State Consumer Disputes Redressal Commission
Ram Kumar vs The Regional Manager, National ... on 19 August, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 202 of 2011 Date of institution: 04.05.2011 Date of decision : 19.08.2011 Ram Kumar son of Sh.Sardari Lal r/o H.No.1, PGI Campus, Sector 12, Chandigarh. . Appellant Versus 1. The Regional Manager, National Insurance Co., SCO No.337-340, Sector 35-B, Chandigarh. 2. The Branch Manager, National Insurance Co., Divisional Office-III, SCO No.813, Chandigarh-Kalka Road, Manimajra, UT, Chandigarh. 3. The Branch Manager, National Insurance Co., SCO No.85-86, Sector 17-D, Chandigarh. .. Respondents. Appeal U/S 15 of the Consumer Protection Act,1986 QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member
Sh.Jagroop Singh Mahal, Member Present:
Sh.Deepak Aggarwal, Advocate for the appellant.
Per Justice Sham Sunder , President This appeal is directed against the order dated 10.5.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint.
2. The complainant (now appellant) got his car bearing registration NO.CH-01-AA-7701 insured with the OPs for the period from 02.11.2009 to 01.11.2010, after paying a premium of Rs.11,838/-. The said vehicle was stolen by some unknown persons from the parking of Sector 35-C, Chandigarh, on 13.12.2009. The complainant made efforts to search the vehicle, but to no avail. The complainant then lodged the FIR No.342 dated 16.12.2009 under Section 379 IPC in P.S. Sector 36, Chandigarh. It was stated that OP No.2 (now respondent No.2) was informed about the theft of the vehicle, who told the complainant to complete certain formalities for processing the claim. It was further stated that the complainant was also asked to produce the untraced report. When he visited the Police Station, he was told by the officials that the case was under investigation, and untraced report could be supplied only after completion of the same. It was further stated that the complainant was provided the untraced report on 16.03.2010, and submitted the same to the OPs. Thereafter, he was asked to submit the report of NCRB. He approached the Supdt.
Of Police with a request to supply the same. The complainant received the vehicle enquiry report on 07.07.10, stating therein, that as per the information available, with the NCRB, the vehicle had not been recovered. It was further stated that though the complainant supplied all the documents to the OPs, for processing and settling the claim but, yet they returned the same, alongwith letter dated 14.07.2010, stating therein, that he had given the information of loss of the vehicle after a long time, due to which, they lost opportunity to investigate the case promptly. Consequently, the claim submitted by the complainant was repudiated by the OPs. It was further stated that the OPs were not only deficient, in rendering service, but also indulged 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.
3. The OPs, in their written reply, admitted that the vehicle, in question, was got insured, with them, by the complainant, for the period from 2.11.2009 to 1.11.2010. It was stated that the complainant failed to take due care, in parking the vehicle, and lodging the FIR immediately, after the theft of the same. It was further stated that the intimation with regard to the alleged loss of the vehicle was given to the OPs, after a period of about 8 months of the incident, and, as such, there was a clear cut violation of the terms and conditions of the insurance policy. It was further stated that since the intimation regarding the alleged loss was not given to the OPs promptly, after the incident, they were deprived of getting the matter investigated. It was further stated that, in this view of the matter, the claim of the complainant was rightly repudiated. It was further stated that there was neither any deficiency, in rendering service, on the part of the OPs, nor they indulged into unfair trade practice.
4. The parties led evidence, in support of their case.
5. After hearing Counsel for the parties, and, on going through the evidence, on record, the District Forum dismissed the complaint on the ground that the intimation about the alleged loss was given to the OPs, by the complainant, after a period of 8 months of the incident, and, as such, he violated condition No.1 of the Policy. .
6. Feeling aggrieved, the instant appeal has been filed, by the appellant/complainant.
7. We have heard Counsel for the appellant/complainant, and have gone through the evidence and record of the case, carefully.
8. The Counsel for the appellant, submitted that the vehicle, in question, was stolen on 13.12.2009 and the FIR was lodged by the complainant on 16.12.2009. He further submitted that the complainant orally intimated the OPs regarding loss of the vehicle, immediately, after the incident, but they demanded certain documents and assured him that the processing of claim and settlement thereof shall take some time. He further submitted that even untraced report was supplied to the complainant on 16.3.2010, which he submitted to the OPs. He further submitted that the vehicle inquiry report issued by the Police was received by the complainant on 7.7.2010 stating therein that the vehicle had not been recovered. He further submitted that mere breach of a condition of the Policy, to the effect that the loss was not intimated to the Insurance Company immediately after the incident, could not be said to be sufficient, to repudiate the claim of the complainant, in its entirety. He further submitted that the intimation of loss of the vehicle, to the Insurance Company, after delay by the complainant, in itself could not be said to be germane to the theft. He further submitted that the District Forum neither appreciated the evidence, in its proper perspective, nor did it take into consideration the law on the point, and fell into a grave error, in dismissing the complaint, holding that, the repudiation of claim was justified. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. 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 Car, with the OPs, for the period from 22.1.2007 to 21.1.2008 by paying a premium of Rs.11,838/-. There is hardly any dispute, that the said car was stolen on 13.12.2009 .The FIR, copy whereof is C-2, was lodged with the police on 16.12.2009 i.e. after three days of the incident. The complainant could not produce any document, on record, to establish that intimation with regard to the loss of the vehicle was given to the OPs immediately after the incident. There is only one document dated 14.7.2010 annexure C-5, on the file, which was written by the Asstt. Manager, National Insurance Company Limited to the complainant, vide which his claim was repudiated, on the ground, that he gave intimation of loss after 8 months of the incident, and, as such, the OPs were deprived of the opportunity to investigate the case properly. Late delivery of untraced report and vehicle inquiry report to the complainant did not absolve him of his responsibility of intimation of loss of the vehicle, immediately, after the incident to the Insurance Company. R-2 is the Private Car Package Policy Schedule, in respect of the car of the complainant. Alongwith the same, a document titled as Private Car Insurance B Policy at page 60 of the District Forum file is attached. Condition No.1 of the policy reads as under ;
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.
10. The plain reading of the condition of Policy, extracted above, clearly goes to reveal that the insured was required to give notice, in writing, to the Company immediately upon the occurrence of any incident or loss of or damage to the vehicle. It further provides that every letter, claim, writ, summons and/or process shall be forwarded to the Company immediately on receipt by the insured. Since the FIR with regard to theft of the car was lodged after three days of the incident, and intimation with regard to the alleged loss, was given to the OPs, after 8 months of the said incident, there was certainly breach of the aforesaid condition of the Policy R-2. 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 to 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.
11. 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, 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 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 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.
12. 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 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. Since, in the instant case, the FIR was lodged, after three days of the incident and the intimation regarding the loss of the vehicle was given to the OPs, after 8 months thereof, 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 Janes 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.
13. The Counsel for the appellant, however, placed reliance on National Insurance Company Ltd. Vs Nitin Khandelwal IV(2008)CPJ1(SC) and Niharika Maurya Vs Chief Manager New India Assurance Co. Ltd. & Ors. 2011(2)CPR 342(NC) in support of his contention that mere breach of condition No.1 of the Policy, could not be sufficient to repudiate the claim of the complainant in its entirety. In National Insurance Company Ltd. Vs Nitin Khandelwals case (supra), the facts were that on 27.9.2003 Nitin Khandelwal had sent his vehicle to bring his children from Jaipur. On the way, some unknown people, stopped the vehicle, tied the driver, dumped him, on the way, and snatched away the vehicle. The report was lodged by the driver. The respondent filed the insurance claim, which was repudiated, by the Insurance Company, on the ground, that the car was being used by the respondent, as a taxi. It was, under these circumstances, that the Honble Supreme Court held, in the aforesaid case, that, violation of such a condition, could not be said to be germane, to the incident, which took place,and, as such, repudiation of the claim in entirety, could not be said to be justified. Ultimately, it upheld the order of the State Commission, vide which the relief was granted, on non-standard basis, to the extent of 75% of the claim. In Niharika Maurya Vs Chief Manager New India Assurance Co.s case (supra), the vehicle was found to be used for commercial purpose, in violation of the terms of Policy, and the claim was settled on non-standard basis. Discharge Voucher was issued by the insured, while accepting the amount, on non-standard basis. Thereafter, the complainant filed a complaint, that she had accepted the amount either on misrepresentation or misunderstanding or because she needed money. It was, under these circumstances, that the National Commission held that, even if, it was assumed that the vehicle was being run for commercial purpose, it will make no difference, as breach of such a term and condition of the policy, in case of theft of vehicle, was immaterial. The order of the State Commission was set aside, and the Insurance Company was directed to pay the remaining amount of the claim, to the complainant. The facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. In the aforesaid cases, referred to, in this paragraph, neither FIR was lodged late, nor intimation was given, after a long delay, to the Insurance Company. In these cases, there was no theft of the vehicles. It was, under these circumstances that it was held, in these cases, that mere breach of a condition of the Policy, that the car was being used for commercial purpose, which was not germane to the incident, could not be said to be sufficient for repudiating the claim submitted by the complainant.
14. In New India Assurance Company Ltd. Vs Trilochan Janes case(supra) the facts whereof were completely similar to the facts of the instant case, it was authoritatively held, that in case of theft, if the FIR was not lodged promptly and the intimation regarding loss was not given to the Insurance Company immediately, the repudiation by the insurer could be said to be justified, on the ground, that it was deprived of getting the matter properly investigated. The facts of National Insurance Company Ltd. Vs Nitin Khandelwal and Niharika Maurya Vs Chief Manager New India Assurance Co. Ltd.s cases (Supra) being clearly distinguishable from the facts of the instant case, no help can be drawn by the Counsel for the appellant therefrom. On the other hand, the principle of law, laid down in New India Assurance Company Ltd. Vs Trilochan Janes case(supra) by the National Commission, the facts whereof are on all fours with the facts of the instant case, is applicable to this case. In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail and same is dismissed.
15. 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.
16. 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.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to record room.
Sd/-
Announced (JUSTICE SHAM SUNDER) 19th August,2011 President Sd/- ( NEENA SANDHU) Member Sd/ (JAGROOP SINGH MAHAL) Member STATE COMMISSION Appeal case NO.202/2011 Present:
Sh.Deepak Aggarwal, Advocate for the appellant.
Dated the 19th day of August,2011 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed ,at the preliminary stage, with no order as to costs.
(Neena Sandhu ) (Justice Sham Sunder) (Jagroop Singh Mahal ) Member President Member