PRONOUNCED ON: 15th February 2017 ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 25.10.2010, passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as “the State Commission”) in Appeal No. 346/2009, M/s Cholamandalam MS General Insurance Co. Ltd. & Anr. vs. Jagjit Singh, vide which, while allowing the said appeal, the order passed by the District Consumer Disputes Redressal Forum, Chandigarh on 04.05.2009 in Consumer Complaint No. 1381/2008, filed by the present petitioner, allowing the said complaint, was set aside and the said complaint was ordered to be dismissed. 2. Briefly stated, the facts of the case are that the complainant/petitioner Jagjit Singh, was the owner of a Hyundai Accent (Viva) car with registration no. HR10H 0880, which was insured with the opposite party (OP) Insurance Company for the period 31.08.2005 to 30.08.2006. The said car was stolen on the intervening night of 23/24.08.2008, when it was parked at the residence of a friend of the complainant, who was using the car at that time. An FIR No. 690/2006, dated 25.08.2006 was registered with the police station Prashant Vihar, New Delhi and the Insurance Company was also intimated through written request on 26.08.2006. A claim was filed with the Insurance Company in October, 2006, but the same was denied vide letter dated 31.10.2006 on the ground that information about the incident was given to them on 02.09.2006 i.e. after about one week of the occurrence. The matter was then taken up with Insurance Ombudsman, who vide his order dated 08.01.2008, directed the Insurance Company to pay atleast 50% of the Insured Declared Value (IDV) of the vehicle by 31.01.2008. However, on the failure of the Insurance Company to pay even that much amount, the consumer complaint was filed, seeking directions to the Insurance Company to make payment of Rs. 6.37 lakhs i.e. the Insured Declared Value of the vehicle alongwith interest @ 18% per annum from the date of the claim till realisation and also to pay Rs. 1 lakh as compensation and Rs. 1,000/- as litigation expenses. 3. The OP Insurance Company took the stand in their written reply before the District Forum that they came to know about the alleged theft on 02.09.2006, which was at a belated stage by ten days and hence, the claimant could not be given any relief. Regarding the order of the Insurance Ombudsman, the Insurance Company stated that they had sent letters to the insured to submit the documents, required for settlement of claim and also to give his consent for the same, but the same was not done by the insured. 4. The District Forum, after considering the averments of the parties, allowed the complaint and directed the OP Insurance Company to pay a sum of Rs. 6.37 lakhs to the complainant alongwith interest @ 18% per annum from the date of lodging the claim till realisation. Being aggrieved against the said order of the District Forum, the OP Insurance Company challenged the same by way of an appeal before the State Commission, which was allowed as per the impugned order. The State Commission took the view that it was the duty of the insured to give information to the Insurance Company immediately and hence, on the failure of the claimant to do the same, the claim was liable to be dismissed. Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present Revision Petition. 5. It was argued by the learned counsel for the petitioner that despite the order passed by the insurance Ombudsman, the OP had failed to pay the claim for the theft of the vehicle. The order passed by the District Forum was also in their favour. The learned counsel stated that the terms and conditions governing the insurance policy were never supplied to them. Further, the Insurance Company had been intimated in time on phone about the alleged incident. The learned counsel has drawn attention to an order passed by this Commission in Revision Petition No. 3357/2007, New India Assurance Co. Ltd. vs. Mukesh Sehgal, decided on 11.12.2008, in which it was stated that once theft was established, the delay in lodging the complaint of two days was not of much consequence. The learned counsel has also drawn attention to an order of this Commission in National Insurance Co. Ltd. vs. M/s Shilpa Cloth House in Revision Petition No. 3675/2011, decided on 02.07.2015 and another order of this Commission dated 22.05.2015, in Sulochana Devi vs. LIC of India & Ors., stating that the delay in giving information was not of much consequence. The learned counsel has also referred to a circular dated 20.09.2011, issued by the Insurance Regulatory and Development Authority (IRDA) vide reference no. IRDA/HLTH/MISC/CIR/216/09/2011 in which it was stated that the condition of giving intimation to the insurer within a specified number of days should not prevent settlement of genuine claims, if there was delay in intimation due to unavoidable circumstances. 6. The learned counsel for the OP Insurance Company stated, however, that the petitioner had first approached the insured Ombudsman and he never stated in his petition that the terms and conditions of the policy had not been given to him. He took up the plea only at the time of arguments. The learned counsel further stated that there is no evidence/record to say that intimation was given to the Insurance Company on phone. Moreover, as per the terms and conditions of the policy, such intimation had to be given in writing. The learned counsel has drawn attention to the orders passed by this Commission in Kulwant Singh vs. United India Insurance Co. Ltd. as reported in IV (2014) CPJ 350 (NC) and order dated 04.12.2015 in Shiv Priya vs. Chola Mandlam MS General Insurance Company Ltd., Revision Petition No. 3800/2013 and Sohan Lal Arora vs. Branch Manager, Cholamandalam in Revision Petition No. 523/2013, decided on 12.08.2013, saying that the delay in giving intimation to the Insurance Company was fatal. The learned counsel has also drawn attention to an order passed by this Commission in New India Assurance Co. Ltd. vs. Trilochan Jane, First Appeal No. 321/2005, decided on 09.12.2009, in which a delay of nine days in giving information to the Insurance Company proved fatal. The learned counsel has also drawn attention to an order passed by General Assurance Society Ltd. vs. Chandmull Jain & Anr., AIR 1966 SC 1644, saying that in a contract of Insurance, the duty of the Court was to interpret the words, in which the contract was expressed by the parties. Referring to the circular, issued by the IRDA, the learned counsel stated that the said circular was not applicable to the cases of theft of vehicle rather, it related to the health issues only. 7. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 8. The main issue that requires consideration in the matter is whether the action of the Insurance Company in repudiating the claim on the only ground that intimation about the incident was received in their office after about 9-10 days of the incident, is valid in the eyes of law or not. The incident in question occurred on the intervening night of 23/24.08.2006, when the vehicle was parked at
the residence of a friend of the complainant at New Delhi. The FIR was lodged at Police Station Prashant Vihar, New Delhi on 25.08.2006 under Section 379 of the IPC. The contention made in the order of the State Commission that there was delay of two days in lodging the FIR is obviously wrong, because the FIR was registered on the very next day of the incident. It is not clear, therefore, how the State Commission observed that there was delay of two days in lodging the FIR. 9. Regarding intimation to the Insurance Company, the complainant has explained in the grounds of Revision Petition that he is a resident of village Jakhauli, District Sonepat in Haryana, which was situated 20 to 25 kms away from the headquarters of District Sonepat. The office of the Insurance Company is located at Chandigarh. The complainant has stated that he visited the office of Amit Batra, an agent of the Company to know the telephone number and address of the office of the Insurance Company. The toll-free telephone number of the Insurance Company was also obtained from the said Amit Batra. It is the case of the complainant that a written request about the incident was lodged on 26.08.2006 at the Chandigarh address of the Insurance Company, although the same had been denied by the said Company. The complainant has further stated in the grounds of the Revision Petition that the Insurance Company had not even given him the benefit of postal transit period. On behalf of the petitioner, a circular dated 20.09.2011 from the Insurance Regulatory & Development Authority has been produced, which makes it clear that the condition of giving intimation to the Insurance Company within a specified number of days should not prevent settlement of genuine claims, when there was delay in intimation or in submission of documents due to unavoidable circumstances. It is evident, therefore, that there was no justification in holding that the delay of 9-10 days in the receipt of intimation by the Insurance Company was fatal to the outcome of the case. 10. The State Commission have relied upon condition no. (i), contained in the insurance policy, which says that notice of the incident, should be given in writing immediately upon the occurrence of any such incident. It is true that the matter has been considered by this Commission and a view was taken in cases like the New India Assurance Co. Ltd. vs. Trilochan Jane (supra), Shiv Priya vs. Chola Mandlam MS General Insurance Company Ltd. (supra) that the delay in giving intimation to the Insurance Company amounted to a violation of the policy terms and conditions. However, the District Forum has relied upon another order of the National Commission in United India Insurance Co. Ltd. Vs. Parul Bala, 2009 CTJ 514 (CP) (NCDRC), in which the intimation was reported to the Insurance Company after 26 days of the incident and it was held that the claim could not be withheld, merely because the complainant informed the Insurance Company about the incident after 26 days. In the case National Insurance Co. Ltd. Vs. Kulwant Singh in Revision Petition No. 2719/2014, decided on 18.07.2014, reliance was placed on the circular of IRDA dated 20.09.2011 as referred to above. It was held that the said circular referred not only to life insurance contracts, but also to all non-life insurance and group insurance contracts. It was also stated that non-life insurance includes not only health insurance, but also the general insurance such as insurance of motor vehicles. It was held in this case that the explanation given by the complainant for the delay in reporting the matter to the Insurance Company was in order and no prejudice had been caused to the Insurance Company on account of delay in bringing the theft to their knowledge. 11. It is clear from the above that the complainant has been able to provide adequate explanation for the delay in giving intimation to the Insurance Company. He belongs to a village 20 to 25 kms away from Sonepat whereas, the incident happened at Delhi and the office of the Insurance Company is situated at Chandigarh. It cannot be expected from a person in such a situation to rush to the office of the Insurance Company about 250 kms away from his place of residence to give a written intimation in their office about the incident. In any case, the Insurance Company has not been able to state or prove anywhere, as to what prejudice had been caused to them if intimation reached their office after 9-10 days of the occurrence. It is held, therefore, that the order passed by the State Commission does not reflect a correct appreciation of the facts and circumstances on record. This Revision Petition is, therefore, allowed and the order passed by the State Commission is set aside. The order passed by the District Forum is restored and the consumer complaint stands allowed accordingly. There shall be no order as to costs. |
