HON’BLE MR. SUBHRA SANKAR BHATTA, PRESIDING MEMBER

          This instant Appeal is directed at the behest of the Appellant MAGMA HDI General Insurance Co. Ltd., who was the OP before the District Consumer Disputes Redressal Forum, Unit—II, Kolkata (hereinafter referred to as the District Forum for short) assailing the impugned order dated 20.12.2017 passed by the Ld. District Forum in Consumer Complaint Case No. CC/212/2017 wherein and whereby the Ld. District Fora was pleased to allow the complaint case in the following manner:-

“ORDER

that the complaint be and the same is allowed on contest against the Opposite Party in terms of section 13(2)(b)(i) of the Consumer Protection Act, 1986 as amended so far;

that the O.P. is directed to pay to the complainant the insured value of the stolen vehicle no. UP-62T/2534, amounting to Rs. 750000/- with 9% interest from the date of repudiation on 27/6/2016 till date of actual payment, within 30 days from the date of judgment;

that the O.P. is further directed to pay to the complainant Rs. 20000/- as compensation for physical harassment and mental agony and Rs. 10000/- as litigation cost, within 30 days from the date of judgment;

That on non-compliance of the O.P. in carrying out of the above orders, the O.P. shall not only have to pay penal damages of Rs. 3000/- per month after the lapse of prescribed time till date of actual payment, to be deposited with the Forum, but the complainant also shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.

Let copies of the order be handed over to the parties when applied for.”

Briefly stated, the facts of the complaint case are:

Complainant had purchased a car/vehicle from one French Motor Car Company Limited and the value of the said vehicle was Rs. 11,83,842.00 (Rupees Eleven lakhs eighty three thousand forty two only) which was hypothecated to Magma Shrachi Finance Limited. The said vehicle was duly registered by the registration authority being Registration No. UP-62-T-2534 having Engine No. 80E64002040.  Complainant duly insured the said vehicle with O.P/MAGMA HDI General Insurance Co. Ltd. having a premium of Rs. 26,917/- and obtained the policy bearing policy no. PO115400002/4103/146730 for the period from 19.06.2014 to 18.06.2015 with IDV of Rs. 7,50,000/-.

It is the further case of the Complainant that on 21.10.2014 the said vehicle (truck) loaded with 400 bags of mustard was coming from Parao Chandauli, (UP) to Sri Kamala Oil Mill, Kolkata via G.T. Road (Benaras, Bengal Freight Corridor). On the way the said truck was stolen by 08 (eight) unknown miscreants on 22.10.2014 at 9 P.M. at Hatia Baba Mandir under P.S. Chouparan, Jharkhand by tying up the driver of the said vehicle with a tree near the village. The driver of the Complainant lodged an FIR relating to that theft which was registered at Chouparan P.S. being no. 170/2014. It has been categorically stated that the police authority searched regarding the said vehicle in and around the adjacent border area and finally submitted charge sheet being no. 84/2015 against five miscreants and also produced them before the Ld. District and Sessions Judge, Hazaribag. In the meantime Complainant also lodged an insurance claim on 27.10.2014 before the Opposite Party but the Opposite Party intentionally repudiated the claim of the complainant on the ground of delayed intimation and non-submission of ignition key. One of the keys was taken away by the miscreants and other was sent to the investigator through DTDC Courier.

Further case of the complainant is that he sent letters to the OP on 11.07.2016 and 27.07.2016 respectively and discussed about the theft of the vehicle and also requested the OP insurance company to settle the claim as early as possible. It has been alleged that the OP sent reply to that letter of the complainant and also offered the Complainant to accept Rs. 5.25 lakh against the total claim amount but the Complainant disagreed to accept the said offer as full and final settlement. It is candidly contended that the Police authority submitted final report wherefrom it is clear that the claim of the Complainant is genuine. Being aggrieved the Complainant lodged a claim before the Ld. Ombudsman who directed the insurance company to settle the claim immediately but the OP did not take any action to settle the claim. Finding no other alternative the Complainant was compelled to file the complaint case before the Ld. Forum below praying for necessary direction upon the OP/Insurance Company to pay the genuine insurance claim i.e. Rs. 7,50,000/- along with compensation and litigation cost.

OP Insurance Company, Appellant herein contested the case by filing written version on 14.08.2017 wherein the OP categorically denied all the materials allegations as levelled in the body of the complaint. OP contended that the complaint case is not maintainable either in law or in facts and is liable to be dismissed; that the Complainant has no cause of action to bring the present complaint case; that the Petition of complaint is speculative, false, frivolous, baseless, malafide and harassing one; that the complainant is guilty that the suppression of fact. It has been specifically contended that the OP/Insurance Company issued a commercial vehicle class (GCV) package policy in favour of the complainant in respect of the vehicle in question (truck). According to the OP the liability of the OP/Insurance Company is always subject to due fulfilment of the terms and conditions as enumerated in the clause of insurance policy. The Complainant himself unequivocally admitted in the petition of complaint that there was a delay of five days in intimating the insurance company about the said theft of vehicle. According to the OP/Insurance Company the Complainant is not entitled to get the insurance claim for violating the policy condition. Due to the delayed intimation (after five days) the insurance company was deprived from carrying on investigation and to retrieve the vehicle. The OP also contended that there was no deficiency in service or unfair trade practice from the end of the OP/Insurance company. The repudiation of the claim of the Complainant was very justified. OP prayed for outright dismissal of the complaint case with cost.

Ld. District Forum after taking into account the pleadings as well as the evidence (both oral and documentary) adduced from the end of the parties arrived at an irresistible conclusion and allowed the complaint case with certain directions.

Being aggrieved by and dissatisfied with the above order of the Ld. District Forum the OP/Insurance Company as Appellant has preferred the present Appeal on various grounds. It has been contended in the memorandum of Appeal that the impugned order of the Ld. Forum below is misconceived, erroneous and contrary to law; that the Ld. District Forum failed to exercise its jurisdiction vested by law and acted with material irregularity and illegality; that the Ld. Forum below passed the impugned order without proper application of judicial mind; that the impugned judgment is not sustainable in the eye of law; that the Ld. Fora below failed to appreciate that the Ld. Ombudsman awarded ‘nil claim amount’ against the claim of the Complainant; that the Ld. Fora below did not consider the fact that there was gross violation of policy terms and conditions by the Complainant/insured; that the Ld. Forum below failed to appreciate the fact that the Complainant/Respondent admitted in the body of the petition of complaint that he intimated the insurance company about the incident after a lapse of 05 (five) days; that the Ld. Forum below failed to consider that the insurance company was deprived from carrying their own investigation in order to retrieve the vehicle in question by using their own source; that the Ld. District Forum failed to consider that the Respondent/Complainant did not intimate the alleged incident in writing to the Insurance Company immediately following the terms and conditions of the policy.  

On all such grounds the Appellant/OP Insurance Company has prayed for allowing the present Appeal after setting aside the order impugned.

Ld. Counsel appearing for the Appellant/Insurance Company has drawn our attention to the terms and conditions of the insurance policy and vehemently argued that the Respondent/Complainant was required to inform the Appellant/Insurance Company about the incident of theft of the vehicle in question immediately and, since, the Respondent/Complainant did not intimate the incident in writing. He violated the terms of the policy and consequently deprived the Appellant/Insurance Company of its right to investigate the matter immediately after the alleged theft. The Ld. Counsel for the Appellant/Insurance Company has urged that the delay in giving intimation is very fatal and repudiation of the claim was very justified as per terms and conditions of the policy. It has been strenuously argued that the Respondent/Complainant had breached the condition no. 1 of the policy and as such the Respondent/Complainant is not entitled to get any relief as sought for. It has been also argued that the Respondent/Complainant lodged an FIR being no. 170/2014 before the concerned police station and thereafter informed the Appellant/Insurance Company about the alleged theft. According to the Ld. Counsel there was an inordinate delay on the part of the Respondent/Complainant in intimating the alleged incident of theft of the vehicle in question to the Appellant/Insurance Company and as such Respondent/Complainant (insured) had wilfully violated the specific condition no. 1 of the insurance policy. According to the Ld. Counsel the Respondent/Complainant is not entitled to get any compensation from the Appellant/Insurance Company.  It has been canvassed much that there are ambiguity, irregularity and illegality in the judgment passed by the Ld. Forum below. He has prayed for allowing of the present appeal after setting aside the order impugned. In support of the above contention Ld. Counsel for the Appellant/Insurance Company has cited the decision reported in Supreme Court Civil Appeal no. 2703 of 2010 (Amalendu Sahoo—vs.—Oriental Insurance Company Ltd.)

On the other hand Ld. Counsel appearing for the Respondent/Complainant has highlighted much that the Appellant/Insurance Company accepted the premium and duly issued the policy in favour of the Respondent/Complainant against the said vehicle (truck). It has been also submitted that the insurance company did not challenge the lodging of FIR by the Respondent/Complainant before the locale Police Station regarding theft of the vehicle. The Appellant/Insurance Company did not also deny about the time of intimating the incident regarding such theft of vehicle to the Police Station. The alleged incident occurred during the coverage period i.e from 19.06.2014 to 18.06.2015. It has been candidly submitted that the Appellant/Insurance Company denied the claim of the Respondent/Complainant on the very ground of delay of five days in intimating the incident which is not at all correct as per observations of the Hon’ble Apex Court of India (Gurshinder Singh—vs.—Shriram General Insurance Co. Ltd. and another). According to the Ld. Counsel such delay in intimating the incident cannot be a good ground for repudiation of claim of the Respondent/Complainant. Moreover, there was no laches, lapses or delay on the part of the Respondent/Complainant in lodging the FIR before the nearest Police Station. Ld. Counsel has prayed for outright dismissal of the Appeal with compensatory costs.

We have carefully considered the submissions of the respective Ld. Counsels for the respective parties to the appeal and also perused the materials available on record. We have also meticulously gone through the citation of the Hon’ble Apex Court on the point of delayed intimation.

At the time of hearing we feel that the issue of delay in intimating the incident is forthcoming from the end of the Appellant/Insurance Company in order to destroy and repudiate the claim of the Respondent/Complainant. Now, the moot question that arises for consideration as to whether the delayed intimation is fatal or not for the settlement of the claim of the Respondent/Complainant.

The insurance policy being no. P0115400002/4103/146730 for the coverage period from 19.06.2014 to 18.06.2015 with the IDV of Rs. 7,50,000/- having total premium of Rs. 26,917/- is unequivocally admitted by the Appellant/Insurance Company. The theft of the vehicle is also an admitted fact which occurred on 22.10.2014 at 9 P.M. within the jurisdiction of Chaouparan Police Station, Jharkhand. There is no dispute that the Respondent/complainant informed the incident of theft to the locale Police Station on 25.10.2014 and lodged FIR at Chaouparan Police Station being FIR no. 170/2014. It is also evident that the police authority submitted charge sheet after the investigation.

Condition No. 1 and Condition No. 5 of the insurance policy are very much relevant to refer which run as follows:

Condition No. 1

“Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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 or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender”.

Condition No. 5

The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all time free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or break down the vehicle shall not be left unattained without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of damage or any further damage to the vehicle shall be entirely at the insured’s own risk.

Ld. Counsel for the Appellant/Insurance Company has highlighted much that the delay in intimating the incident of theft of the vehicle (truck) is very much fatal and repudiation of the claim was very justified as per terms and conditions of the policy. On the other hand, Ld. Counsel for the Respondent/complainant has argued that there is no question of delay in intimating the incident to the insurance company and as such repudiation of the claim from the end of the Appellant/Insurance Company is not justified and proper. On this aspect Ld. Counsel for the Respondent/Complainant has cited a remarkable decision reported in Gurshinder Singh—vs.—Shriram General Insurance Co. Ltd and another wherein the Hon’ble Supreme Court of India discussed elaborately the orders pronounced in OM PRAKASH—vs.—RELIANCE GENERAL INSURANCE AND ANOTHER (Civil Appeal no. 15611/2017, decided on 04/10/2017) and ORIENTAL INSURANCE COMPANY LIMITED—VS.—PARVESH CHANDER CHADHA (Civil Appeal no. 6739/2010, decided on 17.08.2010). The condition which fallsfor consideration in the present Appeal is identical with the condition that arose for consideration in both the cases namely OM PRAKASH (supra) and PARVESH CHANDER CHADHA (supra). In PARVESH CHANDER CHADHA (supra) it was observed that no explanation for unusual delay in informing the insurer was given by the Complainant. In terms of the policy issued by the insurer, the Respondent/complainant was duty bound to inform about the incident of theft of vehicle immediately after the incident. On account of delay in intimating the insurer was deprived of its legitimate right to get an enquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same.

Per contra, in the case of Om Prakash (supra) it was observed that the word “immediately” cannot be construed narrowly so as to deprive the Complainant the benefit of the settlement of genuine claim, particularly when the delay was explained. It was further held that the rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of the policy holders in the insurance industries. If the reasons for delay in making a claim are satisfactorily explained, such a claim cannot be rejected on the ground of delay. The condition regarding the delay shall not be the shelter to repudiate the insurance claim which have been otherwise proved to be genuine. Moreover, the Apex Court was also pleased to observe that the Consumer Protection Act aims at providing better protection of the interest of the consumers. It is a beneficial legislation that deserves a liberal construction. Finally the Bench of three Judges of the Hon’ble Apex Court concurred with the view taken in the case of Om Prakash (supra) and held that mere delay in intimating the insurance company about the theft of vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. It should also be the bounden duty of the Commission to look into the main object of the preamble of the Consumer Protection Act which cannot be and should not be frustrated by any means. It is to be borne in mind that there is no straight jacket formula to explain the word “immediately”

With our utmost respect to the observations of the Hon’ble Apex Court we hold and firmly hold that it would not be just, wise, fair and reasonable to reject the genuine claim of the Respondent/Complainant which had already been verified and found to be correct by the insurance authority by giving proposal to the Respondent/Complainant to accept a sum of Rs. 5.25 lakh against the total claim amount as full and final settlement.

Considering all aspects from all angles and keeping in mind the observations of the Hon’ble Apex Court in Civil Appeal No. 653 of 2020 Gurshinder Singh—vs.—Shriram General Insurance Company we are compelled to hold that there is no error, irregularity and illegality in the impugned order/judgment passed by the Ld. District Forum, Unit—II, Kolkata in Consumer Complaint Case No. CC/212/2017 and consequently the impugned order does not deserve interference of the State Commission. The impugned order requires to be sustained.

It is, therefore,

O R D E R E D

That the present Appeal being No. A/57/2018 be and the same is dismissed on contest against the Respondent/Complainant but considering the circumstances without any order as to costs. The impugned judgment dated 20.12.2017 passed by the Ld. DCDRF, Kolkata Unit—II in Consumer Complaint Case no. 212/2017 is hereby affirmed.

Thus, the Appeal stands disposed of.

Let a copy of this order be transmitted to the concerned District Commission forthwith for information and taking necessary action.

Note accordingly.