1.         The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 58(1)(b) of Consumer Protection Act, 2019, against the order dated 19.06.2023 of the State Consumer Disputes Redressal Commission, Orissa (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 132/2023 in which order dated 03.02.2023 of District Consumer Disputes Redressal Commission, Cuttack (hereinafter referred to as District Commission) in Consumer Complaint (CC) No. 113/2021 was challenged, inter alia praying for setting aside the impugned judgment and final order dated 19.06.2023 passed by the State Commission in FA 132/2023.

2.         While the Revision Petitioner (hereinafter also referred to as Complainant) was Respondent before the State Commission and Complainant before the District Commission and the Respondents (hereinafter also referred to as Opposite Parties) were Appellants before the State Commission and Opposite Parties before the District Commission.

3.         Notice was issued to the Respondents on 15.12.2023.  Parties filed Written Arguments on dated nil and 07.02.2024 respectively. 

4.         Brief facts of the case as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:

On 14.05.2014, the Complainant/Petitioner herein availed loan for the purpose of earning his livelihood by means of self-employment from Magma Financer for purchasing a truck Model-Ashok Ley, which was insured with Respondent-1.  The policy was valid from 14.05.2014 to 13.05.2015 and Respondent-2 is registered under the Companies Act, 1956.  On 05.02.2015, the complainant engaged a Driver Kalandi Mallick, who took the said vehicle from Jharsuguda to Dehenkanal carrying Ultra Cement for delivery at Dumpyard.  The driver reached at Dehenkanal on 05.02.2015.   On 09.02.2015 the vehicle was found missing and FIR was lodged by the helper on 09.02.2015.  After knowing such fact from the helper, the Petitioner/Complainant after being unable to trace out the vehicle, intimated the Police regarding the loss of the vehicle on 09.02.2015  before the Office I/c, Dhenkanal Police Station and FIR No. 34/2015 was registered and intimated to the State Transport Authority for necessary steps.  The driver of the vehicle was arrested.  On 11.02.2015, the Petitioner/Complainant intimated the said fact to the Respondent-1 Insurance Company regarding loss/theft of the vehicle and lodged Claim with Insurance Company.  The Respondent-1/Insurance Company vide letter dated 12.02.2015 communicated to the petitioner/complainant should give the information in writing or through telephonic message about the theft of the vehicle within 24 hours of the theft for which they would be able to depute investigator to investigate the same immediately, but the petitioner failed to inform the same in time and requested thereunder to give them the reason of late intimation. The investigating officer of Dhenkanal town P.S. submitted a preliminary charge sheet of the G.R. Case No. 146/2015 corresponding to Dhenkanal P.S. Case No. 34 dated 09.02.2015 before the S.D.J.M. Dhenkanal. Though the petitioner submitted all the necessary and relevant documents to the Respondent-1 regarding the claim of the Petitioner’s vehicle, but Respondent-1 refused to settle the claim on the ground that the driver being accused and has been charge sheeted u/s 379/406/407/419/120(B) of IPC. On 06.04.2016, the Complainant approached the Ombudsman seeking a direction to the Insurance Company to settle the claim.  The said complaint was refused and returned to the complainant.  Hence, the complainant filed consumer complaint before the District Forum.

5.         Vide Order dated 03.02.2023, in the CC No. 113/2021 the District Commission allowed the complaint and passed the order as follows:

   “The case is decreed on contest against the OPs who are found to be jointly and severally liable here in this case.  Thus, they are directed to pay the insured amount of Rs.8,00,000/- together with interest thereon @12% per annum to the complainant from the date of filing of this case i.e. from 30.07.2021 till the total amount is quantified.  The OPs are further directed to pay a sum of Rs.3,00,000/- only to the complainant towards his mental agony and harassment and a sum of Rs.50,000/- towards cost of his litigation within a period of 30 days from the date of receipt of copy of this order.”

6.         Aggrieved by the said Order dated 03.02.2023 of District Commission, the OPs/Insurance Company appealed in State Commission and the State Commission vide order dated 19.06.2023 in FA No. 132/2023 allowed the appeal and set aside the order passed by the District Forum.

7.         Petitioner/Complainant has challenged the said order dated 19.06.2023 of the State Commission mainly on following grounds:

i)            The State Commission failed to consider that the pretext of reporting the incident immediately upon theft being committed is not specified in the Policy.

ii)           The State Commission failed to consider that the claim of the complainant cannot be cancelled on the ground that the complaint is filed after six years of the repudiation of his claim.

iii)         The State Commission failed to consider that the complainant was seeking criminal remedies vis-à-vis the claim repudiated by the respondents which took a lot of time to file the complaint by the complainant.

iv)          The State Commission failed to consider that as soon as the complainant got the information of theft from the helper on 09.02.2015, the complainant first made a query on the vehicle and then he immediately lodged an FIR in local P.S. and thereafter made a complaint to Respondent No.1/insurance company.  As reported in 2018 (1) CPR (NC) 332 in the matter of Insurance Co. Ltd. versus Jaan Mohd. (Rejection of claim by Insurance Company only on stated ground of delay is absolutely unjustified).

v)           The State Commission failed to consider that the claim of the complainant cannot be repudiated on the ground the consumer intimated them after a long time.  In Jaina Construction Company v. The Oriental Insurance Co. Ltd. & Anr. 2022 SCC OnLine SC 175, the Hon’ble Supreme Court held that the insurance company could not have repudiated the claim merely on the ground that the consumer intimated them about the theft, after a long period of time.

8.         Heard learned counsel of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1       In addition to the averments made under the grounds (para 7), the petitioner contended that the Petitioner/Complainant availed a loan for the purpose of earning his livelihood by means of self-employment from “Magma Financer” for purchasing a truck, which was insured with Respondent-1.  The Policy was valid from 14.05.2014 to 13.05.2015.  The complainant engaged a driver for his vehicle.  On 09.02.2015 the vehicle was found missing and the complainant searched throughout the town of Dhenkanal and being unable to trace out the vehicle, intimated to the Police regarding the loss of the vehicle before officer-in-charge, Dhenkanal Police Station on 09.02.2015. FIR was also registered.  The driver was arrested but complainant’s truck bearing No. OR-05AC-9477 is neither recovered nor traced out.  The complainant intimated the insurance company/Respondent-1 on 11.02.2015 regarding loss/theft of the vehicle and lodged claim with the insurance company.  It is further contended that the concerned investigating officer of Dhenkanal town P.S. submitted a preliminary charge sheet of the G.R. Case No. 146/.2015 corresponding to Dhenkanal P.S. Case No. 34 dated 09.02.2015 before the S.D.J.M., Dhenkanal.  The petitioner submitted all the necessary and relevant documents before the Respondent-1 regarding the claim of the petitioner’s vehicle, but the insurance company refused to settle the claim of the petitioner on the plea that the vehicle was stolen by the driver accused and has been charge sheeted to face trial in the Court of Law and absolve their liabilities arising out of the theft.  It is also contended that the vehicle was insured for an amount of Rs.8,00,000/- which covers the loss by theft and the insurance cover was  effected on 14.05.2014 to 13.05.2015 and the incident happened during subsistence of insurance. FIR pertaining to theft of the vehicle was lodged, and law is well settled that even if the driver has taken away the vehicle, comes in the category of theft as defined in the Section 379 I.P.C., which envisages that whoever intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft, and the insurance company is not disputing about the theft, the theft has got no nexus with the breach of the policy, and is liable to get compensation. It is further contended that the complainant approached the Ombudsman, who refused the complaint. It is also contended that the claim of the complainant cannot be cancelled on the ground that the complaint is filed after 6 years of he repudiation of his claim. 

8.2       On the other hand Respondent-1 contended that the Petitioner had reported the matter about the missing of his truck to the Respondent on 11.02.2015.  The Respondent, after scrutinizing the documents pertaining to the said matter, repudiated the claim vide letter dated 29.03.2015 on the ground that  as per the Insurance Policy Conditions, the loss/theft of the vehicle should be intimated immediately, so as to enable the insurance company to take steps for recovery of the vehicle and to depute investigator and the Surveyor immediately.  In the present case, the claim was lodged with the Insurance Company after 6 days from the occurrence of the loss and with the Police after 4 days, hence there is a breach/violation of terms and conditions of the Insurance Policy.   The complainant filed complaint before the District Forum on 30.07.2021.  In the said complaint, the cause of action has been stated in para No. 7 and the Para No. 8 is the Petitioner’s claim and the Para No. 9 deals with the Pecuniary and Territorial Jurisdiction and Para 10 deals with the Complaint within the time prescribed period. It is further contended that the Respondent filed Written Statement da ted 28.01.2022 and had taken objections to the Complaint in Para No. 4,8,13,15 and 20. It  is also contended that the Complainant has stated that his limitation will start from the filing of the Charge-sheet, hence the complaint is within period of limitation, which is a wrong proposition of law.  The District Forum ought to have considered that for condoning the delay in filing the complaint after the prescribed period as stipulated in the Consumer Protection Act, a sufficient cause for not filing the complaint within the period prescribed u/s 69 of the Consumer Protection Act, 2019 ought to have assigned.  In the present case, same has not been done by the District Forum. In the order dated 03.02.2023, the District Commission has held that the complaint has been filed within two years of filing of the chargesheet in the court, thus, the issue goes in favour of the complainant, which is wrong, incorrect and illegal.  The law does not provide that the complaint can be filed within two years of the filing of the charge-sheet.   The limitation for filing the consumer complaint is two hears from the date of loss or at the most the date of repudiation of the claim.  The District Commission has wrongly and illegally allowed the complaint.  The State Commission has allowed the appeal filed by the Insurance Company and has set aside the judgment passed by the District Forum.  In support of its contentions, that the complaint filed by the complainant is barred by limitation, the Insurance Company has relied upon the judgments in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (011) CPJ 63 (SC).  With respect to the late reporting/informing of the missing insured vehicle to the Police as well as to the Insurance Company, the Respondent relies upon the judgment of Hon’ble Supreme Court in Gurshinder Singh v. Shriram General Insurance Company Limited and Another, (2020) 11 SCC 612.  With regard to the contention that the limitation for filing the Consumer Complaint starts from the date of incident/loss or at the most from the date of the Repudiation Letter, the Respondent relies upon the following judgments of Hon’ble Supreme Court:

i)         Sidramappa v. Rajashetty and Ors., 1970 (1) SCC 186.

ii)        State Bank of India v. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC)

iii)       Sigma Diagnostics Ltd. v. United India Insurance Co. Ltd. and Anr., III (2009) CPJ 75 (SC).

iv)       National Insurance Co. Ltd. v. Biswadeb Koley and Others, II (2020) CPJ 104 (NC).

v)        Chetanbhai Pravinchandra Shah v. Hotel Shyam Lodge and Others, IV (2023) CPJ 67 (NC).

9.         Challenge is to order dated 19.06.2023 of the State Commission vide which appeal filed by the respondent Insurance Company herein was allowed, order of the District Forum was set aside and complaint was dismissed on account of limitation. While the case of the petitioner herein is that the District Forum has condoned the delay by stating that the claim of the complainant was repudiated by OP-1 on 29.03.2016 on the ground of delayed information, stating further that in this case the police had submitted charge sheet in the court on 05.09.2019. The case was filed before the District Forum on 30.07.2021. Hence the District Forum rejected the objection of the OP that the case is barred by limitation. The repudiation in the present case was issued on 29.03.2016 on following ground: “3. We are closing your claim file on account of the following reason: Closed – Repudiated As the driver accused and has been charge sheeted under section 379/406/407/419/120 (B) of IPC to face trial in the Court of Law.” While the petitioner claims that the charge sheet was filed on 05.09.2019 and the same is seen recorded in the order of the District Forum as well, during the hearing, learned counsel for Insurance Company was not in a position to categorically state as to whether the charge sheet was filed on this date or any other date, he has simply drawn our attention to the final form at page 69E-69I but he still did not want to categorically state whether the date when this form is signed by the police officer represents the date of filing of the charge sheet before the court.

10.       As has been held by the Hon’ble Supreme Court in catena of judgments[1], the Insurance Company cannot travel beyond the reasons stated in the repudiation letter.  Hence, the point for consideration in the present case is whether the reason for repudiation stated in the repudiation letter dated 29.03.2016 that “as the driver is accused and has been charge-sheeted U/s 379/406/407/407/419/120(B) IPC to face trial in the court of law” is justified for repudiation and that whether State Commission has reversed the order of District Forum and allowed the appeal on valid reasons.

11.       Before the District Forum, OP had contested the claim on the ground of limitation, contending that claim was repudiated by letter dated 29.03.2016 but the case before District Forum was filed on 30.07.2021, which is after a lapse of 5 years of cause of action.  They had also argued that loss/theft was not intimated to the Insurance Company immediately.  The District Forum, observing that in this case, the police had submitted charge-sheet in the court on 05.09.2019 and case was filed before the District Forum on 30.07.2021, hence the case before the District Forum is not barred by limitation, as complainant has filed the case within 2 years of filing the charge-sheet in court as he was waiting for the outcome of the police investigation.  Relying on judgment of Hon’ble Supreme Court in Jaina Construction Company Vs. The Oriental Insurance Co. & Anr., the District Forum rejected the contention of Insurance Company about delay in intimation to the Insurance Company. Further, relying on the judgment in Kashi Prashad Cotton Pvt. Ltd. Vs. Kamala Devi Kanhaiya Lal Shriwagi and Punjab Urban Development Authority & Ors Vs. Gurjinder Singh (2002) 3 CPR (NC) 122, District Forum observed that if there is pardonable excuse even long duration can be condoned and that if Complainant is able to satisfy that he had sufficient cause, delay can be condoned.  District Forum held OP deficient in service and allowed the complaint.  In appeal filed by the Insurance Company, State Commission disagreeing with the decision of District Forum, allowed the appeal.  Extract of relevant paras of orders of State Commission is reproduced below:

“9. It is admitted fact that the complainant insured the vehicle under the O.P. It is also admitted fact that the vehicle was driven by one driver but on 09-02-2015 the helper of the said truck reported to the complainant about missing of the said truck and after that he lodged FIR at Dhenkanal PS. It is also admitted fact that the matter was not informed in-time and delay has not been explained with rational reason. Hon'ble Apex court in the above Gurusinder Singh case (Supra) categorically held that information to be given immediately for compliance of terms and conditions of policy but here reports for delay states violation of terms and conditions of policy.

10. So far the case is barred by limitation it appears from the order sheet dated      09-02-2021 of DFR that the petition is filed to condone delay. It was considered but no reason assigned when O.P repudiates the claim on 29-03-2016 and the case was filed on 30-07-2021, No plausible reason is given to condone delay. It is barred by time.”

12.       From the above, it is seen that State Commission has not given any valid reasons for reversing the decision of District Forum in condoning the delay.  District Forum has recorded valid reasons for condoning the delay.  The case of Complainant was closed by the Insurance Company on the ground of arraying of driver as accused and his charge-sheeting.  This in itself is not a valid reason for repudiation.  If the incident of theft is established and claim is coverable under the policy and there is no violation of policy terms & conditions. While the Complainant claimed that charge-sheet was filed on 05.09.2019 and same is recorded in the order of District Forum as well, during the hearing on 09.05.2024, learned Counsel for Insurance Company was not in a position to categorically state as to whether the date when this form was signed by the police officer represents the date of filing the charge-sheet before the court.  We have seen the Final Form (U/s 173 CrPC) available in the records filed in the Court of S.D.J.M. Dhenkanal.  The document bears the dates when the concerned Investigating Officer signed this report, but does not reflect as to on which date the charge-sheet was filed in the Court.  The true copy of this document is seen certified by the Sheristadar of Civil Courts, Dhenkanal on 31.10.2019. 

13.       In view of the foregoing, we are of the considered view that State Commission went wrong in reversing a well-reasoned order of the District Forum without any valid reasons/justification, hence the order of the State Commission cannot be sustained.  Accordingly, we allow the Revision Petition, set aside the order of the State Commission and restore the order of the District Forum.

14.       The pending IAs in the case, if any, also stand disposed off.