannot travel beyond their grounds of repudiation and that the Insurance Company did not adhere to Regulation 9 of the Insurance Regulatory and Development Authority (Protection of Policy holder's Interests) Regulations 2002. Hence, the non settlement of claim by the Insurance Company is not justified and we direct the Insurance Company to pay what the Surveyor has assessed with interest @ 6% p.a. from the date of filing of the Complaint till the date of realization together with costs of 10,000/-.

In the result this Revision Petition is allowed to the extent indicated above.