National Consumer Disputes Redressal
The New India Assurance Co. Ltd., Shri ... vs Shri Dharam Singh, Shri G.N. Rathi on 4 July, 2006
NCDRC
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
FIRST
APPEAL NO. 426 OF
2004
(From the order dated 17.09.2004 in Complt. No. 353/94
of State
Commission, Delhi)
The New India Assurance Co. Ltd. Appellant
Regional Office I, Jeevan Bharati
124, Connaught Circus,
New Delhi-110001
Vs.
1. Shri Dharam Singh Respondents
S/O Shri Mal
Singh,
8308/34, Roshanara
Road,
Delhi
2. M.G.F.( India) Ltd.,
M.G.F. House,
17-B, Asaf Ali
Road,
New
Delhi
BEFORE :
HONBLE SHRI JUSTICE K.S.GUPTA,
PRESIDING
MEMBER
MRS. RAJYALAKSHMI RAO, MEMBER
For the Appellant Shri Salil Paul, Advocate
For the Respondents Shri G.N. Rathi, Advocate
DATED : 4th July,
2006
O R D E R
JUSTICE K.S.GUPTA, MEMBER This appeal is directed against the order dated 17.09.04 of State Commission, Delhi allowing complaint with direction to the appellant/opposite party to pay insured amount of Rs.2,50,000/- with interest @ 12% from 12.07.93 in addition to Rs.25,000/- towards compensation for mental agony and harassment as also cost to the respondents/complainants.
Facts giving rise to this appeal lie in narrow compass. Respondent No.1/complainant No.1 purchased with the financial assistance of respondent No.2 /complainant No. 2 a truck bearing registration No. DIL 2223 in August, 1986. Truck was insured for the period from 29.08.90 to 28.08.91 for a sum of Rs.2,50,000/- with the appellant. Policy was subject to hire purchase endorsement in favour of respondent No. 2. It was alleged that on 17.5.91, truck alongwith driver - Jasbir Singh was hijacked by some unknown persons for which report was lodged with the police on 15.07.91 by respondent No.1. Respondent No.2 was also intimated of the incident by respondent No. 1. By the letter dated 18.07.91 respondent No. 2 informed the appellant of the theft/hijacking of truck. Copy of FIR and claim intimation were allegedly forwarded alongwith the said letter to the appellant. Respondent No. 2 thereafter allegedly sent reminders dated 5.8.91 and 12.9.91 to the appellant. Alongwith letter dated 6.11.91, respondent No.2 allegedly forwarded the copy of final investigation report wherein it was stated that there had been no trace of the truck and driver, to the appellant. Reminders were allegedly sent on 3.2.92 and 23.3.93 to the appellant to settle the claim. On getting no response, the respondent No. 2 approached the Regional Office of appellant through the letters dated 11.6.93 and 8.7.93 to look into the matter. In the meantime by the letter dated 21.7.93 the appellant intimated respondent No. 2 that no communications including claim intimation as claimed were received by it and it was requested that necessary papers be supplied to it. Alongwith letter dated 13.8.93 respondent No.2 provided to the appellant all the relevant documents sent to it in the past. By the letters dated 7.9.93, 18.11.93 and 20.01.94 the respondent No. 2 reminded the appellant to settle the claim on total loss basis. After serving legal notice dated 3.6.94, respondents filed complaint seeking payment of the insured amount with interest and compensation which was contested by filing written version by the appellant. It was alleged that the alleged loss was stated to have taken place on 17.5.91 and the complaint filed on 12.10.94 is hopelessly barred by time. It was denied that any letter between 18.07.91 to 23.03.92 including copies of FIR and final investigation report were received by the appellant from respondent No.2. Letters allegedly sent during this said period are forged and fabricated. The claim was not covered under the policy issued by the appellant. There was delay of about two months in lodging FIR by respondent No. 1 with the police. It was asserted that there is violation of condition No. 1 of the policy by reason of FIR being lodged and claim intimation sent by respondent No. 2 highly belatedly.
It will be profitable to refer here condition No. 1 of the policy which runs as under:-
1. 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 also 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.
Main thrust of argument advanced by Shri Salil Paul for appellant was that it was only through respondent No.2s letter dated 11.06.93 (received on 14.06.93) the insurance company came to know of the occurrence dated 17.5.91. Respondents allege that FIR regarding occurrence was lodged by respondent No. 1 on 15.07.91 and there was, thus, breach of condition No. 1 of the policy in as much as that neither FIR of the occurrence was lodged with the police immediately after the occurrence nor claim of the loss of insured truck was made after 15.07.91. It was pointed out that the letters allegedly sent on 18.07.91, 5.8.91, 12.09.91, 6.11.91, 3.02.92 and 23.03.92 were never received by the appellant and those had been fabricated by respondent No.2 to cover up the delay in question. It was further pointed out that though the letters written on 11.06.93 and onwards by respondent No. 2 admittedly received by the appellant, bear the acknowledgements regarding receipt thereof but the letters sent between 18.07.91 to 23.03.92 do not bear any acknowledgement of receipt of any of them by the insurance company. Reliance was also placed on the decisions in Davendra Singh Vs. New India Assurance Co. Ltd. & Ors. {III (2003) CPJ 77 (NC) }, and United India Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal (JT 2004 (8) SC 8). On the other hand, it was urged by Shri G.N. Rathi, for respondents that letters sent by respondent No. 2 were used to be delivered as per practice without obtaining signatures on office copies.
In para No. 6 of written version on merit the appellant had admitted receipt of one of the said letters dated 23.3.92 which does not bear acknowledgement of receipt thereof by the appellant insurance company. On being intimated of the lodging of FIR on 15.07.91 by respondent No.1, the respondent No. 2 immediately forwarded copy of FIR to the concerned branch of insurance company alongwith letter dated 18.07.91 in addition to sending therewith the completed claim form. In support of further submission that claim can not be repudiated on ground of alleged breach of condition No. 1 of the policy, reliance was placed on the decisions in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. (1996 ACJ 1178) and Kesarben Vs. United India Insurance Co. Ltd. {III (2000) CPJ 36 (NC)}.
It is not in dispute that copies of five letters allegedly sent by respondent No.2 to the appellant between the period 18.7.91 to 3.2.92 do not bear acknowledgements of their originals having been received by appellant insurance company whereas the copies of letters addressed by respondent No. 2 to the appellant dated 11.6.93 (at page 62), 8.7.93 (at page 63), 13.8.93 (at page 65), 7.9.93 (at page 66), 18.11.93 (at page 67) and 20.01.94 (at page 69) bear the acknowledgements of their having been received by appellant insurance company. Para No. 6 of the written version on merit on which heavy reliance was placed on behalf of respondents runs as under:-
6. Para No. 6, as stated, is wrong, incorrect, misconceived, fabricated and concocted; hence denied. It is specifically denied that the complainant No. 2 had sent letter dated 3.2.1992 to Opposite Party Insurance Company. However, letter dated 23.03.92 is admitted to have been received by the respondent Insurance Company as the first communicated about the loss.
Further in reply para No. 3 of Preliminary Objections may kindly be referred to.
Para No. 3 of Preliminary Objections which is material, reads thus:-
3. WITHOUT PREJUDICE TO ABOVE SAID PLEADINGS it is submitted that the complainants have not come before this Honble Commission with clean hands. No alleged letters from the period 18.7.91 to 23.3.92 including copies of FIR and Police Final Report were ever written or served upon the Opposite Party Insurance Company. This fact stands corroborated by Opposite Party Insurance Companys letter dated 21.07.93 addressed to Complainant NO. 2 (page 29 of complaint) where Opposite Party Insurance Company has categorically stated that it has verified its record and has found that no claim pertaining to the alleged loss has been registered with the Insurance Company.
Hence all the letters said to have been written by complainant No. 2 to Opposite Party Insurance Company for the period 18.7.91 to 23.3.92 are denied being fabricated and forged.
Receipt of the letters for the said period by the appellant insurance Company is crucial as regards alleged breach of aforesaid condition NO. 1 of the policy. Copy of the letter dated 21.07.93 at page No. 70 would show that the same was written by appellant insurance company with reference to respondent No. 2s letters dated 11.6.93 and 8.7.93. This letter notices that after verifying the records it was found that no claim was registered under the policy for theft of truck No. DIL 2223 and in case respondent No. 2 had got documentary proof to show that the documents sent by it were received by the office of appellant, the copies of the same be forwarded to it to find out the exact position. In response to this letter the respondent No. 2 sent letter dated 13.8.93 that it was surprised to note that no claim had been registered so far and no documents were received by the appellant. It was further stated that it was usual practice to deliver the dak without obtaining any signatures from the responsible officials and the documents sent had been misplaced at the end of insurance company. Two affidavits of complainant and Rajiv Gupta, Director of respondent company were filed by way of evidence on behalf of respondents before the State Commission. For the reasons best known to respondent No. 2 it has not filed the affidavit(s) of the person(s) delivering the said letters, the receipt whereof is denied by the appellant. Further, respondent No. 2 has not given any plausible explanation why in respect of letters sent to the appellant on 18.7.91 and onwards, acknowledgements of receipt of originals thereof from insurance company were obtained if there was practice of the letters being delivered in the office of appellant without obtaining signatures on office copies. It was pointed out by Shri Paul, Adv. that in aforesaid para No. 6 of the written version on merits the receipt of respondent No.2s letter dated 23.3.92 was admitted erroneously and in fact it is the letter dated 11.06.93 which was received for the first time from respondent No.2. According to Ld. Counsel, para No. 6 has to be read alongwith said para No. 3 of the preliminary objections of written version wherein receipt of the letter dated 23.03.92 had been specifically denied. Assuming for the sake of argument that receipt of the letter dated 23.03.92 is admitted by insurance company, in view of above pleadings and letter dated 21.07.93 it was for respondent No. 2 to have proved the delivery of aforesaid letters dated 18.7.91, 5.8.91. 12.9.91, 6.11.91 and 3.2.92 on the appellant. In absence of affidavit(s) of the person(s) delivering these letters and the circumstance noticed above, we have no hesitation in holding that the said five letters were not sent and delivered to the appellant insurance company and copies thereof filed by respondent No. 2 have been forged obviously to covering up the delay in intimating by respondent No. 2 to appellant insurance company of the occurrence wherein the truck was lost and lodging the claim under the policy. Object behind aforesaid condition No.1 is to enable the insurance company to promptly verify the alleged cause of loss/damage and extent thereof to the insured property independently. Since it is not the case of respondents that any of the said letters were sent under certificate of posting we are unable to endorse the conclusion reached by State Commission that no person would go on sending letters after letters to a party by obtaining fake postal receipts and retaining the originals with him.
Undisputedly, FIR was lodged on 15.7.91. In our view, conduct of respondent No. 1 in having waited for about two months for lodging the report with police is unnatural and raises suspicion in regard to the manner in which the insured truck was lost. Conclusion reached by the State Commission that delay in informing the police of the occurrence was of no consequence, is not convincing. In Davendra Singhs case (Supra) delay of four days in reporting theft of the insured vehicle to the police and delay in reporting to the insurer of the theft after a gap of almost of a month was held in violation of condition of policy. In M/s. Harchand Rai Chandan Lals case (Supra) the Supreme Court held that the terms of contract have to be read strictly. Applying the ratio of this decision in present case there is clear breach of afore-mentioned condition No. 1 of the policy on the part of respondent and appellant cannot be said to be deficient in service in not paying the claim under the policy. Aforesaid two decisions relied on behalf of respondent have no applicability to the facts of this case. Order of State Commission, thus, deserves to be set as+ide being not legally sustainable.
Resultantly, the appeal is allowed and order dated 17.9.04 is set aside and complaint dismissed with cost of Rs.10,000/- to the appellant.
J (K.S.GUPTA) PRESIDING MEMBER .
(RAJYALAKSHMI RAO) MEMBER Yd/*