Heard learned counsel for both the parties.
2. This appeal is 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 unfolded story of the case of the complainant, is that the complainant being owner of a Truck bearing Regd.No. OR-09-K-4669 had purchased the policy for the vehicle for IDV of Rs.10,70,000/- in the year 2008 and the insurance was valid till July,2011. It is alleged inter-alia that on 29.12.2010 the vehicle was stolen away by some anti-social from Chintapokhari National Highway 55 under Motonga P.S. in the district of Dhenkanal. The complainant came to know about the theft on 30.12.2010 morning at 9.00 A.M and lodged an FIR in the Police Station at 10.00 A.M. on the same day. The matter was also informed to the financer on 31.12.2010. Since, the vehicle was not recovered, the policy was kept with the financer. The financer was requested to submit the policy and it took time to locate same in the office. However, the complainant ,completion of all formalities informed the insurer on 12.09.2014. The complainant came to know from the OP that the claim has been repudiated as the truck has not valid permit. He submitted that in case of theft the permit of vehicle is not necessarily, to be considered. Therefore, challenging said repudiation, the complaint was filed.
4. The OP filed written version admitting that the vehicle has been insured covering the period from 28.06.2010 till 27.06.2011. The policy was in possession of the complainant. The vehicle was stolen away on 30.12.2010 but the complainant was filed after four years as it is barred by limitation. After relevant papers supplied by the complainant, the OP made investigation on 30.10.2014 and repudiated the claim due to lack of fitness and tax payment. Since, the vehicle has no valid document, the vehicle was allowed to ply. Thus, they have repudiated the claim. Therefore, there is no deficiency in service on the part of the OP.
.5. After hearing both the parties, learned District Forum passed the following order:-
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“ The complaint is allowed on contest in the light of the observations made in the preceding paragraphs. The Opp.Party is directed to pay a sum of Rs.10,70,000/-(Rupees ten lakhs seventy thousand)only to the complainant with interest @ 6 % per annum from the date of filing of the case i.e. 30.12.2014. The Opp.Party is further directed to pay cost of litigation of Rs.5,000/- (Rupees five thousand) only to the complainant. The above directions shall be complied within a period of 30 days from the date of receipt of this order,failing which the Opp.Party shall be liable to pay interest @ 9 % instead of 6 % till payment.”
6. Learned counsel for the appellant vehemently argued that learned District Forum has committed error in law in by not considering the written version filed by the OP with proper perspectives. According to him the policy condition has been violated one by one. He submitted that the theft of vehicle has not been informed for four years for which policy condition no.1 has been violated. He further submitted that the vehicle has no document as per Section-56 of the M.V.Act. Learned District Forum ought to have considered all the facts and law involved in this case. He relied on the decision of Hon’ble Supreme Court in United India Insurance Co.Ltd.-Vrs- Sushil Kumar Godara,2021 SCC Online SC 844 in order to support his case. Therefore, the impugned order should be set-aside by allowing the appeal.
7. Learned counsel for the respondent submitted that the complainant has produced all the documents and there is no error in the documents filed by the complainant. He also submitted that in case of vehicle being stolen away the question of permit and registration certificate is not necessary as it has been held by the Commission in several cases. He relied on the decision of Hon’ble Supreme Court of India in AIR 2017 SC passed in Mukund Dewangan –Vrs-Oriental Insurance Company Ltd. in Civil Appeal No.5826 of 2011 disposed of on 03.07.2017. So, he supports the impugned order.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. It is admitted fact that the vehicle of the complainant was insured with the Op for the period from 28.06.2010 till 27.06.2011 and during currency of the policy the vehicle was stolen away while kept on National High Way. It is also not in dispute that the police was informed 30.12.2010 which is on the next day of occurrence. Of course it is informed and he has explained about theft and the police took time to serch same.
10. The only question arises in this case whether the complainant is entitled to compensation as asked for.
11. We relied the decision of Hon’ble Supreme Court of India in Gurshinder Singh-Vrs- Shriram General Insurance Co.Ltd. &another ,vide Civil Appeal No.653(Arising out of S.L.P.(C) No.24370/2015 decided on 24.01.2020 that when the insured lodged FIR immediately after the vehicle stolen away and police gave final report, the vehicle was in the safe custody of the police and the insurer admits stolen of vehicle. there is no room to deny the claim of the insured. In the instant case immediately after occurrence the FIR has been lodged. There is also final report already submitted in this case stating that the fact is true but no clue. The investigation report of the insurer shows that he is not able to decide the theft of the vehicle. However, when immediately informed to the police there is sufficient for compliance of policy no.1 in the insurance policy which is filed by the complainant in this case.
12. At the same time learned counsel for the appellant submitted that in the case of United India Insurance Co.Ltd.(Supra) it is clear that if there is no document of registration, in case of theft the amount can not be settled under the insurance policy because there is violation of Section-39 and 192 of the Motor Vehicle Act,1988. In the instant case the question of absence of registration certificate does not arise. In the instant case there is a permit, already the registration certificate is there. Even if assuming there is no permit, in the case of theft absence of rout permit is not proved to deny the claim. It is settled in law that if the alleged occurrence has no direct cause of violation of policy condition, then the claim can not be denied. We rely on the decision of Hon’ble Supreme Court in B.V.Nagaraju-Vrs-M/s Oriental Insurance Co.Ltd.,1996 SCC(5) 71.
13. Therefore, in this case we found that when the documents are there and the police report shows that it is true fact , then repudiation on claim in a final stage is deficiency in service on the part of the OP.
14. In view of aforesaid discussion, we confirmed the finding of the learned District Forum. But learned counsel for the appellant submitted that the IDV is Rs.10,70,000/- and vehicle has run for more than two years, same be considered to decide the amount of award. Since, the vehicle has run for two years, we are of the view that the claim should be settled at Rs.8,70,000/-. Therefore, while confirming the impugned order, we hereby modified the impugned order and direct OP to pay Rs.8,70,000/- to the complainant within a period of 45 days from the date of order, failing which the entire impugned order will be revived. Other part of the impugned order will remain unaltered.
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.
