Per Justice Sham Sunder , President This appeal is directed against the order dated 6.9.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant (now appellant). 2. The complainant got his Tata Indigo car bearing Registration No.CH-03-X-2287 insured from OP Nos.1 & 2, for the period from 7.7.2008 to 6.7.2009, vide Cover Note annexure C1, for the Insured Declared Value of Rs.3,40,000/-. It was stated that on 19.12.2008, the complainant parked his car near Palika Market, Phase 11, Mohali. On the next morning, when the complainant got up, he found the car missing. It was further stated that the complainant made enquiries about the whereabouts of his car, from the neighbourhood, but to no effect. Ultimately, the complainant reported the matter to the police. After making enquiries and verification, the police registered F.I.R. No.227 on 25.12.2008, and subsequently issued non-traceable report. On 11.6.2009, the complainant lodged claim with OP Nos.1 & 2, and submitted all the necessary documents. It was further stated that the claim was not settled by the OPs, despite repeated visits of the complainant, and issuance of legal notice on 03.02.2010. It was further stated that the aforesaid act of the OPs, in repudiating the claim of the complainant, on flimsy ground of delayed lodging of the FIR and belated filing of claim, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him. 3. OP Nos.1 and 2, in their reply, admitted that the car, in question, was insured with them, for the period from 07.07.2008 to 06.07.2009 having insured declared value of Rs.3,40,000/-. It was stated that though the car was stolen, during the night intervening 19/20.12.2008, yet intimation regarding theft was given to the police on 25.12.2008, and the claim was lodged with the Insurance Company after a long delay on 11.6.2009 . It was further stated that the complainant was asked to provide the documents, to prove that he had informed the police immediately after the theft took place, but he failed to do so. It was further stated that the complainant was not entitled to be indemnified for the alleged loss, in view of the terms and conditions of the Policy. It was denied that there was any deficiency, in rendering service, on the part of OP Nos.1 & 2. 4. OP No.3, however, did not put in appearance, despite due service and, as such, it was proceeded against ex parte. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum came to the conclusion that the complainant violated the terms and conditions of the Insurance Policy, by not intimating the Police, and Insurance Company immediately, after the theft of the car, so, he was not entitled to be indemnified for the loss, and dismissed the complaint. 7. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant. 8. We have heard the Counsel for the appellant , and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the appellant, submitted that the appellant, immediately informed the police after loss/theft of the car, aforesaid, but it (police) did not record the FIR and, as such, there was delay in recording the same. He further submitted that, under these circumstances, there was no fault, on the part of the complainant, to lodge the FIR, immediately after the theft. He further submitted that the loss was also reported to the OPs, immediately, after the theft was committed, for the settlement of claim. He further submitted that, even if, it is assumed that the report of loss, to the respondents, was made at a belated stage, that did not mean that they (OPs) were not liable to indemnify the complainant, as the vehicle, in question, was fully insured. He further submitted that the District Forum, came to the wrong conclusion, that the repudiation of claim of the complainant, by the OPs, was legal and valid. He further submitted that the OPs were deficient, in rendering service, and indulged into unfair trade practice. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 10. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainant got insured his Tata Indigo Car with respondent Nos.1 & 2, for the period from 7.7.2008 to 6.7.2009 vide insurance policy C-1. There is hardly any dispute, that the said car was stolen, on the night intervening 19/20-12-2008. Annexure C-2, is a copy of FIR No.227 dated 25.12.2008. It means that the FIR was got registered after five days of the theft of the car. Annexure C4 is a copy of the application dated 11.6.2009 vide which the complainant lodged the insurance claim, with the Insurance Company and submitted necessary documents. The claim was, thus, lodged after about 6 months of the theft of vehicle. There is nothing, on record, that a written intimation was given by the complainant, to the police, immediately after the theft of the car, but the police did not register the FIR, on the basis thereof. Had there been any copy of such an application, on record, the matter would have been different. So, under these circumstances, it can very well be said that the complainant lodged the report only on 25.12.2008 i.e. after 5 days of the theft of car. No evidence was produced by the complainant, to prove that the intimation was given to the OPs, regarding the theft of car either immediately after the loss thereof, or much before 11.6.2009. In these circumstances, we are required to see, as to whether, there was breach of any condition of the policy, and, if so, what were the consequences thereof. The conditions contained in policy R-6 under the heading “DEDUCTIBLE” , read as under ; “DUDCTIBLE The Company shall not be liable for each and every claim under Section-1 (loss of or damage to the vehicle insured) of this Policy in respect of the deductible stated in the schedule. CONDITIONS This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear. 1. Notice shall be given in writing to the Company immediately upon the occurrence of any accident 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. Every letter claim writ summons and/or process shall be forwarded to the Company immediately on receipt by the Insured. Notice shall be given in writing to the Company immediately the insured shall have knowledge of any impending. Prosecution Inquest Fatal Injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act, which may be subject of 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.” 11. The plain reading of Condition No.1, extracted above, clearly goes to show, that a notice shall be given, in writing, to the Company, immediately, upon the occurrence of any accident, or loss or damage, in the event of any claim, and, thereafter, the insured shall give all such information and assistance as the Company shall require. Under the heading ‘deductible’ it is in clear-cut terms, provided, that the Company shall not be liable for each and every claim under Section-1(loss of or damage to the vehicle insured) of the Policy in respect of the deductible, stated in the schedule. There was certainly a breach of the aforesaid condition of Policy R-6. It is settled principle of law, that the Consumer Foras are required to construe the terms and conditions of the Policy as it is, and nothing can be added or subtracted therefrom. Similar principle of law, was laid down in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8. 12. Since there was violation of Condition No.1 of the Policy, as stated above, now let us see, as to what were the consequences thereof. In New India Assurance Company Ltd. Vs Trilochan Jane, First Appeal No.321 of 2005 decided on 9.12.2009 by the National Consumer Disputes Redressal Commission, a similar question, fell for decision. In that case also, there was condition No.1 in the policy, similar and identical to condition No.1, in the instant case. While accepting the appeal, holding the repudiation of the claim, by the Insurance Company, as valid, and setting aside the order of the Fora below, the National Commission held as under ; “Word ‘immediately’ has not been defined under the Act. Resort has to be made to the dictionary meaning assigned to it. As per Oxford Advanced Learner’s Dictionary, the word ‘immediately’ means ‘at once’. As per Stroud’s Judicial Dictionary, Fifth Edition, word ‘immediately’ is defined as under: - (1). “The word “immediately”, although in strictness it excludes mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing”. As per Black’s Law Dictionary, Sixth Edition, word ‘immediately’ means: - “Immediately. Without interval of time, without delay, straightway, or without any delay or lapse of time. When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of the circumstances of the case”, although strictly, it means, “not deferred by any period of time. The words “immediately” and “forthwith” have generally the same meaning. They are stronger than the expression “within a reasonable time” and imply prompt, vigorous action without any delay.” According to Mitra’s Legal and Commercial Dictionary, Fifth Edition word ‘immediately’ is defined as under: - “Immediately. “Immediately” is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsbury’s Laws of England, 4th Ed. Vol. 23, para 1618, p. 1178. The word ‘immediately’ is stronger than the expression ‘within a reasonable time’, and imply prompt, vigorous action, without any delay. It means all convenient speed. The word ‘immediately’ should not be construed so as to require doing something which is impossible.” As per Oxford Advanced Learner’s Dictionary, the word ‘immediately’ means ‘at once’ whereas Stroud’s Judicial Dictionary, Fifth Edition, word ‘immediately’ in the context of contract has to be taken as reasonable requisite time for doing the thing. As per Black’s Law Dictionary, Sixth Edition, word ‘immediately’ means doing of a thing straightway or forthwith but when used in the context of contract, it is usually construed to mean “within a reasonable time having due regard to the nature of circumstances of the case”. More or less to the effect, is the same meaning assigned in Mitra’s Legal and Commercial Dictionary, Fifth Edition. Since, in the present case, there was a contract between the insured and the insurer and, the word ‘immediately’, under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 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 the theft and to trace/help in tracing the vehicle.” 13. In the aforesaid case, there was a delay of two days, in lodging the FIR, and 9 days in reporting the loss. Even, in those circumstances, the National Commission, in clear-cut terms, held that since, there was violation of Condition No.1 of the Policy, as the insurer was deprived of the valuable right to investigate, as to the commission of theft, and to trace/help in tracing the vehicle, the repudiation of claim was legal and valid. Similar principle of law was laid down in Silversons Vs Oriental Insurance Company Ltd. & Anr. IV(2011)CPJ 9(SC). Since, in the instant case, the FIR was lodged after 5 days, and the loss was reported after about six months of the theft, it could be said to be fatal, as, in the meanwhile, the car would have travelled a long distance, or may have been dismantled, by that time, and sold to a scrap dealer (Kabadi). The District Forum also placed reliance upon New India Assurance Company Ltd. Vs Trilochan Jane’s case(supra) in dismissing the complaint, while coming to the conclusion, that the repudiation was legally and validly made. The findings of the District Forum, being correct, are affirmed. 14. The order impugned, rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The same deserves to be upheld. 15. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld. 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
