Per Shri B.A.Shaikh, Hon’ble Presiding Member
1. This appeal is filed by the original opposite party Nos.1 and 2 feeling aggrieved by the order dated 04/09/2014 passed in consumer complaint No.522/2012, by which the learned District Consumer Forum Nagpur partly allowed the complaint.
2. The facts in brief giving rise to present appeal are as under.
The vehicle called as truck owned by the original complainant who is the respondent No.1 in this appeal was insured by him with the appellants for the period from 24/08/2011 to 23/08/2012. The said vehicle was stolen away on 06/03/2013 at about 1.00 A.M. The details of incident of theft are given by the respondent in the consumer complaint. It is alleged by the respondent that on 06/03/2012 itself he gave intimation of the incident of theft of insured vehicle to the appellants by phone on help line and that he then also submitted policy claim alongwith the documents to the appellants on 20/03/2012. It is also alleged by the respondent that his intimation given on the help line was registered at serial No.87250. Police also made investigation on the basis of F.I.R. lodged by the respondent on 06/03/2012. However the insured truck which was stolen was not traced out. However the appellants repudiated the claim of the respondent vide letter dated 23/03/2012 on the ground that as the alleged incident took place on 05/03/2012 and claim was belatedly submitted on 20/03/2012, there is a breach of condition No.1 of the insurance policy.
3. The respondent thus alleging deficiency in service on the part of the appellants filed consumer complaint before the District Forum below. The respondent also joined the original opposite party Nos.3 and 4 to the complaint who had financed the respondent for purchasing the said vehicle. The respondent in the said complaint had requested that direction be given to the appellants to pay him sum assured of Rs.8,00,000/- with compensation @ Rs.3000/- per day from 20/03/2012 and also to pay him interest over the aforesaid amount @ 18% P.A.. The respondent had further claimed in the complaint that direction be given to opposite party No.3 not to forcibly recover the financed amount from him and not to charge interest over that amount as the insured truck is stolen away. The respondent had also prayed for litigation charges and compensation. Thus the total claim of the respondent was for Rs.13,40,500/-.
4. The appellants resisted the said complaint by filing their common reply before the District Forum below. According to the case of the appellants, as per condition No.5 of the policy it was necessary for respondent to take all the reasonable steps to safeguard vehicle from loss and as the same was not taken, there is a breach of the said policy condition. Moreover as per the said condition, it was necessary for the respondent to give notice of the incident in writing to the appellants immediately upon occurrence of incident of theft dated 06/03/2013 and as the said intimation was belatedly by given i.e. on 20/03/2012, there is a breach of the said condition. Thus the appellants submitted that the repudiation of the claim is just and proper. The appellants therefore requested that the complaint may be dismissed.
5. The opposite party No.3 also filed reply to the complaint and submitted that the complaint as against him may be dismissed.
6. The opposite party No.4 failed to appear despite service of notice. Therefore the Forum below proceeded ex-parte against the opposite party No.4.
7. The District Consumer Forum below after hearing aforesaid parties and considering evidence brought on record came to the conclusion that the intimation of theft of the vehicle was given by the respondent to the appellants immediately on 06/03/2012 through helpline by phone and report was also immediately lodged by the respondent with the police about the incident of the theft and therefore there is no breach of policy condition. Therefore the learned Forum below directed appellants to pay to the respondent sum assured of Rs.8,00,000/- under the policy with interest @ 9% P.A. and also to pay him compensation of Rs.10,000/- for physical and mental harassment and litigation cost of Rs.5000/-.
8. As observed above, feeling aggrieved this appeal is filed by the original opposite party Nos.1 and 2. We have heard advocate Mr.Sachin Jaiswal appearing for the appellants and advocate Mr.Pankaj Gupta appearing for the respondent/original complainant. We have also perused the record and proceedings of the appeal.
9. The learned advocate of the complainant reiterated in his argument the aforesaid case of the appellants set out in consumer complaint before the Forum below and relied on two decisions referred to in the impugned order which are as follows.
10. The Hon’ble National Commission in the case of New India Assurance Co.Ltd…….V/s……Trilochan Jane, in FA No.321/2005 decided on 09/12/2009 observed that in case of the theft of the vehicle it is incumbent upon the respondent to inform the police immediately say within 14 hours, and also information of the same be given within a day or two to the insurer so that the insurer can verify as to whether any theft has taken place and also to take immediate steps to get the vehicle traced out.
11. The Hon’ble Supreme Court in the case of M/s.Suraj Mal Ram Niwas Oil Mills (P) Ltd.….V/s……United India Insurance Co.Ltd and another, in Civil Appeal No.1375/2003 observed that the words used in the contact of insurance must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. The Hon’ble Supreme Court also observed that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavor of the Court should always to be to interpret the words in which the contract is expressed by the parties.
12. The learned advocate of the appellants therefore submitted that as per terms and conditions of the policy referred to in the reply of the appellants, it was incumbent on the respondent to immediately give intimation of the incident of the theft to the appellants and also to immediately lodge the report with the police and to make the claim immediately and as the claim was belated by lodged i.e. after 14 days of the incident of theft, the claim has been rightly repudiated. Thus according to learned advocate of the appellants, the learned District Forum below has not properly considered the aforesaid decisions of the Hon’ble National Commission and Hon’ble Supreme Court and the evidence brought on record and thus erred in partly allowing the complaint. Therefore he requested that the impugned order may be set aside.
13. On the other hand, the learned advocate of the respondent supported the impugned order and submitted that the intimation of the incident of theft was given to appellant through helpline by phone by the respondent immediately on 06/03/2012 and that the said intimation was registered at Sr.No.87250, but the appellants did not produce any document about the registration of the said intimation No.87250. Thus according to learned advocate of the respondent it was incumbent on the appellants to produce the document showing registration of the intimation No.87250 and as it is not filed, the Forum below has rightly accepted the aforesaid case of the respondent that said intimation was given on 06/03/2012 . He further submitted that actual the claim in writing alongwith document was submitted on 20/03/2012 and that report with the police was also lodged by the respondent on 06/03/2012 and thus there is no breach of policy condition.
14. The learned advocate of respondent also relied on the decision of the Hon’ble Supreme Court in the case of Om Prakash…..V/s…….Reliance General Insurance and another, reported in 2017 SAR (Civil) 1149 decided on 04/10/2017. The Hon’ble Supreme Court observed in the said case that 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 claim 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 the 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. In that case the appellants had given cogent reason for the delay of eight days in informing the respondent about incident. The investigator had also verified theft of to be genuine and the payment of Rs,7,85,000/- towards the claim was approved by Corporate Claims Manager, which is found just and proper.
The learned advocate of the respondent therefore requested that the appeal may be dismissed.
15. The material question involves in the present case is as to whether the intimation was given through helpline by the respondent to the appellants on 06/03/2012 or on 20/03/2012. It is not disputed that the intimation given by the respondent to the appellants through helpline was registered at Sr.No.87250. We find that information about said Sr.No.87250 showing intimation given by the respondent through helpline is saved in electronic form & it must be available with the appellants. It was therefore necessary for the appellants to produce any print out of the said information showing the date of the said registration of number 87250. The respondent can not be asked to produce any document about giving of the intimation by phone on 06/03/2012 as no record can be said to be available with the respondent. No reason is given by the appellants for non-production of the print out generated from the computer showing date of registration No.87250 of the aforesaid intimation given by respondent.
16. We also find that the report to the police was also immediately lodged by the respondent. Therefore it can not be believed that the respondent gave intimation of that incident belatedly to the appellants on 20/03/2012. In natural course of conduct the respondent gave that intimation through helpline immediately on 06/03/2012 to appellants and he also provided the registration number as 87250 of the said intimation. Therefore we find that not only intimation of the incident of theft was given immediately to the appellants but the report was also lodged immediately by the respondent with the police.
17. It is also not the case of the appellants that the incident of the theft is not genuine. The F.I.R. was lodged about the theft of the vehicle and in the absence of any evidence in rebuttal we are inclined to accept that it is a guanine case of the theft of the vehicle that occurred on 06/03/2012.
18. The Hon’ble Supreme Court in the aforesaid case of Om Prakash…..V/s…….Reliance General Insurance and another specifically observed that it would not be fair and reasonable to reject the guanine claim which had been already verified and found to be correct by the investigator. In the instant case we find that the appellants have mechanically rejected the claim of the respondent, though there is no breach of policy condition when the intimation was given immediately through helpline and when the report to the police was also lodged immediately, after the incident of theft.
19. We also find that both the aforesaid decisions referred to in the impugned order and relied on by learned advocate of the appellants are not applicable to the facts and circumstances of the present case when we find that there is as such no delay in giving the intimation to the appellants or in lodging the report with the police and particularly when as per decision of the Hon’ble Supreme Court the genuine claim can not be rejected on purely on technical ground.
20. We therefore hold that the District Consumer Forum below has properly considered the evidence brought on record and reached to correct conclusion and findings. The appeal therefore deserves to be dismissed at the stage of admission. Accordingly following order is passed.
// ORDER //
- The appeal is dismissed.
- No order as to cost in the appeal.
- Copy of the order be furnished to both parties, free of cost.
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