This revision petition has been filed by the petitioner Royal Sundaram General Insurance Company Limited challenging the order dated 25th July 2017 passed by the West Bengal State Consumer Disputes Redressal Commission Kolkata (in short the State Commission) in appeal No. A/388/ 2016.

2.      Brief facts of the case are that the complainant had purchased Bolero XL vehicle from OP3 on 13.09.2013 for a total price of Rs.6,71,277/- and the vehicle was financed by OP2. The complainant insured the vehicle with OP1 vide policy no. VPC0588368000100 for the period from 13.09.2013 to 12.09.2014. On 16.07.2014 the vehicle was stolen from the premises of the complainant and FIR was lodged on the same day. The complainant gave the intimation in writing about the theft of his vehicle to OP1 along with the claim on 28.07.2014. Thereafter, OP1 repudiated the claim of the complainant vide letter dated 20.05.2015 which stated that:

“…the vehicle was used for commercial purpose and thereby violating the provisions of ‘Limitation as to use’ of the policy.

Also, there has been a delay in intimating the loss to the company by 12 days….

Hence, we regret to inform our inability to entertain the claim.”

3.      Aggrieved by the act of OP1, the complainant filed the complaint before District Consumer disputes Redressal, Forum Jalpaiguri (in short ‘the District Forum’). District Forum vide its order dated 07.04.2016 allowed the complaint against OP1 with litigation cost of Rs.3,000/-. District Forum directed OP1 to pay the amount of Rs.6,37,313/- within 30 days to the complainant through OP2 and OP2 will pay to the complainant the amount of money he is entitled after deducting its dues within 7 days after receiving Rs.6,37,313/- from OP1. Further, District Forum directed OP1 to pay Rs.10,000/- as compensation for mental harassment.

4.      State Commission vide its order dated 25.07.2017 dismissed the appeal of OP1.

5.      Heard the learned counsel for the parties and perused record. The learned counsel for the petitioner stated that the vehicle was being used as a commercial vehicle for illegal transportation of liquor. Moreover, the intimation to the insurance company has been given with a delay of 12 days which is substantial in case of theft as the insurance company could not make any efforts to trace the vehicle either independently or in association with the police. As per condition No.1 of the policy, an immediate intimation is required to be given for any accident of the vehicle and in case of theft, an immediate information to the police is also required. It does not mean that an immediate intimation is not required to be given to the insurance company in case of theft. In case of theft, it is all the more necessary to inform the insurance company immediately so that the efforts to trace the vehicle are doubled and the vehicle cannot be taken to far off places to facilitate the changing of parts and remodeling of the vehicle. Both the fora below have not considered these important aspects of the policy contract and have allowed the insurance claim on full IDV of the vehicle.  In support of his arguments, the learned counsel relied on the following judgments:-

1.  Oriental Insurance Company Limited Vs. Parvesh Chander Chadha, Civil Appeal No.6739 of 2010, decided on 17.08.2010 (S.C.)

2.    New India Assurance Company Limited Vs. Ram Avtar, First Appeal No.141 of 2009, decided on 11.11.2013 (NC)

3.     Tejbir Singh Vs. Oriental Insurance Company Limited, First Appeal no.732 of 2011, decided on 11.01.2013 (NC).

4.          New India Assurance Company Limited Vs. Trilochan Jane, First Appeal No.321 of 2005, decided on 09.12.2009 (NC)

5.      General Assurance Society Limited Vs. Chandumull Jain and another, Civil appeal No.886 of 1963, decided on 07.02.1966 (SC)

6.      On the other hand, the learned counsel for the respondent complainant stated that the FIR was lodged on the same day, however, the intimation was given to the insurance company along with the claim. Both the fora below have given concurrent finding of fact that the insurance company could not produce any evidence to prove that the vehicle was being used as a commercial vehicle for transport of liquor. The scope under the revision petition is quite limited and this Commission cannot reassess the facts when there are concurrent findings on facts. The learned counsel further argued that in case of theft, the Hon’ble Supreme Court in National Insurance Company Limited Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC) has clearly opined that violation of any terms and conditions of the policy is not germane in a case of theft and the claim should be allowed.

7.      I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. Both the fora below have given the concurrent finding that the insurance company has not been able to prove that the vehicle was being used for transport of liquor as a commercial vehicle. Clearly, this Commission would not like to reassess this fact against the concurrent finding given by the fora below in the light of the judgment of the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286 where following has been observed:-

 “23.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

8.      Now coming to the question of delay in giving information to the insurance company, it is seen that the policy is also a form of commercial contract and its terms and conditions are binding on both the parties. Condition No.1 of the policy clearly states that immediate intimation will be given to the insurance company. In the present case, the information has been given with a delay of 12 days to the insurance company and this clearly is gross violation of the condition No.1 by the complainant. Hon’ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (2010) 4 SCC 536 has observed that if any condition of a motor policy is violated, then the claim can be settled on non-standard basis that is up to 75% of the otherwise admissible claim. The District Forum and the State Commission both have allowed the total admissible claim for which there seems to be no justification. One has to distinguish between a person who has followed all the terms and conditions of the policy and a person who has violated some of them. Therefore, I am of the view that in the present case, the claim should be settled on non-standard basis.

9.      Based on the above discussion, the orders of the fora below are modified to the extent that the insurance company would pay a sum of Rs.4,77,984/- (75% of Rs.6,37,313/-) only to the complainant for settlement of the insurance claim. With this modification, the order of the District Forum is confirmed. The order be complied within a period of 45 days from the date of receipt of this order. The revision petition No. 3134 of 2017 is accordingly disposed of.