1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 07.12.2020 of the State Consumer Disputes Redressal Commission, U.P. (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.745/2017 in which order dated 17.02.2017 of District Consumer Disputes Redressal Forum, Basti (hereinafter referred to as District Forum) in Consumer Complaint (CC) No.75/2014 was challenged, inter alia praying for setting aside the impugned order dated 07.12.2020 passed by the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP(s) was Appellant before the State Commission in FA/745/2017 and OP(s) before the District Forum and the Respondent-1 (hereinafter also referred to as  Complainant) was Respondent No.1 before the State Commission and Complainant before the District Forum, Respondent No.2 (hereinafter referred to as OP-3/Transport Finance Company) was  Respondent No. 2 before the State Commission and OP-3 before the District Forum in CC No. 75/2014.  

3.       Notice was issued to the Respondents on 29.09.2021. Parties filed Written Arguments/Synopsis on 07.03.2022 and 20.09.2023 (Petitioner) and 01.12.2023 (Respondent No.1) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that:

The complainant/Respondent No.1 took an insurance policy on 11.01.2011 from the Petitioner for a truck bearing Registration No. MH-04 DD 3809 for the period from 11.01.2011 to 10.01.2012 for an IDV of Rs.4,50,000/-.  Respondent No.1 had kept Mr. Sumeru Yadav as the driver of the insured truck.  As per the complainant, the insured vehicle was stolen by Mr. Sumeru Yadav on 08.06.2011, when the complainant alongwith driver was going to Maharajganj for loading the goods in the truck.  On the way, in the adjacent of chowk in Kaptainganj Bazar, the driver parked the truck. The complainant along with Dr. Shukla, who was accompanying the complainant went at tea shop and instructed the driver that he may not go anywhere leaving the truck.  When the complainant along with Dr. Shukla came back after having tea, neither the truck nor the Driver was there.  After enough search, neither any clue of the truck was found and nor the truck driver. Then on 10.06.2011, the complainant gave an application in the Police Station Kaptanganj,  FIR was not  registered by the local police.  Then in pursuant to the order dated 13.08.2011 of the court, FIR was registered on 14.08.2011.  FIR was registered under Section 406 of the India Penal Code. The complainant informed the insurance company about the missing vehicle on 21.05.2012, after more than 349 days after the vehicle was misplaced.  The Insurance Company repudiated the claim vide letter dated 20.12.2013 on three grounds : (a) inordinate and unexplained delay in informing the Petitioner about the missing vehicle, which is in violation of condition No.1 of the policy wordings, (b) criminal breach of trust does not come within the purview of the policy wordings (c) delay in filing FIR with the police.  Hence, the complainant filed complaint before the District Forum.

5.       Vide Order dated 17.02.2017 in the CC No. 745/2017, the District Forum has allowed the complaint and directed the OPs-1 & 2 to ensure to take action for making payment of Rs.5,00,000/-  of the insured amount of the truck in question with interest @6% p.a. on the full payment from 08.06.2011 till the date of payment to the complainant within 60 days from the date of order.  The District Forum also awarded Rs.10,000/- as compensation for mental and physical agony suffered by the complainant and Rs.5,000/- towards cost of the complaint. 

6.       Aggrieved by the said Order dated 17.02.2017 of District Forum, Petitioner appealed before State Commission and the State Commission vide order dated 07.12.2020 has accepted the Appeal  No. 745/2017 and amended the order dated 17.02.2017 passed by the District Forum and directed the Insurance Company to pay to Respondent/complainant the sum assured of vehicle in question Rs.4,50,000/- along with interest @6% p.a. from 20.12.2013 till the date of payment and also provide him an amount of Rs.5000/- as ordered by the District Forum.

7.       Petitioner(s) have challenged the said Order dated 07.12.2020 of the State Commission mainly on following grounds:

1. The insured vehicle allegedly went missing on 08.06.2011 as per the Complainant/Respondent No.1.  The Petitioner was informed about the same only on 21.05.2012, after more than 349 days of the incident, which is in violation of condition No.1 of the policy.

2. The State Commission failed to read the judgment of Hon’ble Supreme Court of India in Om Prakash Vs. Reliance General Insurance Co. & Ors. 2018 (I) CPR 907 (SC) in its entirety.  It is clear from para 11 of the said judgment that delay in intimation of the incident to the insurance company cannot be used as a ground for repudiation of the claim when: (a) delay in intimation is due to unavoidable circumstances or (b) if reason for delay is satisfactorily explained or (c ) when the claim is otherwise genuine. In the present case, there has been no unavoidable circumstance for delay that has been explained by the complainant/Respondent No.1 in intimating the insurance company about the missing vehicle.  The delay in intimating the insurance company is more than 349 days.

3. In Sonell Clocks and Gifts Ltd. Vs. The New India Assurance Co. Ltd., (2018) 9 SCC 784, the Hon’ble Supreme Court has rejected the claim of the insured due to delay in intimation to the insurance company which was a pre-condition for  the payment of the claim. 

4. FIR was filed on 13.08.2011 after two months and five days of the alleged incident.  There has been no explanation given by the Respodnent-1/complainant for delay in informing the police and lodging an FIR for the missing insured vehicle.  The delay in filing an FIR pre-closed any opportunity to the police to timely have Nakabandi at check points and nab the culprits for the missing vehicle.  The delay in informing the police also negated the chances of recovering the missing vehicle.  The State Commission has ignored this crucial lapse by the Complainant/Respondent-1. 

5. The National Commission in Bachan Singh Vs. The Oriental Insurance Company Ltd. 2014 (2) C.P.C. 309, dismissed the complaint of the insured on the ground of the late registration of FIR and late intimation to the insurance company.

(vi)    Criminal breach of trust is not included under the policy.  The policy wordings, burglary, housebreak, or theft is included under the coverage of the policy and not criminal breach of trust.  Since the driver was known to the Respondent-1/complainant, therefore the vehicle was given to the driver with the consent of the Respondent No.1.  As a result, the offense will be one of criminal breach of trust and not theft.  The FIR also clearly mentions the office to be one under section 406 of IPC (criminal breach of trust) and not Section 379 IPC (theft).  The Hon’ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Sony Cheriyan, (1999) 6 SCC 451 held that “The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.”

8.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1         In addition to the averments made under the grounds (para 7), the Petitioner/Insurance Company contends that there is delay in intimation to the police. FIR for the theft of insured vehicle was filed on 13.08.2011.   The Hon’ble Supreme Court in the case of Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. 2020 (11)SCC 612 held that in cases of theft, immediate registration of FIR is essential and claim can be repudiated for delay in filing FIR.  The Court has explained that FIR is essential to set the police machinery in motion in a timely manner to make efforts to recover the vehicle. It is further contended that even a delay of two days in filing an FIR was considered a reasonable ground for repudiation of claim by the National Commission in the case of Bachan Singh Vs. The Oriental Insurance Company Ltd. 2014 (2) C.P.C. 309.  There was an unexplained and inordinate delay of 359 days by the Respondent in intimating the Petitioner about the alleged theft on 12.05.2012, which is in direct violation of condition No.1 of the policy.  It is clear from the policy wordings that it does not include Criminal Breach of Trust.  It is also contended by the Petitioner that the FIR was registered under Section 406 of the IPC which pertains to criminal breach of trust.  In the present case, there has been no unavoidable circumstances that has been explained by the Respondent No.1 in intimating the insurance company about the missing vehicle.  Further the delay in intimating the insurance company is more than 349 days.  No reason for such extended period of delay and in the absence of any explanation about such a long period of delay, it cannot be condoned. The State Commission has not appreciated the complete ambit of the judgment of the Hon’ble Supreme Court in Om Prakash (supra) and has wrongly interpreted the judgment to imply a blanket protection to all claims regarding delay in intimation to the insurance company.  In the present case, delay of an unreasonable time has taken place without any explanation in reporting the alleged loss to the insurance company.

8.2         On the other hand Respondent-1 contends that the intimation about theft was provided to the Insurance Company on the same day.  The postal receipt and sent personal communicated under receipt.   By virtue of direction by the Trial Court under Section 156 of Crpc, the FIR was registered in the instant theft case.  The Criminal Court, on the basis of contents of complaint to SHO and higher authorities when they failed to lodge FIR, directed the police to lodge an FIR in the theft and therefore cannot relook into the facts settled by Criminal Court. It is further contended that the matter was settled amicably in Lok Adalat and thereafter the settlement was acted upon by making payment to Respondent No.1. The amount deposited by the Petitioner to Respondent No.1 was later paid to Respondent No.2 and Respondent No. 2 is sister concern of the Petitioner.  Therefore the claims as raised in Revision Petition are totally illegal.  The Petition is preferred on the basis of facts, which are already settled and there is no question of law involve in the Revision Petition and therefore the fact cannot be re-agitated in Revisional jurisdiction.

9.       In this case, there are concurrent findings of both the Fora below against the Petitioner/Insurance Company. State Commission has duly and appropriately addressed the contentions raised by the insurance policy before it keeping in view the IRDA guidelines and judgment of the Hon’ble Supreme Court in Om Prakash (supra) and Gurshinder Singh (supra) cases.  In this case, theft took place at about 7.00 p.m. on 08.06.2011 and the police was intimated on 10.06.2011.  The Complainant/respondent no.1 herein has duly explained that initially he tried to search for the stolen vehicle/the driver who stole the vehicle.  Hence, the State Commission found the delay in intimating the police as justified.  Further, as the police refused to lodge the FIR on getting intimation from the complainant, he had to approach the Magistrate under section 156 (3) of the IPC and it was in pursuance of this order that FIR was registered subsequently.  It is the case of the complainant that insured vehicle was stolen by the driver on 08.06.2011 when complainant alongwith driver was going to Maharajganj for loading the goods in truck.  On the way, the driver parked the truck. Complainant alongwith Dr. Shukla who was accompanying the complainant, went at Tea shop and instructed the driver not to go anywhere leaving the truck.  When the complainant alongwith Dr. Shukla came back after having tea, neither the truck nor the driver was there.  Hence, in these circumstances, we are not in agreement with the contention of the insurance company that it is not the case of theft of vehicle but it is breach of trust, which according to insurance company is not covered under the policy. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”  

10.     We have carefully gone through the orders of the State Commission, District Forum and other relevant records and are in agreement with the findings of the State Commission.  We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence, the same is upheld.  Accordingly, Revision Petition is dismissed.

11.     The pending IAs in the case, if any, also stand disposed off.