FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the Consumer Protection Act, 1986.
Brief stated, the facts of the case are :–
Complainant had purchased a TVS Two Wheeler Motor Cycle bearing registration No. WB46A6470 from OP-1 which he insured with OP2 Insurance Company. Complainant had kept the Motor Cycle in his house premises and found the same was missing in the morning of 10.05.2016. Complainant, after search, reported the incident to Nalhati Police Station by lodging FIR on 14.05.2016. On the basis of FIR, police registered a case and took up investigation. On completion of investigation police submitted charge sheet but theft motor cycle could not be traced. Thereafter, complainant gave the information regarding theft of the motor cycle to the OP2/Insurance Company on 18.05.2016. OP2 repudiated the claim of the complainant on the ground of delayed information. Aggrieved by the letter of repudiation, complainant filed the present consumer complaint.
OP1 despite service of notice of the complaint has failed to file Written Version within the limitation provided under section 13(2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time to file Written Version is made. Therefore, right of OP1 to file WV is closed vide proceedings dated 28.01.2019. OP1 even did not choose to file any application to set aside the ex-parte order dated 28.01.2019.
OP2 after being served of notice, filed its Written Version stating that the claim of the complainant has rightly been repudiated on the ground that there is a delay of 07 days in reporting the theft of motor cycle, which deprived the answering OP of its right to investigate the matter and that the complainant has violated the condition No.1 of the Insurance Policy. Thus, denying all the allegations of deficiency in service, the answering OP has prayed for dismissal of the complaint.
Both parties have filed their evidence by way of affidavit. They have also filed their Brief Notes of Arguments. We have carefully considered the arguments advanced by the Learned Advocate for the parties and examined the pleadings of the parties.
Learned Advocate for the complainant vehemently argued that repudiation of the claim of the complainant by the OP2/Insurer is illegal, improper and contrary to the terms of the Insurance Policy. Learned Advocate further submitted that if the reason for delay in masking a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. The acts of the OPs are tantamount to deficiency in service. Submission of Learned Advocate appearing on behalf of the complainant that in view of ruling reported in CDJ 2017 SC 1120 titled Om Prakash –Versus- Reliance General Insurance & Another, present consumer complaint filed by the complainant be allowed accordingly.
Per contra, Learned Advocate for the OP2/Insurer argued that the complainant made a serious breach of policy condition No. 1 and did not intimate the Insurance Company immediately after having knowledge of the theft. He further submitted that OP2 rightly and legally repudiated the claim of the complainant and there is no negligence and/or deficiency in service on the part of the OP2. Learned Advocate for the Insurer has placed Reliance in an order dated 09.12.2009, passed by the Hon’ble National Commission in New India Assurance Company Limited –Versus- Trilochan Jane in which Hon’ble National Commission on the basis of decision of Hon’ble Supreme Court in the case of United India Insurance Company Limited –Versus- M/s. Harchand Rai Chandan Lal reported in JT 2004(8) SC 8 held that the terms of the policy have to be construed as it is and nothing can be added or subtracted from the same. Learned Advocate for the OP2 further argued that delay in reporting to the insurer about the theft of the motor cycle for 09 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commission of theft and to trace/help in tracing the motor cycle. Thus, the present consumer complaint is liable to be dismissed with exemplary costs.
It is not disputed that the complainant had purchased a TVS two wheeler motor cycle having Engine No. 0E4FF2793387, Chassis No. MD634KE48F2F58423 from the OP1 Friend’s Automobiles on 20.08.2015 and the said motor cycle was insured with OP2 IFFCO-TOKIO General Insurance Company Ltd. under policy No. 94256293. Policy was valid for the period from 29.09.2015 to midnight of 28.09.2016 and the TVS Two wheeler Motor Cycle in question was stolen from the courtyard of the complainant in the night of 10.05.2016. Consequently, an FIR was lodged on 14.05.2016, in police station Nalhati, District - Birbhum, u/s 379 IPC. Complainant lodged claim to the OP2 on 18.05.2016. After receiving claim, OP2/Insurer vide letter dated 06.06.2018 repudiated the claim on the ground that there is delay in reporting the theft as well as non compliance of the general condition no. 1 of the Insurance Policy.
Condition no. 1 of the Insurance Policy states that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require, in case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
On perusal of para – 3 of the consumer complaint we find that, complainant has categorically stated that he searched the motor cycle in question in the locality as well as local garages and also enquired with his friends and relatives but could not trace out the motor cycle.
It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The claim of the complainant was kept pending for about two years. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found correct by the police. It is further be noted that in course of investigation police failed to trace out and/or recover the motor cycle in question and charge sheet has been submitted as a prima facie charge u/s 379/411 IPC well established against the arrested accused Babar Ali. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that Consumer Protection Act aims at proving better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.
We find that the decision cited by the learned Advocate for the complainant reported in CDJ2017 SC 1120 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 the above cited decision the Hon’ble Supreme Court has rightly held that merely delay in intimating the insurance company about the theft of the motor cycle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
We therefore, hold that when an insured has lodged FIR immediately after the theft of a motor cycle occurred and when the police after investigation have submitted charge sheet as the motor cycle is not traced, then the claim of theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be ground to deny the claim of the insured. We, therefore, answer the reference accordingly.
The decision cited by the Learned Advocate for the OP2/Insurer is not applicable in view of the cited decision of the Hon’ble Supreme Court reported in CDJ 2017 SC 1120 (Om Prakesh –Vs- Reliance General Insurance & Another).
Based on the above discussion, the present consumer complaint is partly allowed with the following directions:-
- That the OP2 is directed to refund an amount of Rs. 73,040/- to the complainant.
- That the OP2 is also directed to pay a compensation of Rs. 10,000/- to the complainant.
- The payments in terms of this order shall be paid within 60 days from today.
Parties to bear their own costs.
Copy of this judgment be provided to the parties as mandated by the Consumer Protection Act. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
