Chandigarh

StateCommission

A/75/2024

TATA AIG GENERAL INSURANCE COMPANY LIMITED - Complainant(s)

Versus

HARDEEP SINGH - Opp.Party(s)

SAHIL ABHI

23 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	75 of 2024
Date of Institution	:	12.02.2024
Date of Decision	:	23.07.2024

 

                    

 

Tata AIG General Insurance Co. Ltd. SCO No.127-128, Sector 9, Chandigarh.

… Appellant/Opposite Party

V e r s u s

Hardeep Singh S/o Sh.Jeet Singh aged about 39 years, R/o Village Dhanoni, Tehsil Derabassi, District SAS Nagar, Mohali, Punjab.

… Respondent/ Complainant

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. PREETINDER SINGH, MEMBER

Present:-    Sh.Sahil Abhi, Advocate for the appellant.

                   Sh.Rajesh Verma, Advocate for the respondent.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

M.A. No.164 of 2024 (Condonation of delay):-           

                   Alongwith this appeal, this application has been filed by the applicant/appellant/opposite party for condonation of delay of 25 days (as per the office 18 days) in filing the same. Arguments of the parties on this application heard.

2.           For the reasons stated in this application, we are of the considered view that the applicant/appellant has been able to satisfy that there had been a sufficient cause for not preferring the appeal within the stipulated period. In this view of the matter, this application stands allowed and the delay of 25 days (as per the office 18 days) in filing the appeal is condoned. Accordingly, this application stands dispose off. 

 

Appeal No.75 of 2024:-

3.           The appellant/opposite party has come up in this appeal assailing  the order dated 08.11.2023, passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby consumer complaint bearing no.10 of 2021 filed by the respondent/complainant was partly allowed against it as under:-

“…In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-

1. to pay an amount of ₹18,47,300/- to the complainant alongwith interest @ 9% per annum from the date of filing of this complaint onwards. The OP shall be at liberty to recover compulsory deductible if any as per policy terms and conditions.
2. to pay an amount of ₹15,000/- to the complainant as compensation for causing mental agony and harassment to him.
3. to pay ₹10,000/- to the complainant as costs of litigation.

 This order be complied with by the OP within 45 days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above....”

 

4.           Before the District Commission, it was the case of the complainant that he is the owner of Tata Tipper 2518 bearing registration No.PB-65V-1064 (in short the vehicle). The vehicle in question was insured by the opposite party w.e.f. 10.02.2015 to 09.02.2016,  on receipt of premium of Rs.43,868/- from the complainant. It was stolen from Wadhawa Nagar, Baltana, Zirakpur, SAS Nagar, Mohali, Punjab on 21.12.2015. The complainant lodged a complaint regarding the theft of the said vehicle and FIR dated 24.12.2015 (Annexure C-3) under Section 379 IPC P.S. Zirakpur, SAS Nagar, Mohali, Punjab, was registered. After preference of the claim by the complainant for claiming compensation of theft of the vehicle, the opposite party appointed surveyor in the matter. The complainant also submitted all the documents to the surveyor appointed by the opposite party. It was stated that vehicle in question was financed by Shriram Transport Finance Co. Ltd., who had no objection for the claim process qua the stolen vehicle. The vehicle of the complainant was not found and as such the complainant was entitled to full claim of the IDV amounting to Rs.18,47,300/- but it was not paid by the opposite party. The complainant sent a legal notice dated 17.12.2020 to the opposite party in the matter but to no avail. Hence the complainant had filed consumer complaint before the District Commission.
5.           The opposite party contested the consumer complaint and filed its written reply and stated that as per complaint, date of alleged theft  of the vehicle was 21.12.2015 but the complaint was filed on 29.12.2020 after the expiry of more than four years from the date of repudiation of claim. The claim of the complainant was repudiated as no claim, vide letter dated 4.7.2016 on the ground of violation of condition No.1 in conjectures with condition No.8, as FIR was lodged after the gap of 2 days; adopting non-cooperative attitude during the whole course of investigation; non-submission of the complete set of keys of the vehicle and leaving one cabin door lock key inside the vehicle which leads to believe that proper safety measures of the vehicle were not put in place and the vehicle was stolen with access to key(s) of the vehicle which amounts to violation of condition No.5 of the policy. It was further stated that the complainant is not a consumer as defined under the Act, as he was running the vehicle in question for commercial purposes in order to earn huge profits.
6.           The contesting parties led evidence in support of their case.
7.           The District Commission after hearing the contesting parties and on going through the documents on record partly allowed the complaint in the manner stated above.
8.           Hence this appeal has been filed by the appellant/opposite party.
9.           We have heard the counsel for the contesting parties and scanned the material available on the record.
10.           It is not in  dispute that the respondent/complainant is the registered owner of the said vehicle, which was insured with the appellant from 10.02.2015 to 09.02.2016. It is also an admitted fact that during currency of the policy in question, theft of the said vehicle took place, from Wadhawa Nagar, Baltana, Zirakpur, SAS Nagar, Mohali, Punjab.
11.           The following contentions were raised by the appellant before this Commission:-

 

1. that there was delay of 2 days in reporting the matter of the theft of the vehicle to the police;
2. that the complaint was time barred, as it was filed after 4 years of theft;
3. that the complainant has himself suffered statement before the surveyor  to the effect that the cabin of the vehicle in question was locked from outside but duplicate key/extra key was kept inside the said cabin, so he was negligent in the matter.

 

12.           First coming to the contention raised to the effect that there was delay of 2 days in reporting the matter of the theft of the vehicle to the police, it may be stated here that it is the definite case of the respondent that  immediately i.e. on the very same day of the theft of the vehicle, the matter was reported to the police concerned, yet, the police officials advised him to search the said vehicle before lodging the FIR and when the respondent failed to locate the same, FIR was lodged by the police on 24.12.2015.  At this juncture it is apposite to mention here that it has been specifically mentioned in para no.3 of the complaint that the vehicle was stolen from Wadhawa Nagar, Baltana, Zirakpur, SAS Nagar, Mohali, Punjab on 21.12.2015 and FIR was lodged  on 24.12.2015 against unknown persons. In the FIR dated 24.12.2015, it is mentioned that the vehicle was parked near the welding shop on 21.12.2015 at 9.00 p.m. but on the next day i.e. 22.12.2015 at about 7.00 a.m., the driver- Sukhjit Singh found that its (vehicle) theft has taken place. Therefore, both the owner and driver went for searching of the vehicle and they  could not locate it. Ultimately, thereafter, they lodged FIR on 24.12.2015.

At this stage, it is very significant to mention here that Vikaas Kumar and Associates, Investigator appointed by the appellant, vide his report dated 16.02.2016, Annexure R-2 has clearly opined that on verification at the police station, FIR was lodged on the same day. Relevant part of the said report is reproduced hereunder:-

 

Delay in lodging FIR if any

No delay. The FIR was lodged on the same day.

                  

                   Thus, from the facts narrated above, it has been established that  though intimation regarding theft of the vehicle in question was given to the police on the same day i.e. 21.12.2015, yet, FIR was registered only on 24.12.2015. Under similar facts and circumstances, the Hon’ble National Commission in the case titled as TATA AIG General Insurance CO. Ltd. Versus Bhaira Vnath Sahebrao Kale and another, III (2024) CPJ 92 (NC) has discussed similar proposition and observed that delay of 4 to 5 days in lodging FIR is not fatal. Relevant part of the said order is reproduced hereunder:-

“………14.    In the present case, it is established that the Complainant orally intimated the police station about the theft on the day of the incident. However, the police advised him to search for the vehicle for 4-5 days before lodging the FIR. Thereafter, the FIR was lodged on 02.05.2014. It is also undisputed that the Complainant informed the insurance company about the theft of the insured vehicle on 06.05.2024. These timelines indicate that the Complainant took reasonable steps to report the theft to the relevant authorities and the insurance company in a timely manner. The Hon'ble Supreme Court in Jaina Construction Committee V. Oriental Insurance Company Ltd., 2022 SCC OnLine SC 175 has held as under:

"12. In the opinion of the Court the aforestated ratio of the judgment clinches the issue involved in the case on hand. In the instant case also, the FIR was lodged immediately on the next day of the occurrence of theft of the vehicle by the complainant. The accused were also arrested and charge-sheeted, however, the vehicle could not be traced out. Of course, it is true that there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company, nonetheless, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay. When the complainant had lodged the FIR immediately after the theft of the vehicle, and when the police after the investigation had arrested the accused and also filed challan before the court concerned, and when the claim of the insured was not found to be not genuine, the Insurance Company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft."

15.    The Hon'ble Supreme Court in Dharmender Vs. United India Insurance Co. Ltd. & Ors., Civil Appeal No.5705 of 2021 decided on 13.09.2021 has held as under:

"We have heard the learned counsel for the parties at length and find that the order passed by the NCDRC cannot be sustained. The claim of the appellant was repudiated by the Insurance Company on the ground that there is delay of 78 days in intimating the vehicle being stolen on the intervening night of 24-25.04.2010. It is the said ground which was raised and accepted by the NCDRC. The NCDRC has returned the following finding to set aside the orders passed by the District Forum, as affirmed by the State Commission:-

"7. The delay of 78 days was not explained. The complainant has failed to make a case that there was delay in intimation due to unavoidable circumstances as per the IRDA circular."

  However, in respect of the argument that the FIR was delayed, the said arguments need not be examined in this case as the case of Insurance Company throughout was based upon delay in intimation to the Insurance Company."

 

16.    The Hon'ble Supreme Court in the case of Gurshinder Singh Vs. Shriram General Insurance Company Ltd., 2020 (11) SCC 612 has held as under:

"9. We are of the view that much would depend upon the words "cooperate" and "immediate", in Condition 1 of the standard form for commercial vehicles package policy. Before we analyse this case any further, we need to observe the rules of interpretation applicable to a contract of insurance. Generally, an insurance contract is governed by the rules of interpretation applicable to the general contracts. However, due to the specialised nature of contract of insurance, certain rules are tailored to suit insurance contracts. Under the English law, the development of insurance jurisprudence is given credence to Lord Mansfield, who developed the law from its infancy. Without going much into the development of the interpretation rules, we may allude to Neuberger, J. in Arnold v. Britton [Arnold v. Britton, 2015 AC 1619 : (2015) 2 WLR 1593 : 2015 UKSC 36 (SC)E] , which is simplified as under:

(1) Reliance placed in some cases on commercial common sense and surrounding circumstances was not to be invoked to undervalue the importance of the language of the provision which is to be construed.

(2) The less clear the words used were, the more ready the court could properly be to depart from their natural meaning, but that did not justify departing from the natural meaning.

(3) Commercial common sense was not to be invoked retrospectively, so that the mere fact that a contractual arrangement has worked out badly, or even disastrously, for one of the parties was not a reason for departing from the natural language.

(4) A court should be very slow to reject the natural meaning of a provision as correct simply because it appeared to be a very imprudent term for one of the parties to have agreed.

(5) When interpreting a contractual provision, the court could only take into account facts or circumstances which existed at the time that the contract was made and which were known or reasonably available to both parties.

(6) If an event subsequently occurred which was plainly not intended or contemplated by the parties, if it was clear what the parties would have intended, the court would give effect to that intention. [Robert Merkin QC et el., Colinvaux's Law of Insurance (11th Edn.), p. 159.]

10. A perusal of the aforesaid shows that this contract is to be interpreted according to the context involved in the contract. The contract we are interpreting is a commercial vehicle package policy. There is no gainsaying that in a contract, the bargaining power is usually at equal footing. In this regard, the joint intention of the parties is taken into consideration for interpretation of a contract. However, in most standard form contracts, that is not so. In this regard, the court in such circumstances would consider the application of the rule of contra proferentem, when ambiguity exists and an interpretation of the contract is preferred which favours the party with lesser bargaining power.

11. It is argued on behalf of the respondents and rightly so, that the insurance policy is a contract between the insurer and the insured and the parties would be strictly bound by the terms and conditions as provided in the contract between the parties.

12. In our view, applying the aforesaid principles, Condition 1 of the standard form for commercial vehicles package policy will have to be divided into two parts. The perusal of the first part of Condition 1 would reveal that it provides that "a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage". It further provides that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides that every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy.

13. A perusal of the wordings used in this part would reveal that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/ vehicle. It further provides that any letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter, claim, writ, summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle.

14. We find that the second part of Condition 1 deals with the "theft or criminal act other than the accident". It provides that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.

15. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation.

16. As observed by the Bench of two learned Judges in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724 : (2017) 4 SCC (Civ) 759] , after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen.

17. That the term "cooperate" as used under the contract needs to be assessed in the facts and circumstances. While assessing the "duty to cooperate" for the insured, inter alia, the court should have regard to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of "duty to cooperate" of the insured.

18. We concur with the view taken in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724 : (2017) 4 SCC (Civ) 759] , that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hypertechnical view. We find that this Court in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724 : (2017) 4 SCC (Civ) 759] has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.

19. We find that this Court in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724 : (2017) 4 SCC (Civ) 759] has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash [Om Prakash v. Reliance General Insurance, (2017) 9 SCC 724 : (2017) 4 SCC (Civ) 759] this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.…”

13.           Now coming to the contention raised to the effect that the complaint was time barred, it may be stated here that not even a single document has been placed on record by the appellant to prove that the rejection letter in respect of the claim filed by the complainant has even been communicated to him. Even the legal notice dated 17.12.2020, Annexure C-5 served by the respondent was not responded by the appellant. Had the said rejection letter been conveyed to the respondent, the appellant should have replied the legal notice stating therein that the claim has already been rejected but it is not so the case of the appellant. Under these circumstances, once it has not been proved on record that rejection of claim was ever reported to the respondent, as such, this complaint having been filed on  04.01.2021 cannot be said to be time barred. As such, contention raised in this regard being devoid of merit, stand rejected.
14.            As far as contention raised to the effect that the respondent has himself suffered statement before the surveyor  to the effect that the cabin of the vehicle in question was locked from outside but duplicate key/extra key was kept inside the said cabin, so he was negligent in the matter, it may be stated here that issue has adequately been dealt with by the District Commission in the order impugned, which did not need any interference of this Commission.  It is therefore held that the act of the appellant in repudiating the genuine claim of the complainant, which fact was also not intimated to the respondent, is not justified and the said act amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. The District Commission was thus right in partly allowing the consumer complaint. 
15.           In view of the above discussion, it is held that the impugned order passed by the District Commission, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld.
16.           Consequently, this appeal stands dismissed, with no order as to cost.
17.           Certified copies of this order be sent to the parties, free of charge, forthwith.      
18.           The appeal file be consigned to Record Room, after completion and the record of the District Commission, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.

 

​Pronounced

23.07.2024

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

Rg.