(Delivered on 12/07/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member.

1.      The present appeal is filed against the order of the District Forum, Nagpur  passed in complaint No. 104/2013 dated 17/09/2014 partly granting the complaint against the original opposite party (for short O.P.) Nos. 1&2 by which they are directed   to  jointly  or severally  pay the  compensation of theft claim  of the truck  of its value of Rs. 14,80,000/- from the date of  filing the claim  with interest  at the rate of 9% p.a.  till  final  release of amount.  In addition the O.P.Nos. 1&2 were directed together or severally to  provide the  complainant  Rs. 10,000/- for physical and mental harassment and complaint cost of Rs. 5,000/- & the order to be complied in the span of 30 days from the date of the order.

2.      It is the short complaint is of  allegation of  deficiency in service by insurance company/appellant  for repudiating  claim of  insured truck for its theft, on the ground of delayed  information  and careless upkeep of vehicle by  insured.  The complainant  claimed  a compensation  of the value  of  the vehicle  of Rs. 14,80,000/- with interest at the rate of 20% p.a. from the date of the theft  i.e. from 17/11/2011 and  a compensation of Rs. 1,00,000/- for physical and mental harassment and complaint cost of Rs. 25,000/-

3.      On notice the O.P. appeared and  justified  their repudiation  dated 22/05/2012 on the ground that  the theft  incident that took place  on 17/010/2011, was informed on 20/10/2011 and the  first information report was filed on 05/11/2011 constituting  serious breach of  policy condition Nos. 1 & 5 of the active policy. Also  claimed  the careless  keeping of vehicle by the driver who left  the locked truck  by keeping  spare key  in the vehicle. The O.P. Nos. 1 & 2 thus  claimed  the  justifiable repudiation  after  appropriate investigation  report  dated 22/12/2011 from  Supreme Investigator, after the receipt of the claim. The O.P.Nos. 1 & 2 thus   requested for  dismissal of the complaint.

4.      The learned Forum heard both the parties & considered case laws filed by them and   held  that  the complaint was made to Police Station on the next day of the theft,  by the complainant. However the FIR was registered  after many days.  The information was given  to  O.P. on the next day of the incident. Hence,  held that  there was no delay  and  breach of  the condition  of the policy. The learned Forum also held that  keeping the spare key in the locked  truck cabin  cannot be called  as  careless  upkeep  of the truck and thus  no violation of condition No. 5. Holding therefore,  the repudiation to be  unjustifiable,  leading to  deficiency  in service,  passed the order supra.

5.      Aggrieved against the order Advocate Mr. Sachin Jaiswal filed appeal on behalf of the original  O.P.Nos. 1&2 who is  now referred  as  appellants. Advcate Mr. Mandal appeared on behalf of the original complainant, who is now  referred as respondent.

6.      The advocate for the appellants relied on the following cases.

i         National Commission judgment passed in Pravin Dalal Vs. Oriental Insurance Company, dated 04/02/2014 in  Virtual Legal Assistant  (VLA) wherein  the Hon’ble  National Commission  held that the  insuree could not show a document  to show that  he informed  the insurer  immediately  after incident.  Hence,  held that  immediate  information to police and filing of FIR  and intimation to  insurance company are of  paramount  importance in theft cases and any delay  in this respect will have serious adverse effect on the interest of the insurance company.

ii.       National Commission Judgment passed in New India Assurance Co. Ltd. Vs. Ram Avatar on 11/11/2013 published in India Kanoon.Org/54715803 wherein the Hon’ble National  Commission  held that   in our view  the insurer cannot be saddled with the liability  to pay the compensation to the insuree despite the fact of  delayed information  of FIR and  non compliance  of  the  terms of policy.

iii.      National  Commission Judgment passed in Sompo General Insurance Co. Ltd. Vs.  Ruplal  Dangi in revision petition No. 2591/2016 dated 24/03/2017 wherein the Hon’ble Commission held that it is clear that  as per the circular of  IRDA,  the insurance companies  have been instructed  not to reject  the otherwise genuine  claims  on technical grounds of delay  in intimation of theft if the delay is properly explained. However,  when  no explanation  is for the delay  of eight days  in reporting the theft  the IRDA  circular  shall be  of  no avail  to the respondent.

iv.      National Commission Judgment passed in New India Assurance Co. Ltd.  Vs.  Trilochan  Jane in  first appeal 321/2005 dated 09/12/2009 wherein the Hon’ble Commission  held that  the delay  in lodging FIR of two days  and  intimating the insurer  of theft  after nine days can be fatal   in which  the car could have  travelled long distance.  Hence,   State Commission  committed mistake in holding the delay  to be  reasonable.

v.       National Commission passed in  Royal Sundaram Alliance  Insurance Co. Ltd. Vs.  Kanwaljeet Singh Gil in revision petition No. 2983/2013 dated 26/05/2015 wherein  the Hon’ble Commission held that the  terms of the policy have to be construed  as it is  and we cannot  add or subtract something when  both parties are bound  by contract. Hence, insuree is bound  to inform about the theft of the vehicle  immediately  after the incident  &  if not,  the  insurer  is deprived  of its legitimate right  to  get an enquiry conducted.  Hence,  delay  deserves  to dismiss the  complaint.

vi.      The National Commission Judgment passed in Reliance General Insurance Co.  Vs.  Nitin Lamba  dated 31/08/2016 in  revision petition  No. 1480/2016 wherein  the Hon’ble National Commission held  the violation of condition No. 1 when reasonable steps to safeguard the vehicle are not taken  for loss and damage, the insurer stood  relived of all its obligation to reimburse  him  on account of theft of vehicle, within  its right.

vii.     Maharashtra State Commission Judgment passed in  Kiran Raju Sharma Vs. United India Insurance Co. Ltd. in First Appeal No.  1179/2008 wherein  the Hon’ble  State Commission rightly held  the leaving  of vehicle  with ignition key left in the car  at the mercy of  unknown person which  being utter negligence, the complainant cannot escape from the liability of  negligence  and the breach of condition  No. 5.

          The advocate relied heavily  on the judgments as above and claimed that  the information of the theft was given to the appellants after three days and FIR of theft was lodged after a span of almost 18 days indicating  a strong  breach  of the  condition No1 of the policy. The truck  was stolen due to careless  leaving  of  key in, it, thus  prompting the theft. Hence,  the  repudiation  being correct claimed that  the learned Forum   failed  to appreciate  the importance of prompt information and registration of offence  to claim the compensation . He therefore, claimed the order to be  unrealistic , unjustifiable and requested to set it  aside.

7.      The advocate for the respondent on the other hand relied on  the following judgments.

i.        The Supreme Court Judgment passed in Galada Power and Telecommunication Ltd. Vs.  United  India Insurance Co. Ltd.  delivered on 28/07/2016, in which  it is  held that  when the insurer has taken  cognizance of taking  communication  made by the insuree  and nominated  a surveyor  to verify the loss, the Court can take the view  that insurer  cannot take  the stand of  breach of  clause  pertaining to the duration.

ii.       National Commission Judgment passed in Baljeet Vs.  United India Insurance Co.  delivered  in the revision  petition  No. 454/2013 dated 02/12/2013 wherein  the  Hon’ble Commission held that though an offence  is registered on one date, no evidence  was placed to show that the intimation of theft was not given  to insurance company. Hence, no force in the justification in repudiation of claim.  

iii.      National Commission Judgment passed in National Insurance  Co,. Ltd. Vs.  Vankantaswamy  Naganna  pronounced on 06/02/2014 in  revision petition No. 2852/2013, in which  it is  held that  the insurers  rejection of claim shall be based on the sound and valid grounds. The intimation clause  does not work in isolation  and is  not absolute.  One needs to see the merit  and good sprit of the clause and when  rejection of claim is   purely on  technical grounds in mechanical fashion, it  will result in policy  holders loosing confidence in the insurance  industries,  giving rise to  excessive litigations.

iv.      National Commission Judgment passed in National Insurance Co. Vs. Kulwantsingh delivered in revision petition No. 2719/2014, dated 18/07/2014 wherein the National Commission held that  when the complainant has  given a plausible  explanation  for the  information  and  submission of claim after receipt of  papers from police, no reason stands  to take  a different view regarding  delay  in reporting the matter  to police and insurance company.

v.       Punjab Haryana High Court passed in Bajaj Allianz General Insurance vs. Sagar Tour and Travel  passed  with  other petitions  on 11/08/2011 in C.W. P. 8380/2011 wherein  the Hon’ble High Court has held  that when a  willful act can not be attributed to the human  fallibility  to forget  and  is not the same  as  committing violation of the terms of the policy  by  forgetting  the keys in the  vehicle so as to prompt  a commission of offence.

vi.      National Commission Judgment passed in Sukhwinder Singh Vs. Cholamandalam , dated 30/08/2013 in  revision petition  No. 375/2013 wherein the Hon’ble Commission held that leaving the keys  in the ignition of the car on all occasion can not be termed as a serious  breach which cannot be considered as willful breach of  condition No. 5.

8.      The advocate for the respondent  brought  to our notice the report  by the investigation agency appointed by he appellant, in which  the investigator has recorded that  the complaint was lodged  on the next day of the theft and also the  appellant company was informed on next day of theft.

9.      The advocate for the respondent  further claimed that the respondent  had given  the  information to police station on the next day of theft. However it was upon the police to issue  the FIR which was issued   after  18 days which  cannot be held as  delay in filling  information to the Police. The respondent was making  all out efforts to get the FIR registered and had also  filed information  about  the filing of complaint  and  his request for  FIR to the Police. He submitted that  when the  investigation agency has recorded  the prompt report of the  incident, it cannot be  held  that  there was delay  in the information. Also the key was kept  under the dash board and the vehicle was locked &  hence there can be no ground to  call it a careless action on the part of the driver and violation of condition. Only the first page of the policy was  given to  insuree which did not  show policy  conditions. Hence, the learned Forum has rightly held the unjustifiability of the repudiation. Therefore, the order deserves  confirmation.

10.    We considered the contentions of both the parties and perused the evidence placed before us.  The investigating   agency is  set up to find  the practical  aspects of any situation and to coin the observed  facts. When the investigating agency has recorded that  the  respondent  after the theft  of vehicle on 17/10/2011 had informed  the appellant  and  the police and when  no specific explanation is forth coming from the appellant as to why it has not  verified  the facts of the investigation, we have to hold  that the respondent  had informed  the incident of  theft promptly  to the  police and  the appellant.  We further find that    the delay recorded by the appellant  is of three days, only on  20/10/2011 when the  respondent has  justified stating that he informed  to the  call center of the appellant and was also making  personal efforts  to track the vehicle  which is  normal behavior  of any person  losing  such a  prominent  property.

11.    We also find  that  there is an information given by the respondent  to police  and  he followed it with a letter and request with the help of advocate exhorting  the  police  to register  the complaint and issue the FIR. If the FIR is issued  with a delay by the police it cannot be held  as a  laxity  on the part of the  insuree so as to  constitute  the  breach of  policy condition.

12.    We also find that  the   spare key was kept  under the dash board of the vehicle  and the vehicle  cabin was locked. It cannot  be held that the key of the  vehicle  was left in open so as to be accessible  to the criminal and to prompt the commission of theft.

13.    We therefore, find that  the  case laws submitted by the appellant do  not stand  a ground  to make them  applicable  to  the  contentions of the appellant. We find from  evidence on record that  the respondent  has  immediately informed the  appellant of incident of theft  and  also  to the  police and made effort to get the FIR registered. Hence,  the sincere efforts exhibit  his  urgency  and  prompt information  thereby  absolving  him  of  a delayed  information  and  negligent upkeep  thereby   committing  the breach of the condition. We do find a practical justification in the contentions of the respondent  to accept the view that  the appellant  repudiated the claim without applying  proper   care to claim consideration.  Hence,  the  repudiation  of his claim  constitutes  deficiency in service  on the part of  appellant.   

14.    We find  the learned Forum has taken  a proper view and has passed  a justifiable order ,which deserves  confirmation. Hence,  we do so.

ORDER

i.        The appeal stands dismissed.

ii.       The order of the learned Forum,  is confirmed.

iii.      Parties to bear their own costs in appeal.

iv.      Copy of the order be provided to both the parties, free of cost.