ORDER
Per SH. RAKESH KAPOOR, PRESIDENT
The com,plainant is the register owner of a vehicle bearing registration no. UP-16AD 0132. He had purchased a policy of insurance in respct of the aforesaid vehicle from the OP which was effected for the period 1.7.2012 to 31.7.2013 . it is alleged by complainant that on 16.9.2012 , this vehicle was stolen jhangirabad chowk, Bulandshahr. The police initially did not lodge an FIR and lodged the same on 30.10.2012 after an order was passed by the court. The complainant had informed the OP about the theft and has also lodged a claim. The OP has failed to setle the claim . hence, the complaint.
The OP has contsested a complaint ans has filed a written statement It has denied any deficiency in service and has complaint tha the complaint is false and frivolous and as such liable to be dismissed.
In the preliminary submissions of the written statemet , the OP has stated as under:-
1. That the Opposite Party issued a Policy, vide Certificate cum policy No. 369551 for the vehicle Registration No.UP16ADO132 for a period from 01-08-2012- 31-08-2013 in the name of Shri Rajpal and the liability of the answering Respondent is strictly as terms and conditions of the said policy. A copy of the sai along with the terms and condition is attached hereto and marked as
ANNEXURE-1.
2. That the present complaint is liable to be dismissed on the grounds that the Complainant has supressed material fact from this Hon’ble Court i.e. there has been a substantial delay of 32 days in intimating the opposite party regarding the alleged theft of the vehicle in question, apart from other several facts which is a clear violation of policy terms and condition no. 1 which stipulates as :-
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the
insured shall give all such information and assistance a the Company shall require. Every letter claim wri summons and /or process or copy thereof shall b forwarded to the Company immediately on receipt by th insured. Notice shall also be given in writing to th Company immediately the insured shall have knowledge ( any impending prosecution, in quest or fatal enquiry in respect of any occurrence which may give rise to a claii under this policy. In case of theft or criminal act whic may be the subject of a claim under this Policy the insure shall give immediate notice to the Police and cooperate with the company in securing the conviction of the offender.”
3.That it is the submissions of the Opposite Party that the Complainant has supressed material fact from this Hon’ble Court of him not being the real owner of the vehicle in question rather one Shri Raghubar Singh was the actual purchaser of the vehicle in question and all the expenses incurred on purchasing & maintaining the vehicle was borne by Sh. Raghubar Singh. The Complainant in his written statement has categorically stated to the opposite party that his name was only used to purchase the vehicle in ciestion since he was the government employee and the complainant has confirmed that neither the vehicle nor the claim belongs to him and has further confirmed that he has nothing to do with the claimamount. The statement of the Complainant is marked as ANNEXURE-2.
4. The present complaint is also liable to be ground that the complainant did not take all the vehicle thereby violating the terms a Insurance Policy. The said fact can be clearly that the complainant did not furnish all the I question to the opposite party.
5. That the claim of the complainant is liable to be dismissed on the sole ground that the complainant has misrepresented/concealed important material facts about the previous insurance i.e. Oriental Insurance co. ltd which has a direct bearing or admissibility of the claim.
6. That the claim of the complainant is liable to be dismissed on the ground of fabrication of documents i.e. the policy issued by Oriental insurance Company which was produced by the Complainant to the IRDA Licensed surveyor bearing the cover note no “135574” for a period of 08.1.2011-07.1.2012 with IDV of Rs.633835/- was absolutely different from the preious insurance policy issued by the Oriental Insurance Company wherein the policy no. 272202/31/2011/1569 was having a coverage period from 01.08.201 1-31 07 2012 with an IDV of Rs 5,95,000. It is further submitted that when the surveyor as appointed by the Opposite party visited the branch office of Oriental Insurance company, the representative of the Oriental Insurance company verbally confirmed that the vehicle in question was not insured with them. The copy of the Surveyor report is attached herewith and marked as
ANNEXURE-3.
7. That the claim of the complainant is liable to be dismissed on the sole ground that the alleged theft of the vehicle in question never took place which is being corroborated by the fact that the F.I.R lodged by the complainant was expunged as no theft has occurred on 16.09.2012 of the vehicle in question.
8. That the claim of the complainant is liable to be dismissed on the sole ground that there has been a substantial delay of 44 days in lodging the F.I.R.
9.That the Complainant had intentionally hid the relevant information
from this Hon’ble Court that the said vehicle was hypothecatd with
Mahindra & Mahindra Financial Services Ltd. and further the
Complainant had stopped paying the instalments from November
2012 to the said financer.
We have heard arguments advanced at the bar and have perused the record.
In the case of –“New India Assurance Company Ltd VsTrilochan Jane (First appeal no. 321 of 2005),the honorable National Commissionheld :
Learned counsel for the respondent, relying upon the judgment of Hon’ble Supreme Court in National Insurance Company Limited Vs.NitinKhandelwal reported in (2008) 11 SCC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said judgment was in a totally different context. In the said case, the plea taken by the insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of terms in the policy. The Plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The Delay in lodging the FIR after 2 days of the coming to know of the theft and 9 days to the insurance company, can be fatal as, in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to kabaadi (Scrap Dealer).
In the present case, the FIR had been lodged after adelay of 44 days whereas intimation in writing to the insurance company was give after a delay of 2 days . no DD entry was lodged wit respect t the ft of the vehicle immediately. In view of the judgment quoted above, we are of the considered opinion, that the oP hwas justified in repudiatint the claim as it had lost avaluable right of investigation in thematter.
Secondly, in the case of United India Insurance Co. Ltd. Vs. M.K. Corporation,III(1996)CPJ8(SC),the Hon’ble Supreme Court held as under :-
“It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, ”Similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge since obligation of good faith applies to them equally with the assured.
The duty of good faith is a continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent.
In the present cae, the OP has got the matter investiged and has filed a copy of the investigation report. It was revealed during the investigation the stolen vehicle was got financed by M/s Mahindra &Mahindra Financial services Ltd . It was further revealed that the EMIs were paid till November 2012 only whereafter the alleged theft had takenplace allegedly on 16.9.2012. the compolainant has not impleaded nor disclosed the fact that the vehicle had been got financed from M/s Mahindra & Mahindra Financial Services Ltd . the investigation also revealed that the complainant was not the actaula purchaser of the vehicle in question and it was actually urchased by his relation Sh. Raghubar singh who was in actual possession of the vehicle in question. It is, therefore, clear that the complainant had not disclosed true facts at the time of the purchase of the policy and has no insurable interest in the vheilce in question.
Thirdly, it was revealed to the surveyor that the complainant had produced a forced and fabricated document at the time of the purchase of the policy from the OP. in the facts and circumstances of the case, we are of the considered opinin that the insurance company was justified inrepudiant the claim lodged byth complainant. We , therefore, se no merits in this complaint. The same is hereby dismissed.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
