1.      Appellant Shri Umesh Gopal Kurre has preferred the present appeal challenging the judgment and  order passed by the learned Additional District Consumer Commission of Nagpur, in Consumer Complaint No.RBT/CC/18/389 dated 01/03/2019, where by the learned Additional District Consumer Commission of Nagpur  dismissed the complaint filed by Complainant. (Appellant and respondent shall be referred by their original nomenclature).  Short facts leading to the filing of the present appeal may be narrated as under :-

2.      Complainant Shri Umesh Gopal Kurre is resident of Saoner, District Nagpur and was the owner of one tipper bearing registration No.MH-40-N-6284. Complainant had taken insurance policy from O.P.No.1 Reliance General Insurance Co.Ltd. and the period of insurance was from 10/12/2012 to 09/12/2013. Complainant has alleged that though he had taken the insurance policy the terms and conditions of the Policy were never supplied to the complainant by the insurance company. On 28/05/2013 the driver of the tipper was going to deliver sand at Sadar and suddenly the entire diesel was consumed, driver got down after locking the tipper and when he come back he found that the tipper was stolen. Driver then informed the complainant. Complainant has alleged that thereafter he went to police station and lodged the complaint in Sadar Police Station on 29/08/2013. Complainant has contended that he had orally informed to insurance company and had also given in written intimation about theft of the vehicle on 03/06/2013. Complainant has contended that though he had orally informed the O.P.No.1 about theft, the O.P.No.1 asking for necessary documents. Complainant has contended that thereafter investigation also carried out investigation and ‘A’ summary was passed by the learned JMFC on 31/01/2014 and copy of the same was also provided to O.P.No.1. Complainant has contended that thereafter he lodged the claim with insurance company and also was pursuing the same but as per letter dated 15/09/2014 the claim was repudiated by O.P.No.1 on the ground that there was delay in giving intimation about theft to the insurance company. Complainant has contended that this action of repudiating the claim after the period of 15 months was Arbitrary and high handed and also amounts to deficiency in service and so the complainant filed the Consumer Complaint under the provisions of Consumer Protection Act 1986.

3.      After filing of the complaint due notices were issued to O.P.Nos.1 and 2 and they appeared and filed their written version resisting the complaint. At the outset the O.P.Nos.1 and 2 have contended that the complaint was not tenable in law and complainant has suppressed material facts. O.P.Nos.1 and 2 have contended that there was breach of terms and conditions of insurance policy due to delay as alleged theft had taken place on 28/05/2013 and intimation of the claim was given to the insurance company on 03/06/2013. O.P.Nos.1 and 2 have contended that the terms and conditions of the insurance policy were to be construed strictly and complainant was under obligation to inform the O.P.Nos.1 and 2 immediately about the theft. O.P.No.1 and 2 have denied that there was any deficiency in service or that there was any Unfair Trade Practice. There was no mental and physical harassment caused to the complainant and there was also no cause of action to file the complaint. For the fore going reasons the complaint filed by the complainant was not tenable in law and deserved to be dismissed with cost.    

4.      The learned Additional District Consumer Forum Nagpur thereafter went through the contents of the complaint, written statement as well as the evidence adduced on record. The learned Additional District Consumer Forum also went through the written notes of argument submitted on behalf of complainant as well as the opposite party. After appreciating the evidence adduced by the parties the learned District Consumer Forum Nagpur came to the conclusion that there was delay on the part of the complainant in giving due intimation of the theft and so there was no deficiency in service. The learned Additional District Consumer Forum Nagpur has also reached the conclusion that no satisfactory reason has been assigned for the delay in giving proper intimation to the insurance company and so the learned Additional District Consumer Forum Nagpur dismissed the complaint by judgment and order dated 01/03/2019. Against this judgment and order dated 01/03/2019 the present appellant has come up in the present appeal.

5.      We have heard the learned advocate for the appellant Shri Naukarkar as well as learned advocate for respondent Mrs.Mairal. We have also gone through the record and proceedings of the Additional District Consumer Commission Nagpur. On the basis of the facts stated above the only point which arises for our determination is as under with our finding recorded thereon and reasons to follow :

Reasons for finding :-  Facts leading to the present complaint by the complainant/consumer are not very much in dispute. Complainant Umesh Kurre claims to be the owner of one tipper bearing registration No.MH-40-N-6284 and had taken insurance policy inrespect of theft from O.P.No.1 Reliance General Insurance Co.Ltd. and the period of insurance was from 10/12/2012 to 09/12/2013. On  28/05/2013 the tipper of the complainant was stolen when it was parked near Poonam Chambers, Chhaoni, Sadar, Nagpur. Complainant  thereafter immediately lodged the report regarding the theft with Sadar Police Station and offence was also registered vide Crime No.201/2013. Complainant has contended that he had also orally informed the insurance company about theft on next date i.e. on 29/05/2013 but the O.P.No.1 demanded necessary documents from the complainant and so there was some delay on the part of the complainant. Complainant thereafter gave written intimation to the insurance company on 03/06/2013 after a gap of five days. Complainant has alleged that he also went personally to the office of O.P.No.1 and gave oral intimation on 28/05/2013 but the O.P. No.1/insurance company did not depute any investigator for the purpose of investigation. If we go through the written version these facts are not denied by the complainant. It is thus very clear that the theft of the tipper has taken place on 28/05/2013 and written intimation was given to the insurance company on 03/06/2013 after a gap of only five days. It is the case of the complainant that despite supplying all the necessary documents to the insurance company the insurance claim of the complainant was not settled and on the other hand the claim was repudiated by O.P.No.1 as per letter dated 15/09/2014.

6.      If we turn to the written version it is specific stand of O.P.Nos.1 and 2 that the intimation of theft of the tipper was required to be given by the complainant immediately on the occurrence of theft but the complainant had given the intimation on 03/06/2013 after a gap of 5 days and the same amounts to breach of Terms and Conditions of the Insurance Policy.   

7.      Short question that arises in the present appeal is whether the delay of five days in giving the intimation to the insurance company regarding theft amounts to breach of terms and conditions of the insurance policy. On this aspect as discussed earlier the learned advocate for respondent has submitted that the terms and conditions of the insurance policy have to be construed strictly and the complainant has to give intimation of theft of the insured vehicle immediately. In this respect the learned advocate for respondent has drawn our attention to condition No.1 of the policy which states as under :-

“ Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the even 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 or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fetal inquiry in respect of any occurrence which may give rise to the claim under this policy. In case of theft or criminal act which may be the subject of the claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.”

8.      Further the learned advocate for respondent insurance company has also relied upon as under :-

 (1) judgment of Hon’ble National Consumer Commission in the case of Om Prakash …V/s…….National Insurance Co. reported in III (2012) CPJ 59 (NC).

(2)  Devender Singh………V/s……..New India Assurance Co.Ltd, reported in III(2003) CPJ, 77 (NC).

(3)    Gyarsi Devi……..V/s…….United India Insurance Co.Ltd and ors, reported in IV(2011) CPJ 30 (NC).

(4)   National Insurance Co.Ltd…….V/s……Satya Dev, reported in II(2011) CPJ 558 (HR).

(5)  New India Assurance Co.Ltd…..V/s……Sohanbir in first appeal No.981 of 2010 by State Consumer Disputes Redressal Commission Haryana.

9.      We have carefully gone through the aforesaid judgments as well as the case of Om Prakash ………V/s…….National Insurance Co. (cited above) wherein it has been held that the terms and conditions of the insurance policy are requires to be construed strictly and no exception can be made on the ground of equity.  

10.      Advocate for appellant/complainant Shri Naukarkar has strongly rebutted this contention and has submitted that the learned Additional District Consumer Commission has not appreciated the facts in proper perspective. It is also submitted by the learned advocate for appellant that mere delay in intimating the insurance company about the theft is no ground to denying the claim of the insurance. On this aspect the learned advocate for appellant has heavily relied upon one recent judgment  of Hon’ble Supreme Court of India in the case of Gurshinder Singh……V/s…..Shriram General Insurance Co.Ltd and other, reported in 2020 (1) T.A.C. 729(S.C.).  In that case since there was conflict of opinion in the judgment rendered by the Hon’ble Supreme Court reference was made to three judges bench. It is submitted on behalf of the appellant that in the case of Gurshinder Singh……V/s…..Shriram General Insurance Co.Ltd. and other (cited supra) three judges Bench of the Hon’ble Supreme Court has endorsed the view taken in the case of Om Prakash ……V/s…..Reliance General Insurance and other. We have gone through the judgment in the case of Gurshinder Singh……V/s…..Shriram General Insurance Co.Ltd. and other (cited supra) and that case the facts were similar and the Hon’ble Supreme Court has interpreted Condition No.1 of Standard Form For Commercial Vehicles Package Police and observed that the object behind giving immediate notice to insurance company is so that surveyor or investigator is been appointed by the insurance company to verify whether the claim of the claimant regarding the theft was genuine or not. It was further observed that in case there was some delay in intimating the insurance company the claim can not be dismissed as it would amount to taking hyper technical view. It is necessary to note that the Hon’ble Supreme Court in the case of Gurshinder Singh……V/s…..Shriram General Insurance Co.Ltd. and other (cited supra) has endorsed the view taken in the case of Om Prakash ……V/s…..Reliance General Insurance and other (cited supra) and has observed that mere delay in intimating the insurance company about theft of the vehicle should not be a shelter to repudiating the insurance claim which is otherwise genuine. Here in the present case the claim of the complainant/consumer is repudiated on the ground of policy condition No.1 which was relating to immediate notice to the insurance company. Further it is significant to note that in this case even after receipt of intimation the insurance company has not appointed any investigator to investigate the claim. On the other hand the claim was repudiated after the laps of 15 months. Further respondent has also not led any evidence to show that there was any negligence on the part of the complainant. But despite this fact the learned Additional District Consumer Commission Nagpur has dismissed the complaint by passing the impugned order dated 01/03/2019 which was not justified in the light of the observations made by the Hon’ble Supreme Court in the case of Gurshinder Singh……V/s…..Shriram General Insurance Co.Ltd. As such the impugned order dated 01/03/2019 passed by the learned Additional District Consumer Commission Nagpur will have be set aside and complaint will have to be allowed. As sequel to the aforesaid discussions we proceed to pass following order.

                                           // ORDER //

1. Appeal is hereby partly allowed.
2. Order passed by the learned Additional District Consumer Commission, Nagpur in complaint case No. No.RBT/CC/18/389, dated 01/03/2019 is hereby set aside and Consumer Complaint filed by the complainant is hereby partly allowed.
3. It is hereby declared that the O.P.Nos.1 and 2 have committed deficiency in service as well as Unfair Trade Practice.
4. O.P.Nos.1 and 2 are hereby directed to pay sum of Rs.8,00,010/- alongwith interest @ 9% p.a. to complainant.
5. O.P.Nos.1 and 2 are further directed to pay sum of Rs.1,00,000/-  towards mental and physical harassment caused to the complainant and Rs.10,000/- by way of litigation.
6. The above order shall be complied by O.P. Nos.1 and 2 jointly and severally within a period of 30 days from the receipt of copy of order.
7. The copy of  order be furnished to both parties free of cost.