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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 58(1)(b) of Consumer Protection Act 2019, against the order dated 24.09.2021 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 182 of 2021 in which order dated 13.01.2021 of District Consumer Disputes Redressal Commission, Jaipur I (hereinafter referred to as District Commission) in Consumer Complaint (CC) 101/2016 was challenged, inter alia praying for modifying the order dated 24.09.2021 of the State Commission and allowing interest @18% p.a. and compensation.
While the Revision Petitioner(s) (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Commission and the Respondent(s) (hereinafter also referred to as (OP/Insurance Company) were Respondents in the said FA/182/2021 before the State Commission and OPs before the District Commission in the CC No.101/2016.
Notice was issued to the Respondent(s) on 05.12.2022. Parties filed Written Arguments/Synopsis on 11.10.2023 and 03.11.2023 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:
The complainant got his vehicle truck (dumper) No. HR55-J-9844
Insured, with the OPs/Insurance Company for the period from 24.02.2013 to 23.02.2014. During the period of insurance, the said vehicle was stolen on 24.11.2013 and immediately the information was given to the Police Station Kotputali at Jaipur and First Information Report (FIR) No. 1018/2013 was got registered. The complainant informed the office of the Respondent/Insurance Company about the incident and submitted all the documents and submitted the documents before the Investigating Officer, but the claim was not allowed. The Insurance Company repudiated the claim vide letter dated 20.03.2015. Hence, the complainant filed complaint before the District Commission.
Vide Order dated 13.01.2021, in the CC No.101/2016 of the District Commission accepted the complaint and passed the order as follows:
“1.Applicant is entitled to get amount of Rs.8,40,000/- as compensation for theft of the insured vehicle along with simple interest @ 9% from the date of filing of the complaint 28.10.2015 till payment from the opposite parties.
In addition to this applicant is also entitled to get Rs.5,000/- lump sum on account of complaint expenses from the opposite parties. But if the aforesaid whole amount is not paid within one month by the opposite parties then applicant will also be entitled to get simple interest @ 9% on the aforesaid amount of Rs.5,000/- also from today decision dated 13.01.2021 till payment, for payment of which the whole liability will be on opposite parties only.
Rest of the prayer of the applicant is rejected.”
Aggrieved by the said Order dated 13.01.2021 of District Commission, Petitioner appealed in State Commission and the State Commission vide order dated 24.09.2021 in FA No. 182/2021, set aside the order passed by the District Commission, accepted the appeal and passed the following order:-
1.Appellant / complainant will be entitled to get 90% amount Rs. 10,80,000/- (rupees ten lakh eighty thousand) in place of 70% of the insured amount allowed by the District Commission below from respondent / opposite party Insurance Company along with interest @9% from filing of the complaint 28.10.2015.
Will be entitled to get Rs. 11,000/- (rupees eleven thousand) for complaint expenses and expenses for this appeal.
The respondent Insurance Company is allowed time of one month after receipt of copy of decision to deposit the balance amount. On not depositing the amount within one month, interest will be payable @12% in place of 9% from the date of today till payment to the complainant.
On not depositing the amount of complaint expenses and appeal expenses within one month, interest on the aforesaid will also payable @ 9% from today. Accordingly this appeal is decided.
Petitioner has challenged the said Order dated 24.09.2021 of the State Commission mainly on following grounds:
i. the impugned order passed by the State Commission is contrary to the facts and records available on file, is against the well settled principle of law and against the spirits of C.P. Act while not allowing the entire sum insured of the vehicle without cogent evidence against the petitioner. Hence, the impugned order is liable to be modified to that extent.
ii. The State Commission has failed to see that when there is no finding by the investigator for the incident of theft being not true and genuine and without any evidence on record and even the investigation report itself was not submitted by the Insurance Company and even no affidavit of investigation was submitted, there was no occasion with the State Commission to deduct the 10% amount of the sum insured.
iii. The State Commission failed to see that the District Commission deducted 30% for delay intimation to the Insurance Company and not for locking the cabin, whereas the State Commission has considered the point of locking the cabin as suspicious. It is well established principle of evidence that no amount of suspicion can take place of evidence. Therefore, the finding of without locking the cabin being suspicious cannot be held justified.
iv. The State Commission failed to see that when the driver went for taking meal, which is a need of nature and also took the ignition key with him without which any vehicle cannot be started. There is no question of any negligence on the part of driver and it is not the case of the Insurance Company that the driver left the ignition key in the vehicle.
v. The State Commission failed to see that there is no condition in the policy for settlement of claim on the non-standard basis or for deduction of any amount from the claim of theft without being a case of compromise or without any circular or rule of the Insurance Company. Hence, entire claim amount be allowed.
vi. The State Commission has erred in allowing a meagre amount of Rs.11,000/- for complaint expenses and no compensation has been allowed on account of mental agony and harassment. Hence, the impugned order is liable to be modified.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 It is contended by the Petitioner/complainant that the petitioner filed complaint before the learned District Commission, Jaipur and claimed sum insured of the vehicle Rs. 12,00,000 along with expenses and compensation total Rs. 14,31,000/- with interest 18% per annum for theft of the insured vehicle on 24.11.2013 during period of insurance, for which information was immediately lodged in police and other formalities were completed, but the claim was not paid. The District Commission allowed the complaint for Rs.8,40,000/- @ 70% non-standard on account of delay. Against the District Forum’s order, appealed before the Hon'ble State Commission, the State Commission allowed appeal for claim @ 90% non-standard in place of 70% as allowed by the District Commission along with the interest @ 9%. It is further contended by the Petitioner that the petitioner/complainant proved his case by filing his affidavit and other documents relating to the claim. The State Commission failed to see that when there is no finding by the investigator for the incident of theft being untrue and no any report of the investigator was filed by the Insurance Company, there was no occasion for the learned District Commission for making the claim non-standard and also to the State Commission to deduct 10% amount. There is no evidence for any type of negligence or breach of policy on the part of the insured and for not applying lock on the cabin. Therefore, the petitioner is entitled for the entire claim. Judgment and order of State Commission is based on suspicion. The State Commission has stated in its judgment that since both keys of cabin have not been made available, therefore locking of cabin remains suspicious. The State Commission has stated in its judgment that there is statement on record by the vehicle driver for observing the reasonable care and also he took ignition key with him and locked the cabin also. In this situation only because of not giving the keys of cabin, it cannot be said that cabin was not properly locked and there is no justification to make the claim non-standard by deducting 10% amount out of the claim. There is nothing on record that the incident of the theft is not true and in this situation merely on the basis of suspicion no any penalty can be imposed on the petitioner/ complainant for his genuine and justified claims merely on the basis of conjectures and surmises and that too without filing any investigation report and affidavit of the investigator on record. Law point involved in this case is that without evidence of any negligence on the part of the driver without affidavit of investigator, whether claim can be made sub-standard on the basis of mere suspicion. When the driver has given immediate information of the theft to the police and also carried the ignition key of the truck with him. The State Commission has failed to exercise its jurisdiction in legal manner and has exercised the jurisdiction with material irregularity and illegality by deducting 10% amount of the claim as non-standard only on the basis of suspicion and there is no evidence and reason on record for such deduction.
8.2 It is contended by the Respondents/Insurance Company that undue and inordinate delay of 21 Days in intimating the factum of theft is 'a fundamental breach' which disentitles Revisionist of any claim. It is an admitted position that the insurance company was informed about the theft only on 16.12.2013, after a delay of 21 days which is not sufficiently explained. In the light of these factual situation, the claim needs to be dismissed as the same in express violation of Condition No.1 of the Insurance Policy, which is immediate intimation in writing of theft be provided to the Insurance Company is concerned. In this regard, the Insurance Company has relied upon the judgment passed by this Commission in Sajid Ali vs. Sri Ram General Insurance Co. Ltd. Revision Petition No. 1307 of 2017 decided on 02.02.2018. It is further contended that payment of claim on Non-Standard Basis is not applicable to Insurance Companies operating under Licenses. The State Commission allowed insurance on the basis of non-standard basis as per guidelines issued by the IRDAI and General Insurance Council (GIC). However, these guidelines are only applicable to nationalized or public insurance companies and not to private insurance companies who are operating under a license, such as the Insurance Company in this case. It is submitted that the precise aforementioned issue is the subject matter of a pending proceedings before the Hon'ble Apex Court in Iffco Tokio General Insurance Co. Ltd. v Ramdevsinh Satuba Gothil SLP (C) No. 7902 of 2013, wherein the case has been now posted for final hearing and stay has been issued on the impugned orders which had granted claim on non-standard basis despite the insurers being private insurance companies. Hence, requested that the present dispute be adjourned till the disposal of the abovementioned case before the Hon'ble Apex Court [relied on orders dated 22.02.2013 and 06.12.2016 passed in SLP (C) No. 7902 of 2013]. It is also contended that Insurance claim on the basis of non-standard cannot be allowed to the extent of 90% without prejudice to the aforementioned argument. The Fora below have clearly noted the violation of two insurance conditions (a) Condition No.1 Delayed intimation to the Insurance Company and (b) Condition No. 4 – Negligence Behaviour by not keeping precautions which led to theft, i.e. probability of theft on the ground that the doors of the vehicle were not locked and left the ignition key inside. Both these violations disentitle the compensation on standard basis to the extent of 90% and instead, the cumulative effect would result in allowance of claim only till 50%. In this regard Insurance Company has placed reliance on judgment of this Commission in United India Insurance Company Limited Vs. Aji Pal Revision Petition No. 2089 of 2015 decided on 13.02.2019 and Supreme Court's Decision in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (2010) 4 SCC 536.
In this case, the theft of the vehicle took place on 24.11.2013. FIR was lodged on 27.11.2013 at 15:30 hrs. The intimation to Insurance Company was given on 16.12.2013. In Gurshinder Singh Vs. Shriram General Insurance Company Ltd. & Anr. (2020) 1 SCC 612, Hon’ble Supreme Court concurring with the view taken by it in Om Parkash Vs. Reliance General Insurance and Anr. ( Civil Appeal No. 15611 of 2017) decided on 04.10.2017, observed that 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 hyper technical view. Accordingly, the Hon’ble Supreme Court in Gurshinder Singh (supra) held 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, …….. 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. However, in the present case the FIR was also with a delay of about 3 days. No valid reasons have been given for such delay. Further, the complainant did not handover both the keys of the cabin to the Insurance Company. Hence, keeping in view the entirety of facts, we are of the view that there is no illegality in the order of the State Commission in allowing the claim at 90%. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld. Accordingly, the Revision Petition is dismissed.
The pending IAs in the case, if any, also stand disposed off.