Delhi

StateCommission

A/517/2016

IFFCO TOKIO GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

VIKAS KUMAR MISHRA - Opp.Party(s)

K.V GIRISH CHOWDHARY

12 Mar 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :12.03.2019

Date of Decision : 26.03.2019

FIRST APPEAL NO.517/2016

In the matter of:

 

 

IFFCO TOKIO General Insurance Co. Ltd.,

Through its Authorised Representative

Corporate Office, IFFCO Tower,

4.  

 

 

Versus

 

Shri Vikas Kuamr Mishra,

S/o. Shri Rajeshwar Kumar Mishra,

H.No.852 B, Gali No.1, Block-D,

Sangam Vihar, New Delhi.……..Respondents

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The complainant filed a complaint to the effect that his vehicle no.DL 1GC 1488 was insured with the OP fro 07.08.13 to 06.08.14. The vehicle was insured for Rs.12,08,400/- and he paid premium or Rs.33,846/-. He used  to give  the vehicle to be run on rental basis to one Shri Ajay Gupta, who used to drive vehicle and pay rent to the complainant. On 27.02.14 driver Shri Ajay Kumar did not come and return the vehicle. Complainant lodged FIR No.127/14 at Police Station Sangam Vihar on 02.03.14 under section 406 IPC. He filed application on  19.08.15 for adding section 379 IPC in the FIR. The police filed untrace report  which was accepted by Ld. M.M. vide order  dated 19.09.14. He filed claim with the OP. OP appointed detective company namely Omniscient Detectives & Assistance (P) Ltd. Vide letter dated 05.03.15, the OP called for certain documents. OP wrote a letter to financer whether vehicle was repossessed by it or not. He sent notice on 30,07.15 which was not replied. Hence he filed complaint for releasing the amount of Rs.12,08,400/- alongwith interest @24% per annum since March, 2014 till payment, Rs.1 lakh with interest @24% per annum towards mental agony, cost of litigation.
2. OP did not appear before the District Forum despite service. Case was proceeded exparte.
3. The District Forum noted that vehicle was stolen on 27.02.14, FIR was lodged on 02.03.14. The complainant had explained the delay in lodging FIR by stating that on many occasions the driver used to return vehicle after three to four days. So he waited till 02.03.14 before lodging the FIR. Notice was taken of decision of National Commission in New India Insurance Company vs. Trilochan Jane in which it was held that it is incumbent upon the insured to inform the police about theft immediately, say within 24 hours, otherwise valuable time would be lost in tracing the vehicle. Similarly insurer should also be inform within a day or two   so that insurer can verify as to whether  any theft had taken place and take immediate steps to trace the vehicle. Delay deprives the insurer of a valuable right to investigate  and trace/ help in tracing the vehicle. Hence the complaint was allowed and respondent was directed to pay Rs.1,28,400/- with interest @10% per annum within 4 weeks, pay Rs.50,000/- as compensation for harassment, Rs.10,000/- as litigation cost.
4. The appellant moved an application for correction of the amount towards value of the vehicle. The said  application was allowed by District Forum vide order dated 17.11.16 copy of which is at pages 59 to 65 of bunch of reply. The figure was corrected from Rs.1,28,400/- to Rs.12,08,400/- figure 0 was inserted between 12 and 8. It appears that same was a clerical/ typographical mistake and so no material change was made.
5. Before entering into merits on controversy in appeal, it may be mentioned that the appeal has been filed beyond limitation period. The appeal has been filed on 02.11.16. Appellant has moved an application for condonation of delay  on the ground that certified copy of the impugned  order was made by the reader on 31.08.16 which was served on the appellant on 06.09.16. The appellant inquired internally as to whereabouts of original file of complaint no.514/15 and was informed that the original file was misplaced due to administrative over sight of the concerned officer. The same was traced on 20.09.16 and the papers were sent to the counsel on 26.09.16. Appellant gave clarifications sought by counsel for complainant on 28.09.16, counsel was  in Hyderabad on Dushera vacation and returned on 10.10.16. He prepared appeal and sent  the same to appellant on 12.10.16. It sought condonation of 31 days delay in filing appeal.
6. Respondent has opposed the application by filing reply in which he has stated that even in execution petition none is appearing on behalf of the appellant. According to it there is a delay of more than 120 days in filing the appeal.
7. I think that appeal should be decided on merits rather than being thrown away on the technical ground of being barred by limitation. In the interest of justice delay in filing appeal is condoned.
8. On merits, the contention of the appellant is that respondent suppressed repudiation letter dated 10.07.15 which is Annexure-6 to appeal. The copy of same is at page 52 of bunch of appeal which contains postal receipt affixed at the bottom of it. The ground of repudiation is that policy covers loss due to theft only whereas person lost is stated to have occured due to breach of trust committed by driver. In such circumstances the claim falls outside the scope of policy.
9. Second reason given for repudiation is that intimation to comp-any about the alleged loss was given after delay of 7 days. Condition no.1 of the policy stated that in case of theft the insured shall give immediate notice to the police. The said condition has been violated.
10. I have gone through the material on record and heard the arguments.
11. The counsel for appellant relied upon decision of Hon’ble Supreme Court in Civil Appeal No.67/39 of 2010 titled as Oriental Insurance Company Ltd. vs Parvesh Chander Chaddha decided on 17.08.10. In that case the appeal of insured was accepted on the ground that respondent was duty bound to inform the insurance company about the  theft of the vehicle immediately after the theft in question. On account of delayed intimation, the  appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same.
12. The counsel for appellant also replied upon decision of NC in RP No.3581/2009 titled as United India Insurance Company Ltd. vs. Arun Sharma decided on 09.03.15 and another decision in R.P. No.670/15 titled as United India Insurance vs. Sachin Bhi Rao Kamble decided on 13.05.15. In both the cases there was delay in lodging FIR as well as delay in reporting theft to insurance company. The appeal of insurance company was allowed and complaint was dismissed.
13. Per contra the counsel for respondent relied upon decision of Hon’ble Supreme Court in Om Prakash vs. Reliance General Insurance and another (2017) 9 SCC 724 in which it was held that explained delay in intimating the insurance company does not render the  claim liable to be rejected.
14. The counsel  for appellant stressed upon the objection that FIR in the instance case was under section 406 IPC. The copy of report under section 173 CRPC which is at page 42 to 50 of the bunch of reply recites that untraced report was under offence of section 406 IPC. Copy of order of Ld. M.M. which  is at page 41  of the bunch of reply. The same also  shows that untrace report was accepted for offence under section 406 IPC.
15. The counsel for respondent submitted that later on the matter was directed to be reopened and further investigated vide order dated 15.12.16 copy of which was filed during the course of argument in appeal. In pursuance of  said order the police prepared vehicle untrace report no.3 dated 06.03.17 under section 379 IPC. Communication of acceptance of fresh untraced report on 17.04.17 was sent to the respondent. Fresh untraced report was accepted by the Ld. M.M. vide order dated 22.05.17. So the objection of the appellant regarding FIR being under section 406 IPC no more survives.
16. I feel that respondent got the matter reopened and reinvestigated malafidely  with a view to over come the  objection of the appellant. Otherwise respondent was present on 19.09.14 at the time to acceptance of first untraced report under section 406 IPC, his statement was recorded in which he stated that he was satisfied with the  investigation and had no objection regarding the filing of the untrace report.
17. The counsel  for appellant relied upon order of National Commission in RP No.2297/14 titled as United India Insurance Company Ltd. vs. UEE Electricals Engg decided on 15.10.15. In that case the NC held that criminal breach of trust under Section 406 IPC is not covered by insurance policy. The complaint was dismissed. The present case is squarely covered within the ratio of aforesaid decision.
18. The appeal is accepted, impugned order is set aside and complaint is dismissed.
19. copy of the order be sent to both the parties free of cost.
20. One copy of the order be sent to District Forum for information.
21. File be consigned to record room.

(O.P. GUPTA)                                               

       MEMBER (JUDICIAL)