PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, he is the owner of Auto Rickshaw bearing No.MH-02-RA-6999.  It was insured with the O.P.No.1.  He parked his rickshaw on 12^th June, 2013 opposite Banarasi Hotel, Santacruz, Mumbai.  On 13^th June, 2013, he saw that his rickshaw was not there.  He visited the police station but the police asked him to search and come after few days.  On 20^th June, 2013, he again went to the police station and registered the F.I.R. at Vakola Police Station.  He has complied all the procedure but the O.P.No.1 repudiated the claim. Therefore, he has filed this complaint for recovery of insurance claim of Rs.80,000/-. He has also claimed compensation of Rs.50,000/- for mental agony and legal expenses of Rs.20,000/-.

2)                The O.P.No.1 appeared and filed written statement.  The policy is admitted.  It is submitted that the alleged theft took place on 13^th June, 2013 and the police complaint was lodged on 20^th June, 2013 i.e. after seven days.  The O.P.No.1 was informed on 1^st July, 2013 i.e. after seventeen days.  The complainant committed breach of policy conditions.  Therefore, he is not entitled for the relief as prayed. 

3)                The O.P.No.2 appeared but failed to file written statement therefore, the matter was proceeded without written statement of the O.P.No.2.

4)                After hearing the argument of the complainant and the O.P.No.1 and after going through the record, following points arise for our consideration.

POINTS

REASONS

5) As to Point No.1 & 2 :- There is no dispute that the policy was valid on the day of alleged theft.  The alleged theft took place on 13^th June, 2013 and the police complaint was lodged on 20^th June, 2013 i.e. after seven days.  The O.P.No.1 was informed on 1^st July, 2013 i.e. after seventeen days.  According to the complainant, he visited the police station on the same day but the police asked him to take search for few days.  There is no evidence on record to that effect.  As per evidence on record, the police complaint was lodged seven days after the incident and the insurance company was informed seventeen days after the incident.  As per policy conditions, it was necessary to inform the police station and the insurance company immediately after the incident.  Thus, there is apparent breach of policy conditions.  The learned advocate for the complainant has drawn our attention to the Circular dated 20^th September, 2011 issued by the IRDA and submitted that as per this Circular, the insurance company should not repudiate the claim merely on technical grounds.  He has also placed reliance on the judgment of Hon’ble State Commission, Haryana in First Appeal No.162 of 2014 in the case of National Insurance Company Limited –Versus- Avtar Singh, decided on 13^th March, 2014.  In that judgment, the complainant approached the police station immediately and lodged the police complaint but F.I.R. was not registered. In the instant complaint before us, there is no evidence on record to show that the complainant approached the police station immediately.  The learned advocate for the complainant has further placed reliance on the judgment of Hon’ble National commission in Revision Petition No. 3572 of 2011, in the case of Reliance General Insurance Company Limited –Versus- Sri Avvn Ganesh, decided on 29^th November, 2011.  In last para of judgment, the Hon’ble National Commission has held as under :

Therefore, unlike in cases of theft of movable insured property, the delay in intimation was not prejudicial to the insurance company in that it was not prevented, because of the delay, from carrying out any investigation into the facts and circumstances leading to the insurance claim to satisfy itself if the “accident” and consequent “loss” fell within the (other) substantive conditions of the insurance policy.

In this judgment itself, the Hon’ble National Commission has excluded the cases of theft.  On the other hand, the learned advocate for the O.P.No.1 has placed reliance on the recent judgment of Hon’ble National Commission in Revision Petition No.542 of 2015, in the case of Jay Madhav Jha –Versus- United India Insurance Company Limited, decided 4^th August, 2015. In this judgment, the Hon’ble National Commission has upheld the earlier judgment of the Hon’ble National Commission in First Appeal No. 321 of 2005 in the case of ‘New India Assurance Company Limited –Versus- Trilochan Jane’ decided on 9^th December, 2009. It that judgment, the Hon’ble National Commission has observed as under :

Para 4. We have given our anxious consideration to the above submissions.  The question as to whether the insured can be said to have committed the breach of the terms and conditions of the policy in giving intimation after some delay i.e. delay of two days of the theft of an insured vehicle has been considered by this Commission in First Appeal No. 321 of 2005 titled as ‘New India Assurance Company Limited Versus Trilochan Jane’ decided on 09.12.2009, where on taking note of delay of two days, Commission held as under:

“Learned counsel for the respondent, relying upon the Judgment of Hon’ble Supreme Court in National Insurance Company Limited Versus Nitin Khandelwal reported in (2008) 11 SC 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 the terms of 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 two 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 kabadi (scrap dealer).

In our view, the State Commission erred in holding that the respondent/ complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time.  We are not going into the other question regarding violation of Condition No.5 of the Insurance Policy as we have non-suited the respondent/complainant on the first ground.”

In the instant complaint before us also, there was delay in lodging police complaint and giving intimation to the insurance company.  In view of the abovesaid law laid down by the Hon’ble National Commission, if there is delay in giving intimation to the insurance company, the complainant is not entitled for the insurance claim.  In the instant complaint before us, intimation was given to the insurance company seventeen days after the theft and to police station seven days after the theft thereby the complainant has committed breach of terms of the policy.

6)                Thus, the facts before us are identical to the facts in the case of Jay Madhav Jha before the Hon’ble National Commission.  Therefore the law laid down by the Hon’ble National Commission in that revision petition is applicable to the present complaint before us. Apparently, there is breach of policy terms and conditions. There was delay of seven days in lodging police complaint and seventeen days in giving intimation to the insurance company. Applying the ratio laid down in the abovecited judgment of the Hon’ble National Commission, the present complainant is not entitled for the relief as claimed.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced on 30^th November, 2015