Order-16.
Da Date-20/12/2017.
AU AUTHOR. SHRI RABIDEB MUKHOPADHYAY, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that complainant purchased a car from French Motor Car Co. Ltd. hypothecated by Magma Shrachi Finance Ltd., valued at Rs.11,83,842/- duly covered vide policy No.P0115400002/4103/146730 for the period from 19-06-2014 to 18-06-015 with IDV Rs.7,50,000/-, total premium Rs.26,917/- from Magma HDI General Insurance Co. Ltd., Kolkata – 16.
That on 21-10-2014 a loaded Truck of complainant was stolen by 8 miscreants at 9 p.m. by forcefully parking at HatiaBaba Mandir under P.S. Chouparan, Jharkhand. Complainant’s driver lodged an FIR at Hazaribagh, Chauparan P.S. with Regd. No.170/2014. In the meantime complainant lodged an insurance claim on 27-10-2014 to the OP but OP intentionally repudiated the claim of the complainant on the ground of delay information and non-submission of ignition key but one key was taken away by miscreants and other was sent to the Investigator through DTDC Courier. Complainant sent letters to the OP on 11-07-2016 and 27-07-2016 and discussed about the theft of the vehicle and requested the OP to settle the claim. On reply of letter of complainant dated 11-07-2016, OP offered the complainant to accept the sum of Rs.5.25 lakhs against the total claim amount but the complainant disagreed to
accept this as full and final settlement. PoliceAuthority submitted final report, from which it is clear that the claim of the complainant is genuine. Being aggrieved complainant lodged a claim before the Ld. Ombudsman and though Ld. Ombudsman directed the Insurance Company to settle the claim immediately, OP did not take any action to settle the claim. Having no other alternative complainant compelled to file the complaint before this Forum praying for direction upon the OP to pay the genuine insurance claim i.e. Rs.7,50,000/- along with compensation and litigation cost.
On the other hand, OP by filing written version has stated that the present case is harassive, mala fide and full of false, frivolous and baseless. They denied all the statements, averments and allegations made in the impugned petition save and except those which are matter of records and which have been specifically admitted in their written version. Complainant himself admitted that he intimated the insurance company after a lapse of 5 days. According to the policy condition notice shall be given in writing to the company immediately after occurrence of any accidental loss or damage. A toll free number is provided by the Insurance Company to all the insured at the time of issuing the policy certificate by using which insured can communicate with the insurance company 24X7. The complainant also failed to provide both the ignition keys to the insurance company and as such violated the condition no.5 of the policy, which reads as follows.
‘The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall made at all time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of damage or any further damage to the vehicle shall be entirely at the insured’s own risk’.
Therefore, the OP has prayed for dismissal of the case in violation of the policy condition of the complainant.
Points for Decision
- Whether the case is maintainable;
- Whether the OP is deficient in rendering promised service to complainant;
3) Whether the complainant deserves relief.
Decision with Reasons
1) We have perused the documents filed by the parties, including Evidence on Affidavit, Questionnaire, Copies of Award of Ld. Ombudsman, letters sent to and from the complainant, G.D.Entry dated 23/10/2014 with Chouparan P.S. filed by the driver, F.I.R. lodged by the complainant and driver on 25/10/2014 duly received and signed by the Chouparan P.S., charge sheet against the accused persons, final report by the said P.S., paper cutting of a local news paper etc.
2) It appears that OP’s main contentions are the following, in repudiating the claim of the complainant.
i) Complainant made 3 days’ delay to lodge F.I.R. with local P.S.
ii) Complainant made 5 days’ delay to intimate the OP/Insurer,
iii) Complainant did not hand over both the ignition keys of the vehicle to the OP/Insurer (violating condition 5 of Policy).
iv)The complainant did not avail the opportunity of 24x7 Toll Free call to customer care of OP.
At WV para-6(f), OP stated that the complainant admitted 5 days’ lapse to intimate the OP and OP claimed at WV para-6(h) that the complaint is not maintainable for violation of policy conditions.
3) OP also denied at WV para-9 the complainant’s claim (para-9 of complaint) that in response to complainant’s letter dated 11th July, 2016, OP offered to complainant Rs 5.25 lakhs as full and final settlement but the complainant did not accept the amount.
4) Ld. Ombudsman in its Award No. IO/KOL/A/G1/0360/2016-16 dated 28/02/2017 closed the case of the complainant upholding the points raised by the OP. Ld. Ombudsman also observed that the complainant failed to file extract of the G.D.Entry dated 23/10/2014 within 7 days of time granted by it.
5) OP filed during final argument a copy of Judgement (FA No. 321/2005) of Hon’ble pronounced on 09/12/2009 in New India Assurance Company (Appellant)-Vs- Trilochan Jane (Respondent). The judgement though deals with the Appeal of a theft case, does not have full ratio. The said case relates to more delay than the existing one. That case does not relate to arresting and charge sheeting of the accused persons by the Police Authority on the basis of G.D.Entry made by the driver on the very next day of occurrence of the theft(23/10/2014) and the F.I.R. lodged by both the complainant and the driver on 25/10/2014 received by the Chouparan under seal and signature.
6) But the cue we may take from the judgement is the explanation of the word, ‘Immediately’ as is required by the insured to intimate the OP/Insurance on the occurrence of any accidental loss or theft interms of condition 1 of the Policy.Consulting various dictionaries, viz, Stroud’s Judicial Dictionary, Mitra’s Legal and Commercial Dictionary, Black’s Law Dictionary, Hon’ble National Commission elaborated ‘immediately’ and ‘within reasonable time’.
7) The complainant filed during final argument a copy of judgement of Hon’ble National Commission, 2014 (1) CPR 61 (NC) in which a private use vehicle was stolen during commercial use violating condition of Policy. It was decided that condition of Policy was not germane and the claim ought to be settled on non-standard basis. But though the case under the said judgement related to theft, the same has no full ratio.
8) Now we need to enter the domain of ‘immediately’ in the light of above discussions. The fact remains there is no amount of time, whether hours, days or months stated in the Policy. Who will substantiate ‘Immediately’ required by the insured to send notice to OP/Insurance Company on the occurrence of any theft or loss of the insured vehicle. ‘He replied immediately to his counterpart’s question’ is far apart from ‘The government immediately decided to supply surplus electricity to its neighbouring states’. In the latter case, even the board meeting may take weeks to be convened. So, the term depends on the situation.
The 6th edition of Black’s Law Dictionary, published in 1990 says ‘that meaning of ‘promptly’ depends largely on the facts in each case, for what is prompt in one situation may not be considered such under other circumstances or conditions’.
9)Let us travel through some relevant discussions to assess the situational meaning of the word ‘Immediately’ and to judge whether in the instant case, there has been any delay in true sense in lodging FIR and intimating the OP/Insurer of the theft. It appears from all angles of referred judgements and extracts from interpretations that ‘Immediately’ means ‘within reasonable
time’. ‘Immediately’ requires speedier action that does promptly. Courts have uniformly held that promptness is a ‘function of circumstances’. ‘Immediately’ looks very much like ‘Promptly’. Case law indicates that just like ‘Promptly’, ‘Immediately’ is subject to a reasonableness standard.
10) In Doe Fund, Inc.-Vs-Royal Indemnity Co. 825 N.Y.S. 2d 450, 451 (N.Y. App. Div. 2006), it has been dictated, ‘When an Insurance Co. Policy requires notice of an occurrence or action be given promptly, that means within a reasonable time in view all the facts and circumstances’.
In East Texas Medical Center Regional Health Care System-Vs-Lexington Ins. Co.,6.04-CV-165, 2007 U.S. Dist. LEXIS 50613, at *19 n.10(ED. Tex. July 12, 2007) Texas Courts interpret ’as soon as practicable’ and ‘immediately’ to mean ‘within a reasonable time under the circumstances’.
In Briggs Ave, LLC-V-Ins. Corpn of Hanover, 05 Civ. 4212, 2006 U.S. Dist. LEXIS 34854, at *14 N.3 (S.D.N.Y. May 30, 2006), it is observed, ‘In any event, there is little or no functional difference between terms like ‘immediately’ or ‘as soon as practicable’; whatever language a policy uses to limit the time for notice, the touch stone is always the same, reasonableness under the circumstances’.
Sunshine Textile Services, Inc.-Vs-American Employers’ Ins. Co., No. 4. CV-95-0699, 1997 U.S. Dist. LEXIS 22904, at *7 (M. D. Pa. May 12, 1997)observes, ‘The requirement of notice ‘as soon as practicable’ or ‘immediately’ both prescribe notice within a reasonable amount of time under the circumstances after learning of the occurrences, taking into account the exercise of due diligence’.
11) Let us examine whether in the instant case, the complainant exercised due diligence to lodge FIR and to intimate the OP/Insurer within reasonable time. At para-6, we tried to show that neither the driver of the vehicle nor the owner/complainant wasted any phase of time which can be termed ‘negligence’ on their part.
The driver got out with the truck bearing no. UP-62T/2534 loaded with 400 bags of mastered seed from Parao Chandauli (UP) on 21/10/2014 and on the next day, 22/10/14 at about 9 pm (mind it that the working day almost elapsed ), the vehicle was forcefully intercepted by the armed miscreants at a place nearHatia Baba Mandir under the P.S. Chouparan in Hazaribag district. After the miscreants tied up the driver, Santosh Kumar Bharadwaj with a tree in a nearby village, they stole the vehicle with goods away. Subsequently the driver managed to untie the rope and with the help of nearby villagers and under their motor bike-lift, he could contact the Chouparan Police Station and lodge the G. D. Entry about the thefton 22/10/14.
We should not forget that in spite of life risk, the driver lodged the G. D. E. With the help of a villager’s mobile, he contacted the owner/complainant who was then in West Bengal. After getting the information, he rushed to that spot but subject to remote location of the place. Then on 25/10/14, both of them lodged F. I. R. detailing the fact and the Police Authority received the F. I. R. under seal and signature on 25/10/14 and started Chouparan P.S. Case No.170/14 dated 25/10/14. It is not unlikely that the owner had to travel back from that remote place to Kolkata and lodge Insurance claim on 27/10/14.
Whether the complainant tried to contact the Insurer’s Customer Service over Toll Free phone is not clear from the complaint, but here no irreparable loss of the Insurer arises because FIR being the topmost priority of condition had already been lodged, the investigation had already begun, five persons had been arrested, final report of Investigation (84/15 dated 11/5/2015) filed, charge sheet against the accused persons for committing offence u/s 395 of IPC had been given to the Sessions Judge of Hazaribag (ST 212/15) by the Government Investigating Agency, i.e. the I.O. of Chouparan P.S., Govt. of Jharkhand.
This shows the genuineness and merit of the case that no fraud has been played by the complainant by way of placing false claim.OP can easily carry out their investigations in line with the concerned P.S. and taking help of the I.O.
We think that the time taken for lodging FIR with remote P.S. and for intimating the insurer/OP seems very reasonable, i.e. ‘immediately’ in the present context, considering the place of occurrence and nature of attack etc. and also because there is no time frame given for such intimation, except the word ‘Immediately’, which has been explained in the foregoing paragraphs-8, 9, and 10.
12) Regarding hand over of ignition keys, it has been submitted that one of the keys were snatched by the miscreants for driving the vehicle away. Another key was sent by post to the Investigator under DTDC Courier receipt dated 14/11/2014. So, there is no lapse of the complainant in as much as the ignition keys are concerned. Without sticking to mere technicality, OP has to look forward towards the reality and to see whether any fraud has taken place. Insurance contracts are based on ‘Good Faith’. All technicalities are ignored while taking insurance premiums but all possible technicalities are stuck to while considering claims. This is not an example of ‘Uberima Fides’.
From above analytical discussions, we find that the complainant/insured complied with all conditions of OP within reasonable time and so, the case is well maintainable, the OP is deficient in not rendering the promised services. In such a situation, we are constrained to pass
ORDER
That the complaint be and the same is allowed on contest against the Opposite Party in terms of section 13(2)(b)(i) of the Consumer Protection Act, 1986 as amended so far;
That the O. P. is directed to pay to the complainant the insured value of the stolen vehicle no.UP-62T/2534, amounting to Rs 750000/- with 9 percent interest from the date of repudiation on 27/6/2016 till date of actual payment, within 30 days from the date of judgement;
That the O. P. is further directed to pay to the complainant Rs 20000/- as compensation for physical harassment and mental agony and Rs 10000/- as litigation cost, within 30 days from the date of judgement;
That on non-compliance of the O. P. in carrying out of the above orders, the O. P. shall not only have to pay penal damages of Rs 3000/- per month after the lapse of prescribed time till date of actual payment, to be deposited with the Forum, but the complainant also shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.
Let copies of the order be handed over to the parties when applied for.
