DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL) ISBT KASHMERE GATE DELHI
CC/ 354/2016
No. DF/ Central/
Bishan Swaroop
S/o Shri Mangal Singh
R/o B -2/132-133, Block B – 2,
Nand Nagri, Delhi .....Complainant
VERSUS
M/s. National Insurance Company Limited
General Claim HUB, 2E/25, 3rd Floor,
Above HDFC Bank, Jhandewalan,
New Delhi – 110055 …..Opposite Party
Quorum: Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
Sh. R.S. Nagar, Member
ORDER
Rekha Rani, President
1. Mr. Bishan Swaroop (in short the complainant) filed the instant complaint against the National Insurance Company Limited (in short OP) U/s 11/ 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) pleading therein following facts :
He is owner of Tata Truck bearing no. HR-47-A-2361which was insured with OP vide insurance Policy No. 361503/31/14/6300002612 valid for the period from 13/10/2014 to 12/10/2015.
Fitness of the vehicle expired on 06/10/2014 and in order to get it renewed the driver of the vehicle parked the same at Tilapta Dadri ICD, Surajpur, Uttar Pradesh on 23/10/2014. In the morning of 24/10/2014 at about 8:30 AM the driver was surprised to find the vehicle missing. He immediately informed the police on No. 100. However police registered FIR only on 02/11/2014 vide FIR No. 559/2014 u/s 379 IPC Police Station Surajpur, GB Nagar, Noida.
Complainant informed the OP immediately about the said theft and claimed benefits under the policy. A surveyor was appointed to investigate the matter who collected all relevant documents and made enquiries. OP repudiated the claim without any justification. Hence the instant complaint seeking direction to OP to pay to the complainant a sum of Rs. 5,50,000/- with interest at the rate of 24% from the date of theft till realization along with compensation of Rs. 3,00,000/- towards mental agony and Rs. 35,000/- towards litigation expenses.
2. Notice was issued to OP who contested the claim vide its reply inter alia on the ground that complaint lodged FIR with the local police station after lapse of 08 days it is denied that OP was informed about the theft immediately. It is also stated that fitness of the vehicle expired on 06/10/2014 whereas complainant was plying the vehicle without fitness certificate. It is also stated that it is beyond imagination that a person holding vehicle with Haryana registration would specifically go to Dadari Uttar Pradesh for getting the fitness certificate.
3. Parties filed their evidence by way of affidavits. We have heard Ms. Shambhavi along with Shri Yoesh Gupta Counsel for complainant and Ms. Geeta Malhotra Counsel for OP.
4. Learned counsel for the OP submitted that repudiation is justified for two reasons firstly delayed information of theft to police as well as to OP and secondly that the vehicle was without fitness certificate at the time of alleged theft of the vehicle.
5. In Para 3 of the complaint it is pleaded that theft was reported to the police telephonically on No. 100 immediately. OP has disputed this fact. Learned counsel for OP submitted that FIR was registered after delay of about 08 days.
Reference be made to investigator’s report which is placed on record at Page no. 11. The investigator has reported under the head:
“Verification of PCR call through RTI
I had filed an RTI application with SP office, Noida for obtaining the PCR call of the above cited vehicle. I have received reply from SP office, Noida under RTI Act, 2005. They have received the intimation from mobile no. 7428564100 regarding the theft of the vehicle no. HR47A 2361 at 09:25 hrs. on dt 24/10/2014. The RTI reply of PCR call has been enclosed for your perusal.”
Therefore, there is no substance in OP’s objection that FIR qua theft of the vehicle was lodged 02/11/2014. There is no delay in informing the police about theft.
6. Now coming to the next objection that OP was informed about theft belatedly reference may be made to Para 5 of the complaint wherein complainant has pleaded that he informed the OP about the theft immediately. OP has disputed the same.
7. During the course of arguments on 05/02/2019 Learned counsel for complainant submitted that theft of the vehicle was reported to the police immediately whereas insurance company was informed on 17/11/2014. This statement finds support from letter of the OP dated 10/11/2015 which is placed on record. The said letter was addressed to the complainant. OP has clearly mentioned in the said letter that complainant intimated theft claim on 17/11/2014.
Hence, there is delayed information about theft of the vehicle to the OP. Theft took place on 24/10/2014. OP was informed on 17/11/2014.
8. We have heard learned counsel for both sides on the effect of delay of information of theft to the OP.
9. Counsel for complainant has relied on following judgments of the National Commission:
- United India Insurance Co. Ltd., vs Gian Singh, First Appeal II (2006) CPJ 83 (NC).
- Amrinder Sahu vs Oriental Insurance Co. Ltd. (Civil Appeal No. 2703 of 2010 order dated 25 March 2010).
- Baljeet vs. United India Insurance Co. Ltd. (Revision Petition No. 454 of 2013 decided on 2 December 2013).
- Bajaj Allianz General vs. Smt. Mantu Mondal & Anr. (First Appeal No. FA/81/2014 decided on 22 October 2014).
- Iffco Tokio General Insurance Company Limited vs. Shri Dulichand Sahu (Appeal No. FA/14/17 decided on 09.01.2014).
- and of the Apex Court in National Insurance Co. Ltd. vs. Nitin Khandelwal (Civil Appeal 3409 of 2008 dated 08 May 2008)
Learned Counsel for complainant has placed reliance on above noted judgments in support of his submission that even if there was violation of the conditions of the policy the claim ought to have been settled on non standard basis.
10. Per contra learned counsel for the OP has placed reliance on following judgments of National Commission contention in support of his contention that delayed information about theft to the OP is fundamental breach of the terms and conditions of the Insurance Policy and therefore repudiation of the complaint is wholly justified.
- In Universal Sompo General vs Roop Lal Dangi, II (2017) CPJ 83 (NC)
- Trilochan Jane vs. New India Assurance Company in First Appeal No. 321 of 2005 decided on 09 December 2009.
- Chatur Ram Sahu vs. Branch Manager, National Insurance Company Limited in Appeal No. FA/2017/308 decided on 18/05/2017 by Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur.
11. Learned Counsel for the complainant has vehemently argued that in view of the judgment of the Apex Court in Nitin Khandelwal (supra) OP is liable to indemnify the complainant and OP ought to have settled the claim on non standard basis and cannot repudiate the claim in toto in case of loss of vehicle due to theft.
12. Apex court delivered the judgment in Nitin Khandelwal on 08/05/2008. Subsequently, on 17/08/10 Apex Court discussed its judgement in Nitin Khandelwal (supra) in Oriental Insurance Company vs. Parvesh Chander Civil Appeal No. 6739/2010 and vide its order dated 17.08.10 held that insurer cannot be held liable to pay compensation in the event of breach of terms of the policy and further that insurer in such case is not bound to settle claim on non-standard basis. It observed:
“Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle the claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”
13. Hon’ble Supreme Court in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that:
“The insurance policy has to be construed having reference only to the stipulations contained in it and no artificial farfetched meaning could be given to the words appearing in it….
Similarly, in the case of Oriental Insurance Co.Ltd. Vs. Sony Cheriyan reported in (1999) 6 SCC 451 an insurance was taken out under the Motor Vehicles Act, 1988 in which their Lordships' observed:
“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.”
Similarly in the case of General Assurance Society Ltd. Vs. Chandumull Jain and Anr. reported in (1966) 3 SCR 500 the Constitution Bench has observed that the policy document being a contract has to be read strictly. It was observed, " In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.”
14. In Kotak Mahindra Prime Ltd. Vs. Rajaram and Ors. 2017 (1) CPR 391 (NC), Hon’ble National Commission has observed thus:-
“Insured was under a contractual obligation to intimate theft of vehicle to insurer immediately after theft came to his knowledge. Mere intimating police or lodging an FIR does not amount to sufficient compliance with terms and conditions of insurance policy.”
15. In New India Assurance Co. Ltd., vs Trilochan Jane in First Appeal No. 321 of 2005 decided on 09/12/2009 National Commission took the same view after discussing the judgment of Apex Court in Nitin Khandelwal (supra) it was held that:
‘‘The word immediately is stronger than the expression within a reasonable time. It was held that compensation on non-standard basis cannot be granted.
16. In the instant case the complainant has simply stated that he informed the Insurance Company immediately about theft. OP has disputed the same. The date, time and mode of information are not mentioned. On 05.02.2019, counsel for complainant submitted before this Forum that theft of the vehicle was informed to the police immediately and OP was informed about it on 17.11.2019. Theft took place on 24/10/2014. There is not even a whisper of explanation in the complaint as to why delay occurred in intimating OP about theft. In view of the aforesaid judgments delay in intimating OP about theft is fatal and the repudiation of the claim on this ground is justified.
17. Learned counsel for complainant has relied on judgment of Om Prakash vs. Reliance General Insurance (Civil Appeal No. 15611 of 2017 arising out of SLP (C) No. 742 of 2015) of Apex Court in support of his submission that delayed information of theft to insurance company is not a ground for repudiation of the claim.
Om Prakash (Supra) does not help the case of the complainant as Hon’ble Apex Court in this case had observed that complainant had “given cogent reasons for the delay of 8 days in informing the respondent about the incident”. It was observed that in case delayed intimation is due to unavoidable circumstances, the insurer cannot reject the claim. In the instant case there is no explanation as to why the delay occurred.
18. Next objection taken by the OP is that vehicle was without fitness. It is not in dispute that the Vehicle was without fitness on the date of theft.
19. In United Insurance Co. Ltd. vs. Kishore Sharma (Revision Petition No. 2600 of 2014) dated 28.01.2015, the complainant purchased a jeep to ply it as a taxi which met with an accident. It was comprehensively insured. Insurer repudiated the claim on the ground that the vehicle was being used for transportation business which is a commercial purpose and further that it did not have documents which were necessary for a commercial vehicle namely, permit and fitness certificate. District Forum vide order dated 28.03.2012 allowed the complaint. It was observed that it was the duty of the insurance company that before granting insurance cover, it must have checked all vehicular documents and now it cannot escape from liability.
State Commission dismissed the appeal. National Commission held that absence of vehicular documents was the violation of terms and conditions of the insurance policy as well as Motor Vehicles Act, 1988 and therefore the repudiation was justified. It was observed that:
The State Commission while relying on the order of the National Commission in the case of United Insurance Company Ltd., vs. B. Ugandar decided on 15.04.2010 has wrongly read and interpreted the order. The said order reads as under:-
7. A combined and harmonious reading of provision of Section 84 of MV Act read with section 39, 59 and 60 would show that transport vehicle was required to have a fitness certificate impliedly for safety of passengers of goods.’’
‘‘24. It is clear from the above, that there was a violation in the terms and conditions of the insurance policy as also violation of the provisions of the M V Act, 1988. The insurance policy is a contract between the insurer and the insured. The petitioner was justified in repudiating the claim of the respondent/complainant, hence, revision petition is allowed and the impugned orders of the fora below are set aside and the complaint is dismissed.’’
20. In the present case, vehicle is a Tata truck which is a goods carrying vehicle as is indicated from the insurance policy as such plying the same without fitness certificate is in violation of the insurance policy as well as the Motor Vehicles Act, 1988 in terms if the judgment of National Commission quoted above.
In view of the above discussion the complaint is dismissed. Copy of the same be retained on record. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this ______ Day of _______ 2019.
