HON’BLE MR. DINESH SINGH, MEMBER

1.       Heard learned counsel for the revision petitioner – insurance co., and perused the material on record.

2.       The dispute relates to an insurance claim regarding theft of a tractor.

          The theft relates to 2014, we are in 2019.

3.       The District Forum had heard both sides, appraised the evidence, and, through its Order dated 07.04.2017, allowed the complaint on merit:

4.         Both the parties led evidence in support of their case.

5.         Ld. Counsel for the complainant in his evidence tendered affidavit Ex. CW1/A, documents Ex. C1 to Ex. C6 and has closed his evidence. On the other hand, ld. counsel for the opposite party No. 1 tendered affidavit Ex. RW1/A documents Ex. R1 to Ex. R3 and has closed his evidence. Ld. Counsel for the Opposite Party no. 2 has tendered affidavit Ex. RW2/A, documents Ex. R2/1 to Ex. R2/5 and has closed his evidence.

6.         We have heard learned counsel for the parties and have gone through material aspect of the case very carefully.

7.         In the present case insurance and theft of the vehicle is not disputed. As per policy Ex. C2, the vehicle of the complainant was insured with the opposite party No. 1 for the period from 18.09.2014 to 17.09.2015 and the IDV of the vehicle is Rs. 376200. It is also not disputed that as per agreement Ex. R2/1, the vehicle of the complainant was financed by the opposite party no. 2. It is also not disputed that the alleged vehicle has been stolen on 26.01.2014 and FIR Ex. C1 was also lodged on the same day. As per complaint and affidavit filed by the complainant, he had intimated the opposite parties well in time but as per the reply filed by the opposite parties, no intimation regarding the theft had been given to them and no claim was lodged. As per contention of ld. counsel for the opposite party no. 1 the opposite party had received information of the alleged theft from the present complaint of complainant. So there is a delay in intimation to the opposite party Insurance Company and the same is violation of condition 1 of the policy. The claim is not payable on account of violation of terms and conditions of the insurance policy.

8.         After going through the file and hearing the parties it is observed that claim of the complainant has not been settled by the opposite party no. 1 on the ground that it had received the information of theft of vehicle only from the present complaint as such there is delayed intimation on the part of complainant to file the complaint. In this regard it is observed that theft had taken place on 26.01.2014 and the FIR was lodged on the same day. Regarding the intimation to the opposite party no. 1, complainant has placed on record copy of intimation letter Ex. C6 dated 27.01.2014. In this regard we have placed reliance upon the law cited in III(2008) CPJ 459 titled Ridhi Gupta vs. NIC  whereby Delhi State Commission, New Delhi has held that “Insurance-Theft-Information to the police in any form, including DD report, sufficient requirement-Once report lodged with policy in any form, Insurance Company barred from appointing investigator to investigate whether theft took place or not”, as per 2014(2)CLT 390 titled Shriram general Insurance Company Ltd. vs. Rajesh Kumar Hon’ble Haryana State Commission, Panchkula has held that: “Delay of 12 days in intimation to insurance company-There may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that all the relevant documents have been placed on record and copy of the same have also been supplied to the opposite parties but the clam has not been settled by the opposite parties which is illegal and amounts to deficiency in service and opposite parties are liable to pay the claim amount as per IDV of the vehicle mentioned in the policy i.e., Rs. 376200/-, As the vehicle was got financed by the opposite party no. 2 and as per the documents placed on record by the opposite party no. 2 complainant has not cleared the loan amount. Hence the amount of award shall be disbursed in favour of opposite party no. 2.

9.         In view of the facts and circumstances of the case, it is directed that opposite party No. 1 shall pay the insured declared value of vehicle i.e., Rs. 376200/- (Rupees three lacs seventy thousand two hundred only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 18.04.2016 till its actual realization and shall also pay a sum of Rs. 5000/- (Rupees Five Thousand only) as litigation expenses in favour of opposite party no. 2 for settlement of loan account of the complainant. Order shall be complied within one month from the date of completion of formalities e.g. (Form No. 26, 28, 29, 30, 35, Original RC, Subrogation letter, Indemnity Bond and affidavit of transferee etc to the opposite party no. 1) failing which the opposite party No.1 shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.  

            (paras 4,5,6,7,8 and 9 of the District Forum’s Order)

4.       The insurance co. appealed in the State Commission. The State Commission, vide its Order dated 28.05.2018, dismissed the appeal in default:

O R D E R

Case called several times since morning but none has appeared on behalf of appellant. On the last two consecutive dates of hearings, also nobody appeared on behalf of appellant. It appears that the appellant is not interest in pursuing the appeal. It is already 4: 00 P.M. No more wait is justified. Therefore, appeal is dismissed in default.

                                                                                                (State Commission’s Order)

5.       We first note the chronology:

6.       We also note that:

(i)      the premium had been paid by the complainant is not disputed.

(ii)      the policy was valid is not disputed.

(iii)     an FIR was lodged on the very next day of the theft of the tractor is not disputed.

(iv)     it is nowhere on record that any report was made or any action taken by the police that the first information report was false.

(v)     a letter dated 27.01.2014 (Ex. C 6), which is a copy of the intimation averred by the complainant to have been sent by him to the insurance co., was placed by the complainant before the District Forum.

(vi)     in his complaint the complainant has inter alia averred that “the complainant visited repeatedly visited to the office of the respondent no. 1 & 2 to enquired about the genuine claim, but the official of respondent no. 1 kept him in abeyance and asked the complainant to come after some days as the claim form and documents submitted by complainant is not traceable and same has been misplaced and not disbursed the claim amount till date”.

7.       It is unreasonable and illogical to agree with the revisionist insurance co. that the complainant did not intimate it of the theft, when he lodged an F.I.R. with the police on the very next day, and when he has produced before the District Forum a copy of the intimation sent (Ex. C 6) by him to the insurance co. dated the very next day thence. We see no reason to question the District Forum (after appraising in perspective) placing reliance on the said intimation (Ex. C 6).

8.       We find the Order dated 07.04.2017 of the District Forum to be well-appraised and well-reasoned. We note in particular the extract of the appraisal made by the District Forum, quoted, verbatim, in para 3 above. We find no palpable misappreciation of evidence by the District Forum. No jurisdictional error, or a legal principle ignored, is visible.

9.       The State Commission vide its impugned Order dated 28.05.2018 has dismissed the appeal in default. The appeal was filed on 23.05.2017. It was dismissed in default after about 12 months. The ideal normative period to decide an appeal as laid down in section 19A of the Act 1986 is 90 days (An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from the date of its admission). The Statement of Objects and Reasons of the Act 1986 says of “speedy and simple redressal to consumer disputes”. We note that on the last two consecutive dates of hearings before the State Commission none had appeared on behalf of the appellant insurance co. On the day it was dismissed in default, also, the case was called out several times since the morning but none appeared on behalf of the appellant insurance co. It was dismissed in default at 4.00 p.m. We find the Order dated 28.05.2018 of the State Commission to be just and appropriate. No jurisdictional error, or a legal principle ignored, is visible.

10.     Learned counsel for the revisionist – insurance co. argued that the case be remanded back to the State Commission, for adjudication on facts and law in first appeal in the State Commission and opportunity be afforded to the appellant insurance co. before the State Commission.

11.     We however note that sufficient opportunity, and more, was provided to the appellant insurance co. by the State Commission before dismissing the first appeal in default. (Here we simultaneously note that the District Forum had heard both sides, appraised the evidence, and passed a well-appraised and well-reasoned Order on merit.)

12.     The Act 1986 is for better protection of the interests of consumers, in recognizedly a fight amongst unequals. We note the chronology enunciated in para 5 above. We also note the salient facts enunciated in para 6 above. We further note that the complainant had availed loan from a financial institution for the subject tractor. We observe that if a farmer’s tractor is stolen, and his insurance claim is not settled dutifully and promptly, he faces financial hardship, both with the financial institution and in his agricultural operations.

13.     Learned counsel for the revisionist – insurance co. also argued that the District Forum has awarded interest at the rate of 9% p.a. from the date of filing the complaint, i.e. from 18.04.2016, till its realisation, and that this is a “heavy burden” on the insurance co. We fail to understand that when, in all contingencies, even if the insurance co.’s stated stand (which has been found to be erroneous by the District Forum) is that intimation of the theft was not given to it, why did it not take an administrative decision when, at least, on appearing before the District Forum, it came to know of the theft. We also fail to understand that after an adverse Order from the District Forum, why did it not conduct its appeal professionally before the State Commission without repeatedly absenting itself. We also see in particular that the subject tractor was financed through a financial institution. We do not find any reason to interfere with the interest awarded by the District Forum.

14.     For the sake of discussion, in different chronology and salient facts, we could, perhaps, have considered remanding the case back to the State Commission at some cost. In this particular case, however, in our considered view, after noting the chronology and the salient facts (refer paras 5 and 6 above), and in particular that the theft relates to more than five years back, as also that the subject tractor was financed through a financial institution, as well as that the District Forum had allowed the complaint on merit, mechanically remanding the case back to the State Commission would be a travesty of justice.

15.     Revisional jurisdiction under section 21(b) of the Act 1986 has a defined purview and ambit, which but does allow for (and also requires) ensuring that there is no travesty of justice.

16.     We additionally note that there is self-admitted delay of 41 days in filing the revision petition before this Commission. The stated reasons for delay in filing the revision, as mentioned in paras 3 to 8 of the application for condonation of delay, are as below:

3.         That the petitioner received the certified copy of order dated 28.05.2018 only on 15.7.18 and subsequently the petitioner herein mistakenly filed an application for recalling the order dated 28.05.2018 before the Ld. State Commission and the same was fixed for hearing on 06.09.2018.

4.         That on 06.09.2018 when the application was listed for hearing the Hon’ble State Commission refused to recall the order dated 28.05.2018 citing reason that they don’t have the power to recall their own orders.

5.         That the petitioner were under the bonafide impression that the said order could be recalled by the same court however when the matter was listed they realised their mistake and therefore instantly withdrew the application for recall.

6.         That subsequently upon the advise of their counsel of this Hon’ble Court the petitioner preferred to filed the instant revision petition.

7.         That therefore the delay of 41 days occurred in filing the present revision petition.

8.         That the delay was neither intentional nor deliberate but only on account of reasons mentioned above. 

                                    (paras 3, 4, 5, 6, 7 and 8 of the application for condonation of delay)

Sufficient cause to explain the delay is not visible. The stated reasons for delay, quoted, verbatim, above, only point towards managerial inefficiency and a perfunctory and casual attitude to the law of limitation, they are illogical and absurd in explaining convincingly and cogently the self-admitted delay of 41 days. The revision petition, thus, fails on limitation too.

17.     We find the impugned Order dated 28.05.2018 of the State Commission to be without error. It does not require interference by this Commission. As such, it is affirmed and sustained on merit.

Additionally, the revision petition fails on limitation too.

18.     We find this to be a plain and simple case of an insurance co. on the one side, and an ordinary consumer (farmer) on the other side, with the insurance co., unwarrantedly and unnecessarily, first, sitting over the claim, and then, indulging in protracted litigation in various ways.

19.     Considering the facts and specificities of the case in their totality, the revision petition is dismissed with stern advice of caution to the revisionist – insurance co. through imposition of cost of Rs.50,000/- to be paid by way of ‘payee’s a/c only’ demand draft to the complainant within four weeks of the pronouncement of this Order.

20.     Needless to add that the District Forum shall proceed with execution as per the law.

21.     Let a copy each of this Order be sent to the complainant and to the District Forum by the Registry within ten day of its pronouncement.