DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 100/2019

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                   Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Ms. Rekha Rani, President

1. Sh. Nandu Gaur (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 pleading therein that complainant got his E-Rickshaw bearing Regn. No. DL5ER 5257 insured from National Insurance Company Ltd. (in short OP) vide policy no. 360804311810001967 issued on 31.07.2018, valid from the period 31.07.2018 to 30.07.2018. The said E-Rickshaw was stolen on 28.08.2018 near Geeta Colony Shamshan Ghat, where the complainant had parked the same in locked condition. FIR bearing no. 30888 dated 02.09.2018 was lodged at P.S. Geeta Colony, Delhi u/s 379 IPC.

Police could not trace the E-Rickshaw and filed untraced report dated 06.10.2018 with ACMM, East District, Karkardooma Court, Delhi.

Complainant lodged claim with OP for claiming insurance amount on 20.09.2018. Complainant visited office of the OP on 22.03.2019 where he was told that his claim was under consideration. Complainant is without any work since date of theft and has no other source of income. Complainant waited for his insurance claim for long but did not receive the same.

Further it is submitted that  on

 26.03.2019 he sent legal notice to OP through Speed Post demanding Rs. 97,645/- as insurance claim with cost. OP did not release his claim. Hence complainant has filed the instant complaint seeking direction to OP to pay him Rs. 97,645 as cost of the vehicle, Rs. 50,000/- towards harassment and litigation cost.

2. OP challenged the claim vide its reply. It is pleaded that there is delay in lodging the FIR which diminished the chance of recovery of the E-Rickshaw. It is also stated that there is violation of Condition 1 of the Insurance policy which reads that notice shall be given in writing to the company immediately upon the occurrence of loss or damage in the event of any claim.
3. Parties filed evidence by way of affidavits. They also filed Written Submissions. We have heard both sides.
4. Insurance Claim is contested by the OP mainly on the ground that there is delay of four days in lodging the FIR and breach of condition 1 of the insurance policy in failure to give immediate notice of theft to the OP. It is so pleaded in the Written Submissions filed on behalf of the OP.
5. Here it is relevant to reproduce order of Hon’ble Supreme Court passed in Petition for Special Leave to Appeal No. 24370/2015 dated 09.01.2018:

“Ld. Counsel for the petitioner has relied upon a decision of a Bench of 2-Judges of this Court in Om Prakash vs. Reliance General Insurance and Anr. (Civil Appeal No. 15611 of 2017) decided on 4^th October, 2017. In that case, the theft of the vehicle was reported to the police on the day after the theft occurred and intimation was sent to the insurance company about the theft much later. This court took the view that the delay in informing the insurance company would not debar the insured from getting the insurance claim. Ld. Counsel for the respondent has relied upon a decision of a Bench of 2-Judges in Oriental Insurance Co. Ltd. vs. Parvesh Chander Chadha[ Civil Appeal No. 6739 of 2010] decided on 17^th August, 2010. In that case, the theft of the vehicle took place between 18^th January, 1995 and 20^th January, 1995. The First Information Report was lodged on 20^th January, 1995. The intimation was given to the insurance company after a gap of about 82 days. On the basis of delay in informing the insurance company, this Court accepted the contention of the insurance company that the claim deserved to be repudiated. In view of the conflict of views expressed by two Benches of this Court consisting of two learned Judges each, we are of the opinion that the matter requires to be heard by a Bench of 3-learned Judges. The matter be placed before Hon. The Chief Justice of India for constituting a 3-Judge Bench to resolve the conflict. In the meanwhile, as an interim measure, the insurance company will deposit 75% of the claimed amount in the Registry of this Court. The amount be kept in a fixed deposit for a period of one year.”

6.   A larger Bench so constituted passed judgement in Gurshinder Singh vs Shriram General Insurance Co. Ltd. & Anr., Civil Appeal No. 653/2020 (arising out of S.L.P.(C) No. 24370 of 2015 vide its Order dated 24.01.2020, the Hon. Supreme Court concurred with the view taken in the case of OM Prakash (supra) and observed that

“19. We find, that this Court in Om Prakash (supra) 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 (supra) 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.”

7. In its Written Submissions, OP has laid emphasis on the point that complainant failed to report theft to the OP and further that there is delay in registration of FIR. The genuineness of the insurance claim is not otherwise disputed.
8. OP has stated that no insurance claim was lodged by the complainant with the OP. It is on record that complainant did send legal notice of insurance claim to the OP, postal receipt and tracking report of dispatch of legal notice to OP are placed on record. OP failed to respond to legal notice.
9. Our State Consumer Disputes Redressal Commission in Sumit Gupta vs Reliance General Insurance Co., First Appeal No. 1087/2013 dated 27.07.2021 noted as under

  “16. The Hon’ble National Commission while dealing with a similar set of facts in Revision Petition No. 292 of 2015 titled Oriental Insurance Co. Ltd. vs. Brahmanand Javvadi decided on 29.09.2020, while taking into consideration the landmark pronouncement of the Hon’ble Apex Court in Gurshinder Singh vs. Shriram General Insurance Co. Ltd. and Anr. Reported at AIR 2020 SC 1395, has held as under:

  “9. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. Larger Bench of the Hon'ble Supreme Court in the case of Gurshinder Singh vs. Shriram General Insurance Co. Ltd. and Anr., (Supra) has observed that delayed intimation to the insurance company will not forfeit the total insurance claim of the insured if the FIR has been lodged immediately within a reasonable time and all other conditions are met. The Hon'ble Supreme Court in the case of National Insurance Company Ltd., vs. Nitin Khandelwal has clearly observed that in the case of theft of vehicle breach of policy conditions is not germane. Clearly, there is a breach of condition no. 1 of the policy in the present case, that immediate intimation was not given to the police, nor the insurance company was informed immediately. In the matter of theft, intimation to the insurance company may not be much relevant as per the Hon'ble Supreme Court in the case of Gurshinder Singh vs. Shriram General Insurance Co. Ltd. and Anr.,(Supra), however, immediate intimation to the police is very important because then the police can search for the vehicle and culprits may be apprehended before they take the vehicle to far off places and succeed in dismantling the vehicle. Clearly all the conditions of the policy are meant to be observed by both the sides, i.e., insurer as well as insured. In the case of National Insurance Company Ltd., vs. Nitin Khandelwal (Supra), the driver has lodged the FIR after theft so that no question mark was raised on the incident of theft. Learned counsel for the complainant has stated that in the present case, FIR has been lodged and final report has been filed by the police, therefore, the genuinity of the theft is proved but this cannot be accepted in this simple manner. For 12-13 days of theft, no action could be taken by the police because the police was not informed and no FIR was lodged. Even if we believe the letter dated 03.08.2012 of the complainant written to the insurance company informing the incident of theft, it is stated therein that the police was contacted on 01.08.2012. Clearly the complainant contacted the police only after about 5 days of his return from Hyderabad. No reason has been given by the complainant for not informing the police in these 5 days about the theft of the vehicle. Thus, the complainant has allowed the culprit to take the vehicle to far off place in this period and even involvement of the complainant in the theft cannot be ruled out. It is not only a technical breach of the condition of the policy, rather, it has vide and far reaching ramifications as already mentioned. In these conditions, clearly the complainant has breached the very important condition of the policy that the complainant should have informed the police and insurance company immediately after the incident of theft. The Hon'ble Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited (Supra) has held that if the policy condition is violated in a motor vehicle policy the claim may be settled by the insurance company on non-standard basis upto 75% of the otherwise admissible claim. It is not necessarily to settle the claim in all cases of violation @ 75% of the insurance claim.

10.This Commission in a similar case of United India Insurance Company Limited vs. Aji Pal and Ors. (in RP no. 2089 of 2019) decided on 13.02.2019, where FIR as well as intimation to the insurance company were delayed, has allowed the insurance claim @ 50% of the IDV. Relying on this judgment, we deem it appropriate to allow the insurance claim @ 50% of the IDV.

11.Based on the above discussion, the revision petition no. 292 of 2015 is partly allowed and the petitioner insurance company is directed to pay Rs. 2,57,812/(Rupees two lakh fifty seven thousand eight hundred twelve only) (i.e., 50% of the IDV of Rs. 5,15,625/-) to the respondent/complainant within a period of 45 days from the date of this order along with interest @ 6% per annum from the date of filing of the complaint, i.e., 14.08.2013 till the actual  payment. The order of the District Forum in respect of compensation of Rs. 10,000/- for mental agony is set aside, as the interest is being allowed in the form of compensation only. The litigation cost of Rs. 2,000/as well as the cost of appeal of Rs. 3,000/awarded by the State Commission are allowed.”

10. In the present case E-Rickshaw was stolen on 28.08.2018 and FIR was lodged on 02.09.2018. There is no reasonable explanation for delay in registration of FIR.
11.  Accordingly, OP is directed to  pay Rs. 48,822/- (50% of IDV of Rs. 97,645/-) to the complainant within a period of 45 days from the date of this order along with interest @ 6% per annum from the date of filing of this complaint, i.e., 13.05.2019 till the actual payment.
12. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 30th June of 2022.