State Consumer Disputes Redressal Commission
Ram Kumar Son Of Shri Ram Pat, Resident Of ... vs 1.National Insurance Company Limited, ... on 12 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.57 of 2010 Date of Institution: 04.11.2010 Date of Decision: 12.10.2012 Ram Kumar son of Shri ram Pat, resident of Village Bakhtawarpura, Tehsil Siwani, District Bhiwani. Complainant Versus 1. National Insurance Company Limited, Regd. Office: 3, Middleton Street, Kalkata-700071, through Incharge of registered office. 2. National Insurance Company Ltd., Circular Road, Bhiwani, Tehsil and District Bhiwani through the Branch Manager. Opposite Parties BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Mani Ram Verma, Advocate for Complainant. Shri P.S. Saini, Advocate for Opposite Parties. O R D E R
Justice R.S. Madan, President:
The brief facts of the present complaint as set up by the complainant are that the complainant had purchased a new commercial vehicle Dumper 14 CUM FRT, END BOX bearing Temporary Registration No.HR-99-BR (TEMP)-9715 on 31.03.2008 from M.G. Motors, Hisar against payment of Rs.17,15,655/- which was financed by Magma Sharachi Finance Limited now known as MAGMA Fincorp Limited and was hypothecated with the financer. The aforesaid vehicle was insured with the opposite parties for Rs.16,31,500/- vide cover note No.211413 w.e.f. 31.03.2008.
On 06.04.2008, Rajesh son of complainant alongwith one Ram Bir son of Shankar Lal, resident of Village Chappar was going to Kundli from Village Khanak loaded Zero Rodi in the dumper. The dumper was being driven by Rajesh. When they corssed village Kharak and reached near the river at about 1.00 a.m. (night) a red coloured dumper crossed their vehicle and stopped them by stopping and putting their dumper opposite to the dumper of the complainant.
Thereafter 3-4 persons came down from the red coloured dumper, they tied Rajesh and Ram Bir with the sting, stuffed clothes in their mouths, put them in the red coloured dumper, thrown them in an un-known place in the fields and ran away with their dumper and thus complainants dumper was forcibly snatched by some unknown robbers.
On the morning of 07.04.2008, Rajesh driver of the tumper reported the matter to the police at Bus Stand of Village Kharak Kalan upon which FIR No.143 dated 07.04.2008 under Sections 392,395,397 IPC, Police Staiton Sadar, Bhiwani was registered by the police. The complainant informed about this incident to the financer of the vehicle and also to the Companys Branch Office at Bhiwani.
The police though succeeded in arresting the accused persons but could not trace dumper of the complainant. The complainant moved an application 06.11.2008 for taking his vehicle on Sapurdari and another application was moved on 24.12.2008 for issuance of un-traced report. On both the aforesaid applications, S.H.O. Police Satation Sadar, Bhiwani reported that the vehicle could not be traced out. After taking necessary report to this effect from the police through the Court, the complainant submitted claim with the opposite parties but the opposite parties did not settle his claim. Forced by these circumstances, the complainant has filed this complaint before this Commission seeking direction to the opposite parties to pay Rs.31,82,300/- to the complainant.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement wherein it has been stated that the vehicle was snatched during the intervening night of 06/07.04.2008 whereas the intimation to the opposite parties was given on 26.08.2008 whereas as per the terms and conditions of the Insurance Policy, the intimation to the Insurance Company was to be given without any delay. It is further stated that in criminal case bearing F.I.R. No.143 dated 7.4.2008 the accused have been acquitted of the charges levelled against them by the court of learned Additional Sessions Judge, (fast Track Court), Bhiwani vide judgment dated 15.09.2009 and therefore the complainants claim is not payable. It is further submitted that after having received the investigation report and processing the claim of the complainant, the complainant was directed to supply certain documents namely Forms No.29,30,35, both the original keys of the vehicle, original final police report, original REC, permit, tax token and fitness certificate, untraced report duly accepted by the Ilaqa Magistrate, letter of subrogation, indemnity bond and undertaking in favour of the insurer etc, which are necessary for settlement of the claim through letter dated 03.01.2010 through registered post issued by Claims Officer, Magna Fincorp Limited, Karnal but the complainant did not respond to the aforesaid letter dated 3.1.2010. Another letter dated 03.02.2010 was also sent to the complainant on the same subject but to no effect. Since the complainant neither responded to the aforesaid letter nor supplied the requisite documents mentioned therein, the claims officer, Magna Fincorp Limited reminded the complainant through letter dated 04.03.2010. But instead of supplying the requisite documents to the opposite parties, the complainant filed complaint before this Commission. Thus, denying any kind of deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
Both the parties have led their evidence in support of their respective claims. Complainant has tendered his own affidavit Ex.C-1 and affidavit of Rajesh Ex.C-II alongwith the documents Annexure P-1 to Annexure P-10. Learned counsel for the opposite parties made statement on 02.08.2012 that except the affidavit and documents annexed with the written statement, he does not want to lead any further evidence on behalf of the opposite parties and same may be closed. Statement of the learned counsel for the opposite parties to this effect was recorded.
We have heard learned counsel for the parties and perused the case file.
Admittedly, the vehicle of the complainant was insured with the opposite parties for a sum of Rs.16,31,500/- for the period 31.03.2008 to 30.03.2009. During the intervening night of
06./07.04.2008, the vehicle was snatched away by some unknown persons. F.I.R. No.143 dated 07.04.2008 under Sections 392,395,397 IPC was recorded in Police Staiton Sadar, Bhiwani on the statement of Rajesh son of the complainant who was with the vehicle at the time of incident. The grievance of the complainant is that the opposite parties did not settle his claim despite the fact that he has already submitted all the required documents to the opposite parties.
On the other hand, it is the case of the opposite parties that there was inordinate delay of about five months in giving information to the Insurance Company about the theft/snatching of the vehicle because the alleged snatching of the vehicle took place during the intervening night of 6.4.2008/7.4.2008 and the intimation to the opposite parties was given on 26.08.2008 whereas as per the Insurance Policy Annexure R-1, the complainant had to give immediate notice of the incident to the opposite parties with full details. In support of his arguments learned counsel for the opposite parties referred to the Insurance Policy Annexure R-1, the relevant extract of which is reproduced herein below:-
An immediate notice of the accident with full details must be sent to the issuing office.
It is further argued that the complainant has not furnished the required documents i.e. Forms No.29,30,35, both the original keys of the vehicle, original final police report, original REC, permit, tax token and fitness certificate, untraced report duly accepted by the Ilaqa Magistrate, letter of subrogation, indemnity bond and undertaking in favour of the insurer etc, which are necessary for settlement of complainants claim.
We find force in the contention raised on behalf of the opposite parties in view of settled principle of law by Honble National Consumer Commission in First Appeal No.321 of 2005 New India Assurance Company Limited versus Trilochan Jane decided on 09.12.2009 wherein the facts were that the vehicle was stolen on 08.04.2000, the matter was reported to the police on 10.04.2000 i.e. after two days and information to the Insurance Company was given after about nine days i.e. on 17.04.2000. The claim of the complainant was repudiated by the Insurance Company on the ground of delay in giving information. While deciding the above said appeal the Honble National Commission observed as under:-
Learned counsel for the respondent, relying upon the Judgment of Honble Supreme Court in National Insurance Company Limited v. Nitin Khandelwal reported in (2008) 11 SCC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said Judgment was in a totally different context. In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The delay in lodging the F.I.R. after 2 days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that time and sold to kabadi (scrap dealer).
In our view, the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time. We are not going into the other question regarding violation of Condition No.5 of the Insurance Policy as we have non-suited the respondent/complainant on the first ground.
In a recent judgment in Revision Petition No.3719 of 2011 Siraj Khan vs. Mahindra Finance Ltd. and others, decided on 03.07.2012 Honble National Commission relied upon the above cited case and observed as under:-
5. It emerged from perusal of the facts of the case and the documents placed on record that there was inordinate delay in informing the police as well as the opposite parties about the alleged incident. Nothing has been produced before us to counter this important aspect. The State Commission following the order of the National Commission in Appeal No.321 of 2005 in the case of New India Insurance Company Ltd. Vs. Trilochan Jane confirmed the order of the District Forum and dismissed the appeal. It is well settled by a catena of judgments that time is of essence in such cases and delay is in lodging the FIR and sending intimation about theft to the insurer would be fatal to the recovery of the insured vehicle and hence repudiation of the claim on this ground would be justified. In these circumstances, we do not find any merit in the revision petition and dismissed the same in limine on the ground of limitation as well as on merits.
This case is fully covered by Trilochan Janes case (supra) and Siraj Khans case (Supra). Since the complainant had given intimation to the opposite parties after a period of about three months and twenty days and that too without furnishing all the necessary documents, thus the complainant has violated the terms and conditions of the Insurance Policy. It is well settled law that while settling the claims of the parties, the terms of the Insurance Policy have to be construed strictly and no relief can be given to any of the parties beyond those terms. Reference in this regard is made case law cited as UNITED India INSURANCE CO. LTD. versus HARCHAND RAI CHANDAN LAL, (2004) 8 Supreme Court Cases 644, wherein Honble Supreme Court has held that:-
Held, the terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein, and all those expressions appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted Similar view has been taken by the Honble Apex Court in case cited as SURAJ MAL RAM NIWAS OIL MILLS (P) LTD. versus UNITED INDIA INSURANCE COMPANY & ANR, IV(2010) CPJ 38 (S.C.) as under:-
22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.
24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.
The facts and circumstances of the instant case are fully attracted to HARCHAND RAI CHANDAN LALs case (Supra) and Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra).
Thus, the opposite parties cannot be held liable to pay any insurable benefits to the complainant against the terms and conditions of the Insurance Policy.
For the reasons recorded above, this complaint is dismissed with no order as to costs.
Announced: Justice R.S. Madan 12.10.2012 President B.M. Bedi Judicial Member