IA No. 2836 of 2015 ( condonation of delay) 

          This application is filed for condoning the delay of 25 days in filing the revision petition.  Counsel appearing on behalf of the respondent states that he has no objection if the application is allowed. 

          In the interest of justice and in view of the no objection and for the reasons disclosed in the application, application is allowed and delay is condoned.

          REVISION PETITION

(ORAL)

          The present revision petition has been filed against the order dated 23.12.2014 of Gujarat State Consumer Disputes Redressal Commission ( in short the ‘State Commission) in Appeal No. 225 of 2012 filed by the respondent / complainant against the order of the District Forum dated 16.09.2011 in his complaint no. 75 of 2011.

2.       The brief facts of the case are that respondent / complainant had insured the truck no. GJ-3-W-8285 with the petitioner vide a policy, valid for the period w.e.f. 22.09.2009 to 21.09.2010.  On 26.02.2010, the truck was parked at Sahkarnagar Main Road, near School No. 52 at Rajkot during the night.  On the next date i.e. 27.02.2010, respondent found that his truck had been stolen and he immediately informed the petitioner in writing.  The case of the respondent is that he went to the police station.  However, the police advised him to wait for few days and did not register the FIR.   He, thereafter, again approached them and his FIR for theft of the truck was recorded by the police on 12.03.2010.   He submitted that his claim was rejected by the petitioner without any valid reason and hence he filed the complaint.  In the complaint,  the respondent had alleged that at no stage, the petitioner had supplied him the original or the copy of the terms and conditions and thus kept the respondent in dark about the terms and conditions and, therefore, reliance of the petitioner on those terms and conditions while repudiating his claim was a wrong act on their part and amounts to deficiency in service.  The contention of the petitioner had been that neither the insurance company nor the police was immediately informed of the theft by the respondent and thus there was breach of the clauses of the terms and conditions of the policy and, therefore, they had rightly repudiated the claim.  They had also contended that contention of the respondent that he was not supplied with the terms and conditions was not true and that the respondent was aware of such terms and conditions. 

3.      Parties led their evidences before the District Forum. The District Forum after considering the evidences on record led by the parties and after considering the contention of the petitioner that they were not immediately informed by the respondent / complainant, has held as under:

8. “If analyze the arguments of both the parties and the evidences submitted, they one thing is clear that opponent had taken the insurance of the complainant's truck and it was within the time limit. It is also clear that complainant had lodged a claim of the truck before the opponent within the prescribed time limit. It was the dispute of the opponent that as per the policy conditions, applicant is required to immediately inform the theft in the police and should also inform the opponent in writing, within 48 hours. For this, if the evidence is seen, looking to mark 11/2, it is regarding Claim Intimation Letter dated 27-2-2010. In this letter, it is clearly stated that on the night of 26-2-2010, vehicle is stolen which parked duly locked, near to his house.  From the evidences and from the interrogatory questions of the complainant of the opponent at ex. 23, it is clear that on 27-2-2010 it was holiday being Saturday and it was public holidays on 28-2-2010 and 1-3-2010 and therefore, opponents have received he complainant's letter marked 11/2 on 2-3-2010. Therefore, as per the policy conditions, complainant have informed the opponents within 48 hours, as is proved from the evidence.  Moreover complainant have also clarified this matter in the affidavit. Now, vide mark 11/5, the claim which is repudiated by the opponent wherein looking to the policy marked 11/1 for the policy condition no. 2, wherein, under the head of condition, it is mentioned that in case of theft, insured should immediately inform the police. For this condition, FIR is produced vide mark 4/6. Looking to this FIR, offense has occurred on 26.2.2010 whereas offence is declared on 12-3-2010. Thus FIR is registered after 14 days of the occurrence of the incident. For this, it is a statement of the applicant, he had gone to the police station immediately after occurrence of the incident but police had advised to search for some days.  Even if believe such statement of the applicant, why applicant is not filing the complaint, after two, four days of the occurrence of the incident on 26-2-2010, i.e., on 2-3-2010? There is no explanation to this effect by the applicant. When the truck of the complainant is loaded with the logs and in spite of having such big valued truck, loaded with the goods, there is no reason to register the immediate complaint by the police. If the applicant had any satisfactory reason he could have given clarification about late registration of the complaint after fourteen days. Learned Advocate Shri Chaudhari relying upon the policy condition marked 11/1 wherein insured is required to inform the police immediately about the incident of the theft. As noted above, complainant have not immediately informed the incident of the theft and have informed late by fourteen days, for which no satisfactory clarification is given. It is a statement of the opponent that in the policy condition is clearly violated then insured amount is not payable. Looking to the letter of mark 4/18, opponents have asked for the clarification for later filing of the complaint by fourteen days. But no such satisfactory clarification is given by the complainant either to the opponent or before the Forum.”

4.      On the issue whether the terms and conditions of the policy were supplied to the respondent,  the District Forum  has not given any finding of facts.  It has, however, concluded that since the registration of the FIR was belated by 14 days, there was violation of condition no. 11 (1) and rejected the claim of the complainant / respondent.

5.      The respondent impugned this order before the State Commission. He only challenged the finding of the District Forum stating that there was violation of terms and conditions on part of the complainant and also contended that there was no finding of fact by the District Forum on his contention that the copy of terms and conditions of policy was never supplied to him.  The findings of District Forum on the issue whether the insurance company was immediately informed of the incident of the theft was not  challenged by the insurance company.  The finding that the insurance company had been immediately informed has attained finality and this Commission concludes that respondent has immediately informed the petitioner of the incident of theft.  Even other evidences relied upon by the District Forum also shows that the petitioner was immediately informed of the theft in writing by post. 

6.      The State Commission after considering the evidences on record and after considering the case laws supplied by the parties concluded as under:

9. At this stage, Shri Shah drawn my attention towards the principle established in Award No. III (2009) CPJ 246 (NC) of the National Commission in case of United India Insurance Co. Ltd. Vs. SMS Trading Communication wherein it is held that unexplained /unnoticed exclusion clauses are binding to the insured.  Further drawn attention towards the principle established by producing the award of Appeal No.6895/97 of Supreme Court decided on 22-02-2000 delivered in case of M/s Modern Insulator Ltd. V/s. wherein it is held that in exclusion clause, if there is a breach of policy conditions and assurances and if the same is not communicated to the insured then it cannot be said as the breach of conditions of the contract and that exclusion clause cannot be taken into account.

10.  Thus, it is a clear cut case of the applicant before us that he has not been provided and which is not denied by the insurance company, in such circumstances, above principle decided by the Supreme Court and the principle established in the award 2006 of National Commission, produced by Shri Parmar and both the awards produced by Shri Shah is supporting his representation and therefore, accepting this appeal, pass the final order as under:-

1.   Appellant/original applicant’s appeal is sanctioned.

2.   Order of Hon’ Consumer Forum passed in complaint No. 75/11 on 16.09.2011 is hereby dismissed.

3.   Opponents are hereby ordered to pay to the appellant/original complainant an amount of Rs.9,00,000/- Rs. Nine Lacs only together with 9% interest from the date of the complaint and Rs.5,000/- towards mental torture and Rs.3,000/- towards cost of the complaint, within one month from the date of this order.

4.   Cost of appeal be borne by the parties.”

7.      In the present revision petition, petitioner / insurer has challenged this finding and stated that respondent was duly informed of the terms and conditions as is clear from the policy document.  It is further submitted that respondent is literate person and was very well aware that the terms and conditions of the policy binds him and he had never asked for the copy of the terms and conditions and, therefore, he cannot take advantage of this fact at this stage.  Reliance has been placed on the order passed by the National Commission in Kamlesh Gupta Vs. ICICI Lombard General Insurance Company Ltd. passed in First Appeal No. 1450 of 2014 decided on 18.02.2016, wherein the National Commission held as under:

“The contention of the learned counsel for the petitioner/complainant is that since the terms and conditions relied upon by the insurer were never supplied to the insured, the insurer cannot be permitted to rely upon such a condition.  Reliance in this regard is placed upon the decision of this Commission in National Insurance Company vs. D. P. Jain, 2007 (2) CLT 468.  In our opinion, the complainant can have no personal knowledge as to whether the terms and conditions applicable to the policy taken by the deceased were supplied to him or not, such an evidence being only in the knowledge of the insured.  Therefore, any averment to this effect by the complainant cannot be accepted.  Moreover, admittedly the deceased was an educated person.  It is clearly stated in the cover note issued to the deceased that policy was covered by and was subject to the terms, conditions and exclusions therein contained or otherwise expressed in the said policy.  Had the terms and conditions applicable to the policy not been supplied to him, the deceased, he being an educated person, would at-least have written a letter to the insurer, claiming that the said terms, conditions and exclusions had not been supplied to him.  Since no such letter was written by him, the inference would be that the terms and conditions applicable to the policy were either supplied to him or were brought to his notice and that is why he did not write any such letter to the insurer.  We, therefore, are not inclined to accept the plea that the terms and conditions attached to the insurance policy were neither made available nor made known to the deceased.”

8.      Reliance has also been placed on the order of the National Commission in Gas Dhar Versus Oriental Insurance Co. Ltd. passed in Revision Petition No. 2882 of 2005 decided on 23.02.2006, wherein the National Commission held as under:

“Contention advanced by Mr. Arunab Suman for the petitioner was that the petitioner is not bound by the said schedule as it had not been supplied by the policy along with its annexures. It is not in dispute that the validity of policy was from 11.6.1992 to 10.6.1993. Damage to boundary wall due to cyclone was allegedly caused on 24.3.1993. There was thus gap of more than 9 months in between the commencement of the policy and the incident. During that period the petitioner is not shown to have not sent any letter to the respondent/Insurance Company complaining of non-receipt of policy with annexures. In that backdrop plea of non-receipt of policy with schedule by the petitioner cannot be accepted. Decision in Concept Marketing vs. Harvinder Singh Saini & Anr. II (2000) CPJ 332, Sr. Divisional Manager, Oriental Insurance Co. Vs. Pharmchem Laboratories, II (1993) CPJ 710, and Pune Municipal Corporation, Pune vs. Nanasahib Nagoji Bhosale, AIR 1995 Bom. 164 relied on behalf of petitioner being distinguishable of facts have no applicability to the facts of present case. Since boundary wall of the godown was no covered under the policy, the claim made was not payable as rightly held by the State Commission. There is no illegality or jurisdictional error in the order under challenge warranting interference in revisional jurisdiction under Section21 (b) of Consumer Protection Act, 1996. Revision petition is, therefore, dismissed.”

9.      It is argued that since the respondent the had the occasion to write letters to them, asking for the copy of the terms and conditions and since he did not do so, he cannot be said to have no knowledge of the said terms and conditions and he cannot take advantage of his own wrong.

10.    It is argued on behalf of the respondent that they have specifically pleaded in their complaint that petitioner had not supplied him copy of the terms and conditions and thus had kept him in dark and this contention has not been specifically denied by the petitioner.  It is further argued that in their written version, petitioner has nowhere stated that they had supplied the copy of the terms and conditions alongwith the policy.         It is further argued that policy consists only of three pages and there is no endorsement that copy of the terms and conditions is enclosed alongwith this document on the policy.  It is further contended that in the policy itself, there is no mention of terms and conditions and, therefore, there was no reason for the respondent to be aware of the existence of such terms and conditions and thus had no reasons for writing letters to the petitioner and demanding the copy of the same.  Reliance is placed on the findings of Hon’ble Supreme in the matter of M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. I (2000) CPJ 1 (SC).

11.    We have heard the arguments of the counsel for the parties and perused the record.

12.     The controversy between the parties is whether the respondent was supplied with the copy of the terms and conditions of the policy and / or whether the respondent was aware of the fact that policy is governed by certain terms and conditions which are binding on him?  It is also apparent that in the complaint, the respondent has clearly alleged that coy of terms and conditions were not supplied to him and in the written version, there is no positive averment that copy of the terms and conditions were supplied to the respondent i.e. by the insurer to the insured.  From the perusal of the policy certificate, it is clear that it consists of three pages and in none of the pages, there is any endorsement that this documents also encloses any other document i.e copy of the terms and conditions.  The contents of the document also do not make any reference to any terms and conditions in its body.  In view of this, there was no occasion for the respondent to imagine that besides the terms and conditions mentioned in the policy itself and provisions of Motor Vehicle Act as mentioned in the policy certificate, there were other terms and conditions which binds him.  Since he had no occasion to be aware of the existence of any terms and conditions binding him, there was no reason for him to write any letter demanding copy of the terms and conditions.  The case laws relied upon by the petitioner, therefore, has no application on the facts and circumstances of the case.  In the case of Modern Insulators ( supra), the Hon’ble Supreme Court has held as under:

“The National Commission asked the parties to file affidavits to prove that the exclusion clause was duly communicated to the appellant. We have been taken through the affidavits filed and we find in the affidavit of the appellant the letter received by the appellant from the Branch Manager of the respondent was referred to wherein it was confirmed that appellant was supplied only with a cover note and the schedule of the policy.  So the other terms and conditions containing the above exclusion clause were not communicated.  In the reply affidavit filed by the respondent it was not specifically mentioned that the exclusion clause was also communicated to the appellant. “

13.     The findings put burden on the insurance company to prove that the copy of terms and conditions were duly supplied to the respondent.

14.     In view of the above discussion, we do not find any illegality or infirmity in the impugned order.  Revision Petition is, accordingly, dismissed.