ORDER

(Passed this on 10^th October,  2016)

Shri Shekhar P. Muley, President.

01.    This is a complaint against Opposite Parties /National Insurance Company regarding non settlement of insurance claim.

02.    The OPs are local branch offices of the said Insurance company. The complainant had insured his TATA make vehicle bearing registration No. CG-04-DB-7721 with the OP for IDV Rs.12,63,158/- for the period from 8.2.2009 to 7.2.2010. No terms and conditions of the policy were supplied to him. During subsistence of the policy his vehicle was stolen on the intervening night of 8/9. 4. 2009. The driver intimated to the complainant about theft. Since the vehicle could not be found, intimation was given to P.S. Kalamna. But police did not register the report immediately, but flashed the report on wireless to all Police Stations. The complainant was told that if the vehicle was not found in 15 days FIR would be registered. Since it was not found FIR was registered. Intimation of theft of the vehicle was also given to the OP 1. When he asked for claim form he was told



to submit the same after getting copy of FIR. Accordingly he lodged the claim with all documents. The OP 1 appointed a surveyor. He had taken finance for the vehicle and was repaying loan installments. The OP 1 however delayed decision on the claim and then told him that the claim was forwarded to the OP 2. Thus on one or other reason it was kept pending, though all formalities were completed. This was deficiency in service due to which he has been suffering heavy financial loss and harassment. Hence this complaint for claiming IDV of the stolen vehicle along with compensation for harassment and litigation cost.

03.    The OP filed written version with some preliminary objections. It is stated that allegations are made against the financier but it is not made a party. It is a necessary party as the first charge is of the financier bank. In para wise reply it is stated that policy was taken after getting fully satisfied with its terms and conditions. The terms and conditions were provided to him. It is denied that intimation of theft of the vehicle was immediately given to police. It is denied that police did not register the report immediately but gave wire less message to all Police Stations. Intimation to the OP was also given late and thereby he committed breach of policy condition. It is denied that the claim was kept pending


 

without any valid reason. He did not supply all necessary documents for which he himself was responsible. Denying all other allegations it is prayed that the complaint be dismissed with cost.

04.    We have heard rival arguments, perused documents and policy. Upon consideration of arguments in the light of documents, we record our findings and reasons as under.

FINDINGS  AND  REASONS

05.    Three points need to be considered in this case, firstly, whether the term and conditions of the policy were provided to the complainant, secondly, whether intimation of theft of the vehicle was immediately given to police and the OP, and thirdly, whether proper steps of safety of vehicle were taken.

06.    Coming to the first point, it is submitted by learned counsel for the complainant that the policy document was dispatched to the complainant sans terms and conditions, therefore now the OP cannot take shelter of exclusion clause to deny the claim.  He relied on a decision in Revision Petition M/s Modern Insulators Ltd. v/s The Oriental Insurance Co. Ltd. decided on 15.5.2007, and Oriental Insurance Co. v/s Charan Dass Revision Pet. No.1324 of 2012 (NC) decided on 1.8.2012. As a matter of fact, except allegation and denial by statement there is no documentary evidence in support of rival submissions. However, learned counsel for the OP contended that the complainant himself had approached for getting insurance policy. Terms and conditions were explained to him and after getting satisfied with its terms and conditions and premium he agreed to take the policy. This itself is sufficient evidence to show that he was well aware of the terms and conditions of the policy. The complainant runs a transport business. So it may be presumed that he must have good knowledge of insurance policies of vehicle. So he was expected to inform the OP about not receiving the terms and conditions. For the first time in the complaint he has alleged this deficiency. Therefore in view of such circumstance it is difficult to accede to this plea of the complainant.

07.    The second and the most debatable point is about intimation of theft of the vehicle to police and the OP. The first condition of the policy speaks about requirement of giving written intimation to the insurance company immediately upon occurrence of any accident or loss or damage of insured vehicle and in case of theft immediate intimation has to be given to police and co-operate with the company. According to the complainant he immediately gave report to P.S. Kalmana. Instead of registering the complaint wireless message of the same was flashed to all Police Stations. A copy of the report which was flashed to all P.S is filed. But it does no disclose the date when it was given to the P.S. No doubt, report was given and it was flashed by wireless message to all P.S. But when the report was given does not get proved by this copy of report. As said, requirement of law is that the report with police must be lodged immediately without any delay. Delay in lodging FIR is fatal. FIR was registered on 26.5.2009 and reason for delay in reporting is attributed to the complainant himself.

08.    Assuming for a while that police were immediately informed, the question is whether the OP was also immediately intimated. According to the OP it was intimated for the first time on 5.6.2009 i.e after 55 days from the theft. The documents placed on record along with the complaint by the complainant do not reveal any intimation to the OP on or next day of the incident. Document No.3 is a letter by which the OP had asked him to provide some documents and it is of dated 3.5.2010. Even from the complaint it appears that the OP was not immediately intimated. After registration of FIR the OP was informed about theft.  Though there is no need to refer any particular judgment in this regard, some following judgments relied on by the complainant may be noted.

1. Din Dayal v/s National Insurance Co. Ltd. I (2013) CPJ 10 (NC)
2. National Insurance Co. v/s Shravan Singh  I (2016) CPJ 450 (NC)
3. Tejbir Singh v/s Oriental Insurance Co. I (2013) CPJ 446 (NC)
4. Balraj Sharma v/s ICICI Lombard Gen. Ins. Co. I (2013) CPJ 455 (NC)

             5) National Insurance Co. v/s Suresh Kumar

                 I (2016) CPJ 205 (NC)

09.    All the above judgments support the plea of the OP. Delay in giving immediate intimation of theft of insured vehicle to police and insurance company violates policy condition and repudiation of claim on such ground was held justified.

10.    Learned counsel for the OP also referred to the order passed by the Judicial Magistrate F.C. Whereby A summery was granted as the vehicle was not traced out. It is contended that in that proceeding the complainant was represented by a counsel and there is no whisper about having intimated the police or the OP earlier or soon after the incident.

11.    In  this regard, the complainant has contended that firstly, there was no delay and if some delay was there it was due to a justified reason. It is contended that when theft was reported to police it was not registered immediately and he was told that if even after 15 days the vehicle could not be traced out, the report would then be registered. But wireless message of the report was given to all P.S. It is thus contended that when there is plausible explanation for delay it should be accepted. Reference is made to a decision in National Insurance Co. v/s Kulwant Singh in Revision Pet. No. 2719 of 2014 (NC) dated 18.7.2014. In that case theft was immediately reported to police but there was 4/5 days delay in intimating the Insurance company. The reason given was that the company did not accept the information in writing on the ground that it shall be taken only after all formalities were completed such as FIR; registration certificate, policy number, etc were submitted by the complainant. It was stated that policy and registration copy of the vehicle were in the stolen vehicle. The complainant obtained copy of the same, which took some time and completed all the formalities as directed. That explanation was accepted since the matter was immediately reported to police. In our opinion facts and circumstances of the present case are slightly different to apply the ruling in the above mentioned judgment. The complainant does not say there was delay, so question of explanation for delay of intimation to the OP does not arise. The OP says the delay was of 55 days. In one more case National Insurance Co. v/s B. Venkataswamy in Revision Pet. No. 2852 of 2013 (NC) decided on 6.2.2014 there was delay of 4 months. However it was directed that this condition should not prevent settlement of genuine claims, particularly, when there is delay in intimation or in submission of documents, due to unavoidable circumstances. Therefore it was advised that the insurer must not repudiate such claims, unless and until the reasons of delay are specifically ascertained and recorded. To reject a claim shall be based on sound logic and valid grounds. The limitation clause does not work in isolation and is not absolute. In United India Insurance Co. Ltd. v/s Gaj Raj Singh F.A.No.16 OF 2014 (NC) decided on 24.7.2014 also it was held that the insurer cannot take the shelter under this condition and repudiate claim, which is otherwise proved to be genuine. In IFFCO Tokio General Insurance Co. Ltd. v/s Ram Gopal Soni Revision Pet No. 170 of 2012 (NC) decided on 31.5.2012 it was held that the word ¨immediate¨ does not mean within 24 to 48 hours.

12.    Learned counsel for the complainant drew our attention to the circular issued by Insurance Regulatory Development Authority Ref- IRDA/HLTH/MISC/CIR/216/09/2010 DATED 20.9. 2011. This circular was required to be issued since there were several complaints of rejection of claims on the ground of delayed submission of intimation and documents. All insurers were therefore directed not to reject late claims mechanically. It was also held that no prejudice was caused to the company on account of small delay and the insured had nothing to gain by delaying the report of the matter to the company. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation. Relying on this circular late claim was allowed by the National Commission in Nationa Insurance Co. v/s B. Venkataswamy (supra) case.

13.    We have given our thoughtful consideration to the submission in the light of the said circular. We have noted that the incident of theft of the vehicle was not bogus but genuine. Even the claim filed was also otherwise genuine. It is not the case of the OP that a bogus claim was filed to extract illegal money. When the claim is bona fide rejection of the same on only technical reason such as delayed submission is not justified if we go by the IRDA circular. But we are bound by the decisions of the National Commission given in recent cases post IRDA circular. Following cases were decided after the issuance of IRDA circular in which delayed intimation of theft of insured vehicle was held to be in violation of condition No.1 of the policy and therefore repudiation was held justified.

             1)   Din Dayal v/s National Insurance Co. Ltd.

                  I (2013) CPJ 10 (NC)

             2)  Suresh Kumar v/s National Insurance Co. Ltd.

                 I (2013) CPJ 60 (NC)

          3)   Tejbir Singh v/s Oriental Insurance Co.

                I (2013) CPJ 446 (NC)

          4)  Reliance General Insurance Co. Ltd. v/s Naresh

               Walia  III(2016) CPJ 408(NC)

14.    The counsel for the complainant then submitted that on 7.3. 2014 he had filed an application for permission to file a document. Say was called for from the OP. We may state here that the document is purported to be an intimation of the theft to the OP on 9.4. 2009. The counsel for the OP asked the complainant to file an affidavit in support of the application, which was opposed on the ground the the document bears signature and seal of the OP and its veracity could be ascertained from its original and he was ready to produce the original document whenever directed. All these applications were filed when the matter was pending before the District Forum and none of the applications were decided. Then in December 2015 the matter was transferred to this forum. Neither counsels brought to our notice that the application for permission to produce the document has not been decided, though the said document is discussed in the argument. Be that as it may, now we deem it proper to decide the application. Since it is the case of the complainant that immediate intimation of theft was given to the OP, this document bears immense importance, as it can be a factor to decide the case in one way or other.

15.    During the course of argument the counsel for the complainant showed us the original letter. The objection to this letter is that the copy of the letter is unattested by the complainant. Besides, it was not received by the OP and the round seal on the letter was not in use for acknowledgment of letters. Because a square shaped seal is being used as received stamp. The counsel drew our attention to claim form whereon received stamp is in square shape. We agree with this point. But even then we cannot casually brush aside the fact that the branch code of the OP appearing in the round seal on the letter and on the admitted square shape seal are same. It is not alleged by the OP that a bogus seal is affixed on the letter. We do not think that the letter in question is bogus and fabricated to create evidence, nor is such objection of the OP. Possibility of affixing a wrong seal on this letter by some staff member of the OP 1 cannot be ruled out. Since both the counsels have made their submissions on the document, we take the document dated 9.4. 2009 on record and accept its genuineness to rely on it.

16.    Having accepted the letter dated 9.4. 2009, the contention of the complainant that prompt intimation of theft was given to the OP1 stands vindicated. Though the OP stated that this letter was not received by it, its seal on the letter is enough evidence of receipt. It is further tried to show that in response to a letter dated 14.10. 2010 to furnish some documents, the complainant wrote a letter on 1.8. 2011. From the contents of the letter it is apparently clear that on the basis of FIR the complainant informed the OP on 27.5.2009. In that letter there is not even a whisper of earlier communication with the OP 1. It is thus contended that had he informed about theft earlier as claimed, it would have been mentioned in this letter. The absence is conspicuous to draw an adverse inference. The argument runs counter to the effect of the letter dated 9.4. 2009 and since we have accepted the letter, this argument is not acceptable. There may be some error or possibly he meant to convey that on 27.5. 2009 intimation of theft in proforma was given. The document No.2 filed by the OP is a intimation proforma dated 27.5.2009. Thus after considering the submissions at length on this second point, we conclude that there was prompt intimation to the OP 1 of the incident, therefore repudiation on this ground is not justified.

17.    Next contention is breach of condition No. 5. As per this condition the insured shall take all reasonable steps to safeguard the vehicle from loss or damage. According to the OP1 the vehicle was left unattended in violation of the condition. It is averred in the complaint that the vehicle was stolen from in front of a petrol pump on Bhandara Road, Pardi. It is submitted by the counsel for the OP that nothing is stated as to what steps were taken to safeguard the vehicle in the night. He said that the vehicle was left unattended without care. In reply the counsel for the complainant submitted that there is no particular method or way to safeguard the vehicle. It was parked as usual in front of a petrol pump where trucks, trailers are usually parked. Therefore it cannot be said that the vehicle was left unattended or no safety steps were taken. Referring to an observation in the case of National Insurance Co. Ltd. v/s Shri Mayur Raj Singh Revision Pet. No. 3558 of 2012 (NC) decided on 1.10.2012 learned counsel submitted that admittedly the vehicle was stolen and there is no bar to park the vehicle at an isolated place. A petrol pump is not an isolated place where number of trucks and transport vehicles are parked in the night. The National Commission in above referred case relying on a Supreme Court judgment in National Insurance Co. Ltd. v/s Nitin Khandelwal 2008 CTJ 680 (SC) (CP) held that in case of theft of vehicle, breach of condition is not germane. The insurer is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured. Even assuming that there was breach of condition of the policy, the insurance company ought to have settled the claim on ´non standard´ basis.

18.    Having considered the submissions on this point, we are of the view that there was no breach of condition No.5 as alleged by the OP. Had it been a case that the vehicle was left unattended with its key in its cabin or in the ignition slot then one can say that the vehicle was left without care and safety from loss. But such is not the case. Hence we do not find merit in this ground to repudiate the claim.

19.    In the result, the complainant is entitled to get his legitimate claim for the loss of his vehicle from the OP. Repudiation is not justified. The complainant has claimed IDV of the vehicle which is Rs. 12,63,158/-. Learned counsel for the OP invited our attention to the report and FIR wherein the value of the vehicle is shown as Rs. 5,00,000/- only. It is also submitted that by letter dated 14.10.2010 some documents were asked for but the complainant did not supply those documents. So unless the complainant makes compliance of the documents no cause of action arises to file the complaint and therefore it is pre mature.

20.    So far as discrepancy in the value of the vehicle is concerned, the IDV will be considered. The complainant might have undervalued or wrongly stated the value of the vehicle to police and even otherwise that is not the basis of valuation of the vehicle when the policy mentions IDV. The policy was taken on 8.4. 2009 and that time IDV was Rs. 12,63,158/-. Accident occurred on the intervening night of          08/09.04.2009. So there was hardly any depreciation in the value.

21.    Regarding pre mature nature of the complaint,  the complainant states that he has given all necessary documents to the OP. There is no evidence as such in this regard. But then the OP have not closed the claim as ´No Claim´ nor have informed the complainant . Therefore we are of the opinion that the complaint now cannot be dismissed being pre matured.

22.    There is one more point to be considered. The vehicle has been financed on loan. Naturally the vehicle must have been hypothecated by the financier. Therefore the first charge on the vehicle is that of the financier till loan is fully liquidated. However, no particulars of the loan are placed before us. Nevertheless, we make it clear that if loan amount is still outstanding the financier shall have every right to claim it from the complainant if the order is complied by the OP.

23.    In the result, we allow the complaint and pass the following order.

ORDER

1. The complaint is partly allowed.
2. The OPs shall jointly and severally pay Rs.12,63,158/- (In words  Rs.Twelve lacs Sixty Three Thousand One Hundered Fifty Eight only) to the complainant.
3. The OPs shall also pay jointly and severally Rs.10,000/- (In words Rs.Ten Thousand only)  for mental agony and Rs. 5000/- (In words Rs. Five Thousand only) as litigation cost to the complainant.

              4.   The order shall be complied within 45 days from

                    the date of receipt of the order.

               5.  Copy of the order shall be given to both the

                   parties free of cost.