State Consumer Disputes Redressal Commission
Branch Manager, United India Insurance ... vs Jogendra Singh on 31 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 117 / 2010
Branch Manager, United India Insurance Company Limited
Kashipur Branch, District Udham Singh Nagar
...Appellant / Opposite Party
Versus
Jogendra Singh S/o Sh. Ujagar Singh
R/o Village and P.S. Bazpur
District Udham Singh Nagar
......Respondent / Complainant
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. R.K. Gupta, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
Smt. Kusum Lata Sharma, Member
Dated: 31/05/2011
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 27.03.2010 passed by the District Forum, Udham Singh Nagar in consumer complaint No. 09 of 2007. By the order impugned, the District Forum has allowed the consumer complaint and directed the opposite party - insurance company to settle the claim of the complainant within a period of 30 days from the date of the order and to pay the claim amount to the complainant together with litigation expenses of Rs. 1,500/-.
2. In brief the facts of the case are that the complainant purchased a tractor for sum of Rs. 3,70,000/-. The said tractor was comprehensively insured with the opposite party for the period from 08.09.2004 to 07.09.2005. In the night of 31.05.2005 / 01.06.2005, when the tractor was parked inside the house, the same was stolen by 2 some unknown persons, information whereof was given by the brother of the complainant to the P.S. Bazpur. The FIR of the incident was lodged on 10.06.2005 and a case under Section 379 IPC bearing Crime No. 1169 of 2005 was registered. Information regarding theft of the vehicle was given to the insurance company. After investigation of the matter, when neither the vehicle could be recovered, nor any culprit could be traced, the police submitted the Final Report, which was accepted by the court vide order dated 20.02.2006. The claim of the complainant was repudiated by the insurance company on the ground that the complainant did not co-operate in searching the culprits and also that the complainant did not take proper care of the vehicle. Alleging deficiency in service on the part of the insurance company, the complainant filed the consumer complaint.
3. The opposite party filed written statement and pleaded that the tractor was stolen due to the carelessness of the complainant. It was also pleaded that the intimation of the incident was given to the insurance company on 13.06.2005 and whereas the incident took place in the night between 31.05.2005 / 01.06.2005 and, as such, the intimation was not timely given. It was further alleged that the complainant has committed breach of the policy terms and conditions.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide order dated 27.03.2010 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
5. We have heard the learned counsel for the parties and have also gone through the record.
36. The insurance company, while repudiating the claim of the complainant, has put an emphasis on condition Nos. 1 and 5 of the policy. The extract of condition No. 1 of the policy reads as under:
"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 co-operate with the company in securing the conviction of the offender."
7. Likewise, the condition No. 5 o the insurance policy reads as under:
"The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driver before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk."
8. On the basis of the above conditions, learned counsel for the insurance company has made the submission that the tractor in question was allegedly stolen in the night of 31.05.2005 / 01.06.2005 and the FIR was lodged on 10.06.2005. Therefore, by giving this belated information to the police, the insured has flouted the condition No. 1, which envisages that there should a prompt complaint to the police in case of theft of the vehicle.
49. Learned counsel for the complainant - respondent has submitted that the oral information with regard to the theft of the tractor was given to the police by the complainant on 01.06.2005 and thereafter he kept searching the tractor in question upto 10.06.2005, but when all efforts went in vane, only then the written report was lodged with the police. The complainant in his affidavit filed before the District Forum, has also stated that his brother Sh. Ranbeer Singh orally reported the matter to Police Station Bazpur on 01.06.2005. Therefore, we are of the view that if the oral information was given to the police immediately after the theft, then there is no breach of any condition of the insurance policy.
10. So far as the argument advanced on the basis of condition No. 5 of the policy is concerned, the material available on record indicates that the tractor in question was standing in front of the house of the complainant. The statement of the complainant given to the investigator indicates that in the night at about 10:00 or 10:15 when the tractor was stolen, the same was standing in front of the house of the complainant and the ignition key was also left in the tractor with a view that immediately after taking the meal, the tractor was again to be taken to the field for ploughing the same. The photographs available on record indicate that the tractor along with the trolley was standing within the compound of the house and in any circumstance, it can not be concluded that the tractor was left in the compound of the house in a careless manner.
11. Learned counsel for the appellant has invited our attention towards certain decisions of the Hon'ble National Commission and different State Commissions on the point that in case there is negligence on the part of the owner of the vehicle who left the same unattended with ignition key lying on dashboard, then the repudiation 5 of the claim is valid. Learned counsel has cited United India Insurance Company Limited Vs. Maya; II (2008) CPJ 182 (NC). We have gone through the said decision and we are of the view that the facts of the reported decision are absolutely different from the facts of the instant case. The facts of the instant case are indicative of this aspect that the tractor was not left unattended with ignition key at any abundant place. The evidence is quite clear that the tractor was standing in front of the house and within the compound of the house of the complainant, who intended to take the tractor in a shortwhile to the field for ploughing the same.
12. Learned counsel for the appellant has also invited our attention to the following decisions of different State Commissions:
(i) United India Insurance Co. Ltd. Vs. Naresh Kumar; IV (2005) CPJ 602.
(ii) Ankur Sachdeva Vs. New India Assurance Co. Ltd.; III (2005) CPJ 291.
(iii) United India Insurance Company Limited Vs. Shivali Cement Pvt. Ltd.; III (1999) CPJ 264.
(iv) Yeti Packers Pvt. Ltd. Vs. United Insurance Co. Ltd.; I (1997) CPJ 417.
13. After carefully going through the above decisions cited before us, we are of the view that the facts of the reported decisions are altogether different from the facts of the instant case and the reported decisions do not apply to the facts and circumstances of the present case.
14. Learned counsel for the appellant has also cited New India Assurance Co. Ltd. Vs. Dharam Singh and another; III (2006) 6 CPJ 240 (NC). On a careful consideration of the said decision, we again come to the conclusion that the facts of the reported case are also altogether different and this decision also does not provide any assistance to the insurance company. The facts of the said case were that there was a delay in lodging the FIR and sending claim intimation to the insurer. The theft took place on 17.05.1991, while the First Information Report was lodged on 15.07.1991 and the intimation to the insurer was given on 11.06.1993. Whereas in the instant case, the facts are that immediately on the next day of theft of the tractor, the intimation was given to the police and there was no inordinate delay in sending the intimation of theft to the insurer. We accordingly do not find any force in the argument advanced by the learned counsel for the appellant with regard to violation of the condition No. 5 of the policy.
15. In this context, we rely on a recent judgment of the Hon'ble National Commission in the case of National Insurance Co. Ltd. and another Vs. Track Way Securities and Finance Pvt. Ltd. and another; II (2011) CPJ 132 (NC), wherein the Hon'ble National Commission has relied on a judgment of the Hon'ble Apex Court rendered in the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal; IV (2008) CPJ 1 (SC) and has held that in case of theft of vehicle, breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle when the insured has obtained the comprehensive insurance policy for the loss caused to him.
16. In view of the aforesaid discussion of the matter as well as in the light of the judgment passed by the Hon'ble Apex Court as well as the Hon'ble National Commission, we are of the view that in case of theft of vehicle, if the matter was immediately intimated to the police 7 and there is no plausible evidence to show that the vehicle was left abundant in a careless manner, then the insurance company is liable to indemnify the owner of the vehicle especially when the owner of the vehicle has obtained comprehensive insurance policy for the loss caused to him. We are of the view that the judgment and order passed by the District Forum does not suffer with any infirmity or illegality and the same is fit to be confirmed. The appeal being devoid of merit, is liable to be dismissed.
17. Appeal is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (JUSTICE B.C. KANDPAL) K