Date: 26-03-2015

Sri Debasis Bhattacharya

This appeal is directed against the Order dated 27-11-2013 in Case No. 103/2013, passed by the Ld. District Forum, Howrah, whereby the complaint case has been allowed on contest.  Being aggrieved and dissatisfied with the same, the OPs thereof have preferred this appeal.

Case of the Complainant, in a nutshell, is that she took an insurance policy being no. MPC-00058612-000-00 in respect of her Tata Sumo vehicle being no. WB-30-B-4688.  On 29-06-2008, the said vehicle got stolen and a complaint to this effect was lodged on 01-07-2008 and based on the said complaint, Shibpur P.S. started case no. 230 dated 02-07-2008, u/s 379, IPC.  On 11-07-2008, she informed the matter to the OP No. 2 through her Advocate.  On 09-09-2008, the OPs informed her that they would depute a licensed surveyor, but they have not done so as yet. Thereafter, although she vigorously followed up the matter with the OPs, till date they have not settled her claim.  So, the instant complaint case.

On the other hand, case of the OPs is that as per policy condition, the Complainant was under obligation to intimate the matter of alleged theft to them immediately after theft of the vehicle that took place on 29-06-2008, but she intimated the Insurance Company on 14-07-2008.  Immediately, the OP sent a letter to the Complainant calling for clarification for the delay in intimation to examine the aspect of admissibility of the claim, but no such reply has been given by the Complainant.  Therefore, the OP Insurance Company did not get due opportunity to check the veracity of the claim made by the Insured.  Therefore, the OPs are not liable to pay any amount to the Insured for breach of policy condition.

It is to be considered in this appeal, as to whether the impugned order suffers from any material irregularity, legal and/or factual aspects, or not.

Decision with reasons

Ld. Advocate for the Appellants has submitted that they were intimated about the incident of alleged theft of the insured vehicle by the Respondent after a lapse of 13 days, though according to condition no. 1 read with condition no. 9 of the policy of insurance, it was incumbent on the part of the Insured to provide immediate intimation to the Insurance Company in the event of occurrence of any peril, which she willfully neglected for which, the Insurance Company did not get any opportunity to check the veracity of the claim made by the Insured. Counsel for the Appellants/Insurance Company further contended that an insurance policy, being a contract between the two parties, its terms and conditions are binding on both parties. Therefore, in accordance with the terms and conditions of the insurance policy, Respondent/Complainant was required to immediately inform the Appellants/Insurance Company about the theft of the insured vehicle, which she failed to do. The Ld. District Forum, however, failed to appreciate the fact that Insurance Company cannot be held liable to pay any compensation for any breach of policy condition by the Insured and erroneously decreed the case in favour of the Respondent.  There was no proper evidence in support of the allegation of the Complainant. Yet, they provided the Respondent due opportunity to explain the rationality of her delayed staking of claim, but the latter did not bother to respond to their letter.   Therefore, the impugned order be set aside.  In support of his claim, the Ld. Advocate has referred to a decision of the Hon’ble National Commission in R.P. No. 4749/2013.

Ld. Counsel for the Respondent, on the other hand, has submitted that the insured vehicle got stolen on 29-06-2008.  When initial frantic search for the stolen vehicle met a dead end, an FIR was lodged with Shibpur P.S. on 02-07-2008, u/s 379, IPC.  There was no delay to intimate the matter to the OP Insurance Company.  As it would be evident from the Advocate’s letter dated 16-10-2008, that the incident of theft was reported to the Insurance Company on 01-07-2008 over phone, but they advised her to intimate the matter in writing along with a copy of FIR to that effect.  As she got the copy of FIR on 10-07-2008, immediately thereafter, i.e., on 11-07-2008, the letter of information, along with the copy of FIR, was sent to the Insurance Company through an Advocate. In fact, her husband visited various areas of W. Bengal and Jharkhand, accompanied by police personnel, to trace the stolen vehicle.  There is no dispute as regards theft of the vehicle and therefore, the Insurance Company should not have given precedence to mere technicalities, which is otherwise directory in nature.  There was no intentional laches on her part to intimate the Insurance Company after a gap of 11 days.  In fact, she cannot be held liable for the delayed supply of FIR copy, which the Insurance Company so direly needed to process her claim, at least as she was told by the officials of the Insurance Company.  The Ld. District Forum has very rightly decreed the case after considering all pros and cons of the dispute, which be upheld for the ends of justice.

It is a fact that the claim of the Respondent notwithstanding, there is no proof as regards verbal communication of the incident to the Insurance Company on 01-07-2008 or collection of FIR from the police authority on 10-07-2008.  Also, not in dispute is the fact that the terms and conditions of the policy calls for immediate information to the Insurance Company.  Having said that, it is also a fact that unlike fire or marine insurance policies, or motor accident claims where time is the essence to figure out the actual quantum of loss by causing immediate spot inspection of the place of occurrence, through an expert/Surveyor, in theft related cases, it is the law enforcing authorities of the state, i.e., the police, that remains in the forefront of investigation to try and locate/recover the stolen vehicle and Surveyors/Investigators, deployed by Insurance Company, primarily play second fiddle to the police and their role, for all practical purposes, primarily stands limited to pore over available documents, liaison with concerned authorities, viz., Motor Vehicles Department, Police, Financier and make a report thereof stating their findings.  Against this backdrop, a few days delay on the part of the Insured in intimating such matter, though not desirable, to the Insurance Company hardly makes any difference.  It is our considered opinion that in case of material breach of policy terms and conditions, an Insurer has definite ground to repudiate a claim, otherwise not.  In the case of a theft related case, if there is nothing to suspect the bona fide of a claim, Insurance Company should not act contrary to the spirit of the policy that envisages indemnification of loss arising out of such peril.  We are of view that in case of a theft claim what is relevant and material for adjudicating the claim is whether the theft had indeed taken place or not and whether the occurrence took place within the subsistence of the insurance policy or not. The Appellants have not placed on record any cogent proof to the effect that the incident of theft, as alleged by the Respondent, was a concocted/fabricated fact.  Rather, vide his letter dated 22-07-2008 to the RTA, Tamluk, Mr. Debajit Chakraborty, Investigator deployed by the Appellants reported that, ‘….After  different proceedings carried out by me till date the stolen TATA Sumo Se (sic) vehicle is neither traced out by the police authority nor any clue is reported to have been marked……’.  So, it belies the contention of the Appellants that there was no proper evidence to support the allegation of the Respondent. 

In this regard, the observation of the Hon’ble Supreme Court is worth mentioning.  In the case of National Insurance Company Limited Vs. Nitin Khandelwal, reported in (2008) 11 SCC 259, the Hon’ble Court observed that, ‘In the case of theft of vehicle, breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.’ 

From the factual matrix of the case and also keeping in mind the observation of the Hon’ble Supreme Court, as referred to above, it becomes abundantly clear that by repudiating the claim of the Respondent, the Appellants virtually acted against the spirit of the policy.  By no means, a few days’ delayed intimation to the Insurance Company about a peril in theft related case, as held by the highest Court of the land, can be considered as material and relevant breach of policy condition.  That being so, we find no rationality in the decision of the Appellants to thump down the claim of the Respondent. 

As regards other issues, reiterated by the Appellants in this appeal, we find that the Ld. District Forum has elaborately discussed such issues, findings of which are perfectly in order.  Therefore, we refrain from discussing the same here.  However, we find that the Ld. District Forum has awarded both compensation as well as interest in favour of the Respondent, which is not tenable under the law.  Therefore, the same is modified to the extent that the Respondent is entitled to Rs. 1,16,000/-, being the IDV of stolen vehicle together with interest and litigation cost.

In the result, the appeal succeeds in part.

Hence,

ORDERED

that the appeal be and the same is allowed in part on contest against the Respondent.  No order as to costs.  The impugned order is modified as under.

The Appellants/OPs are liable to pay Rs. 1,16,000/- to the Respondent/Complainant within 40 days from the date of this order along with interest @ 9% p.a. over this amount from the date of filing of instant case before the Ld. District Forum, i.e., 05-04-2013 till full and final payment.  The Appellants shall also pay a sum of Rs. 5,000/- to the Respondent as litigation cost.