APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   4^th    DECEMBER 2014

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          Through this revision petition, the petitioner Insurance Company has challenged the order passed by the District Forum and the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as ‘State Commission’) vide which the insurance claim filed by the complainant relating to the theft of a vehicle was allowed on ‘non-standard’ basis, although there was delay of 3 months in giving intimation about the said theft to the Insurance Company in violation of the policy conditions.  The District Forum Dausa (Rajasthan) vide their order dated 26.12.2013 in CC No. 15/2013 allowed the claim on ‘non-standard’ basis.  On appeal before the State Commission, Appeal No. 318/2014, by the petitioner, the said order was upheld.  Hence, the present revision petition.

2.       In brief, the facts of the case are that the respondent/complainant Bhagchand Saini filed the consumer complaint in question, alleging that his tractor duly insured by the petitioner was stolen on the night of 06.12.2011 and he registered a report with the Police on 08.12.2011 through court.  The complainant has stated the he gave information about the said theft to the Insurance Company also, on the second day of the theft.  However, despite providing all documents to Shri A.K. Gujral, Investigator of the Insurance Company, his claim was not settled.  The complaint was resisted by the Insurance Company saying that the information about the theft of the vehicle was given to the petitioner Insurance Company on 12.03.2012, meaning thereby that there was a delay of 98 days in giving the said intimation.  The Insurance Company appointed Sh. A.K. Gujral as investigator who completed his investigation but as per his report, no reason had been given for the delay in giving the information late.  The District Forum allowed the claim on ‘non-standard’ basis saying that 75% of the insured value of the value, i.e., ₹ 3,44,418/- should be given to the claimant alongwith interest @9% p.a. with effect from 12.03.2012.  The District Forum while pronouncing this order relied upon an order passed by the Hon’ble Supreme Court in ‘Amalendu Sahoo vs. Oriental Insurance Co. Ltd. [AIR 2010 SC 2090]’.  An appeal was made against this order before the State Commission, which was decided on 11.06.2014 and the order of the District Forum was upheld saying that there was no requirement to further analyse the facts and evidence on record.  This order of the State Commission has been challenged by way of the present revision petition.

3.       During hearing before this Commission, the learned counsel for the petitioner Insurance Company argued that the vehicle is alleged to have been stolen on 06.12.2011 but intimation to Police was given after two days, i.e., 08.12.2011.  The Insurance Company was informed after a huge delay of 98 days, i.e., on 12.03.2012.  The Insurance Company was well within its rights to repudiate the claim on grounds of delayed intimation because there was violation of the policy conditions, accordingly to which the insured was required to inform the Insurance company ‘immediately’ after the incident.  The version given by the complainant that intimation was given to the Insurance Company on the second day of the theft had not been substantiated from record.  The learned counsel has given a compilation of various judgments pronounced by the Hon’ble Apex Court and this Commission in support of his plea that the claim is not payable for violation of the policy conditions because of the delay in giving intimation to the Insurance Company.  In particular, he invited attention to an order passed by Hon’ble Apex Court in ‘Oriental Insurance Company vs. Parvesh Chander Chadha, [Civil Appeal No. 6739 of 2010 decided on 17.08.2010], wherein it has been held that not informing the Insurance Company immediately after the theft deprives the Insurance Company of its legitimate rights to get an inquiry conducted into the matter and such a delay is fatal to the claim.  The National Commission had also taken a similar view in ‘New India Assurance Company vs. Trilochan Jane’ [FA No. 321/2005], New India Assurance Company vs. Ram Avtar [I (2014) CPJ 29 (NC)] and Ramesh Chandra vs ICICI Lombard General Insurance Co. Ltd. and Anr. [1(2014) CPJ 321 (NC)].  In addition, the learned counsel for petitioner has invited our attention to the following cases in support of his arguments:-

The New India Assurance Co. Ltd. vs. Dharam Singh [III (2006) CPJ 240 (NC)],

Hukam Singh and Giriraj vs. United India Insurance Co. [MANU/CF/0718/2013],

Praveen Dalal vs. Oriental Insurance Company and Ors. [I (2014) CPJ 546 (NC)] and

Ramprasad vs. Bajaj Allianz General Insurance Co. Ltd. [1 (2014) CPJ 531 (NC)]

4.       Learned counsel further stated that the order passed by the Hon’ble Supreme Court in Amalendu Sahoo vs. Oriental Insurance Company (supra) was not applicable in the present case because in that case, the vehicle was being used for hiring purpose, although it was registered as a private vehicle.  In that case, the vehicle had met with an accident and it was held that claim should be paid on ‘non-standard’ basis as use of vehicle for hiring had no correlation with the accident.  The learned counsel submitted that the National Commission in a recent case, decided on 15.09.2014 in RP No. 3320 of 2014, “Kulwant Singh vs. Managing Director, United India Insurance Co. Ltd. & Anr.” had held that the order passed in Amalendu Sahoo case was not applicable in cases involving delayed intimation of theft to the Insurance Company.  The revision petition should, therefore, be accepted and the complaint in question should be dismissed.

5.       In reply, the learned counsel for the respondent has drawn attention to section 125 of the Indian Contract Act, 1872, saying that the insurance policy was a contract of indemnity and hence the Insurance Company was bound to indemnify the insured even if intimation about the theft of the vehicle had been given at a later date.  The Insurance Company had issued the policy in question after charging premium for the same.  Hence, they were bound to honour the claim lodged by the complainant.

6.       I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

7.       Admittedly, the tractor in question was stolen on 06.12.2011 and intimation about the theft was given to the local police on 08.12.2011, i.e., two days after the incident.  Regarding intimation to the Insurance Company, the complainant says that such intimation was given on the second day of the theft but the Insurance Company have categorically stated that the intimation was given after a gap of 98 days, i.e., on 12.03.2012.  The complainant has not been able to establish anywhere that he gave intimation to the Insurance Company on the second day of the theft.  Further, it has been mentioned in para 4 of the complaint that the complainant had provided all the documents, certified copy of registration certificate and insurance policy to Sh. A.K. Gujral, investigator of the company, but the date on which these documents were given has not been stated in the complaint.

8.       From the facts and circumstances on record, therefore, it has not been established anywhere that intimation about the theft of the tractor was given to the Insurance Company on the second day of the incident.

9.       The issue has been deliberated upon in a number of judgments passed by the Hon’ble Supreme Court and this Commission.  A reference may be made to the judgment of Hon’ble Apex Court in ‘Oriental Insurance Co. Ltd. vs. Parvesh Chander Chadha’ (supra) in which the Hon’ble Supreme Court observed as follows:-

“Admittedly the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager.  In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation.  Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle.  It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident.  In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident.  On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same.  Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis.  In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”

10.     It is made out that in the case noted above, a car was stated to have been stolen between 18.01.95 to 20.01.95 and the FIR was lodged on 21.01.95 itself, but intimation to the Insurance Company was given on 22.05.95, meaning thereby that there was delay of about 4 months in giving intimation to the company.  As per the judgments of the Hon’ble Apex Court, no claim was payable in this case.

11.     Further, this Commission observed as follows in the case “New India Assurance Company Ltd. vs. Trilochan Jane” (supra):-

“In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”

12.     In the above case, a delay of 2 days in lodging the FIR and delay of 9 days in reporting the matter to the Insurance Company was found fatal and the Insurance Claim for the stolen truck was not allowed.  In the said order, the National Commission extensively dwelt upon the word ‘immediately’ as stated in the conditions of the insurance policy by referring to the meaning of this word given in ‘Oxford Advanced Learners’ Dictionary, Stroud’s Judicial Dictionary, Fifth Edition, Black’s Law Dictionary, Sixth Edition and Mitra’s Legal and Commercial Dictionary, Fifth Edition and came to the conclusion that the word ‘immediately’ has to be construed, ‘within a reasonable time’ having due regard to the nature and circumstances of the case.

13.     A similar view has been expressed by this Commission and in many other orders passed in cases such as New India Assurance Co. Ltd. vs. Ram Avtar (supra), Ramesh Chandra vs ICICI Lombard General Insurance Co. Ltd. and Anr. (supra) and New India Assurance Co. vs. Dharam Singh [III (2006) CPJ 240 (NC)].  One of the latest judgments of the Commission has been issued on 15.09.2014 in RP No. 3320/2014, Kulwant Singh vs. Managing Director, United India Insurance Co. Ltd. & Other (supra) and a similar view has been upheld.

14.     In so far as the order of the Hon’ble Supreme Court in Amlendu Sahoo vs Oriental Insurance Company (supra) as relied upon by the District Forum, it is very clear that the facts of that case were entirely different because the violation relates to the nature of use of the vehicle only.  The vehicle was registered for private use but it was being used for hire.

15.     In so far as the contention of the complainant/respondent that a contract of insurance is a contract of indemnity and the Insurance Company is bound to honour the claim, once the policy has been issued after charging the premium, it is stated that the said contract has been made subject to certain conditions.  In case, there is violation of such conditions, such violation has to be taken into account, while deciding the issue of indemnity.

16.     The order passed by the State Commission in the appeal filed by the petitioner is quite sketchy, vague and no detailed reasons have been given for agreeing with the order of the District Forum.  However, since the facts and circumstances of the case have been duly examined during hearing before me, there is no need to refer the matter back to the State Commission.

17.       Based on the discussion above, this revision petition succeeds and it is held that the complainant is not entitled for any compensation even on ‘non-standard’ basis.  The orders passed by the District Forum and State Commission are, therefore, set aside and the consumer complaint in question stands dismissed.  There shall be no order as to costs.