State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs 1. Neeraj Kumar Son Of Shri Ram Niwas, ... on 2 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.610 of 2012 Date of Institution: 16.05.2012 Date of Decision: 02.08.2012 ICICI Lombard General Insurance Company Limited, through its Manager, SCO Ist Floor, 252, Sector 12, Karnal. Appellant (OP-1) Versus 1. Neeraj Kumar son of Shri Ram Niwas, Resident of village Rabhra, Tehsil Gohana District Sonepat. Respondent (Complainant) 2. M/s M&M Financial Service Ltd., SCO 171, First Floor, Main Market, Sector 14, Sonepat. Respondent (OP-2) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri R.S. Dhull, Advocate for appellant. Shri Vikas Bhardwaj, Advocate for respondent No.1. Shri S.C. Thatai, Advocate for respondent No.2. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 29.03.2012 passed by District Consumer Forum, Sonepat whereby complaint filed by the respondent No.1 (complainant) for taking insurable benefits from the opposite parties on account of theft of his insured Jeep bearing Registration No.HR-69A/380, which was stolen during the subsistence of the insurance policy, was accepted by granting following relief:-
..Accordingly, it is directed to the respondent No.1 to make the payment of Rs.3,57,040/- (Rs.three lacs fifty seven thousands and forty) to the complainant alongwith interest at the rate of 09% per annum from the date of theft of jeep No.HR69A/0380 till the decision of the case and further to compensate the complainant to the tune of Rs.2000/- (Rs.two thousands) for rendering deficient services, unnecessary harassment and further to pay a sum of Rs.2000/- (Rs.two thousands) under the head of litigation expenses and under the head of litigation expenses. The present complaint stands allowed with the direction to the respondent to make compliance of this order within one month from the date of this order.
It is made clear here that the complainant shall complete the formalities and shall submit the required documents and shall transfer the RC of Jeep No.HR69A/0380 in the name of the respondent insurance company for the settlement of his claim at the earliest possible.
The perusal of the insurance policy shows that the vehicle No.HR69A/0380 is hypothecated with Mahindra and Mahindra Finance Limited. So, it is also directed to the respondent insurance company to first make the payment of award to Mahindra & Mahindra Finance Limited with whom the vehicle No.HR69A/0380 is hypothecated/financed and after clearance of all the finance liabilities of Mahindra & Mahindra Finance Ltd. in respect of vehicle No.HR69A/0380, the balance amount is directed to be paid to the complainant.
With these observations, findings and directions, the present complaint stands allowed qua respondent No.1 and stands dismissed qua respondent No.2 since there is no deficiency in service on his part. Thus, the respondent No.1 is directed to make the compliance of this order within one month from the date of passing of this order.
Undisputed facts of the present case as emerged from the record are that Jeep bearing Registration No.HR-69A/380 was insured with the appellant-opposite party for the period 19.3.2009 to 18.3.2010. The vehicle was stolen on 18.03.2010 from Panipat. According to the complainant, he searched for the vehicle here and there and finding no clue about the same, he lodged FIR No.295/2010 under Section 379 I.P.C. with Police Station City Panipat on 22.03.2010, however, informed to the Insurance Company on 09.10.2010. The claim submitted by the complainant with respect to the above said vehicle was repudiated by the appellant-opposite party due to the reason that there was inordinate delay of four days in lodging the F.I.R. and further delay of 266 days in giving information to the appellant-opposite party, which is in violation of the terms and conditions of the Insurance Policy. Challenging the repudiation of his claim, the complainant invoked the jurisdiction of the District Forum.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement wherein they justified repudiation of complainants claim on the ground stated in the preceding para of this order and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite party No.1 has come up in appeal.
Heard. File perused.
At the very outset the question for consideration before us is that whether the delay of four days in lodging of FIR and delay of 266 days in giving information to the appellant-opposite party about the accident is fatal with respect to the claim of the complainant?
During the course of arguments learned counsel for the appellant has referred to the judgment rendered by Honble National Consumer Commission in First Appeal No.321 of 2005 New India Assurance Company Limited versus Trilochan Jane decided on 09.12.2009 wherein the facts were that the vehicle was stolen on 08.04.2000, the matter was reported to the police on 10.04.2000 i.e. after two days and information to the Insurance Company was given after about nine days i.e. on 17.04.2000. While deciding the above said appeal the Honble National Commission observed as under:-
Learned counsel for the respondent, relying upon the Judgment of Honble Supreme Court in National Insurance Company Limited v. Nitin Khandelwal reported in (2008) 11 SCC 256 contended that in the case of theft of vehicle, breach of condition is not germane. The said Judgment was in a totally different context.
In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the Policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane. 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 F.I.R. 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 traveled a long distance or may have been dismantled by that time and sold to kabadi (scrap dealer).
In our view, the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time. We are not going into the other question regarding violation of Condition No.5 of the Insurance Policy as we have non-suited the respondent/complainant on the first ground.
While relying upon the above cited case Honble National Commission in a recent judgment rendered in Revision Petition No.3719 of 2011 Siraj Khan vs. Mahindra Finance Ltd. and others, decided on 03.07.2012 has held as under:-
5. It emerged from perusal of the facts of the case and the documents placed on record that there was inordinate delay in informing the police as well as the opposite parties about the alleged incident. Nothing has been produced before us to counter this important aspect. The State Commission following the order of the National Commission in Appeal No.321 of 2005 in the case of New India Insurance Company Ltd. Vs. Trilochan Jane confirmed the order of the District Forum and dismissed the appeal. It is well settled by a catena of judgments that time is of essence in such cases and delay is in lodging the FIR and sending intimation about theft to the insurer would be fatal to the recovery of the insured vehicle and hence repudiation of the claim on this ground would be justified. In these circumstances, we do not find any merit in the revision petition and dismissed the same in limine on the ground of limitation as well as on merits.
The facts of the instant case are fully attracted to Trilochan Janes case (supra) and Siraj Khans case (Supra). Admittedly, in the instant case the vehicle was stolen on 18.03.2010 whereas F.I.R. was lodged on 22.03.2010 and information to the Insurance Company was given on 09.10.2010 and thus there was delay of four days in lodging of the FIR and 266 days in giving information to the Insurance Company whereas as per condition No.1 of the Insurance Policy, the information to the police as well as to the Insurance Company was to be given immediately after the theft without any further day. Thus, it is a clear case where the complainant violated the terms and conditions of the Insurance Policy. By now, it is well settled principle of law that while settling the claims of the parties, the terms of the Insurance Policy have to be construed strictly and no relief can be given to any of the parties beyond those terms. Reference in this regard is made case law cited as UNITED India INSURANCE CO. LTD. versus HARCHAND RAI CHANDAN LAL, (2004) 8 Supreme Court Cases 644, wherein Honble Supreme Court has held that:-
Held, the terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein, and all those expressions appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted Similar view has been taken by the Honble Apex Court in case cited as SURAJ MAL RAM NIWAS OIL MILLS (P) LTD. versus UNITED INDIA INSURANCE COMPANY & ANR, IV(2010) CPJ 38 (S.C.) as under:-
22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.
24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.
The facts and circumstances of the instant case are fully attracted to HARCHAND RAI CHANDAN LALs case (Supra) and Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra). Hence, the appellant-opposite parties cannot be held liable to pay any insurable benefits to the complainant and the order of the District Forum is not sustainable in the eyes of law.
For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 02.08.2012 President B.M. Bedi Judicial Member