ORDER
(Passed this on 30th March, 2017)
Shri Shekhar P. Muley, President.
01. This complaint u/s 12 of the Consumer Protection Act has arisen from repudiation of insurance claim in respect of stolen vehicle of the complainant.
02. A truck bearing No. MH-40-N-3411 was owned by the complainant. It was insured with the Opposite Party No.1, IFFCO Tokio General Insurance Company for IDV Rs.14,72,000/- for the period from 12/1/2012 to 11/1/2013. The O.P.No-2 is the Main Office of the O.P.No-1. During subsistence of the policy on 2/2/2012 the said truck was stolen. It was parked by the road side of his house in safe condition. A search was undertaken but to no avail. Thereafter P.S. Lakadgang, Nagpur was informed about theft but no offence was registered immediately. However, police obtained insurance papers, registration certificate and key of the truck. On 10/2/2012 FIR came to be registered since the
truck was not found. The incident was immediately reported to the Opposite Parties on phone. The Opposite Party deputed a surveyor on 20/2/2012 to investigate the matter. Despite submitting all necessary papers the Opposite Parties failed to settle his claim in reasonable time as per IRDA guidelines. Alleging deficiency in their service and unfair trade practice, he has claimed IDV Rs.14,72,000/- with 14.50% interest from date of incident along with compensation and cost of litigation.
03. The Opposite Parties filed their written version at Ex. 9. Admitting insurance policy of the truck, it is denied that the truck was parked in secured condition and was stolen. It is also denied that report was immediately given to police but no offence was registered. It is also denied that incident was reported to them on phone. But it is admitted that a surveyor was deputed. Denying submission of all necessary papers, it is stated that the claim was repudiated under intimation to the complainant on two grounds, viz. Delay in giving written intimation of theft of the truck to them and failure to take all reasonable steps to safeguard the truck from loss or damage. Therefore there was breach of policy conditions and so the claim was rightly repudiated. Terming the complaint as false to extract money, it is submitted to dismiss the same.
04. Heard Ld counsels for both the sides. Perused documents, affidavit and notes of argument. We record our findings and reasons thereon as under.
FINDINGS AND REASONS
05. Since the disputed question is about legality of repudiation of the claim, we directly come to the question, leaving aside admitted facts. The claim was repudiated on two grounds, viz delay in giving intimation of theft to the Opposite Party and failure to take reasonable steps to safeguard the truck from loss. As per policy condition notice shall be given in writing to the insurance company immediately upon occurrence of any accidental loss or damage. In case of theft or criminal act the insured shall give immediate notice to police and co-operate with the company in securing conviction of the offender.
06. As per the complainant, report was immediately given to police, but offence was not registered on the pretext that if after search the truck could not be traced out, then offence would be registered. Ultimately it was registered on 10/2/2012. Thereafter the Opposite Party was intimated. Thus from the complaint itself it is clear that there was delay in giving intimation of theft to police and the Opposite Party
as well. We need not reiterate that delay in giving written notice of loss of insured vehicle to police and insurance company is held to be fatal to claim compensation. Ld counsel for the complainant has tried to explain that there was no delay and if at all there was delay it cannot be a ground to repudiate the claim. He relied on some judgments.
In Baljeet Charan Singh v/s United India Insurance Co. Ltd Revision Pet. No. 454/2013 decided on 2/12/2013 (NC) repudiation of claim was on the ground of delay in intimating theft to the insurance company. However, it was found that there was typographical error in date and actually intimation was given next day morning of the theft. In IFFCO Tokio General Insurance Co. v/s Ram Gopal Soni & Othrs Revision Pet. No. 170/2012 decided on 31/5/2012 (NC) it is held that when insurance company wants to take shelter of any exclusion clause of the policy then burden of proof to prove that exclusion clause totally shifts to the insurance company. It is also contended that the word ¨immediately¨ is interpreted as ¨within 24 to 48 hours¨. In fact, this citation does not support the complainantś case. The word immediately is not interpreted to mean within 24 to 48 hours; on the contrary such interpretation amounts to modifying the import of the term ¨immediately¨, hence the plea was rejected.
07. If the documents are perused it can be noted that the FIR was lodged on 10/2/2012 of the theft which took place on 2/2/2012. It is also mentioned that delay in giving report was from the complainant himself. Thus the documents speak contrary to the complainants averment. Documents do not lie; a person may and therefore documentary evidence is given more significance over oral statement. The complainant tried to rely on a certificate given by P.S. Lakadganj to support his claim that intimation was immediately given but FIR was lodged belatedly. We have read that certificate but do not find anything which suggests prompt lodging of report. Even the Opposite Party was also belatedly intimated. There is no document to show the O.P. was immediately intimated. As such there was clear breach of policy condition in giving intimation of theft to police and to the O.P. after about 8 days from the incident.
08. Next it is contended that the complainant failed to take reasonable steps to safeguard the insured truck from loss or theft, which amounts to breach of policy condition No.5. Denying this allegation of the Opposite Parties, Ld counsel for the complainant contended the truck was properly locked and parked near the house of the complainant and there was no want of reasonable care. For that purpose he pointed out
facts narrated in the Final Report submitted by police, wherein it is mentioned that after locking the truck its key was brought home. Duplicate key was handed over to police. On the other hand, Ld counsel for the complainant contended as per the report given by the complainant to police, his brother inadvertently kept open the cabin and the key was also kept in the cabin and someone stole the truck. He therefore contended this clearly demonstrate failure in parking the truck in secured manner.
09. Ld counsel for complainant relied on some judgments in support of his contention that even if it is assumed that there was failure to take steps to safeguard the insured truck, that itself should not be regarded as serious breach of policy condition and claim ought to have been settled.
- Bajaj Allianz General Insurance Co. v/s M/s Sagar Tour & Travels W.P. No. 8380/2012 decided on 11/8/2011 (P & H).
- Sukhwinder Singh v/s Cholamandalam Rev. Pet. No. 375/2013 decided om 30/8/3013 (NC).
- New India Assurance Co. v/s Shri Girish Gupta Rev. Pet. No. 590/2014 decided on 31/7/2014 (NC).
In all the above judgments leaving the key of vehicle in the vehicle does not always constitute serious breach as to
disentitle the insured to make the claim. It all depends on facts of each case. It is observed that if no willful act could be attributed to the insured, then the clause cannot operate to exclude the liability of the insurance company. A human fallibility to forget is not the same as committing violation of terms of the policy. Thus it is submitted the O.P. committed serious wrong in repudiating the claim on this ground.
10. This submission of Ld counsel for the complainant is relevant and acceptable to some extent. It appears from police investigation that the key of the truck was not deliberately or willfully kept in the truck cabin, but was left there inadvertently. There appears no negligence in leaving the key in the truck cabin; at the most it could be termed as an inadvertent mistake. Therefore repudiation of the claim on this ground is not justified. But for delay in giving intimation to police and Opposite Party is definitely fatal as it amounts to breach of term and condition and hence, repudiation on this ground is legally correct and justifiable.
11. For aforesaid reasons the complaint is liable to be dismissed. Hence, the following order.
ORDER
- The complaint is dismissed with no order as to cost.
- Copy of the judgment shall be given to both the parties, free of cost.
