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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
The present Revision Petition has been filed by the Petitioner/ Complainant under Section 21(b) of the Consumer Protection Act, 1986 (“the Act”) against the impugned order dated 06.07.2017, passed by the learned State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun (‘the State Commission’) in First Appeal No. 191/2011 wherein the State Commission allowed the Appeal filed by the Respondent No.1/OP-1 against the order dated 29.08.2011 passed by the learned District Consumer Disputes Redressal Forum, Udham Singh Nagar, (‘the District Forum’) wherein the District Forum had allowed the Complaint.
For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.
Brief facts of the case, as per the Complainant, are that the Complainant had purchased a Jeep Bolero SLX MD ITC 2 WD registration No. UK06-M-6794 from Bajrang Motors, Dealer Rampur Road, Haldwani (Respondent No.2) on 02.09.2009, by taking loan from State Bank of India. The vehicle was insured by the agent of Oriental Insurance Co. Ltd vide cover note 3458 from 02.09.2009 to 01.09.2010 from the counter located within the dealer showroom.
On 06.11.2009, the Complainant went to Paschim Vihar, Delhi to attend ceremony at the house of Shri Mukesh Kumar, his relative. From the parking place of Paschim Vihar, Delhi, the vehicle was stolen on 08.11.2009. Shri Mukesh Kumar intimated the police on 08.11.2009 about the theft of the vehicle and FIR No. 504/09 was lodged at Police Station, Paschim Vihar, Delhi on 17.12.2009. After investigation, the police could not recover the vehicle and filed a final report. Thereafter, he filed a claim before the Regional Office of OP-1 on 27.11.2009. But OP-1 repudiated the claim on 04.08.2010 on the grounds that the Complainant had violated the terms and conditions of the policy that he did not inform OP-1 & 2 about theft within 48 hours of incident. He had informed the insurer through OP-3 M/s Bajrang Motors on 08.11.2009 and OP-3 assured him that the intimation shall be sent to authorized agent of the Insurer. In the absence of any action, the Complainant forwarded a legal notice to OP-1 on 04.10.2010, asserting absence of negligence in reporting theft to OP-1 & 2 and that no policy terms and conditions are violated. The act of OPs amounts to deficiency in service and unfair trade practice. Due to repudiation, he suffered financial loss and agony. He filed a Consumer Complaint before District Forum praying for insured amount of Rs.5,50,000/- with interest @ 12% per annum. Rs. 20,000/- for mental agony and Rs. 5,000/- for litigation costs.
In their reply before the District Forum, OP-1 & 2 admitted the ownership of the Complainant with respect to vehicle No. UK06-M-6794 as well as issuance of the insurance policy, subject to terms and conditions laid down and notified to him. The OPs contested the theft of the vehicle in question on 08.11.2009 and asserted that the alleged FIR dated 17.12.2009 was lodged with the considerable delay making the FIR suspicious and based on concocted story of theft only to claim unlawful claim from the OPs under the garb of the policy. The police did not find any evidence of theft of the alleged vehicle. This, the police filed a final report. Therefore, the claim for alleged loss of the vehicle is entirely unsubstantiated and thus the claim was rightly repudiated by the OP-1, as there was a specific breach of condition of insurance policy which clearly and unequivocally provides that "claim for theft of vehicle is not payable if theft not reported to company within 48 hours of its occurrence". In this case, however, theft was reported to OP-1 after 18 days delay. Therefore, the claim for alleged theft is not payable under the policy. The claim was not paid as the fact of theft has not been proved and also due to breach of specific condition of the policy. Since the theft has not been reported to the OP-1 & 2 within the prescribed period no cause of action accrued. The repudiation of claim is legal and bonafide and cannot be termed deficiency in service by the OP-1 & 2.
In the reply, OP-3 - Bajrang Motors (Dealer) pleaded that there is no 'deficiency in service'. On 08.11.2009, when OP-3 received information about theft of the said vehicle from the Complainant, they immediately informed OP-1 & 2 about the same. The Complainant is not entitled for any reliefs as sought against OP-3.
The learned District Forum vide Order dated 29.08.2011 allowed the complaint and granted the following relief:-
The OP1&2 shall pay the claim amount along with interest @ 7% per annum from the date of filing of the Complaint till its realization;
The OP1&2 shall pay Rs.5,000/- for physical and mental agony.
The OP1&2 also pay cost of Rs.2500/- towards the filing of complaint.
The complaint against the OP3 is dismissed”
Being aggrieved by the Order of the learned District Forum, OP-1 & 2 - Insurance Company filed Appeal No.191/2011 before the learned State Commission. The State Commission vide order dated 06.07.2017 allowed the Appeal and dismissed the complaint filed by the Petitioner /Complainant with the following observations:
“9. We have gone through the affidavit of Sh. Debasheesh Endow. Senior Divisional Manager of Oriental Insurance Co. Ltd, filed by the opposite party Nos. 1 & 2 before the District Forum. In para No. 3 of the said affidavit, the deponent has stated that it is denied that the appellant Insurance Company has any permanent counter at Bajrang Motors, Haldwani. In para No. 4 of the affidavit, it is further stated that neither permanent counter is located at Bajrang Motors, Haldwani, nor Insurance Company and Bajrang Motors, Haldwani have any contract for the insurance of the vehicle. In para No. 5 of the affidavit, it is mentioned that the respondent No. 1-complainant has lodged F.I.R. about theft of his vehicle only on 08.11.2009 with a considerable delay which makes the F.I.R. suspicious. In para No. 6 of the affidavit, the deponent has stated that it is specifically denied that the complainant had informed the Bajrang Motors about the theft on telephone and letter alleged to be issued by Bajrang Motors is a fabricated document. In para No. 8 of the affidavit, the deponent has stated that there was a specific breach of condition of insurance policy which clearly provides that "claim for theft of vehicle is not payable, if theft not reported to company within 48 hours of its occurrence", while in this case, the theft was reported to the Insurance Company after 18 days delay. Respondent No. 1-complainant, though, has also filed counter affidavit (paper Nos. 20/1 to 20/2 on the District Forum's record), but has only repeated the pleas of consumer complaint and no new things have been deposed. We have gone through the documents filed by the respondent No. I-complainant before the District Forum. In the consumer complaint, the respondent No. 1-complainant has mentioned name of his relative as Mukesh Kumar, while from the perusal of F.I.R. Sh. Mahesh Gupta is a relative of respondent No. 1-complainant, from whose residence or nearby his residence, vehicle in question was said to be stolen. In the affidavit of Sh. Sanjay Agarwal, Partner, M/s Bajrang Motors, Rampur Road, Haldwani (paper No. 24 on the District Forum's record), all the facts are repeated, which have been mentioned in the written statement. In para No. 4 of the said affidavit, the deponent has stated that after receiving information regarding theft of vehicle on 08:11.2009, he immediately keeping in mind the interests of respondent No. I-complainant, informed the opposite party Nos. 1 & 2 about the same. We have gone through the certificate (paper No. 6/22 on the District Forum's record), which has been prepared as "No Objection Certificate” with heading ‘To Whom It May Concern’. In this certificate, it mentioned that Mr.Virendra Agarwal informed Sh. Sanjay Agarwal over telephone on 08.11.2009 that his vehicle model Bolero SLX has been stolen from Paschim Vihar, New Delhi, which was registered as UK-06-M 6794 purchased from us on 02.09.2009. There is no evidence on record to that Sh. Sanjay Agarwal, Proprietor of Bajrang Motors (Dealer) had received any such call on telephone regarding theft of vehicle. Moreover, this certificate does not show that the respondent No. 1-complainant has informed either to any authorized agent of the Insurance Company or t appellant-Insurance Company directly. This certificate bears no date, therefore, it seems that the document has been prepared malafidely in favour of the respondent No. I-complainant. We have gone through the statement of Sh. Virendra Aparwal-respondent No. 1 (paper No. 6/17 on the District Forum's record) in which he has mentioned that after theft of his vehicle, he informed the police station Paschim Vihar, Delhi, but police did not lodge any F.I.R. and asked him to wait for some days. In this statement Sh. Virendra Agarwal-respondent No. 1-complainant has categorically stated that police has lodged F.I.R. on 17.12.2009. Again in the statement, he has mentioned that he informed M/s Bajrang Motors, but Proprietor of M/s Bajrang Motors (Dealer) advised him to go to the Insurance Company for information /intimation about theft. In this statement, there is no mention that Proprietor of M/s Bajrang Motors (Dealer) has informed him that he has already informed / intimated to any authorized agent of the Insurance Company, rather he only advised to go to the Insurance Company and informed the Insurance Company accordingly. Respondent No. 1-complamant had admitted that he intimated the appellant-Insurance Company in writing on 27.11.2009.
Learned counsel for the appellant has relied on the case of New India Assurance Company Limited vs. Trilochan Jane: IV (2012) CP.J 441 (NC). In this case, the Hon'ble National Commission has held that there was delay of 9 days in informing the Insurance Company about the theft of insured vehicle, Delay in informing the Insurance Company would be a violation of condition of policy. In the case of Prahlad and another vs. Oriental Insurance Company Limited: IV (2012) CPJ 770 (NC), the Hon’ble National Commission has held that the vehicle was taken away forcibly. There was delay of 4 days in lodging F.I.R. Insurance Company was informed after about 2 months from the date of incident. It was held by the Hon’ble National that the intimation should have been given immediately and the repudiation of the claim by the Insurance Company was held to be justified. In the case of New India Assurance Company Limited vs. Pankaj Kapoor and others; II (2013) CP.J 406 (NC), the Hon'ble National Commission has held that not informing Insurance Company immediately about the incident deprives the Insurance Company of its legitimate right to investigate the matter and such delay is fatal to claim. In the case of New India Assurance Company Limited v Ram Avtar; I (2014) CPJ 29 (NC), the Hon'ble National Commission has held that F.I.R. with regard to the theft of the vehicle on the same date, but information in writing was informed delayed to the Insurance Company 35 days after theft of vehicle and has held that the insured was required immediately inform the Insurance Company about the theft and repudiation of the claim was justified.
All the citations discussed above are applicable to the instant case. There is no evidence on record to show that the respondent No.1- complainant had given intimation to the Insurance Company after incident of theft, rather information/intimation was given after a gap of 18 days. Therefore, there is no deficiency in service on the part of appellant- Insurance Company repudiating the claim of the respondent No.I-complainant for theft of the vehicle.
Thus, we are of the view that the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside. Consequently, the appeal is fit to be allowed.
For the reasons aforesaid, appeal is allowed. Impugned judgment and order dated 29.08.2011 passed by the District Forum, Udhamsingh Nagar is set aside and consumer complaint No. 107 of 2010 is dismissed. No order as to costs. Amount deposited by the appellant be released in appellant's favour.”
Being dissatisfied by the Impugned Order dated 06.07.2017 passed by the State Commission, the Petitioner / Complainant has filed the instant Revision Petition bearing no.2510 of 2017.
The Petitioner's case centres on the rejection of a claim due to a delay in notifying OP-1 & 2 about the theft. The learned Counsel for the Petitioner asserted that the vehicle was stolen on 08.11.2009 from the parking place of Paschim Vihar while the complainant was attending a ceremony at his relative's house. The relative informed the police about theft on 08.11.2009 itself, and an FIR was lodged on 17.12.2009. Despite police investigation, it was not recovered, and the final report was filed. He submitted a claim application in writing to the Regional Office of the insurance company on 27.11.2009. However, the insurance company repudiated the claim on 04.08.2010, citing a violation of the policy's terms and conditions. He contended that a surveyor appointed by the insurance company, Mr. SK Tomar, deemed the case genuine and recommended settling the claim on its merits. The counsel supports the order passed by the District Forum and urges setting aside the impugned order of the State Commission. The learned counsel for the Petitioner also relies on the following judgments of the Hon’ble Supreme Court:
(a) Gurshinder Singh Vs. Shriram General Insurance Company Ltd., 2020 (11) SCC 612;
(b) Jaina Construction Committee V. Oriental Insurance Company Ltd., 2022 SCC OnLine SC 175;
iii. Om Prakash Vs. Reliance General Insurance & Anr., Civil Appeal No.15611 of 2017 arising out of SLP (C) No.742 of 2015, decided on 04.10.2017.
On the other hand, the learned Counsel for OP-1 & 2 asserted that there was clear violation of terms & conditions of the insurance policy by the Complainant. The policy issued to him explicitly states that the "Claim for theft of vehicle is not payable if theft is not reported to the Insurance Company within 48 hours of the theft occurring on 08.11.2009." However, OP-1 was informed about the incident only on 27.11.2009, which is well beyond the stipulated 48-hour reporting window. The learned Counsel argued in favor of the impugned order passed by the State Commission and cited the judgment of the Hon’ble Supreme Court in the matter of Kanwarjit Singh Kang Vs. M/s. ICICI Lombard General Insurance Co. Ltd. & Anr., Special Leave to Appeal (C) No.6518 of 2018, decided on 29.03.2022, to support their position.
I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
It is the contention of the Petitioner that the insured vehicle was stolen on 08.11.2009. The intimation of theft was given to the SHO Police Station, Paschim Vihar, Delhi on the same day by Mr. Mukesh Kumar, a relative of the Petitioner/Complainant. The copy of this intimation bears the official seal and signature of an official, dated 08.11.2009. However, the FIR No.504/2009 was lodged only on 17.12.2009 at PS, Paschim Vihar, Delhi. As regards the intimation to the insurance company, the Petitioner/Complainant asserted that he informed the counter clerk over the phone on 08.11.2009 at Bajrang Motors, Haldwani, from where he purchased the vehicle (OP-3). It is the stand of the Complainant that the dealer assured him that they would handle the matter. However, upon reaching Haldwani from Delhi, OP-3 informed him that the Complainant needs to go to the insurance company himself to report the matter. Consequently, he intimated the insurance company in writing on 27.11.2009 at Haldwani. On the other hand, OP-1 asserted that there was a clear 18-day delay in intimating OP-1 of the alleged theft, violating the terms and conditions of the insurance policy. The counsel for the insurance company relied on the judgment of the Hon’ble Supreme Court in the matter of Kanwarjit Singh Kang vs. M/s.ICICI Lombard General Insurance Co. Ltd. & Anr. (Supra), wherein the Court distinguished the decision of Gurshinder Singh vs. Shriram General Insurance Company. In Kanwarjit Singh Kang's case, there was a delay in intimation to both the police station and the insurance company, and the ignition keys were also stolen. However, in Gurshinder Singh's case, the repudiation based solely on the delay in informing the insured was not approved. In the present case, the intimation to the police station was promptly given on the date of the incident, and both ignition keys were handed over to the insurance company, as confirmed by the surveyor appointed by the insurance company. Furthermore, the Surveyor was also concluded in the report dated 08.03.2010 that the case genuine and recommended settling the claim on its merits. It is uncontested position that the Petitioner formally intimated the insurance company in writing on 27.11.2009. Consequently, the judgment of the Hon’ble Supreme Court in the matter of Kanwarjit Singh Kang is not fully applicable, but the decision in Gurshinder Singh's case is fully relevant. Therefore, the insurance company is not justified in repudiating the genuine claim of the Petitioner/ Complainant on the ground of delay intimation, while he informed OP-3, albeit mistakenly and persisted by visiting Haldwani and, thereafter, on discovering the requirement he immediately filed the complaint with Insurer (OP-1). In the stated facts and circumstances the delay has been explained. Further, the report of M/s Prudent Insurance Investigators, the surveyor appointed by the OP-1 has gone into substantial details of the case, made comprehensive report into the loss and determined the claim of the Complainant as genuine and recommended for appropriate consideration by OP-1.
Top of Form14. In view of the foregoing deliberations, the impugned order of the learned State Commission dated 06.07.2017 passed in First Appeal No.191/2011 is set aside and the order of the learned District Forum dated 29.08.2011 passed in Complaint No.107/2010 is upheld. However, the Petitioner is not entitled for compensation over and above the interest element already granted. Consequently, the Revision Petition No.2510 of 2017 is allowed, subject to modifications as under.
ORDER
I. The Opposite Party No. 1 & 2 shall pay the Complainant the claim amount along with simple interest @ 7% per annum from the date of filing of the Complaint till its realization, within a period of one month from the date of this order. In the event of delay beyond one month, the applicable interest shall be @ 10% for such extended period;
II. The Opposite Party No. 1 & 2 shall pay the Complainant Rs.20,000 as cost of litigation.
III. The order passed requiring Opposite Party No. 1 & 2 to pay the Complainant Rs.5,000/- towards physical and mental agony is set aside.
IV. The complaint against the OP-3 is dismissed
All pending Applications, if any, stand disposed of accordingly.