State Consumer Disputes Redressal Commission
Balbir Singh vs National Insurance Company on 11 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 531 of 2013 Date of Institution : 10.12.2013 Date of Decision : 11.12.2013 Balbir Singh, s/o Late Shri Mast Ram, Resident of 1479, Sector-23/B, Chandigarh. Appellant/Complainant V e r s u s National Insurance Company Ltd., through its Branch Manager, SCO No. 85-86, Sector 17/D, Chandigarh. Respondent/Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. N.P. Jetley, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
1. This appeal is directed against the order dated 26.09.2013 rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief are, that Sh. Balbir Singh, complainant being the owner of Kinetic Honda Scooter, bearing registration No.CH-01M-2719, got insured the same for the period from 16.03.2011 to 15.03.2012 (midnight), for the Insured Declared Value of Rs.5,000/- vide Policy Annexure C-1. On 25.6.2011, Mr.Varun Chauhan, son of the complainant had gone to Modern Academy, Sector 32-C, Chandigarh at about 7.30 AM on the Kinetic Honda scooter, and on his return, he found the same (scooter) to be missing, for which, a complaint copy, whereof, is Annexure C-2, was sent to the Police. It was stated that the Police of Police Station, Sector-34, Chandigarh, did not record the FIR immediately, on the pretext of making inquiry/investigations. It registered FIR No.463 only on 8.10.2011, under Section 379 IPC, copy of which is Annexure C-3. It was further stated that the complainant being a layman, could not inform the Opposite Party immediately, with regard to the theft of kinetic Honda, because he was told that the claim would be entertained only after the registration of FIR, and submission of the untraced report. It was further stated that the complainant preferred a claim, vide application dated 12.1.2012 (Annexure C-5), and, thereafter, submitted the untraced report on 30.01.2012, vide letter Annexure C-6. It was further stated that the insurer sought the explanation, for not preferring the claim immediately, vide letter dated 12.1.2012, copy whereof, is Annexure C-7, which was duly replied to vide letter dated 13.01.2012, copy whereof, is Annexure C-8. However, the Opposite Party, instead of paying the Insured Declared Value, repudiated the claim, on untenable grounds, vide letter dated 15.02.2012, copy whereof, is Annexure C-9. The complainant thereafter, made a representation (Annexure C-10) to the Insurance Ombudsman, but no action was taken. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also 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, seeking various reliefs.
3. In the written version, the Opposite Party pleaded that the complaint was not maintainable, as the complainant had approached the Office of the Insurance Ombudsman, and his complaint was still pending there. It was stated that the complainant got his Kinetic Honda, insured with the Opposite Party, for the Insured Declared Value of Rs.5,000/- It was further stated that theft of Kinetic Honda was reported to the Police, after about 3 months, and the Opposite Party was intimated about the same, almost after about seven months, from the date of incident. It was further stated, that, as such, the complainant breached the fundamental conditions of the policy. It was further stated that since, there was breach of the fundamental terms and conditions of the Policy, the Opposite Party, legally and validly repudiated the claim of the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. In the rejoinder, by way of affidavit, filed by the complainant, it was stated by him that the Insurance Ombudsman, had not taken cognizance of the matter in issue, because the post is lying vacant, for more than 3 years (in fact 2 years), as communicated to him vide letter dated 17.07.2012 (Annexure C-11). It was further stated that the letter dated 25.06.2011, was sent to the Police, on that very date, but the Police registered the FIR after making enquiries, and that was why there was delay, in registration of the same. The averments, contained in the complaint were reiterated and those in the written version, were repudiated.
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, dismissed the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
8. We have heard the Counsel for the appellant/ complainant, and have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant submitted that the complainant informed the Police vide application dated 25.06.2011 (Annexure C-2), with regard to the theft of Kinetic Honda bearing Registration No.CH-01-M-2719 on 25.06.2011 i.e the date of incident, yet it (police) wanted to conduct inquiry/investigation, before registering the case. He was further submitted that, as such, the FIR was registered on 08.10.2011 in Police Station, Sector-34 Chandigarh. He further submitted that, there was no delay, on the part of the complainant, in intimating the Police, with regard to the theft of scooter. He further submitted that the complainant, being a layman, did not know the technicalities and, as such, he could not inform the insurer immediately, after the theft of scooter. He further submitted that, even if, it was assumed that there was breach of Condition No.1 of Two Wheeler Package Policy Annexure-R-1, that could not be said to be sufficient to repudiate the claim of the complainant. He further submitted that, as such, the repudiation of claim was illegal and arbitrary. It was further submitted that the act of the Opposite Party, amounted to deficiency, in rendering service. It was further submitted that the order of the District Forum, being illegal is liable to be set aside.
10. Admittedly, the Scooter, theft in respect whereof, allegedly took place on 25.06.2011, was got comprehensively insured by the complainant, from the Opposite Party, vide Annexure-C-1, for the period from 16.03.2011 to 15.03.2012 (midnight). The question, that falls for consideration, is, as to whether, the complainant intimated the Police and the Opposite Party, with regard to the theft of Kinetic Honda, immediately, after the incident, or not. No doubt, the complainant has placed, on record, Annexure C-2, copy of the application dated 25.06.2011, addressed to the SHO, Police Station, Sector-34, Chandigarh, vide which he allegedly intimated him, with regard to the theft of Kinetic Honda. In the complaint and also in his affidavit, by way of evidence, it was not stated by the complainant, as to by which mode this application was sent to the SHO, Police Station, Sector-34, Chandigarh on 25.06.2011. It appears that such an application, was later on fabricated by the complainant. Annexure C-3 is a copy of the FIR. In FIR, it was in clear-cut terms written that information, with regard to theft, was received in the Police Station, on 08.10.2011 at 19:30 hours. There is nothing, in the FIR, that an application was sent by the complainant, to the SHO Police Station Sector-34 Chandigarh, on 25.06.2011 regarding the theft of Scooter. In case, the complainant had given this application, in the Police Station by hand, then he was required to obtain a receipt, with regard to the same, from the concerned official, but he could not produce any such document, on the record. There is nothing, in the FIR dated 08.10.2011, that the application was received on 25.06.2011, but the Police was making inquiry/investigation, before registering the same. There is also nothing in the FIR, that the Police was busy in other serious matters, and, therefore, the FIR could not registered immediately, after the alleged receipt of Annexure C-2. Even, there is nothing in Annexure C-4, copy of the untraced report, that the application for the registration of case, was given by the complainant on 25.06.2011, and the FIR was registered on 08.10.2011, as the Police wanted to make enquiries prior to registration of the same. The story put up by the complainant, that he sent the application on 25.06.2011 (Annexure C-2) to the police, on the date of theft of Kinetic Honda Scooter, appears to be concocted. The version aforesaid, set up in the complaint, as also in the affidavit, by way of evidence, is thus belied from the FIR Annexure C-3, and untraced report Annexure C-4.
It is further held that the claim of the complainant, to the effect, that he informed the Police, on 25.06.2011 itself, with regard to the theft of scooter, is not proved from any cogent and convincing evidence. It was, thus, established that the FIR was lodged after about 3 months of the theft of scooter. Not only this, even intimation, with regard to the theft of scooter, in question, was given for the first time to the Opposite Party, by the complainant on 12.01.2012, i.e. after about 6 months of the incident vide Annexure C-5. The version of complainant that he being a layman did not know, about the technicalities, and was told by an official of the Opposite Party, that the claim could only be lodged after the rceipt of untraced report is not believable.
11. Annexure R-1 is the Two Wheeler Package Policy (terms and conditions) Under the heading, deductable it is mentioned that 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. Condition No.1 of the terms and conditions of the Policy, reads as under:-
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. 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 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 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.
12. Since there was violation of the fundamental Condition No.1 of the Insurance Policy, referred to 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, somewhat similar and identical to the terms and conditions, in the instant case. While accepting the appeal, holding the repudiation of claim, by the Insurance Company, as valid, and setting aside the order of the Fora below, the National Consumer Disputes Redressal Commission, New Delhi, 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 Learners Dictionary, the word immediately means at once.
As per Strouds 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 Blacks 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 Mitras 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. Halsburys 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 Learners Dictionary, the word immediately means at once whereas Strouds 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 Blacks 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 Mitras 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.
In the aforesaid case, there was a delay of 2 days, in lodging the FIR and 9 days in reporting the loss to the Insurance Company. Even, in those circumstances, the National Consumer Disputes Redressal Commission, New Delhi, 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.
13. In Devendra Singh Vs. New India Assurance Co. Ltd., & Ors. III (2003) CPJ 77 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, theft of the vehicle, was reported to the Police, after four days, and to the Insurance Company, after about a month. The claim of the complainant, was repudiated. Feeling aggrieved, he filed a complaint, before the District Forum, which was dismissed. First Appeal, which was filed, before the State Consumer Disputes Redressal Commission, by the appellant/complainant, was also dismissed. Still feeling dissatisfied, he filed Revision Petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was also dismissed, on the ground, that the claim was rightly repudiated. Similar principle of law, was laid down in Silversons Vs Oriental Insurance Company Ltd. & Anr. IV(2011)CPJ 9(SC).
14. In the instant case, as stated above, intimation with regard to the theft of scooter, was given after 3 months, to the Police, when the FIR was lodged, and to the insurer after about 6 months. In these circumstances, the Police was deprived of tracing the vehicle, which might have covered hundreds of kilometers by then, and sold to some person. Since there was a breach of fundamental Condition No.1 of the terms and conditions of the Policy, referred to above, the repudiation of claim of the complainant, by the Opposite Party, could not be said to be illegal and arbitrary. The District Forum, was, thus right, in holding that the Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice. The order of the District Forum, being legal and valid, is liable to be upheld.
15. The Counsel for the appellant placed reliance on National Insurance Company Limited Vs. Nitin Khandelwal 2008(3) Recent Apex judgments (R.A.J.) 581 (SC), National Insurance Company Ltd. Vs. Subhash Chander Revision Petition No.3498 of 2012 decided on 01.10.2012 and National Insurance Company Ltd. Vs. Shri Mayur Raj Singh Revision Petition No.3558 of 2012 decided on 01.10.2012 by the National Consumer Disputes Redressal Commission, New Delhi, in support of his contention that the claim of the complainant was illegally and arbitrarily repudiated by the Opposite Party. In National Insurance Company Limited Vs. Nitin Khandelwals case, (supra), the vehicle was got insured from the Insurance Company which was being used as a taxi, and the four passengers had hired the vehicle for going from Gwalior to Karoli. Those passengers, on the way, snatched the vehicle from the driver. When the claim was lodged, it was repudiated by the National Insurance Company, on the ground, that the car was insured for personal use, but it was being used as a taxi, which violated the terms and conditions of the Policy. The Honble Supreme Court, in the aforesaid case, held that in case of theft of vehicle, nature of use of the vehicle could not be looked into and the Insurance Company could not repudiate the claim in toto. The claim was allowed on non-standard basis. In National Insurance Company Ltd. Vs. Shri Mayur Raj Singhs case, (supra) the vehicle being locked was left at an isolated place, without any security, whereas, other safe place was available and the same (vehicle) was also without permit. When the claim was lodged, it was repudiated, on the ground, that the vehicle was left unattended, resulting into breach of the terms and conditions of the Policy. The National Consumer Disputes Redressal Commission, New Delhi, relied upon National Insurance Company Limited Vs. Nitin Khandelwals case (supra) and held that breach being not fundamental the claim could not be repudiated. The facts and circumstances of the cases, referred to above, by the Counsel for the appellant/complainant are clearly distinguishble from facts and circumstances of this case. In Devendra Singh Vs. New India Assurance Co. Ltd. & Ors.III CPJ 77 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, theft of the vehicle was reported to the Police, after four days, and to the Insurance Company, after about a month.
Under these circumstances, it was held by the National Consumer Disputes Redressal Commission, that there was a breach of fundamental condition of the Policy, and, as such, repudiation was legal and valid. No help can be drawn by the Counsel for the appellant, from the principle of law, laid down, in the cases, relied upon by him. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail and the same stands rejected.
16. No other point, was urged, by the Counsel for the appellant.
17. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. 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.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after due completion.
Pronounced.
December 11, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER GP STATE COMMISSION (First Appeal No.531 of 2013) Argued by: None Dated the 11th day of December 2013 ORDER Alongwith the appeal, an application for condonation of delay of 28 days, in filing the same (appeal) has been moved, by the applicant/appellant.
2. Arguments, on the application, for condonation of delay, of 28 days, in filing the appeal, were heard.
3. We are of the considered opinion, that no doubt, there is delay of 28 days, in filing the appeal, yet, the same cannot be said to be so huge, as to deny the substantial justice. It is settled principle of law, that technicalities should not stay, in way of the Commission, in granting substantial justice. Every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. The applicant/appellant, as stated by him, in the application, was not possessed of sufficient means, due to which he could not engage Counsel immediately, after the impugned order was passed. Time consumed in arranging the funds, and thereafter engaging the Counsel, resulted into delay in filing the appeal. We are of the opinion that, there was no intentional, and deliberate default, on the part of the applicant/appellant, in filing the appeal, after delay. There is, thus, sufficient cause for condonation of delay.
4. In view of the above, the application is allowed and the delay of 28 days in filing the appeal is condoned.
5. Arguments, in the main appeal already heard.
6. Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, with no order as to costs. The order of the District Forum is upheld.
Sd/- Sd/-
DEV RAJ MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT GP