(Per: Mr. D.K. Tyagi, Member):
This is an appeal, under Section 15 of the Consumer Protection Act, 1986, against the judgment and order dated 13.03.2013 passed by the District Forum, Dehradun in consumer complaint No. 241 of 2011, whereby the District Forum has dismissed same.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Pankaj Sharma is the owner of the vehicle named Xylo bearing registration No. UK07TA2528, which is registered in the office of R.T.O., Dehradun. The said vehicle in question has been financed by Mahindra & Mahindra Financed Services Ltd. Co., Dehradun. The vehicle was insured with the opposite parties-insurance company from 25.11.2010 to 24.11.2011. It is stated that the driver of the complainant Sh. Vikki Pal R/o Nakraunda, Gularghati, P.S. Doiwala went to Delhi airport on 21.12.2010 at 2.00 p.m. by the said vehicle. On 22.12.2010, the driver informed the complainant on telephone that the said vehicle was looted by the unknown culprits near Gurukul Narsan at about 3:00 a.m. in the night and fled away towards Muzzafarnagar throwing him in the field of sugarcane in the area of Police Station Nai Mandi, Muzzafarnagar. The complainant directed the driver to inform the Police Station regarding the incident, then the driver went to Police Station Nai Mandi, Muzzafarnagar and informed about the incident. After an inquiry, the Police Station lodged an F.I.R. on 05.01.2011 at Crime No. Nil/2011 under Section 392 I.P.C. and as the crime was committed at Narsan, therefore, the matter was transferred to Police Station, Manglore, District Haridwar for investigation. Thereafter, the Police Station, Manglore registered a case at Crime No. 126 of 2011 under Section 392 I.P.C. State vs. Ajay and others and accused were arrested by Police Station, Manglore, who had looted the vehicle. All the accused arrested are still detained in the Jail and police has submitted in the court charge sheet against them. But police has failed to recover the said vehicle of the complainant. The complainant, thereafter, informed the opposite parties at toll free number 1800 200 5544 immediately. The telephone was attended by a female official of the company, who had inquired about the insurance policy and the number of the vehicle, which was given to that official. The official of the company had informed the complainant that his complaint has been registered and company will inform him about the proceedings in this case. Thereafter, a person from insurance company named Sh. V.N. Sheopuri came to the complainant and obtained all the relevant information from the complainant about his vehicle, Xylo Car. He also got copy of F.I.R. as well as IInd key of the vehicle from the complainant and he also noted the statement of the complainant as well as driver Sh. Vikki Pal. Sh. V.N. Sheopuri sent a notice dated 08.02.2011 to the complainant for some other information. The complainant has provided the required information on the telephone number, which was given by Sh. V.N. Sheopuri to the complainant, even then the claim of the complainant has not settled by the company. The complainant had also sent reply of the notice dated 08.02.2011. The complainant visited at the Branch Office of the insurance company at Dehradun, but no satisfactory answer was given to him by the insurance company. That at the time of insurance, the authorized representative of the insurance company had provided only cover note and not the original insurance policy to the complainant. Later on the complainant had sent a notice dated 08.08.2011 through his counsel Sh. B.S. Mehra, Advocate and demanded the claim of Rs. 5,26,750/-, Rs. 2.00 lacs for mental and physical harassment and for Rs 2,500/- for the cost of notice. Notice was duly served upon the opposite parties and only the opposite party No. 1 had given reply of notice on false grounds. The complainant has filed the consumer complaint against the opposite parties for damages and Rs. 5,26,750/-, Rs. 2.00 lacs for mental and physical harassment and Rs. 2,500/- for notice expense and Rs. 11,000/- for litigation expenses and an interest @ 12% per annum.
3. The opposite parties have filed written statement/preliminary objections before the District Forum and pleaded that there is no consumer dispute between the parties, therefore, the learned District Forum has no jurisdiction to entertain the case. There has been no deficiency in service on the part of opposite parties, therefore, the consumer complaint is not maintainable. That there was a deliberate and willful misrepresentation by the insured regarding the place and nature of the loss, therefore, the answering opposite parties are not liable for any payment. There was a delay of 15 days in lodging the F.I.R. which was against the policy’s conditions, therefore, the consumer complaint is not maintainable. That the insured was informed about the repudiation of the claim vide letter dated 12.08.2011 and the repudiation does not amount to deficiency of service. That there is a discrepancy in the F.I.R. and the statement of the driver regarding the place of the alleged theft. That there was no order of the court regarding the acceptance of the final report, in the absence of which the theft does not stand proved. The insured has not provided the necessary documents as required. That the case was investigated by Tracer & Investigator, wherein it was found that the versions of the theft differed in the F.I.R. and the statement of the driver. That the copy of the previous policy was not provided by the insured. That the driver has given two versions regarding the theft. As per the F.I.R. the culprits were given a lift at Narsan, District Haridwar and on the other hand as per the statement given by the driver the culprits were given a lift at the turning of Ghaziabad. Till date the insured has not given a clarification of the discrepancy of the statements. The claim is not genuine and lacks bonafide. In the reply on merit, the opposite parties have admitted that the vehicle in question was registered in the name of the complainant –Sh. Pankaj Sharma and the said vehicle was insured with the opposite parties from 25.11.2010 to 24.11.2011. The date of the information given by the complainant to the insurance company is not disclosed. The information given was belated and not correct. The documents and informations sought from the complainant were not provided to Mr. V.N. Sheopuri contrary to the statement made. The alleged notice of the complainant was unjustified and baseless. The claim has been repudiated because of valid reasons and repudiation does not amount to deficiency of service. The terms and conditions of the contract are binding on both the parties, but the insured failed to honour the contract in its letter and spirit. The insured cannot take advantage of his own wrong. No cause of action has occurred to the insured as alleged. The reliefs sought are baseless and the answering opposite parties are not liable for the same.
4. The District Forum on an appreciation of the material on record has dismissed the consumer complaint vide order dated 13.03.2013. Aggrieved by the said order, the complainant-appellant has filed the present appeal.
5. We have heard learned counsel for the parties and perused the material on record.
6. There is no dispute regarding the fact that the complainant is the registered owner of the vehicle in question. There is also no dispute that this vehicle was insured with the opposite parties from 25.11.2010 to 24.11.2011.
7. Learned counsel for the appellant-complainant has submitted before the Commission that his vehicle (Xylo Car No. UK07TA2528) was being driven by his driver Sh. Vikki Pal on 21.12.2010, when he had gone to Delhi airport from Dehradun to leave some passengers and was coming back to Dehradun in the night of 21/22 December, 2010. He met four persons near Gurukul Narsan, who looted his Xylo car and fled away towards Muzzafarnagar, throwing him in the sugar cane field. Learned counsel argued that the driver of the vehicle reached at Police Station Nai Mandi, Muzzafarnagar and informed the police, but the police did not register his case on 22.12.2010. The police had lodged an F.I.R. only on 05.01.2011, which was transferred to Police Station, Manglore, as the place of incident was in the jurisdiction of Police Station, Manglore, District Haridwar. Learned counsel also argued that he had also informed the insurance company on telephone, therefore, there is no delay in lodging the F.I.R. as well as intimation given to the insurance company. Learned counsel also argued that the culprits, who had looted the said vehicle, were arrested by the Manglore police, but the vehicle was not recovered by the police so far.
8. Per contra, learned counsel for respondent-insurance company has submitted that the appellant or his driver has lodged F.I.R. in the Police Station after 15 days of incident and there is no written intimation to the insurance company about the incident. There is no explanation on the part of the appellant, why did F.I.R. registered at P.S. Nai Mandi, Muzzafarnagar. The claim has been rightly repudiated by the insurance company on the basis of delay of 15 days in lodging the F.I.R. as well as contradictory statement of the driver of the appellant regarding the place of incident.
9. Learned counsel for the appellant has placed reliance on the case of United India Insurance Co. Ltd. vs. Smt. Prem Lata Sahai; CMCL 432 decided on 08.04.2005. In this case, this Commission has held that there was delay in F.I.R. by five days when the vehicle stolen. Theft proved. Insurance admitted. The police is not very much keen to lodge such F.I.R. and directs to search it out themselves. When the theft and insurance established no question of repudiation. Appeal was partly allowed.
10. Learned counsel for the respondent-opposite parties has placed reliance on the case Kulwant Singh vs. United India Insurance Co. Ltd.; IV (2014) CPJ 350 (NC). In this case, the Hon’ble National Commission has observed that in case of theft of vehicle and delay in lodging F.I.R. Petitioner informed police three days after incident of theft – such delay can be fatal as within three days the vehicle could have been driven long distance even across border of country or could have been dismantled and sold to scrap dealer. Petitioner – insured had acted against interest of insurer. This violation of condition is fundamental to loss caused which justifies repudiation of claim.
11. From the perusal of the record and F.I.R. dated 05.01.2011 and also from the perusal of the report of investigator, it is very much clear that the driver of the appellant namely Sh. Vikki Pal has not lodged any F.I.R. on the date of incident, i.e. night intervening 21/22.12.2010. There is no evidence on record to show that the driver reached the police outpost or Police Station, Nai Mandi, Muzzafarnagar in the night of 21/22.12.2010 or in the morning of 22.12.2010 and approach the police for lodging his F.I.R. Copy of F.I.R. (Paper No. 33) is filed on the record, which indicates that the written report was sent to Police Station, Nai Mandi, Muzzafarnagar by registered post and there is declaration in the column four of F.I.R. that the delay in lodging the F.I.R. is on the part of informant. After receiving the F.I.R. through registered post, the Police Station, Nai Mandi, Muzzafarnagar has registered the case under Section 392 I.P.C. on Crime No. Nil/2010, which was later on transferred to the Police Station, Manglore, District Haridwar as the place of incident was shown near Gurukul Narsan. Therefore, it is very much clear that the appellant or his driver have informed the police of District Muzzafarnagar (U.P.) by registered post on or before 05.01.2011. Report of theft or loot was never lodged at Police Station soon after the incident. So far intimation to the insurance company is concerned, there is no evidence in writing to show that the complainant had intimated the insurance company soon after the incident. The complainant has admitted that he informed and intimated the insurance company through telephone just after the incident. We are convinced with the arguments of learned counsel for the appellant that the intimation of theft/loot was given by the complainant to the insurance company on 22.12.2010, as mentioned in the report of investigator. Citation placed by the respondent-opposite parties in the case of Kulwant Singh (supra) is fully applicable in the instant case. We are convinced with the observations given by the Hon’ble National Commission in the above cited case and, therefore, the delay of 15 days in lodging F.I.R. is fatal, as the vehicle could have been driven long distance even across border of country or could have been dismantled and sold to scrap dealer. In this way, insured-appellant had acted against interest of insurance company. So far investigation by police of Police Station, Manglore and charge sheet submitted by the police in the court is concerned, the police has neither arrested a person, who has said to purchase the stolen vehicle from the accused nor recovered the said vehicle. According to the report of investigator, there are major contradiction in the statement of driver as well as in the F.I.R. regarding the place of occurrence also. The District Forum has rightly observed in the impugned judgment and order that in case registered owner of the vehicle does not lodge the F.I.R. immediately just after theft of vehicle, then the insurance company has a right to repudiate the claim, as observed in the case of Rajesh Kumar vs. New India Assurance Co. Ltd.; II (2012) CPJ 243 (NC).
12. The District Forum has properly considered the facts and circumstances of the case and has passed a reasoned judgment and order dated 13.03.2013, which does not call for any interference. The appeal lacks merit and is liable to be dismissed.
13. For the reasons aforesaid, the appeal is dismissed. The impugned judgment and order dated 13.03.2013 passed by the District Forum, Dehradun in consumer complaint No. 241 of 2011 is hereby confirmed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI)
