State Consumer Disputes Redressal Commission
Shriram General Insurance Company ... vs Gurshinder Singh on 26 March, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.790 of 2012.
Date of Institution: 11.06.2012.
Date of Decision: 26.03.2013.
1. Shriram General Insurance Company Limited, Registered Office: E-8,
EPIP, RIICO, Sitapur, Jaipur-302022, through its Managing Director.
2. Shriram General Insurance Company Limited, SCO-2, 2nd Floor, PUDA
Complex, Ladowali Road, near Dainik Bhaskar Office, Jalandhar
through its Attorney Sh. Vivek Sharma S/o Sh. S.P. Sharma, available
at SCO No.178, Sector-38, Chandigarh.
.....Appellants.
Versus
1. Gurshinder Singh S/o Sh. Gian Singh, R/o VPO Rehana Jattan, Tehsil
Phagwara, District Kapurthala.
...Complainant/Respondent.
2. M/s Accurate Investigator and Recovery Agency, situated at C-15, 2nd
Floor, New Ashok Nagar, opposite Kali Mandir, Delhi-110096, through
its Partner.
...Respondents.
First Appeal against the order dated
09.05.2012 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Sanjay Goyal, Advocate, counsel for the appellant.
Sh. Ajay Singla, Advocate, counsel for respondent no.1. Service of respondent no.2 dispensed with vide order dated 22.08.2012.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Shriram General Insurance Company Limited and another, appellants/opposite parties no.1 & 2 (In short "the appellants") have filed this appeal against the order dated 09.05.2012 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that Sh. Gurshinder Singh, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint First Appeal No.790 of 2012 2 under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), asserting that on 19.06.2010, he purchased an insurance policy no.105021/31/11/000205 for his new "New Holland-3630 Tractor" bearing registration No.PB-36-E-9733 from appellant no.2 and paid Rs.5647/- as premium for a period of one year. On 28.10.2010, the said tractor was stolen by some unidentified persons from village Boparai Kalan, P.S. Nakodar, District Jalandhar and FIR No.258 dated 28.10.2010 U/s 379 IPC was lodged at P.S. Nakodar, District Jalandhar and claim dated 15.12.2010 for getting the insured declared value of the tractor was lodged with the appellants and documents were supplied as demanded vide letter dated 18.12.2010 with respondent no.2, through surveyor Sh. Amit Gupta appointed by respondent no.2, but the claim was not paid and the appellants recommended the claim, by mentioning that there was delay of 52 days in intimating the claim to the insurance company and the claim was closed as 'no claim'. Respondent no.1 visited the office of respondent no.1 a number of times and he was asked to wait and ultimately, in the first week of May, 2011, appellant no.1 showed its inability to pay the claim. The respondent no.1 issued reminder through e-
mails, but the appellants did not reply. Respondent no.1 moved an application dated 26.05.2011 through speed post to the appellants, mentioning the specific reasons for delay in lodging the claim, but the claim was not released. It amounts to deficiency in service and unfair trade practice.
3. It was prayed that the appellants and respondent no.2 may be directed to pay Rs.4,99,975/- i.e. Rs.4.70 lacs as insured declared value of the tractor and Rs.24,675/- as interest @ 9% p.a. from the date of lodging of the claim till payment and Rs.5300/- as litigation expenses.
4. In the written version filed on behalf of the appellants, preliminary objections were raised that there is no deficiency in service or unfair trade practice on the part of the appellants. Claim intimation was given after 52 days from the date of theft of the vehicle which was violation of the terms and conditions i.e. condition no.1 and the claim was repudiated vide First Appeal No.790 of 2012 3 letter dated 11.01.2011. Respondent no.1 also violated condition no.5 of the policy of insurance. As per contents of the FIR, respondent no.1 parked his tractor in the field of his relative and slept there and when he woke up in the morning, he found his tractor missing. Respondent no.1 was negligent in parking his tractor, leaving it unattended.
5. On merits, lodging of the claim with the appellants, submitting documents was replied as a matter of record. The theft took place on 28.10.2010 and the claim was lodged on 18.12.2010 after about 52 days from the date of loss. All other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs.
6. Respondent no.3 was given up on the basis of the statement made by the counsel for the respondent no.1 on 09.01.2012 before the District Forum.
7. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that in case due to delay, the insurance company was prejudiced in investigating the genuineness of the claim , then the delay is certainly fatal to the case of respondent no.1, but where the FIR regarding the theft has been immediately lodged, then the delay in intimating will not prejudice the insurance company in verifying the genuineness of the claim. In case of theft, investigation is to be conducted by the police. In the present case, the police submitted the untraced report and this fact is evident from the report Ex.C-3 made by the police of P.S. Nakodar. The appellants were not justified in repudiating the claim. The complaint was accepted and the appellants were directed to pay Rs.4.70 lacs being the insured declared value within one month of the receipt of copy of the order, failing which the interest @ 12% p.a. from the date of order till payment shall be payable. Rs.5,000/- was awarded as compensation and litigation expenses. First Appeal No.790 of 2012 4
9. Aggrieved by the impugned order dated 09.05.2012, the appellants have come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellants and respondent no.1.
11. Service of respondent no.2 was dispensed with vide order dated 22.08.2012 passed by this Commission.
12. Learned counsel for the appellants argued that the delay in lodging the claim with the insurance company is fatal. The theft took place on 28.10.2010 and the intimation was given to the appellants on 18.12.2010 after the delay of 52 days which respondent no.1 has failed to explain. The insurance company was prejudiced as no investigation could be conducted after so much delay. Respondent no.1 himself was negligent in parking the vehicle, by leaving it unattended and for the negligence of respondent no.1, the appellants are not liable. The order passed by the District Forum is against the settled proposition of law as well as conditions no.1 and 5 of the policy and the impugned order under appeal is liable to be set aside.
13. On the other hand, learned counsel for respondent no.1 argued that in this case, the theft took place on 28.10.2012 and the matter was reported to the police immediately on the same day and FIR Ex.C-1 was recorded. The police was the best agency to investigate the case and it submitted the untraced report. It has been further contended that as per terms and conditions of the policy, the intimation was to be given to the police immediately and there was no clause in the policy vide which the intimation was required to be given to the insurance company immediately. The order of the District Forum is legal and valid and the appeal may be dismissed.
14. We have considered the respective submissions advanced on behalf of the parties and have thoroughly scanned the entire record and other material placed on the record.
First Appeal No.790 of 2012 5
15. Much reliance has been placed by the counsel for the appellants on the Condition No.1 of the policy Ex.R-3 and for the convenience, the said condition is reproduced as follows:-
"1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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 or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution Inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. 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".
16. From the above condition, it is clear that in case of any accidental loss or damage, the insured shall give information immediately in writing to the insurance company. The notice is mandatory in writing to the company immediately and the insured shall have knowledge of any impending prosecution Inquest of Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy.
17. This part of the condition is applicable to the occurrence of any accidental loss or damage or impending prosecution Inquest or Fatal Inquiry of any occurrence which may give rise to any claim under the policy.
18. So far as the cases of theft are concerned, as per the above condition, in case of theft or a criminal act, which may be the subject matter of the claim under the policy, it is mandatory for the insured to give immediate notice to the police and cooperate with the company in securing the First Appeal No.790 of 2012 6 conviction of the offender. Thus, the second part of this condition deals with the cases of theft or any criminal act from which the claim may rise and in that case, the information has to be given to the police and the insured has to cooperate in securing the conviction of the offender.
19. In the present case, theft took place on 28.10.2010 of the tractor in question and the FIR regarding the theft was registered on the same very day vide FIR No.258 dated 28.10.2010 U/s 379 IPC at Police Station Nakodar, District Jalandhar. It is settled proposition of law that the conditions of the policy have to be construed strictly and the parties are bound by the terms and conditions of the policy. In the present case, the mandatory requirement of informing the police was complied immediately and the FIR was registered. It was for the police to investigate and thereafter, arrest the offenders and to recover the stolen article, and then present the challan. The duty of the insured regarding the insurance company was that he should cooperate with the insurance company to secure the conviction of the offender. These two distinctions have been made because in the case of accidental loss, the insurance company has to immediately get the spot survey conducted to know the actual loss at the spot itself and thereafter, the final survey is conducted, so that no manipulation is done in replacing the parts which might have not been damaged in the accident.
20. The learned counsel for the appellants has place reliance upon the decisions of the Hon'ble National Commission in the following cases:-
(i) Revision Petition No.2534 of 2012 "Virender Kumar Vs The New India Assurance Co. Ltd.", decided on 7th November, 2012
(ii) Revision Petition No.3614 of 2012 "Attar Singh & Anr. Vs Reliance General Insurance Co. & Anr.", decided on 09.10.2012;
(iii) Revision Petition No.1362 of 2011 "Smt. Gyarsi Devi & Ors. Vs The Manager, United India Insurance Co. Ltd. & Anr.", decided on 1st September, 2011.
(iv) First Appeal No.321 of 2005 "New India Assurance Company Limited Vs Trilochan Jane", decided on 09.12.2009.First Appeal No.790 of 2012 7
But the above authorities are not applicable to the facts and circumstances of the present case and particularly, in view of the Condition No.1 of the policy Ex.R-3. The District Forum has passed a detailed and speaking order and there is no ground to interfere with the same.
21. Sequel to the above discussion, the appeal filed by the appellants is dismissed and the impugned order under appeal dated 09.05.2012 passed by the District Forum is affirmed and upheld. No order as to costs.
22. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.2,12,500/- vide receipt dated 14.08.2012 in compliance of the order dated July 10, 2012 of this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
23. Remaining amount as per the order of the District Forum shall be paid by the appellants to respondent no.1/complainant within 45 days of the receipt of copy of the order.
24. The arguments in this appeal were heard on 25.03.2013 and the order was reserved. Now the order be communicated to the parties.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member March 26, 2013.
(Gurmeet S)