National Consumer Disputes Redressal
The New India Assurance Co. Ltd. vs Rajesh Kumar on 14 July, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3089 OF 2018 (Against the Order dated 01/08/2018 in Appeal No. 1535/2017 of the State Commission Uttar Pradesh) 1. THE NEW INDIA ASSURANCE CO. LTD. THRPUGH ITS MANAGER DELHI LEGAL HUB SCOPE MINAR 1ST FLOOR, DISTRICT CENTRE LUXMI NAGAR NEW DELHI - 110092 ...........Petitioner(s) Versus 1. RAJESH KUMAR S/O SHRI SHER SINGH R/O 531 MAALIWADA GHAZIABAD, U.P. ...........Respondent(s) REVISION PETITION NO. 861 OF 2019 (Against the Order dated 01/08/2018 in Appeal No. 1535/2017 of the State Commission Uttar Pradesh) 1. RAJESH KUMAR S/O. SHRI SHER SINGH, R/O. 531, MAALIWADA, GHAZIABAD ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. THROUGH ITS MANAGER, DELHI LEGAL HUB, SCOPE MINAR, 1ST FLOOR, DISTRICT CENTRE LAXMI NAGAR, NEW DELHI-110092 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
FOR THE PETITIONER : MR. MAIBAM N. SINGH, ADVOCATE FOR THE RESPONDENT : MR MANOJ R SINHA, ADVOCATE WITH
MS NISHA, ADVOCATE
Dated : 14 July 2023 ORDER
1. This revision petition under section 21 of the Consumer Protection Act, 1986 (in short, the 'Act') assails the interim order dated 01.08.2018 in Appeal No. 1535/2017 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (in short, the 'State Commission') arising out of order dated 11.08.2017 in Consumer Complaint No. 101 of 2015 of the District Consumer Disputes Redressal Commission, Ghaziabad (in short, the 'District Forum'). This order will also dispose of revision petition no. 861 of 2019 filed by the respondent herein against the petitioner assailing the same order.
2. The facts, in brief, according to the revision petitioner, are that respondent/complainant had taken a Commercial Vehicle Package Policy for bus with chassis number 113905 (registration no. UP 14 AD 9799) from the petitioner Insurance Company for the period 18.11.2013 to 17.11.2014. The respondent reported that the vehicle was stolen around midnight on 19.11.2013 and an FIR was lodged on 19.11.2013 in Police Station, Sihani Gate, Ghaziabad and the petitioner/insurance company was informed on 02.2.2013. The petitioner states that the FIR does not explain reasons for delay in filing of the FIR. Petitioner appointed Royal Associates as the investigator. Based on their report, the claim was repudiated on 23.02.2015 on the grounds that the bus lacked a fitness certificate at the time of theft, the chassis number on the pre-inspection report was tampered with as some digits were missing and there was delay of 10 days in filing the FIR and 14 days in intimating the petitioner. Condition no.1 of the policy was, therefore, violated. Upon receiving a representation from the insured, the matter was reconsidered by the petitioner. However, the investigator reiterated his findings regarding the tampering of the chassis number and the claim was finally repudiated on 28.05.2015.
3. Respondent approached the District Forum which disallowed the complaint on contest vide order dated 11.08.2017 on the grounds that there was no deficiency in service. The State Commission, however, held that the theft of the bus could not be doubted on the basis of the final report filed by the police in the FIR before the ACJM Court and allowed the appeal. The instant appeal is filed on the grounds that (i) the State Commission erred in not appreciating the delay of 10 days in lodging of the FIR and that the District Forum rightly held that call records of the respondent had not been produced to prove that the police had been immediately informed telephonically as claimed; (ii) the investigator's report was not appreciated with regard to the tampering of the chassis number of the vehicle even though the number on the registration certificate, copy of the policy and the FIR tally, the tracing taken by the RTO while registering the vehicle was different at the time of pre-registration; (iii) the delay of 10 days in registering the FIR and 14 days in intimating the insurance company was not explained as laid down by the Hon'ble Supreme Court in Om Prakash Vs. Reliance General Insurance, (2017) 9 SCC 724 and Oriental Insurance Co. Ltd Vs. Parvesh Chander Chadha, CA no. 6739 of 2010 and the judgment of this Commission in P Khamar Pasha Vs. Oriental Insurance Co. Ltd. in RP No. 724 of 2018 which held that reason for delay in making claim has to be satisfactorily explained; (iv) the investigator reported that the bus was parked for over 11 months at ALT Bus Stand and that its fitness and permit had already expired and had not been renewed prior to the theft; and (v) it was also reported that at the time of theft the vehicle had been parked near Santosh Hospital and the circumstances of theft were doubtful.
4. Dismissing the complaint, the District Forum had held as under:
The opposite party has repudiated the claim under the terms and conditions of the Opposite Party and not committed any deficiency in service, therefore, the complaint of the Complainant is liable to be dismissed summarily.
5. The order of the State Commission dated 01.08.2018 upholding the appeal of the respondent reads as below:
There is no reason to consider the version of the Respondent Insurance Company to rely on the judgement of the Hon'ble National Commission in P. Khamar Pasha Vs Branch Manager, Oriental Insurance Company Ltd. in Revision Petition No. 724. In the present case the reputation on the ground of delay in intimating the claim is unacceptable. The complainant in its complaint had stated clearly that he had intimated about the theft of the vehicle immediately to the police and in this regard the police had filed its final report in the and the Court of ACJM had accepted the report on 12.04.2014 Therefore, there is no question of doubting the theft of the vehicle. The present case is squarely covered by the judgement of the Supreme Court in Om Prakash Vs Reliance General Insurance 2017 9 SCC 724. The Supreme Court in Om Prakash Vs Reliance General Insurance has observed that after the theft of the vehicle the owner will first trace the vehicle and only after that the owner will inform the police or the insurance company. It is the normal behaviour of every person. Therefore, there is a valid reason in delay in intimating to the police as well as to the Insurance Company On the basis of the above observation, this Commission is of the view that the District Forum has erroneously dismissed the complaint. There is merit in the appeal filed by the appellant. In our opinion it would be appropriate to allow the appeal and set aside the order passed by the District Forum and direct the Insurance Company to pay the insured amount to the appellant/complainant. Accordingly allowed the appeal.
Order The appeal of the appellant is allowed. The order of the District Forum is set aside and allowed the complaint and direct the Respondent Insurance Company to pay appellant/complainant the insured amount of the vehicle i.e. Rs 7,00,000/- within two months from the date of passing of this order along with Rs 10,000/- as cost.
If the insured amount is not paid within the stipulated time, the Insurance Company will be liable to pay interest at 6% from the date of filing the complaint till realisation.
6. I have heard the learned counsel for both the sides and perused the records carefully.
7. On behalf of the respondent it was argued that there was no delay in the filing of the FIR and that the police had, in reply to an RTI query, stated that the intimation of the theft had been received by them on the night of 19-20th November 2013. It was also argued that there was no tampering of the chassis number since the number in the Registration Certificate, Insurance Policy and the FIR was the same. According to the policy basic OD and TP was covered. Reliance is placed on Om Prakash vs Reliance General Insurance and Anr. in Civil Appeal no. 15611 of 2017 decided on 04.10.2017 (2017) 9 SCC 724 wherein it was held that:
"It is common knowledge that a person who has lost his vehicle may not straightaway go to the insurance company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims, particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. The conditions regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs to emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal constructions. This laudable object should not be forgotten while considering the claims made under the Act.
[ Emphasis added ]
8. The petitioner has contended that there was delay in the filing of the FIR and the intimation of the incident of theft to the insurance company. It has relied upon Parvesh Chander Chadha (supra) regarding disentitlement of claimant from an insurance claim when there was delay in informing the occurrence of theft. On this issue, the State Commission has relied upon the judgment of the Hon'ble Supreme Court in Om Prakash (supra) wherein it was held that the condition in the policy of insurance that an incident of theft be intimated immediately to the insurer should not bar settlement of genuine claims when delay in intimation or submission of documents is due to unavoidable circumstances. The reason for delay in making a claim must be satisfactorily explained and the decision of the insurer to reject the claim must be based on valid grounds. The respondent also relied upon the judgment of the Hon'ble Supreme Court in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr. in CA No. 653 of 2020 which, noting the opposing ratios in Om Prakash and Parvesh Chander Chadha (supra), laid down that:
...when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
In the instant case, the respondent's case is that the intimation to the police was done immediately after the theft was detected but the FIR was delayed. The investigation concluded that the bus could not be traced and a report was accordingly filed before the ACJM. The theft being proved, the claim cannot be held not to be genuine. The delay in intimation to the insurance company is, however, explained that there is a delay in intimation to the insurance company by which condition no.1 of the policy is violated by the respondent.
9. From the record, it is evident that the vehicle in question was stolen as per the report filed by the police in the FIR lodged by the respondent. It is also manifest that the registration certificate of the vehicle, the policy of insurance and the FIR have all recorded the same chassis number. The conclusion of the investigator that there is a variation in the chassis number of the vehicle is based upon the pre-registration survey by the insurance. The finding of the investigator appointed by the petitioner has not justified why the same Transport Department recorded a chassis number that was different to the one that was noted in the pre-registration survey. It has also not controverted the final recording of the chassis number on the basis of any evidence to the contrary except the tracing on the pre-insurance survey document. The petitioner has not displayed any mala fide in reporting the theft of the vehicle to the police and the insurance company citing the chassis number.
10. The District Forum disallowed the complaint against repudiation of the claim on the ground of the theft being suspicious since there was delay in intimation to both the police and the petitioner insurance company and the chassis number was different in the RC and the Pre-Inspection Report, "which clearly shows that it was manipulated and tampered by the Complainant, the Complainant could not reply to the same". On these grounds it concluded that the repudiation was under the terms and conditions of the policy. The State Commission, relying on Om Prakash (supra), held that the claim cannot be held to be non-genuine merely on the ground of delay in intimation of the incident of theft even though the policy condition prescribes immediate intimation since "a person who suffers a theft of a vehicle will make efforts to trace the vehicle. A genuine claim cannot be rejected on purely technical grounds in a mechanical manner since it will result in loss of confidence of policy holders in the insurance policy."
11. In the instant case, the respondent has provided cogent reasons for the delay in intimation of the loss of his vehicle. The delay on the part of the police in registering an FIR and the delay in the information to the insurance company cannot be a reason for the rejection of the claim. The conclusion of the investigator that the chassis number had been tampered with is erroneous as it is contrary to the conformance of the number across the RC, Policy and the FIR. The Hon'ble Supreme Court has held in Om Prakash (supra) that rejection of claims on technical grounds in a mechanical manner is not desirable. In the present case, it is apparent that the theft was proven and the petitioner has raised the issue of variation in the chassis number, which was noted to be different only in pre-insurance survey but has subsequently been found to corroborate with details on other documents such as the RC. The FIR report of the jurisdictional police also confirms the finding of the theft. There is, therefore, no cogent evidence on record to disregard this fact.
12. In view of the reasons mentioned above, the revision petition is found to have no merits and is liable to fail. Accordingly, the revision petition is dismissed as without merits. Order of the State Commission is affirmed. Revision petition no. 861 of 2019 is allowed and disposed of in the above terms.
...................................... SUBHASH CHANDRA PRESIDING MEMBER