Heard the learned counsel for both the parties. Both the appeals arise out of a common order passed by the learned District Forum. Therefore, both the appeals are disposed of by this common order in appeal.
2. These appeals are filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant being the owner of the vehicle bearing Regd.No. OR-16D-3274 had purchased policy for the vehicle from OP No.1 to 3. It is also alleged that the vehicle has been purchased being financed by OP No.4 & 5. It is also alleged inter-alia that on 14.03.2012 the vehicle has been stolen by some unknown person and immediately after getting report, the complainant lodged FIR on 16.3.2012 the incident of theft was also informed by the complainant to OP No.4 & 5 to inform the insurer. Since, the matter was not settled the complaint was filed.
4. The OP No.1 to 3 filed written version stating that the complaint is not maintainable. It is also stated that they have received the claim but due to delay in lodging of FIR and information to OP, there is violation of the terms and conditions of the policy. Therefore, the OP repudiated the claim. There is no any deficiency in service or adoption of unfair trade practice by OP No.1 to 3.
5. OP No.4 & 5 filed written version separately stating that this a matter between the insured and the insurance company and they being financer are nothing to do except recovery of loan from the complainant. Therefore, they have no deficiency in service on their part.
6. After hearing both the parties, learned
District Forum passed the following order:-
Xxxxx xxxxxxxx xxxxxx
“Hence, considering the fact and circumstances of the case this Hon’ble Forum directs Insurance Company OP No.1 to 3 to pay a sum of Rs.10,44,000/- (Rupees Ten lakhs forty four thousand) only with interest @ 6 % from the date of claim towards insurance claim amount to the complainant as per the value of the policy bond certificate subject to deduction of depreciation thereof. Further the financer OP No.4 and 5 are directed to recover the balance outstanding instalment dues from the complainant on receipt of the claim, from the insurance company charging no overdue charges. The O P No.1 to 3 are directed to repayment of the aforesaid decreed amount within 30(thirty) days of receipt of this order, failing which the same amount will carry 09 % as penal interest till the date of payment.”
7. Learned counsel for the appellant in F.A. No.183/2015 submitted that he got the information about theft in delay although there is policy condition to inform about theft immediately. As the policy condition has been violated, they have repudiated the claim. Learned District Forum has committed error in law by not following the facts and law involved in this case. On the otherhand he submitted that the appeal should be allowed by setting aside the impugned order. Learned counsel for the respondent submitted that after getting information he went to spot and united the driver and helper and then lodged FIR. He also submitted that as per policy condition they have informed the police immediately. . Not only this but also they have informed the insurer lateron. He cited the decision of Gurshinder Singh-Vrs-Sriram General Insurance Co.Ltd. & Another reported in (2020) 11 SCC 612. He cited the decision of of Kanwarjit Singh Kang-Vrs- ICICI Insurance General Co.Ltd. and another in SLP 6518 of 2020 where in case of theft the matter should be informed immediately to police and same may be taken as immediate information to insurer about theft. So, he submitted that the inaction of the appellant is a deficiency in service on their part.
8. Nobody submits for the appellant in F.A.203/2015. However, the appeal memo filed by the appellant clearly states that learned District Forum has acted illegality by directing OP No.4 & 5 not to claim the overdue charges although there is condition as such in the agreement executed between the parties. However, they have submitted to set-aside the impugned order. Learned counsel for the complainant submitted that due to theft of the vehicle he could not run the vehicle and as such unable to pay the instalments. So, the order of the learned District Forum is legal and proper in this regard.
9. Considered the submission of respective counsels, perused the DFR and impugned order.
10. It is admitted fact that during currency of the policy the vehicle was stolen by some unknown person. It also reveals from the policy that the police should be informed first or immediately after occurrence of theft. It is admitted fact that on 14.03.2012 and after uniting the helper and driver he lodged FIR on 16.03.2012. FIR was lodged at morning hour of 16.03.2012. In the facts and circumstances the reports to police has been done immediately. According to the decision of Gurshinder Singh(Supra) and Kanwarjit Singh Kang(Supra), the information to the police or the insurer within the stipulated time should be considered as compliance to the policy conditions.
11. In view of aforesaid discussion, we are of the opinion that the complainant having informed the police immediately after occurrence for which the contention of the learned counsel for the respondent is genuine. Therefore, the finding of the learned District Forum in this regard can not be said to be in correct.
12. So far the contention of the appellant in Appeal No.203/2015 as to the direction to the OP No.4 & 5 not claim the overdue charges assumes importance because vehicle remained off the road due to theft. Learned counsel for the complainant submitted that the EMI could not payable due to non plying of the vehicle in question and the Commission should take liberal view. We have considered same. It is settled in law that Court can not rewrite the contract between the parties. Keeping in view that the vehicle remained out off road we hereby ask the OP No.4 & 5 to be liberal in exempting the complainant to pay the overdue charges or the overdue charges may be claimed if the complainant get back vehicle and started to ply the vehicle.
In the result, F.A. No.288/2015 filed by the appellant is confirmed and the F.A. No.203/2015 filed by the financer is partly allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
