JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant, which is appellant in FA No. 449 of 2019 and respondent in FA No. 702 of 2019 is engaged in the business of export and sale of handicraft items. The complainant obtained a policy namely “My Business My Choice” from Tata AIG General Insurance Company Ltd., which is appellant in FA No. 702 of 2019 and respondent in FA No. 449 of 2019. The policy, inter alia, insured the goods kept in the premises of the complainant at 10-11-12 Doctor’s Lane, Gole Market New Delhi against burglary to the extent of Rs 4 crore. During subsistence of the insurance policy, the premises of the complainant was sealed by NDMC on 27.03.2008 in compliance of the directions issued by the monitoring committee of the Hon’ble Supreme Court. The case of the complainant is that despite the sealing it had deployed security guards up to 31.08.2009 to guard the sealed premises. This is also the case of the complainant that the security guards of the other premises in the vicinity were also instructed to keep a watch on the sealed promises. In the night intervening 12-13.02.2010 burglary happened in the premises of the complainant and several articles kept therein were stolen. On the very next day i.e. 13.02.2010 the complainant requested the monitoring committee to de-seal the premises in order to allow him to make an assessment of the loss. Simultaneously, the burglary was also brought to the notice of the concerned police station, though in the absence of details of the loss, the particulars could not be provided at that time. The premises were de-sealed for 3 hours on 08.03. 2010. After de-sealing, it transpired that the temporary plastic shed in the driveway had been broken and so had been the front door of the premises. Several precious articles had allegedly been stolen from the premises. FIR at the concerned police station was lodged on the same day. 2. On intimation being given to the insurer on 20.05.2010, a surveyor was appointed by the insurer to assess the loss. The premises was also desealed on the instructions of the monitoring committee in order to enable the surveyor to inspect the same and assess the loss. The concerned police station, however, filed an untrace report in respect of the FIR which the complainant has lodged. 3. Vide its letter the insurer intimated the complainant as under:- “On the happening of any loss or damage the Insured shall forthwith give notice thereof to the Company and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company. Since the property was uninhabited for more than 2 years, property being sealed by municipal authority, the cover under the policy has ceased as per Exclusion No.2(a) of the Burglary rider attached to the policy that states that This Policy shall cease to attach if the premises shall have been left uninhabited by day and night for seven or more consecutive days and nights while the premises shall have been left uninhabited. Since the material fact of sealing of the property was not disclosed to our underwriter, the policy stands void as per general condition No.1 of the policy that states that This Policy shall be voidable in the event of mis-representation, mis-description or non-disclosure of any material particular. In the light of the above, we regret our inability to consider the claim and are closing the claim from our end. ……….. If no representation/clarification is received by us within 15 days of receipt of this letter, the claim will be finally treated as repudiated on the grounds clearly mentioned in this letter.” 4. Being aggrieved from the non-payment of the claim the complainant approached the concerned State Commission by way of a consumer complaint seeking payment of Rs.41,42,379.80/-. The complaint was resisted by the insurer primarily on the grounds on which the claim had been repudiated. 5. The State Commission vide impugned order dated 08.02.2019 directed the insurer to pay a sum of Rs 41,42,380/- to the complainant along with interest @ 9% p.a. in case the payment was not made within two months. Being aggrieved from the order passed by the State Commission the insurer is before this Commission by way of FA No. 702 of 2019. Since interest was not awarded to the complainant, he is also before this Commission by way of FA No. 449 of 2019. The first question which arises for consideration in these appeals is as to whether the insurance is absolved of its liability solely on account of the loss having not been intimated to it immediately after it was detected. As noted earlier, the burglary came to the knowledge of the complainant on 13.02.2010, though details of the stolen articles came to be known only on 08.03.2010. Immediate intimation to the insurer admittedly was not given even after the details of the stolen articles had been verified on 08.03.2010. It is, however, not in dispute that an FIR with the concerned police station was lodged on 08.03.2010 itself. The copy of the earlier intimation, purporting to be given by the complainant to the concerned police station on 13.02.2010 and purporting to bear the stamp of the concerned police station is available on page 24 of paper book of FA number 449 of 2009 and its authenticity has not been assailed before me. 6. The question as to whether the delay on the part of the insured in intimating the theft to the insurer would be fatal or not in a case where there is no delay in reporting to the police came up for consideration before a Three Judge Bench of the Hon’ble Supreme Court in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr., Civil Appeal No. 653 of 2020 decided on 24.01.2020. In the case before the Hon’ble Supreme Court, a tractor came to be stolen on 28.10.2010. Though an FIR with the concerned Police Station was promptly lodged, the intimation to the insurer was given after 52 days. The insurer having rejected the claim on account of delay in intimating the theft to them, the complainant approached the concerned District Forum by way of a Consumer Complaint. The complaint was allowed by the District Forum and the appeal against its order was dismissed by the State Commission. However, this Commission allowed the Revision Petition preferred by the insurer and dismissed the Consumer Complaint. Being aggrieved, the complainant approached the Hon’ble Supreme Court by way of an appeal. Noticing the conflict between its two earlier decisions, Om Prakash Vs. Reliance General Insurance & Anr. and Oriental Insurance Company Ltd. Vs. Parvesh Chander Chadha, a Two-Judges Bench of the Hon’ble Supreme Court referred the matter to the larger Bench. Answering the reference the larger Bench of the Hon’ble Supreme Court interalia held as under: 15. We find, that the second part of Condition No. 1 deals with the ‘theft or criminal act other than the accident’. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle. 16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen. 18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. 19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. 20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. 7. The submission of the learned counsel for the insurer is that the relevant clause contained in the insurance policy issued by them is somewhat different from the relevant clause which came to be considered by the Supreme Court in Gurshinder Singh(supra). However, in my opinion, there is no material difference in the clause contained in the subject insurance policy and the clause which the Hon’ble Supreme Court considered in Gushinder Singh (supra). What is material is that the clause contained in the insurance policy required the insured to give immediate information of the theft to the insurer. In Gushinder Singh there was substantial delay in intimating the loss to the insurer though there was no delay in reporting the theft to the concerned police station. In the present case also though there is no substantial delay in reporting the theft insurer there is practically no delay in reporting the theft to the concerned police station, the first intimation having been given on 13.02.2010 itself and the FIR having been lodged on 08.03.2010 the day the premises were de-sealed and the stolen articles were verified. Therefore, in my opinion, the decision of the Hon’ble Supreme Court in Gushinder Singh does apply to the present case and, therefore, the delay in intimating the loss to the insurer cannot be a valid ground for repudiation of the claim. 8. The second issue involved in this matter is as to whether the sealing of the premises was required to be intimated by the complainant to the insurer either immediately at the time the premises was sealed on 27.03.2008 or at the time when a renewal of the policy was obtained with effect from 10.04.2009. On a careful perusal of the policy, I am of the considered view that the said clause applies only to the insured voluntarily and of its on volition leaving the insured premises uninhabited day and night for more than 7 days. The use of the words “left uninhabited” at two places in the element clause is a clear indicator that there was an embargo on the insured leaving the premises uninhabited day and night for 7 or more consecutive days and nights. The embargo placed upon the insured obviously, in my opinion, would not apply to an involuntary act such as the sealing of the insured premises under the orders of law enforcement agency such as the monitoring committee appointed by the Hon’ble Supreme Court. The purpose of the aforesaid embargo on the insured, in my opinion, is to ensure that the insured does not by his negligence increase the risk by leaving the premises and uninhabited for 7 days or more. But when the premises remained uninhabited on account of a third party act without the insured being responsible for such uninhabitation the afore-said clause, in my opinion, would not apply. Therefore, the non-payment of the claim on account of the premises having remained unoccupaied and uninhabited for more than 7 days and nights will not be justified. 9. As regards the alleged misrepresentation, admittedly no fresh proposal was obtained from the complainant while renewing the insurance policy with effect from 10.04.2009. The clause, referring hereinabove did not apply to the present case. No other clause requiring such a disclosure at the time of obtaining renewal of the policy or otherwise has been brought to my knowledge. Therefore, the non-payment of claim, in my opinion, was wholly unjustified. 10. It transpired during the course of arguments that no assessment of the loss to the complainant was made by the surveyor. The State Commission allowed the entire claim made by the complainant without any such assessment. That, in my opinion, could not have been done without a fair assessment of the loss. It would, therefore, only be fair and reasonable to direct the insurer to get the loss of the complainant assessed by an appropriate surveyor, preferably the same surveyor, who had inspected the premises of the complainant after considering the documents already submitted by the complainant along with any additional documents with the complainant may submit in support of its claim. 11. The appeal and the consumer complaint are, therefore, disposed of in terms of the following directions:- (a) The insurer shall convey to the complainant, within four weeks from today, the additional documents required by it for the purpose of assessing the loss to the complainant. The documents so required by the insurer, to the extent they are available with the complainant, shall be provided within next four weeks. (b) The loss shall then be assessed by the surveyor on the basis of the documents available to him. If no additional documents are made available by the complainant the surveyor shall make best judgment assessment on the basis of the documents available to him. (c) The amount of loss assessed by the surveyor in terms of this order shall be paid to the complainant within 3 months from such assessment along with interest on that amount @ 9% p.a. with effect from 6 months from the date of submission of the claim till the date on which the payment is made. (d) In the facts and circumstances of this case there shall be no order as to costs. | 
