Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 15-01-2016 passed by the Ld. District Forum, Siliguri in C. C. No. 46/2013 whereof the complaint has been allowed.  Aggrieved/dissatisfied with such order, the OP Insurance Company thereof has preferred this Appeal.

Case of the Complainant, in short, is that she submitted an insurance claim over theft of her insured vehicle with the OP Insurance Company.  However, the claim being not settled by the OP Insurance Company despite repeated follow up of the matter and passage of long time, Complainant filed the instant case before the Ld. District Forum.

Appearing to dispute Complainant’s claim, it is stated by the OP Insurance Company by filing a WV that the temporary registration of the insured vehicle expired much before the alleged date of peril.  Besides, there was delay in giving due intimation to the OP Insurance Company about such incident.  That apart, the financier bank was not made a party to the case. Thereby, the complaint case earned the demerits of non-joinder of party. Also, by keeping the insured vehicle in an open space, the Complainant compromised with the security of the vehicle.  For all these reasons, according to the OP Insurance Company, the instant claim was not admissible.

Decision with reasons

Heard both sides on the issue and carefully traversed through the material on record.

The incident of theft of insured vehicle is not in dispute.  It seems that due intimation about the incident of theft was given to the local police station on the very same day of happening of peril.  It is to be kept in mind that being an investigating agency, the entire responsibility of tracing a stolen vehicle is shouldered by the Police Authorities.  On the other hand, be it due to lack of infrastructure or expertise, Surveyors/investigators do not play any positive role to locate whereabouts of a stolen vehicle.  Therefore, even if there is some delay (3 days in the present case) in giving necessary intimation to the Insurance Company, that under any circumstances cannot be taken as a material breach of policy condition.

The peril in this case occurred due to theft of the vehicle concerned while the same remained in a stationary condition. Had the peril occurred while in use, it could have been considered as a material breach of Motor Vehicles Act which is not the case here. Therefore, the said peril got no material bearing on the occurrence of peril.  Objection of the Appellants in this regard is, thus, not tenable.

It is though alleged that the vehicle was kept in an open space, from the survey report itself it appears that the same was kept in the open garage space under the temporary tin shed.  While the insurance policy does not stipulate any specific requirement to mandatorily keep the insured vehicle inside a concrete garage, in our considered opinion, the Respondent No. 1 can hardly be accused of laxity in ensuring proper safety and security of the vehicle in question.

The Respondent No. 1 moved the instant complaint over Appellants’ stubborn refusal to indemnify the loss.  Adjudication of said dispute, to our mind, cannot get affected in anyway over inclusion/non-inclusion of the financier to the case.  Objection of the Appellants in this respect therefore too is not sustainable.  In any case, if the Appellants so desires, they are at liberty to directly remit the compensation amount to the financier under intimation to the Respondent No. 1.

Nowadays, it is the settled position of law that in theft related cases, policy conditions are not germane.  Since the Ld. District Forum has deliberated on the issue at great length to which we are fully in agreement, we refrain from discussing the issue afresh to avoid unnecessary duplicity.

However, on going through the awarding portion of the impugned order, we find that the Ld. District Forum has completely ignored the issues flagged by the Surveyor without assigning any justifiable cause for doing so.  The report of a Surveyor is a vital piece of document and it is always desirable that a Court of Law would give due wattage to the same.  Be that as it may, following the principle laid down by the Hon’ble Apex Court in its celebrity authority in National Insurance Co. Ltd. v. Nitin Khandelwal, reported in IV (2008) CPJ (1) (SC), we feel the instant claim should be settled on non-standard basis.

The Appeal, thus, succeeds in part.

Hence,

O R D E R E D

that A/121/2016 be and the same is allowed on contest in part.  Appellants are directed to remit, within 45 days from the date of receipt of requisite documents (except NoC) from the Respondent No. 1, a sum of Rs. 4,44,881/- to the financier concerned together with compensation for a sum of Rs. 1,00,000/- and litigation cost to the tune of Rs. 10,000/-, i.d., simple interest @ 9% p.a. shall accrue over the sum of Rs. 4,44,881/- for the entire period of default. We make it clear that upon reimbursement of the claim by the Appellants as above, it would be obligatory on the part of the Respondent No. 1 to square off the loan account within 45 days since then and furnish NoC to the Appellants.  Failure to do so would subjected her to due process of law.