State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Muzibar Sekh on 2 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1240/2017 ( Date of Filing : 24 Nov 2017 ) (Arisen out of Order Dated 25/08/2017 in Case No. Complaint Case No. CC/226/2014 of District Hooghly) 1. United India Insurance Co. Ltd. Diamond Harbour Road, 1st Floor, P.O. Bishnupur, Amtala, P.S. Bishnupur, Pin - 743 503. ...........Appellant(s) Versus 1. Muzibar Sekh S/o Lt. Hazi Sekh Kaloo, 26, Nrishinghadev Ghat Lane, P.S. & P.O. - Dankuni, Dist. Hooghly, Pin - 712 139. ...........Respondent(s) BEFORE: HON'BLE MRS. Dipa Sen ( Maity ) PRESIDING MEMBER HON'BLE MR. SUBHRA SANKAR BHATTA JUDICIAL MEMBER PRESENT: Mr. Sujoy Kumar Basu, Advocate for the Appellant 1 Mr. Pradip Kumar Kar., Advocate for the Respondent 1 Dated : 02 Mar 2023 Final Order / Judgement HON'BLE MR. SUBHRA SANKAR BHATTA, JUDICIAL MEMBER
The present Appeal is directed at the behest of the Appellant, UNITED INDIA INSURANCE COMPANY LIMITED who was the OP before the District Consumer Disputes Redressal Forum, Hooghly (hereinafter referred to as the District Forum for short) assailing the impugned judgment and order dated 25.08.2017 passed by the Ld. District Forum in Consumer Complaint Case No. CC/226/2014 wherein and whereby the Ld. District Forum was pleased to allow the complaint case in the following manner:-
"ORDERED that the CC No. 226/2014 be and the same is allowed on contest. The Opposite Party is directed to pay Rs.14,00,000/- as insured value. The Opposite Party is also directed to pay Rs.25,000/- to the Complainant towards compensation for his mental agony and harassment. The Opposite Party is further directed to pay Rs.10,000/- to the Complainant towards litigation costs.
All the above orders should be complied by the OP within 30 days from the date of this order i.d. Complainant is at liberty to execute the order by filing execution case.
Let a copy of this order be made over to the Parties free of cost.
Briefly stated, the facts of the complaint case are:
Complainant is the owner of a commercial vehicle bearing registration no. WB/37 3223. Complainant duly insured the said vehicle with the OP/United India Insurance Company Ltd., and obtained the package policy bearing no. 030/281/31/ 01/00000011 for the coverage period from 04.04.2011 to 03.04.2012 having sum assured (insured declare value) Rs.14,00,000/- (Fourteen Lacs). The said commercial vehicle is made of TATA ENGINEERING LTD., being chassis no. 396522HSZ219622 and Engine No.70H62591101. It is the case of the Complainant that the said vehicle was parked in the garage at night on the 29.04.2011. In the morning of 01.05.2011 the said vehicle was found missing from the garage. Despite searching of the said vehicle at every possible places the said vehicle could not be traced out. Ultimately, the Complainant lodged a written complaint being GDR No. 67/11 on 02.05.2011 at Dankuni Police P.S., District-Hooghly. The said GDR was subsequently treated as FIR by S.I. of Dankuni P.S. and criminal proceeding was initiated on 22.05.2011 under Section 379 IPC. It is also the case of the Complainant that the Complainant submitted a letter dated 30.09.2011 before the OP/Insurance Company. Further case of the Complainant is that S.I. of Dankuni P.S. started investigation of the case and after completion of investigation submitted final report on 30.08.2011. On 26.08.2014 the OP/Insurance Company issued one registered letter to the Complainant informing him to submit some documents. Therefore, nothing was informed to the Complainant in writing till date. Ultimately, finding no other alternative, the Complainant sent Lawyer`s notice on 09.09.2014 to the OP/Insurance Company for settlement of the claim. In spite of receiving Advocate`s notice the OP/Insurance Company did not take any steps for settlement of the claim. Under such compelling circumstances and finding no other alternative the Complainant instituted the complaint case before the Ld. District Forum on 31.10.2014 praying for Redressal and relief as sought for in the prayer portion of the complaint petition.
OP/Insurance Company (Appellant herein) contested the case by filing written version on 11.03.2015 wherein the OP categorically denied all the material allegations as levelled in the body of the petition of complaint. OP/Insurance Company contended that the complaint case is not maintainable either in law or in facts and is liable to be dismissed; that the Complainant has no locus standi to file the present complaint case. The complaint case is speculative, false, frivolous, baseless, malafide and harassing one; that the complainant is guilty of suppressing the real fact. It has been specifically contended that no theft of the vehicle no. WB/37B-3223 was occurred as alleged by the Complainant from his garage at night of 29.04.2011. The Complainant has filed the petition of complaint for the purpose of wrongful gain. No explanation of delay has been given by the Complainant. It has been categorically contended that the Complainant was informed several time for producing relevant papers but the Complainant intentionally, motivatedly did not submit the same and as such the petition of complaint is liable to dismissed with cost. According to the OP/Insurance Company there was no deficiency of service from the end of the OP/Insurance Company. OP prayed for outright dismissal of the complaint case with cost.
Ld. District Forum after taking into account the pleadings of the respective parties as well as the evidence (both oral and documentary) on record adduced from the end of the parties arrived at an irresistible conclusion and allowed the complaint case with certain directions.
Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Forum the OP/Insurance Company as Appellant has preferred the present Appeal on various grounds as highlighted in the Memo of appeal. It has been contended in the memorandum of Appeal that the impugned judgment and order of the Ld. District Forum below is misconceived, erroneous and contrary to law; that the Ld. District Forum failed to exercise its jurisdiction vested by law and acted with material irregularity and illegality; that the Ld. Forum below passed the impugned order without proper application of judicial mind; that the impugned judgment is not sustainable in the eye of law; that the Ld. Forum below failed to appreciate that there was inordinate delay in lodging the FIR before the Police Station regarding the alleged theft; Ld. Forum below failed to consider that the alleged theft occurred on 01.05.2011 but it was intimated to the Insurance Company on 17.09.2011 i.e. after a long lapse of 4½ months; that the Ld. Forum below did not consider the fact that there was gross violation of policy condition no. 1 by the Complainant; that the Ld. Forum below further failed to understand the spirit of the word immediately as envisaged in the terms and conditions of the policy. On all such grounds the Appellant/OP Insurance Company has prayed for allowing the present Appeal after setting aside the judgment and order impugned.
Ld. Counsel appearing for the Appellant/Insurance Company has drawn our attention to the terms and conditions of the insurance policy and vehemently argued that the Respondent/Complainant was required to inform the Appellant/Insurance Company about the incident of theft of the vehicle in question immediately and since the Respondent/Complainant did not intimate the incident in writing he violated the terms of the policy and consequently deprived the Appellant/Insurance Company of its right to investigate the matter immediately after the alleged theft of vehicle occurred from the garage. According to the Ld. Counsel if the Respondent/Complainant violates the terms and conditions of the insurance policy in that event question of deficiency in service does not arise at all. Mere intimating the alleged incident to the police station by lodging FIR does not tantamount to sufficient compliance with the terms and condition of the insurance policy. Ld. Counsel for the Appellant/Insurance Company has urged that the delay in giving intimation is very fatal and repudiation of the claim on such score was justified as per terms and conditions of the policy. It has been strenuously argued that the Respondent/Complainant had breached the specific condition no. 1 of the policy and as such the Respondent/Complainant is not entitled to get any relief as sought for. It has been also argued that the Respondent/Complainant lodged an FIR being no. 67/2011 before the Officer In-Charge , Dankuni P.S. and thereafter informed the Appellant/Insurance Company about the alleged theft on 17.09.2011 i.e. after a long lapse of 4 ½ months. According to the Ld. Counsel there was an inordinate delay on the part of the Respondent/Complainant in intimating the alleged incident of theft of the vehicle in question to the Appellant/Insurance Company. It has been canvassed much that repudiation of claim for such inordinate delay in intimating the Insurance Company regarding the alleged theft of the vehicle was absolutely justified and in accordance with the policy condition. According to the Ld. Counsel the Respondent/Complainant is not entitled to get any compensation from the Appellant/Insurance Company. It has also been argued that there are ambiguity, irregularity and illegality in the judgment and order passed by the Ld. Forum below. Ld. Counsel has prayed for allowing the present appeal after setting aside the judgment and order impugned.
On the other hand Ld. Counsel appearing for the Respondent/Complainant has highlighted much that the Appellant/Insurance Company duly issued package policy no. 030281/31/11/00000011 in favour of the Respondent/Complainant for the commercial vehicle being no. WB-37B-3223 for the coverage period from 04.04.2011 to 03.04.2012 and the insured declare value of the said vehicle was Rs.14,00,000/-. It has been also submitted that the said commercial vehicle had the valid permit and the Respondent/Complainant used to park the said vehicle inside his own garage being premises no. T. N. Mukherjee Road in front of Hathia Building. On 29.04.2011 at night the Respondent/Complainant like other days kept his vehicle inside the garage but early in the morning of 1st May, 2011 he found that the said vehicle was missing from the garage. It has been also submitted that the Appellant/Insurance Company did not challenge the lodging of FIR before the local Police Station relating to such missing of vehicle from the garage. The Appellant/Insurance Company did not also deny about the time of intimating of the said incident to the local Police Station. It has been boldly argued that the alleged incident occurred during the coverage period of the vehicle i.e. from 04.04.2011 to 03.04.2012. It has been submitted that the Appellant/Insurance Company denied the claim of the Respondent/Complainant on the very ground of delay in intimating the alleged incident and for not submitting the relevant papers as directed by the Insurance Company. According to the Ld. Counsel such delay in intimating the alleged incident to the Insurance Company is negligible and cannot stand as a Bar for repudiation of the Respondent/Complainant`s claim. Moreover, the Respondent/Appellant submitted the required document as directed by the Appellant/Insurance Company. It has been boldly urged that there are sufficient materials on record to establish that the vehicle in question was found missing from the garage of the Respondent/Complainant in the early morning of 01.05.2011 and the said incident was then and then informed to the local Police Station by lodging GDR. Ld. Counsel has further submitted that the Appellant/Insurance Company is legally duty bound to pay compensation for the loss incurred by the Respondent/Complainant for such theft of vehicle in question and certainly entitled to get the relief and Redressal as prayed for. He has prayed for outright dismissal of the appeal with compensatory costs. In support of the above contention Ld. Counsel has relied on the following decisions:-
1) Revision Petition No. 454/2013 Baljeet Vs United India Insurance Company Ltd., passed by Hon`ble NCDRC.
2) MA No. 3823/2013 National Insurance Company Ltd., Vs. Sandip, passed by Hon`ble Madhya Pradesh High Court.
3) AIR 2020 Supreme Court 548, Saurashtra Chemcicals Ltd., Vs National Insurance Company Ltd.,
4) Civil Appeal arising out of SLP ( C ) No. 17758/2006 , United India Insurance Company Ltd., Vs. Ajay Sinha and another.
5)CWP No. 12562/2012 ( O & M) High Court of Punjab & Haryana, ICICI Lombard General Insurance Company Ltd. Vs. Permanent Lok Adalat, Firozpur and others.
We have carefully considered the submissions of the respective Ld. Counsels for the respective parties to the appeal and also perused the materials placed on record. We have also meticulously gone through the citations referred by the Ld. Counsel for the Respondent/Complainant during the course of hearing argument.
At the time of hearing argument we feel that the issue of delay in intimating the incident is forthcoming from the end of the Appellant/Insurance Company in order to destroy and repudiate the claim of the Respondent/Complainant. Now, the moot question that certainly arises for consideration as to whether the delayed intimation is fatal or not for the settlement of the claim of the Respondent/Complainant.
Herein the present case the following facts are undisputed:-
The Respondent/Complainant is the owner of the commercial vehicle in question being no. WB-37B-3223, the Respondent/Complainant subscribed a package policy being no. 030281/31/11/01/00000011 for the said vehicle with the Appellant/Insurance Company for the coverage period from 04.04.2011 to 03.04.2012. It is the specific case of the Respondent/Complainant that the said vehicle was parked in his garage like other days on the 29th April,2011 at night hours but the said vehicle was found missing in the garage in the morning of 1st May, 2011 Despite every possible searching the said vehicle could not be traced out. Therefore, Respondent/Complainant lodged the FIR on 2nd May, 2011 at Dankuni P.S.-Hooghly vide FIR No. 67/2011. The FIR goes to establish that over the incident the Respondent/Complainant lodged FIR on the following day of the alleged incident and the said case was duly registered under Section 379 of the I.P.C. Subsequently, the Respondent/Complainant intimated the whole incident to the Appellant/Insurance Company on 17.09.2011 and as such there was a delay of 4 ½ months in the matter of intimating the alleged incident to the Appellants/Insurance Company. It is crystal clear from the documents available on record that S.I. of Dankuni P.S. started investigation of the case and finally submitted final report on 30.08.2011. Thus being the position it can be safely held that the vehicle in question was found missing from the garage of the Respondent/Complainant in the very morning of 01.05.2011 and criminal proceeding was started over that incident of theft under Section 379 of the I.P.C. basing upon the written complaint of the Respondent/Complainant.
It is the specific case of the Insurance Company that due to delayed intimation of the alleged incident they could not appoint surveyor/investigator to investigate the alleged incident of theft. It is also the case of the Appellant/Insurance Company that they lost their minimum opportunity for recovering the alleged vehicle. It is palpable from the materials and documents available on record that in the body of the complaint petition (Paragraph Nos. 8, 11 & 12) the Respondent/Complainant has assigned the reason for such delayed intimation to the Appellant/Insurance Company over the incident. Undoubtedly, the Respondent/Complainant tried his level best to trace out the vehicle in question but failed. Such explanation cannot be brust aside on any score. Ultimately, the Respondent/Complainant was compelled to lodge the case before the Officer-in-Charge of Dankuni P.S., Hooghly. It is evident from the evidence on record that there is a delay of 4½ months in intimating the incident to the Insurance Company. Let us consider the condition No. 1 of the Insurance Policy.
Condition No. 1 of the Insurance Policy envisages as follows:-Condition No. 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 cooperate with the company in securing the conviction of the offender".
It is an undisputed fact that the Respondent/Complainant lodged the FIR on the following day of happening the alleged incident and that Police registered the same and after completion of investigation submitted FRT. In such circumstances mere delay in intimating the Insurance Company about the occurrence of theft cannot be a good ground to deny or repudiate the claim of the insured. Moreover, Respondent/Complainant has explained the reasons for such delayed intimation. The Appellant/Insurance Company repudiated the claim for compensation of the Respondent/Complainant on account of delayed intimation and for breach of policy terms specially condition No. 1. In a case of theft the Surveyor or Investigator appointed by the Insurance Company would have limited role to play. Practically, it is the Police Authority who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the alleged vehicle. The report Surveyor/Investigator simply goes to establish the factum regarding the theft of the vehicle in question. Final report of the Police Authority clearly supports the incident of theft of the vehicle in question. There is no straight jacket formula for arriving at the true and proper meaning of the word "immediately". It depends upon the facts and circumstances of each case. In Civil Appeal No. 653 of 2020 Hon'ble Apex Court has been pleased to observe in the following manner:-
Para-20 We, therefore, hold 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.
Per contra, in the case of Om Prakash (supra) it was observed that the word "immediately" cannot be construed narrowly so as to deprive the claimant the benefit of the settlement of genuine claim, particularly when the delay was explained it was further held that the rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of the policy holders in the insurance industries. If the reasons for delay in making a claim are satisfactorily explained, such a claim cannot be rejected on the ground of delay. Moreover, the Apex Court was also pleased to observe that the Consumer Protection Act aims at providing better protection of the interest of the Consumers. It is a beneficial legislation that deserves a liberal construction. Finally the Bench of three Judges of the Hon'ble Apex Court concurred with the view taken in the case of Om Prakash (supra) and held that mere delay in intimating the insurance company about the theft of vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. It should also be the bounden duty of the Commission to look into the main object of the preamble of the Consumer Protection Act which cannot be and should not be frustrated by any means. It is to be borne in mind that there is no straight jacket formula to explain the word "immediately"
With our utmost respect to the observations of the Hon'ble Apex Court we hold and firmly hold that it would not be just, wise, fair and reasonable to reject the genuine claim of the Respondent/Complainant which had already been verified and found to be correct by the Investigating Officer by submitting FRT. The explanation as assigned from the end of the Respondent/Complainant for such delayed intimation is satisfactory.
Considering all aspects from all angles and keeping in mind the observations of the Hon'ble Apex Court in Civil Appeal No. 653 of 2020 Gurshinder Singh--vs.--Shriram General Insurance Company we are compelled to hold that there is no error, irregularity and illegality in the impugned judgment and order passed by the Ld. District Consumer Disputes Redressal Commission, Hooghly in Consumer Complaint Case No. CC/226/2014 and resultantly does not deserve any interference of this State Commission.
The impugned judgment order requires to be sustained.
It is, therefore, O R D E R E D That the present Appeal being No. A/1240/2017 be and the same is dismissed on contest against the Respondent/Complainant but considering the circumstances without any order as to costs.
The impugned judgment and order dated 25.08.2017 passed by the Ld. DCDRF, Hooghly in Consumer Complaint Case No. CC/226/2014 is hereby affirmed.
Thus, the instant Appeal stands disposed of.
Let a copy of this judgment and order be transmitted to the concerned District Commission forthwith for information and taking necessary action.
Note accordingly. [HON'BLE MRS. Dipa Sen ( Maity )] PRESIDING MEMBER [HON'BLE MR. SUBHRA SANKAR BHATTA] JUDICIAL MEMBER