RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 1135 OF 2016
(Against judgment and order dated 05-05-2016 in Complaint
Case No. 310/2012 of the District Consumer Forum, Meerut )
Member Singh
S/o Sri Sardar Singh
R/o 786/7, Jagriti Vihar
Meerut
...Appellant
Vs.
- Branch Manager
The Oriental Insurance Co. Ltd.
Bhagwati Complex
Opposite Nandan Cinema
Garh Road, Meerut.
- Regional Manager
The Oriental Insurance Co. Ltd.
346 Khair Nagar
Near Filmistan Cinema, Meerut.
...Respondents
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
For the Appellant : Sri Ram Gopal, Advocate.
For the Respondent : Sri Vashu Deo Mishra, Advocate.
Dated : 12-03-2019
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
This is an appeal filed before State Commission under Section-15 of the Consumer Protection Act 1986 against judgment and order dated 05-05-2016 passed by the District Consumer Forum, Meerut in Complaint Case No. 310/2012, Member Singh V/s The Branch Manager, The Oriental Insurance Company Limited and another whereby the District Consumer Forum has dismissed complaint.
Feeling aggrieved by the order passed by District Consumer Forum, the complainant has filed this appeal.
Learned Counsel Sri Ram Gopal appeared for appellant.
Learned Counsel Sri Vashu Deo Mishra appeared for respondent.
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I have heard learned Counsel for the parties and perused impugned judgment and order as well as records.
I have perused written argument filed on behalf of respondents/opposite parties.
In brief relevant facts for determination of appeal are that the appellant/complainant has filed complaint before District Consumer Forum against respondents/opposite parties wherein he has stated that he is owner of tractor No. UP 15 AC 3055 which was insured by opposite parties for the period extending from 29-04-2010 to 28-04-2011.
It has been further stated by appellant/complainant in complaint that his above tractor was stolen on 25-03-2011 at 7.00 p.m. Thereafter F.I.R. was lodged in police on 26-03-2011 at 11.30 a.m. and Crime No. 92/2011 under Section 379 I.P.C. was registered in local police station.
In complaint it has been stated by the appellant/complainant that the intimation of theft of tractor was given on 26-03-2011 to N. S. Tyagi agent of opposite parties. It has been further stated by the appellant/complainant that on 26-03-2011 and 27-03-2011 branches of respondents/opposite parties were closed due to Saturday and Sunday and on 28-03-2011 and 29-03-2011 the appellant/complainant was ill. Therefore, he sent written intimation to branches of respondents/opposite parties through his son on 30-03-2011 at 11.00 a.m.
In complaint it has been further stated that the respondents/opposite parties did not pay insurance claim to the appellant/complainant without any reasonable ground. Consequently the appellant/complainant sent notice to respondents/opposite parties but no reply was given. Ultimately feeling aggrieved the appellant/complainant has filed complaint before District Consumer Forum.
The respondents/opposite parties have filed written statement before District Consumer Forum in above complaint case wherein it has been stated that the intimation of theft has been given to respondents/opposite parties on 30-03-2013 after 48 hours of occurrence of theft. As such the appellant/complainant has violated the conditions of
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insurance policy.
It has been further stated by respondents/opposite parties in written statement that final report submitted by police has not been furnished by the appellant/complainant.
In written statement it has also been stated by respondents/opposite parties that the claim form has been prepared on 28-03-2011 whereas it has been submitted on 30-03-2011.
In written statement it has been further stated by respondents/opposite parties that the appellant/complainant has not taken proper care and precaution for safety and security of the tractor. As such he has violated the conditions of insurance policy.
After having considered the pleadings of parties as well as materials on record the District Consumer Forum is of the view that delayed intimation of theft has been given to the respondents/opposite parties and the appellant/complainant has not taken proper care and precaution for safety and security of the tractor. Thus, the appellant/complainant has committed breach of conditions of insurance policy. As such the Insurance Company of respondent/opposite party has rightly refused claim of appellant/complainant.
Learned Counsel for the appellant/complainant has contended that the impugned judgment and order passed by District Consumer Forum is erroneous and against law. The appellant/complainant has lodged F.I.R. in police station without delay and has given intimation to the agent of respondents/opposite parties on 26-03-2011 because the offices of respondents/opposite parties were closed on 26-03-2011 and 27-03-2011. Thereafter on 28-03-2011 and 29-03-2011 the appellant/complainant fell ill. Therefore, he sent written intimation to branch office of respondents/opposite parties on 30-03-2011 through his son. As such the appellant/complainant has given intimation of theft to the respondents/opposite parties immediately after occurrence of theft without any unreasonable delay. The conclusion drawn by District Consumer Forum regarding delayed intimation to Insurance Company is incorrect.
It is further contended by learned Counsel for the
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appellant/complainant that appellant/complainant has taken proper care and precaution for the safety and security of the tractor. The conclusion drawn by District Consumer Forum in this respect is against fact and evidence.
Learned Counsel for the appellant/complainant has further contended that the claim of appellant/complainant cannot be repudiated or refused in toto on the ground that the appellant/complainant has not taken proper care and precaution for the safety and security of the tractor.
Learned Counsel for the appellant/complainant has contended that the impugned judgment and order should be set aside and the complaint filed by appellant/complainant should be allowed.
Learned Counsel for the respondents/opposite parties has opposed appeal and contended that the impugned judgment and order passed by District Consumer Forum is correct and in accordance with law. The appellant/complainant has given delayed intimation to the respondents/opposite parties and has failed to take proper care and precaution for the safety and security of the tractor. As such he has committed violation of conditions of insurance policy and the Insurance Company has rightly refused claim of the appellant/complainant.
I have considered the submissions made by learned Counsel for the parties.
Indisputably the alleged incident of theft has taken place on 25-03-2011 at 7.00 p.m. and the F.I.R. has been lodged on 26-03-2011 at 11.30 a.m.
Indisputably the appellant/complainant has sent written intimation to respondents/opposite parties regading theft of tractor on 30-03-2011. Indisputably 26-03-2011 and 27-03-2011 were Saturday and Sunday and the offices of respondents/opposite parties were closed on these two days. The appellant/complainant has specifically stated that he fell ill on 28-03-2011 and 29-03-2011. Therefore, he sent written intimation to respondent/opposite parties through his son on 30-03-2011. In complaint as well as in affidavit the appellant/complainant has stated that he gave intimation of theft to the agent of respondents/opposie parties on
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26-03-2011 because offices of respondents/opposite parties were closed on that days. I find no sufficient ground to disbelieve statement of appellant/complainant regarding his illness and intimation given to the agent.
Consdering all facts and circumstances of the case I am of the view that the appellant/complainant has lodged F.I.R. in police station and has given intimation to the agent of respondents/opposite parties immediately after occurrence of theft. Thereafter he has sent written intimation through his son to respondents/opposite parties on 30-03-2011.
In judgment rendered by Hon’ble Supreme Court of India on 04-10-2017 in Civil Appeal No. 15611 of 2017 Om Prakash V/s Reliance General Insurance and another Hon’ble Apex Court has held as follows:-
“It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.’
In view of facts mentioned above and proposition laid down by Hon’ble Apex Court in the above judgment I am of the view that F.I.R. of
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theft has been lodged in police station without any unreasonable delay and the explanation given by appellant/complainant for giving written intimation to respondent Insurance Company on 30-03-2019 is satisfactory and reliable. Considering all facts and circumstances of the case I am of the view that the claim of appellant/complainant cannot be refused on the ground of delayed intimation.
In appeal appellant/complainant has filed copy of charge-sheet submitted by police after investigation in Crime No. 92/2011 under Section 379 I.P.C. Thana Hastinapur, Meerut against three accused Mahtab, Sazid and Chand. During course of investigation mobile of the driver of appellant/complainant has been recovered by police. But recovery of tractor could not be done.
In impugned judgment the District Consumer Forum has drawn conclusion that the driver has left the tractor unattended with key. As such he has not taken precaution for safety of tractor. The conclusion drawn by District onsumer Forum is based on correct and judicious analysis of evidence. I found no sufficient ground to disturbe finding recorded by District Consumer Forum. But claim of appellant/complainant cannot be repudiated in toto on this ground. In view of judgment of Hon’ble National Commission rendered in revision petition No. 735 of 2013, Mahabir Singh V/s Reliance General Insurance Company Limited and another reported in 2018(1) CPR 659 NC wherein earlier judgment of Hon’ble National Commission dated 31-07-2014 rendered in revision petition No. 590 of 2014 New India Assurance Company Limited V/s Girish Gupta has been relied. Claim of appellant/complainant should be settled on non-standard basis by making deduction of 25% from insured amount.
In view of discussion made above after having considered all facts and circumstances of the case I am of the view that the impugned judgment and order passed by District Consumer Forum is liable to be set aside and the claim of appellant/complainant should be settled on non standard basis by making deduction of 25% from insured amount. It also appears just to award interest at the rate of 6% per annum on the amount
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awarded from the date of complaint till date dof payment.
ORDER
Appeal is allowed. Impugned order passed by District Consumer Forum is set aside and complaint is allowed partially. Respondent Insurance Company shall pay 75% of insured amount of tractor to appellant/complainantwith interest at the rate of 6% per annum from the date of complaint till date of payment. Respondent Insurance Company shall pay Rs.10,000/- also to appellant/complainant as cost of litigation.
Let copy of this order be made available to the parties positively within 15 days as per rules.
( JUSTICE A H KHAN )
PRESIDENT
Pnt.
