State Consumer Disputes Redressal Commission
Prithvi Pal Singh vs Reliance Gic Ltd. on 5 July, 2022
FA/657/2013 D.O.D. : 05.07.2022
PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 04.06.2013
Date of hearing: 13.05.2022
Date of Decision: 05.07.2022
FIRST APPEAL NO.- 657/2013
IN THE MATTER OF
SH. PRITHVI PAL SINGH,
S/o Late Sh. Surjit Singh Chauhan,
R/o B-270, Derawal Nagar,
New Delhi-110009.
(Through: Mr. Praveen Laroiya, Advocate)
...Appellant
VERSUS
1. M/S RELIANCE GENERAL INSURANCE COMPANY LTD,
(Through its Director)
Serving Branch office:-
104-105, 1st Floor, H-10,
Netaji Subhash Palace,
Pitam Pura, New Delhi-110034.
2. M/S METRO AUTOMOBILES,
(Through its Manager)
F-90/13, Okhla Phase-I,
New Delhi-110020
(Through: AVA Law Associates LLP)
... Respondents
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PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case necessary as per the District Commission record are:
"The complainant is the registered owner of a vehicle bearing registration no. DL 2 C AG 0700. He had purchased a policy of insurance in respect of the aforesaid vehicle which was effective for the period 22.12.2008 to 21.12.2009. The vehicle met with an accident and a case FIR no. 439/09 U/S 279/304 AIPC was registered at PS Prashant Vihar in respect of the same. The complainant had informed OP1 about the accident and was assured that the vehicle would be taken directly to the workshop of OP2 and would be handed over to him after necessary repairs. OP1, however, failed to settle the claim which led the complainant to file the present complaint."
2. The District Commission after taking into consideration the material available on record passed the order dated 12.04.2013, whereby it held as under:
"The claim lodged by the complainant has been repudiated vide letter dated 15.5.2011 which inter alia reads as under
Sub: Claim no. 2091222956 under policy no. 1306782311017086 Vehicle no. DL 2 CAG 0700. This is in reference to your reported OD claim. On perusal of the documents submitted by you in support of your claim, it has been observed that:-
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• The driver Ms. Neera Kharbanda at the time of material time of accident, was under the Influence of intoxicating liquor or drugs' • The claim has been intimated after 51 days of the date of loss.
In this concern, your kind attention is attracted towards the following:-
1 According to the schedule of the Motor Insurance Policy, the company shall not be liable to make any payment in respect of:
"Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the Knowledge and consent of the insured is under the influence of intoxicating liquor or drugs"
2. According to Condition ne 1 of the Motor Insurance Policy:-
"Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such Information and assistance as the company shall require"
Hence, in view of the above, for the loss falls under the above mentioned exclusion (Point no. 1 above) and breach of condition ne 1 of the policy, the claim stands repudiated.
The learned counsel for the OP has drawn our attention to the copy of the post mortem report dated 6.8.2007 filed on record. In particular, he has drawn our attention to the part of the report of Dr. K. Goyal, that the stomach was full of food material and liquids containing dal, rice etc having strong alcohol like smell. The learned counsel has contended that since the driver of the vehicle namely Meera Kharbanda was driving the same under the influence of liquor the OP was not obliged to pay the claim amount. We have carefully perused the post-mortem report and we are in agreement with the contention of the OP that the vehicle was being driven by its ALLOWED PAGE 3 OF 10 FA/657/2013 D.O.D. : 05.07.2022 PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
driver under the influence of liquor at the time of the accident. Even otherwise, it has been admitted that information to the insurance company was given about the loss after a delay of 51 days in the case of - "New India Assurance Company Ltd Vs Trilochan Jane (first appeal no. 321 pf 2005), the honorable National Commission held :
Learned counsel for the respondent, relying upon the judgment of Hon'ble Supreme Court in National Insurance Company Limited Vs.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 terms in 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 Fit after 2 days of the coming to know of the theft and days to the insurance company, can be fatal, in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to kabaadi (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.
In view of the fact that information was given to the insurance company after an inordinate delay of 51 days, we are of the considered opinion that the OP was justified in repudiating the claim on the strength of the aforesaid judgment. We, therefore, see no merits in this complaint which is hereby dismissed."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Complainant has preferred the present appeal contending ALLOWED PAGE 4 OF 10 FA/657/2013 D.O.D. : 05.07.2022 PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
that the District Commission failed to follow the binding principle of settled law for determining the fact whether the driver of the vehicle was drunk. The Appellant further submitted that there is no delay in informing the Respondent no. 1 about the incident. Pressing the aforesaid contentions, the Appellant prayed for setting aside the order of the District Forum.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the Appeal, Reply of the Respondent and Impugned Order.
6. The first question of consideration before us is whether the Respondent no. 1 is justified in repudiating the claim of the Appellant on the ground that the Doctor who prepared the post- mortem report stated that a strong Alcohol like smell eminates from Stomach of the deceased.
7. On perusal, we find that the Respondent no. 1 intends to draw an inference that the deceased was under influence of alcohol at the time of accident on the basis of the post mortem report. The Doctor who prepared the said post mortem report stated therein that the stomach of the deceased was full of food material and liquid containing dal, rice etc. having a strong alcohol like smell in it. However, the percentage of alcohol present in the blood samples of the deceased in the said report has not been mentioned nor any blood sample test was conducted by the doctor to examine the quantity of the alcohol in the blood.
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8. Further, the Respondent no. 1 has not produced any independent evidence to show that the deceased was under the influence of alcohol at the time of accident. Simply because the fluid in the stomach smelled like alcohol, it cannot be said that driver had consumed alcohol. There has to be proof that the driver was under
influence of alcohol. No presumption can be drawn in the present case as no samples of the stomach fluid was sent for chemical analysis in order to find out the nature of the fluid. Therefore, only by stray observation, one cannot deduce that the deceased driver was under the influence of liquor. From the aforesaid discussion, it is clear that the Respondent no. 1 was not justified in repudiating the claim of the Appellant of the basis of bald statement that the person driving the vehicle was under the influence of alcohol or drugs.
9. The next question of consideration before us is whether the delay caused in intimating the insurance company would be a valid ground for repudiating the claim of the Appellant.
10. On perusal, we find that the vehicle was impounded by the Police authorities on the date of accident and after the release of vehicle on superdari vide order dated 22.08.2009 by Sh. Amit Bansal, ACMM, Rohini, Delhi, the Appellant has immediately contacted the Respondent No.1, requesting them to arrange the repairs of said vehicle and to take other necessary actions in this regard. Thereafter, the concerned official of Respondent No.1 assured the Appellant that their representative will bring the vehicle directly from the police station to the workshop of Respondent No.2 and after carrying out all the necessary repairs, the said vehicle will be handed over to the Appellant.
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11. Further, we find that the said vehicle was taken away by the representative of Respondent no.1 on 30.08.2009 and in this context the officials of Respondent no. 1 has charged an amount of Rs.5,000/- in respect to the process fees along with towing charges.
12. From the aforesaid, it is clear that the Appellant had immediately informed the police authorities about the incident but a delay was caused by the Appellant in intimating to the Respondent company.
13. To deal with this issue, we deem it appropriate to refer to Civil Appeal No. 653/2020 titled as Gurshinder Singh Vs. Sriram General Insurance Co. Ltd. & Anr. in decided on 24.01.2020, wherein the Hon'ble Supreme Court considered the same issue and decides it on merits, which to the extent is relevant reads as under:
"15. We find, that the second part of Condition No. 1 deals with the 'theft or criminal act other than the accident'. It 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 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 ALLOWED PAGE 7 OF 10 FA/657/2013 D.O.D. : 05.07.2022 PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
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.
18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.
19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
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 ALLOWED PAGE 8 OF 10 FA/657/2013 D.O.D. : 05.07.2022 PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
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."
14. From the aforesaid settled law, it is clear that the delay in intimation to the Respondent insurance company does not justify the repudiation of the claim by Respondents. Returning to the facts of the present case, it is noted that the Appellant had duly informed the Police authorities about the incident on the 06.08.2009. Also, the said vehicle was impounded by the concerned authorities which was also intimated to the Respondents. Therefore, the contention of the Appellant that the Respondent insurance company was not justified in repudiating the claim of the Appellant on the basis of these grounds, is correct and justified.
15. Consequently, we hold that the District Forum erred in dismissing the complaint of the Appellant on the ground that there is no deficiency on part of the Respondents. Therefore, we set aside the order dated 12.04.2013 passed by the District Consumer Disputes Redressal Forum V (North West District), Shalimar Bagh, Delhi- 110088.
16. Keeping in view the facts and circumstances of the present case, the Respondents are directed to pay a sum of Rs. 3,63,332/- (IDV of the vehicle) to the Appellant. In addition to this, the Respondents are also directed to pay an amount of Rs. 1,00,000/- as compensation for mental agony and harassment suffered by the Appellant and Rs. 10,000/- as litigation cost.
17. The directions mentioned in para 17 shall be complied by the Respondents on or before 05.09.2022. In case of failure to comply ALLOWED PAGE 9 OF 10 FA/657/2013 D.O.D. : 05.07.2022 PRITHVI PAL SINGH VS. M/S RELIANCE GENERAL INSURANCE CO. LTD. & ANR.
with the same before 05.09.2022, the entire amount would entail a penalty of 9% p.a. from the date of judgment till the actual realization of amount.
18. Application(s) pending, if any, stands disposed of in terms of the aforesaid judgment.
19. 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.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
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