Per Justice Sham Sunder , President This appeal is directed against the order dated 25.4.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint filed by the complainant. However, one of the members of the District Forum, vide order dated 3.5.2011 gave her dissenting opinion. 2. The complainant had purchased a new Indica Car from Hind Motors, Chandigarh, which was allotted Temporary No.CH-01-0817 (Indica Turbo) in 2007 with Engine No.PO 4918 and Chassis No.PO 7521. The car was got insured from the OP, for the period from 22.1.2007 to 21.1.2008, vide Insurance Policy annexure P-1. On 6.6.2007, at about 10.30 P.M., the complainant parked his car in front of his house in Mohali . On the next morning, he found that the car had been stolen. He lodged the F.I.R. with Police Station, Naya Gaon, Mohali (Punjab). The police, initially hesitated to lodge the F.I.R., but subsequently F.I.R. No.256, dated 14.7.2007 was registered. It was stated that, on the same day, 6 vehicles were stolen and that compelled the police to register the F.I.R. Subsequently, on 12.3.2008, an Untraced Report was also given by the Police annexure P-3. It was further stated that the complainant had given all the documents to the OP (now respondent) for settlement of the insurance claim, but on 26.2.2009, it (OP) asked him to send the documents all over again, failing which, it would declare the case as ‘No Claim’. It was further stated that the complainant supplied all the documents, which were collected by an employee of the OP. On 12.6.2009, the OP again wrote to the complainant, asking for more documents and the complainant replied to the letter of the OP, as per annexure C-6. Finally, on 23.12.2009, the OP repudiated the claim of the complainant, as No Claim (annexure C-7). The main objection taken by the OP, in repudiating the claim of the complainant, was that the car was stolen on 6.6.2007, whereas the intimation in writing, regarding theft, was given to the OP only on 30.7.2007 i.e. after about 2 months from the date of the alleged loss. Another objection taken by the OP was about the ambiguity, in respect of the exact date and time of loss. Still another objection was raised by the OP in repudiating the claim was that there was delay of more than one month in lodging the F.I.R. and that the vehicle was not registered with the Registering Authority, at the time of theft, and it carried only a temporary number. It was further stated that the aforesaid acts of the OP, in repudiating the claim of the complainant, on flimsy grounds amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him . 3. The OP, in its reply, admitted the factum of insurance and theft of the car of the complainant. It was stated by it that the FIR was lodged by the complainant after more than a one month of the alleged loss and the intimation was given to it after about two months of the loss and, as such, the matter could not be properly investigated, as, in the meantime, the car must have reached at a far off place and its engine and chassis number might have been changed. It was further stated that a number of letters were written to the complainant, by the investigator, appointed by the OP, for the supply of complete documents, but he failed to supply the same. It was further stated that the repudiation of the claim of the complainant, was rightly made, by the OP based on the findings of the surveyor/investigator. It was further stated that the OP was neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing Counsel for the parties, and, on going through the evidence, on record, the District Forum vide majority order, dismissed the complaint, as stated, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal was filed, by the appellant/complainant. 7. We have heard Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellant, submitted that the appellant, immediately informed the police after loss/theft of the car, aforesaid, but it was the police, which did not record the FIR and, as such, there was delay in recording the same. He further submitted that, in the meanwhile, six more vehicles were stolen and this fact compelled the police to register the case. He further submitted that, under these circumstances, there was no fault, on the part of the complainant, to lodge the FIR, immediately after the theft. He further submitted that the loss was also reported to the OP, immediately after the theft was committed, for settlement of the claim. He further submitted that even if it is assumed that the report of loss, to the respondent was made at a belated stage, that did not mean that it (OP) was not liable to indemnify the complainant, as the vehicle, in question, was fully insured. He further submitted that the District Forum vide its majority order, came to the wrong conclusion, that the repudiation of claim of the complainant by the OP, was legal and valid. He further submitted that the OP was deficient, in rendering service, and indulged into unfair trade practice. He further submitted that the majority order of the District Forum, being illegal, is liable to be set aside. 9. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed at the preliminary stage, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainant got insured his Indica Car for the period from 22.1.2007 to 21.1.2008 vide insurance policy P-1. There is, hardly any dispute, that the said car was stolen on 6.6.2007 at about 10.30 P.M. It is evident from annexure C-2 the untraced report U/s 173Cr.PC that FIR No.256, in this case, was got registered on 14.7.2007. It means that the FIR was got registered after a period of about one month and 8 days of the theft of the car. No doubt, as per the complainant, he informed the police immediately after the theft of the car, but it did not register the FIR promptly, and was compelled to register the same only on 14.7.2007, as, in the meanwhile, about six more cars had been stolen. This plea taken by the appellant, is not at all, established, from the record. There is nothing, on record, that a written intimation was given by the complainant, to the police, immediately after the theft of the car, but the police did not register the FIR on the basis thereof. Had there been any copy of such an application, on record, the matter would have been different. So, under these circumstances, it can very well be said that the complainant lodged report only on 14.7.2007 i.e. after one month and 8 days of the theft of car. Even no document was produced by the complainant, as to on which date, he intimated the OP, regarding the loss of car. There is a copy of one document addressed to the Senior Divisional Manager, Oriental Insurance Company at page 87 of the District Forum file, vide which intimation regarding theft of the car was given by the complainant. This document does not bear the date on which date it was typed and sent to the OP. Even the mode, by which it was sent to the OP, is not reflected from this document. The only document, where from one can come to the conclusion, regarding the date of intimation of theft of car to the OP, is annexure C-7, a letter written to the complainant, by the OP. As per para-3 of this document, the information was given to the OP regarding the theft of car on 30.7.2007 i.e after about two months from the date of loss. No rebuttal evidence, was produced by the complainant, to prove that the intimation was given to the OP, regarding the theft of car either immediately after the loss thereof, or much before 30.7.2007. There is no reason not to place reliance on C-7, to come to the conclusion, that it was only for the first time on 30.7.2007 that intimation regarding the theft of car was given to the OP. In these circumstances, we are required to see, as to whether, there was breach of any condition of the policy, and, if so, what were the consequences thereof. The conditions contained in policy R-1, under the heading “DEDUCTIBLE” , read as under ; “DUDCTIBLE The Company shall not be liable for each and every claim under Section-! (loss of or damage to the vehicle insured) of this Policy in respect of the deductible stated in the schedule. CONDITIONS This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear. 1. Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process shall be forwarded to the Company immediately on receipt by the Insured. Notice shall be given in writing to the Company immediately the insured shall have knowledge of any impending. Prosecution Inquest Fatal Injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act, which may be subject of claim under this Policy the insured shall give immediate notice to the Police and co-operate with the Company in securing the conviction of the offender.” 10. The plain reading of Condition No.1, extracted above, clearly goes to show that a notice shall be given, in writing, to the Company, immediately, upon the occurrence of any accident or loss or damage, in the event of any claim, and thereafter, the insured shall give all such information and assistance as the Company shall require. Under the heading ‘deductible’ it is in clear-cut terms provided that the Company shall not be liable for each and every claim under Section-1(loss of or damage to the vehicle insured) of the Policy in respect of the deductible, stated in the schedule. There was certainly a breach of the aforesaid condition of Policy R-1. It is settled principle of law, that the Consumer Foras are required to construe the terms and conditions of the Policy as it is, and nothing can be added or subtracted therefrom. Similar principle of law, was laid down in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8. 11. Since there was violation of Condition No.1 of the Policy, as stated above, now let us see, as to what were the consequences thereof. In New India Assurance Company Ltd. Vs Trilochan Jane, First Appeal No.321 of 2005 decided on 9.12.2009 by the National Consumer Disputes Redressal Commission, a similar question, fell for decision. In that case also, there was condition No.1, similar and identical to the condition, in the instant case. While accepting the appeal, holding the repudiation of the claim by the Insurance Company, as valid, and setting aside the order of Fora below, the National Commission held as under ; “Word ‘immediately’ has not been defined under the Act. Resort has to be made to the dictionary meaning assigned to it. As per Oxford Advanced Learner’s Dictionary, the word ‘immediately’ means ‘at once’. As per Stroud’s Judicial Dictionary, Fifth Edition, word ‘immediately’ is defined as under: - (1). “The word “immediately”, although in strictness it excludes mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing”. As per Black’s Law Dictionary, Sixth Edition, word ‘immediately’ means: - “Immediately. Without interval of time, without delay, straightway, or without any delay or lapse of time. When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of the circumstances of the case”, although strictly, it means, “not deferred by any period of time. The words “immediately” and “forthwith” have generally the same meaning. They are stronger than the expression “within a reasonable time” and imply prompt, vigorous action without any delay.” According to Mitra’s Legal and Commercial Dictionary, Fifth Edition word ‘immediately’ is defined as under: - “Immediately. “Immediately” is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsbury’s Laws of England, 4th Ed. Vol. 23, para 1618, p. 1178. The word ‘immediately’ is stronger than the expression ‘within a reasonable time’, and imply prompt, vigorous action, without any delay. It means all convenient speed. The word ‘immediately’ should not be construed so as to require doing something which is impossible.” As per Oxford Advanced Learner’s Dictionary, the word ‘immediately’ means ‘at once’ whereas Stroud’s Judicial Dictionary, Fifth Edition, word ‘immediately’ in the context of contract has to be taken as reasonable requisite time for doing the thing. As per Black’s Law Dictionary, Sixth Edition, word ‘immediately’ means doing of a thing straightway or forthwith but when used in the context of contract, it is usually construed to mean “within a reasonable time having due regard to the nature of circumstances of the case”. More or less to the effect, is the same meaning assigned in Mitra’s Legal and Commercial Dictionary, Fifth Edition. Since, in the present case, there was a contract between the insured and the insurer and, the word ‘immediately’, under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.” 12. In the aforesaid case, there was a delay of two days in lodging the FIR and 9 days in reporting the loss. Even, in those circumstances, the National Commission, in clear-cut terms, held that since, there was violation of Condition No.1 of the Policy, as insurer was deprived of the valuable right to investigate, as to the commission of theft, and to trace/help in tracing the vehicle, the repudiation of claim was legal and valid. Since, in the instant case, the FIR was lodged after one month and 8 days and the loss was reported after about two months of the theft , it could be said to be fatal, as in the meanwhile, the car would have travelled a long distance, or may have been dismantled by that time, and sold to a scrap dealer ( Kabadi). The District Forum also placed reliance upon New India Assurance Company Ltd. Vs Trilochan Jane’s case(supra) in dismissing the complaint, while coming to the conclusion, that the repudiation was legally and validly made. The findings of the District Forum, being correct, are affirmed. 13. The Counsel for the appellant, however, placed reliance on Nobel Grain India Pvt. Ltd. Vs New India Assurance Co. Ltd.2008)2)CPC 45 and New India Assurance Co. Ltd. Vs C.D.Singla & Anr.2009(1)CPC 54 in support of his claim that mere delay in lodging the FIR and delayed intimation to the Insurance Company regarding the loss of the vehicle, could not be made a ground to repudiate the claim, as a whole. The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. Even otherwise, the cases on which reliance has been placed by the Counsel for the appellant, were decided earlier to the case of New India Assurance Company Ltd. Vs Trilochan Jane’s case(supra). New India Assurance Company Ltd. Vs Trilochan Jane’s case(supra) having been decided on 9.12.2009, it being the decision later in time, the ratio of law, laid down therein, would be applicable to the facts of the instant case. As such, no help can be drawn by the Counsel for the appellant, from the cases, reliance whereupon he has placed. 14. The order impugned, rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The same deserves to be upheld. 15. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld. 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
