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State Consumer Disputes Redressal Commission

M/S B.L. Gupta Construction Pvt. Ltd. vs United India Insurance Co. Ltd. on 15 January, 2021

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                                                  RESERVED ON: 11.12.2020
                                               PRONOUNCED ON:    .01.2021

                             FIRST APPEAL NO. 654/2017

     IN THE MATTER OF

     M/S B.L. GUPTA CONSTRUCTION PVT. LTD. ....APPELLANT


                                        VERSUS

     UNITED INDIA INSURANCE COMPANY
     LIMITED                                                  ....RESPONDENT

     CORAM:

     HON'BLE          DR.     JUSTICE         SANGITA   DHINGRA     SEHGAL
     (PRESIDENT)
     HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)

     Present: Mr. Deepak Khadaria, Counsel for Complainant.
              Mr. Shankar N Sinha, Counsel for Respondent.

     PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
               PRESIDENT
                             [Via Video Conferencing]
     1.

The appellant has preferred the present appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 17.11.2017, vide which his Complaint No. DF. VII/65/13/1586 titled "M/s B.L. Gupta Construction Pvt. Ltd. Vs. United India Insurance Co. Ltd." was dismissed by the Consumer Disputes Redressal Forum-VII, Sheikh Sarai holding that the repudiation of claim by the respondent was justified as there was delay in lodging the FIR by the FA 654/2017 Page 1 of 9 appellant and therefore, the complainant had violated the condition no. 1 of the said policy. The appellant has also prayed for Rs. 6,80,000/- being the claim amount for the stolen vehicle with interest @ 12% p.a. from the date of filing of the claim i.e. 27.06.2011 till the date of payment.

2. The District Forum, in its judgment dated 17.11.2017 has observed as under:

"Perusal of Annexure C-4 which is alleged to be the 1st Complaint lodged on 28.06.2011 by the complainant at Police Station Vijay Nagar shows that admittedly the FIR No. 534 was registered on 29.10.2011 (Annexure C-9 Pg.19 of the complaint). According to the OP delay on lodging the FIR for 4 months and 4 days is in violation of condition No.1 of the Insurance Policy. OP have placed reliance on the decision of the Hon'ble National Commission in the case "New India assurance Company Ltd V. Trilochan Jane (2009) NCDRC 200, whereby it was held that FIR in a theft case must be reported immediately and insurer must be informed immediately.

The complainant though claimed that Police was informed about the theft that took place on 25.06.2011 at Police Station Vijay Nagar, Ghaziabad, U.P. On 28.06.2011 vide Annexure C-4 ( Pg11 of the Complaint) but it stands contradicted by the Complainant's old document at Annexure C-9 registered dated 29.10.2011 which find no reference to the complaint dated nil purported to have been received in the Police Station on 28.06.2011. Rather it mentions the date and time of information as 29.10.2011 at 10.30 Hrs. In view of these contradictions it becomes suspicious that the Annexure 4 is manipulated because NO DAILY DIARY dated 28.06.2011 has been produced by the complainant to prove that the report was lodged with the police on 28.06.2011 and the FIR refereed to the entry in the Roznamcha as 19 at 10:30 am on 29.10.2011 and the distance of the Police Station from the site of alleged occurrence is nearly 400 kms.

Thus we find that the complainant lodged the police complainant only 29.10.2011 i.e., after more than 4 months of alleged theft which violated the condition No.1 of the Policy which reads interalia :

"In case of theft or criminal act which may be the subject of claim under the Policy, the insured shall give immediately notice to the Police and Cooperate with the company in serving the conviction of the offenders.

It is observed by the National Commission in the case of Trilochan Jane (supra) decided on 09.12.2009:

"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 insurer of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle."

Their lordships, further observed:

"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 FIR 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 travelled a long distance or may have been dismantled by that time and sold to Kabaddi (scrap delaer)."

It was held in that case, that the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle within a FA 654/2017 Page 3 of 9 reasonable time. In the said case delay in lodging the FIR was only of 2 days.

Relying upon the above decision of the Hon'ble National Commission. We feel constrained to hold that the claim of the complainant was rightly repudiated by the OP."

3. Learned counsel for the appellant submitted that the district forum erred in holding that there was a delay of 124 days in lodging the FIR about the theft, which is a valid ground to repudiate the claim, even though the appellant had already informed the police at the emergency number i.e. 100. The learned counsel further submitted that there is no delay in intimating the police about the theft as a written complaint with due acknowledgment was filed with the Police Station, Ghaziabad, U.P on 28.06.2011. In support of his argument, learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Apex Court in Om Prakash v. Reliance General Insurance & Anr. reported at 2017 (12) SCALE 198.

4. Per contra, learned counsel for the respondent contended that the appellant was in contravention of Condition No. 1 of the Insurance Policy as it was the obligation of the appellant to immediately inform the Police about the theft and cooperate with the insurance company in serving the conviction of the offenders. To support his argument, the counsel for the respondent has placed reliance on New India Assurance Co. v. Trilochon Jane reported at (2009) NCDRC 200 and Suman v. Oriental Insurance Company Limited reported at 1 (2013) CPJ 713 (NC).

5. We have perused the material available on record as well as the impugned judgment. The short question for adjudication in this appeal is whether there is any infirmity in the impugned order herein dismissing the complaint.

6. At the outset, it is imperative to refer to the Condition No. 1 of the insurance policy which reads as follows:

"In case of theft or criminal act which may be the subject of claim under the Policy, the insured shall give immediately notice to the Police and Cooperate with the company in serving the conviction of the offenders."

7. The bare perusal of the aforesaid condition reflects that it is the duty of the insured to inform the nearest police station about the theft of the insured vehicle. What constitutes immediate notice to the police has been discussed by the Hon'ble National Commission in the case of New India Assurance Company Ltd. vs. Trilochan Jane reported at IV (2012) CPJ 441 (NC) held as under :

"7. As per Oxford Advanced Learner's Dictionary, the word 'immediately' means 'at once' whereas Stroud's 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 Black's Law Dictionary, Sixth Edition, word 'immediately' means doing of a thing straightaway 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 Mitra's 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.

8. 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 insurer of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle."

8. The relevance of informing the police "immediately" has been discussed recently by the Hon'ble Apex Court in Gurshinder Singh v. Shriram General Insurance Co. Ltd. & Anr. reported at AIR 2020 SC 1395 wherein it has been held as under:

"15. We find, that the second part of Condition No. 1 deals with the 'theft or criminal act other than the accident. provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.

16. It is further to be noted that, in the event, after the registration of an FIR, the FA 654/2017 Page 6 of 9 police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen."

9. Returning to the facts of the case after having discussed the relevant law on the cause, the perusal of the record before us shows that the FIR was lodged in the police station on 29.10.2011 i.e. after a delay of 4 months and 4 days from the date of the alleged theft. The counsel for the appellant has contended that the police was informed immediately on the emergency number i.e. 100 and it was the police who delayed the registration of the FIR. However, we fail to find any documentary proof to substantiate the claim of the learned counsel for the appellant that a call on the emergency number i.e. 100 was made by the appellant and we cannot adjudicate on the basis of a bald statement of the appellant. Moreover, FA 654/2017 Page 7 of 9 the complaint to the police which is being referred to by the counsel for the appellant was also filed only on 28.06.2011 that is after a delay of 3 days and the appellant has failed to explain as to why the delay has been caused. We are also in agreement with the findings of the district forum wherein the District Forum has rightly held that the FIR registered on 29.10.2011 does not find mention of any previous complaint made by the appellant let alone the document annexed as Annexure A-5 being the complaint dated 28.06.2011.

10. Moreover, the judgment relied on by the appellant also does not support the case of the appellant. The appellant has placed reliance on the judgment of Om Prakash vs. Reliance General Insurance and Ors. reported at AIR 2017 SC 4836, wherein it has been held that where the delay is due to unavoidable circumstances and the insurer is able to prove the delay, the claim should not be denied on technical grounds. The present case can be differentiated from the aforesaid case of the Hon'ble Apex Court as in the present case, the insurer has failed to bring forth any document or evidence to explain the delay caused in informing the police agency.

11. We are conscious of the fact that the Consumer Protection Act, 1986 being a welfare legislation should be given a pragmatic interpretation, however, the same does not mean that the provisions can be so liberally construed that it defeats the basic principles of law. The appellant has not brought forth any piece of evidence which will show that there was immediate notice to the police, violating the Condition No. 1 of the insurance policy, hence, the delay in intimation to the police has proven fatal to the case of the appellant.

12. In terms of the aforesaid discussion, we hold that the insurance company was justified in repudiating the claim of the appellant/insurer, consequently, we dismiss the appeal filed by the appellant and uphold the impugned order passed by the Consumer Disputes Redressal Forum-VII, Sheikh Sarai.

13. No order as to costs.

14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

15. File be consigned to record room along with a copy of this judgment.

(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:

.01.2021 FA 654/2017 Page 9 of 9