State Consumer Disputes Redressal Commission
Harpreet Singh vs Icici Lombard Gen. Insurance Co.Ltd & ... on 19 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/364
Instituted on : 29.05.2014
Harpreet Singh S/o Shri Amar Singh,
House No.163, Slice 2,
Veer Sawarkar Nagar, Heerapur,
Raipur, District Raipur (C.G.) ... Appellant
Vs.
1. I.C.I.C.I. Lombard General Insurance Co. Ltd.
Through : Manager,
Vanijya Bhawan, Devendra Nagar,
Raipur (C.G.).
2. Mahindra & Mahindra Financial Services Limited,
Through : Manager,
Third Floor, Alaska Corporate, In Front of V.I.P. Chowk,
Near Magnato Mall,
Raipur (C.G.) ..... Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Bhawnani, for the appellant.
Shri Ashish Kirwai, for the respondent No.1.
Shri Rakesh Puri, for the respondent No.2.
ORDER
DATED : 19/03/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 09.05.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) // 2 // (henceforth "District Forum") in Complaint Case No.61/2012, whereby the complaint of the appellant (complainant), has been dismissed.
2. Briefly stated the facts of the case are that the appellant (complainant) is owner of vehicle bearing registration No.C.G.04-HA- 6156 which was insured with the respondent No.1 (O.P.No.1) for the period from 11.06.2008 to 10.06.2009 as Private Vehicle. The respondent No.2 (O.P.No.2) is a finance company. In January, 2009, for celebration of the new year, the brother of the appellant (complainant) went to Boiparigua, District Korput along with his friends in the vehicle in question, where the Police has made a false case under section 399, 402 IPC against the brother of the appellant (complainant) and his friends and seized the vehicle in question. The appellant (complainant) has not taken the vehicle in question on supurdnama on fear that if he will go there, then the Police will also register case against him because he is owner of the vehicle in question, therefore, he left the vehicle in question in Boiparigua Police Station. In the second week of June, 2009, the appellant (complainant) came to know that his vehicle was burnt completely due to naxalite attack in Boiparigua Police Station. The appellant (complainant) gave intimation regarding the incident of burning of the vehicle to respondent No.2 (O.P.No.2) and prayed that the payment of installment be kept abeyance till settlement of his claim. The appellant (complainant) also gave intimation regarding the incident to the respondent No.1 (O.P.No.1) and he requested to pay // 3 // compensation. The appellant (complainant) also contacted the respondent No.1 (O.P.No.1) but the respondent (O.P.No.1) did not give any response and has also not settled his claim. The insured declared value of vehicle is Rs.5,00,000/- therefore, the appellant (complainant) is entitled to get a sum of Rs.5,00,000/- from the respondent No.1 (O.P.No.1). Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The respondent No.1 (O.P.No.1) has filed its written statement and averred that the appellant (complainant) has given intimation regarding the incident to the respondent No.1 (O.P.No.1) belatedly by 6 months in reply to which the respondent No.1 (O.P.No.1) sent letter dated 27.06.2009 and informed him that some investigation is required, but the appellant (complainant) has not taken any action in this regard and therefore due to non-co-operation of the appellant (complainant), the claim of the appellant (complainant) could not be settled. The claim of the appellant (complainant) is premature and is liable to be dismissed. The appellant (complainant) is not entitled to get any compensation from the respondent No.1 (O.P. No.1) and the complaint is liable to be dismissed with compensatory cost.
4. The respondent No.2 (O.P.No.2) has filed written statement and has averred that the it has financed the vehicle to the appellant // 4 // (complainant) and the respondent No.2 (O.P.No.2) is not a necessary party. The appellant (complainant) defaulted in making installments and the cheques issued by him were bounced and delay has been occurred in payment of the installments. The appellant (complainant) is liable to pay a sum of Rs.4,02,480/- as outstanding loan and Rs.1,89,329/- as additional interest.
5. The appellant (complainant) filed documents. A-1 is Certificate Cum Policy Schedule, A-2 is Endorsement Schedule of Private Car Package Policy, A-3 is Certificate of Registration of vehicle bearing registration No.C.G.04-HA-6156, A-4 is Certificate issued by Inspector I Charge, Boiparigua P.S. District Koraput (Odisha), A-5 s letter dated 06.06.2000 sent by the appellant (complainant) to the Claims Manager, ICICI Lombard General Insurance Co. Ltd., A-6 is letter dated 09.06.2009 sent by the appellant (complainant) to the Branch Manager, Mahindra Finance, Raipur, A-7 is Schedule, A-8 is letter dated 27.06.2009 sent by the respondent No.1 (complainant) to the appellant (complainant), A-9 is letter sent by respondent NO.2 (O.P.No.2) to the appellant (complainant).
6. After having considered the material placed before it by both the parties, learned District Forum, has dismissed the complaint.
// 5 //
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the learned District Forum, is contrary to law and is liable to be dismissed. He further argued that the vehicle in question was burnt by the naxalite in second week of June, 2009. The matter was intimated immediately by the appellant (complainant) to respondent No.1 (O.P.No.1) through toll free number and the respondent No.2 (O.P.No.2) financer was also informed by the appellant (complainant) regarding the incident. The respondent No.1 (O.P.No.1) appointed a Surveyor, who inspected the vehicle. He further argued that learned District Forum has ignored this fact that the respondent No.1 (O.P.No.1) has deliberately not filed Surveyor Report, so that real fact will not come. The District Forum has also ignored the fact that the appellant (complainant) has filed all relevant documents in respect of total loss of the vehicle and has submitted proof that the vehicle in question was damaged completely and he is entitled to get compensation.
8. Shri Ashish Kirwai, learned counsel appearing for the respondent No.1 (O.P.No.1) has argued that the vehicle in question was taken to Boiparigua, District Korapur (Odisha) by the brother of the appellant (complainant) where offence under Section 399 & 402 IPC was registered against the brother of the appellant (complainant) in Police Station Boiparigua, District Koraput (Odisha) and the vehicle in // 6 // question was seized by the Police. He further argued that the appellant (complainant) has deliberately and intentionally did not take the vehicle in question in supurdnama and the vehicle in question was left unattended by the appellant (complainant) in the Boiparigua Police Station. Thereafter the vehicle in question was burnt by the naxalite. The appellant (complainant) could not inform the respondent No.1 (O.P.) No.1 regarding the incident immediately. He further argued that the respondent No1 (O.P.No.1) has rightly repudiated the claim of the appellant (complainant), hence the impugned order passed by the learned District Forum, is just and proper and does not call for any interference by this Commission.
9. Shri Rakesh Puri, learned counsel appearing for the respondent No.2 (O.P.No.2) has supported the impugned order passed by the District Forum.
10. We have heard arguments of learned counsel for both the parties and have also perused the record of the District Forum.
11. It is not disputed that the vehicle in question was insured with the respondent No.1 (O.P.No.1) for the period from 11.06.2008 to 10.06.2009 as Private Vehicle. It is also not disputed that the vehicle in question was seized by Police Station. Boiparigua, District Koraput (Odisha) on 10.01.2009 in connection with Boipariguda P.S. Case No.02/09. Document Annexure A-4 has been filed by the appellant // 7 // (complainant) which is a Certificate issued by Inspector in Charge, Boipariguda P.S. District Koraput (Odisha), in which it is mentioned that "This is to certify that a vehicle make MAHINDRA SCORPIO SLX CRDE, having Registration No.CG04HA6156 Engine No.B554J45188 and Chasis No.2B5C52J82014 was kept in Boipariguda police station under Koraput dist. in connection with Boipariguda P.S. Case No.02/09 Dt. 10.01.09 U/S 399/404 IPC. On 07.6.09 night at about 9.25 PM Naxals attacked Boipariguda P.S. and exploded the P.S. building, set fire the seized scorpio bearing Regd. No.CG 04HA6156 for which Boipariguda P.S. Case No. 42 dt. 8.6.09 U/S 147/148/435/436/395/427/506/120-B/121/149 IPC, 3, 4, 6 of Explosive Substance Act, 25 Arms Act, 7 & 17 Cr. L.A. Act. has been registered."
12. From the perusal of above document, it appears that the naxalite attacked Boiparigua P.S. and exploded the P.S. building, set fire the seized Scorpio bearing registration No.C.G.04-HA-6156 and due to the set fire, the vehicle in question was burnt.
13. The appellant (complainant) himself pleaded that he was not taking vehicle in question in supurdnama and the vehicle in question was kept in Boiparigua Police Station from 10.01.2009 till the incident of bomb blasting happened there. It appears that the vehicle in question was left unattended by the appellant (complainant) himself at // 8 // Boiparigua Police Station and intimation in this regard was also not given by him to the respondent No.1 (O.P. No.1).
14. The respondent No.1 (O.P.No.1) specifically pleaded that intimation regarding the incident was given after six months from the incident. This fact was not rebutted by the appellant (complainant).
15. Hon'ble National Commission in Rang Lal (Deceased) through his legal representatives vs. The Manager, United India Insurance Company Limited and another (Revision Petition No.1362 of 2011) decided on 01.09.2011, in paragraph No.5 has observed as under :-
"5. In the above-mentioned case, relied upon by the State Commission, this Commission had observed inter alia as under :
In the present case, the respondent did not care to inform the insurance company about the theft for a period of nine days, which could be fatal to the investigation. The delay in lodging the FIR after two days of the coming to know of the theft and nine days to the insurance company, can be fatal, as 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)."
16. In Budha Ganesh vs. New India Insurance Company Ltd. Through Divisional Office, 2014 (1) CPR 370 (NC); Hon'ble National Commission has observed thus :-
"7. In view of above discussion, we do not find any infirmity which would justify our interference with the impugned order under section 21(b) of the Consumer Protection Act, 1986. This meritless revision petition, therefore, must be dismissed and it is dismissed accordingly. There shall be no order as to costs."
// 9 //
17. In Shriram General Insurance Co. Ltd. Through General Manager vs. Mahender Jat, I (2015) CPJ 74 (NC); Hon'ble National Commission has observed thus :-
"16. The law on this matter is well settled. The Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Parvesh Chander Chadha, Civil Appeal No. 6739 of 2010 decided on 17.8.2010 as also the judgment in the matter of Dharambir vs. The Oriental Insurance Co. Ltd. in RP No.1542 of 2012 decided on 10.10.2013 and in the matter of New India Assurance Co. Ltd. vs. Trilochan Jane in First Appeal No.321 of 2005 decided on 9.12.2009.
17. We have considered the rival contentions. Hon'ble Supreme Court in the matter of Oriental Insurance Co. Ltd. vs. Parvesh Chander Chadha (supra) dismissed the complaint holding that in terms of the policy issued by the insurance policy, the insured was duty bound to inform about the theft of the vehicle immediately after the accident. Delay in intimation deprives the insurance company of its legitimate right to get enquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. It was further held that the insurance company could not be saddled with the liability to pay the compensation to the insured despite the fact that he has not complied with the terms of the policy. Relevant observations of the Supreme Court read as under :-
"Admittedly the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 10.9.1995 was given to the said Shri Rajinder Singh Pawar, but this explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an edeavour to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our // 10 // view, the appellant cannot saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy."
18. In Kulwant Singh vs. The Managing Director, United India Insurance Co. Ltd. & Others, 2015 (1) CLT 106, Hon'ble National Commission has observed that "in terms of policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same. It is further observed that such a delay can be fatal as within three days the vehicle could have been driven long distance even across the border of the country or could have been dismantled and sold to the scrap dealer. Thus, by delaying the information of theft to the police, the petitioner insured had acted against the interest of the insurer and this violation of condition is fundamental to the loss caused which justifies the repudiation of claim by the respondent Insurance Company."
19. In National Insurance Co. Ltd. Through its duly, Constituted attorney, Manager vs. Vijay Kumar Jain, 2015 (1) CPR 360 (NC), Hon'ble National Commission, has observed thus :-
"5. It is not disputed that FIR was lodged by complainant on 31.07.2008 in which date of theft of vehicle has been shown as 26.07.2008. It is also not disputed that complainant intimated to opposite party vide letter dated 02.02.2009 in which it is mentioned that he lodged FIR and for these reasons could not give intimation to // 11 // the opposite party. Thus , it becomes clear that there was day of five days in lodging FIR and delay of more than six months in intimation to insurance company. This Commission in First Appeal No.321/2005 - New India Insurance Co. Ltd. v. Trilochan Jane decided on 09.12.2009 dismissed complaint as FIR was lodged after two days of theft and intimation to insurance company was given after nine days. Hon'ble Apex Court in United India Insurance Co. Ltd. v. Harchandrai, JT (2004) 8 SC 8 observed that delay in intimation to the insurance company in theft cases is fatal. Hon'ble Apex Court in Civil Appeal No.6739/2010 - Oriental Insurance Co. Ltd. vs Parvesh Chander Chadha observed as under :
"Admittedly the respondent had not informed that the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.05.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19-09-1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.01.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed // 12 // intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and made an endeavor to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy."
20. In M/s. HDFC Ergo General Insurance Co. Ltd. v. Shri Bhagchand Saini, 2015 (1) CPR 383 (NC), Hon'ble National Commission has observed thus :-
"11. Further, this Commission observed as follows in the case "New India Assurance Company Ltd. vs. Trilochan Jane" (supra) :-
"In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car from 9 days, would be a violation of condition of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace / help in tracing the vehicle. "12. In the above case, a delay of 2 days in lodging the FIR and delay of 9 days in reporting the matter to the Insurance Company was found fatal and the Insurance Claim for the stolen truck was not allowed. In the said order, the National Commission extensively dwelt upon the word // 13 // 'immediately' as stated in the conditions of the insurance policy by referring to the meaning of this word given in 'Oxford Advanced Learners' Dictionary, Stroud's Judicial Dictionary, Fifth Edition, Black's Law Dictionary, Sixth Edition and Mitra's Legal and Commercial Dictionary, Fifth Edition and came to the conclusion that the word "immediately" has to be construed, 'within a reasonable time' having due regard to the nature and circumstances of the case..
13. A similar view has been expressed by this Commission and in many other orders passed in cases such as New India Assurance Co. Ltd. vs. Ram Avtar (supra), Ramesh Chandra vs. ICICI Lombard General Insurance Co. Ltd. and Anr., (supra) and New India Assurance Co. vs. Dharam Singh, III (2006) CPJ 240 (NC). One of the latest judgments of the Commission has been issued on 15.09.2014 in RP No.3320/2014, Kulwant Singh vs. Managing Director, United India Insurance Company Ltd. & Other (supra) and a similar view has been upheld.
15. In so far as the contention of the complainant/respondent that a contract of insurance is contract of indemnity and the Insurance Company is bound to honour the claim, once the policy has been issued after charging the premium, it is stated that the said contract has been made subject to certain conditions. In case there is violation of such conditions, such violation has to be taken into account, while deciding the issue of indemnity."
21. In the instant case, the vehicle was seized by Boiparigua, District Koraput Police Station on 10.01.2009 for offence under Section 399 & 402 IPC but the appellant (complainant) did not inform the respondent No.1 (O.P.No.1) regarding the seizure of the vehicle and when the vehicle was burnt by the Naxalite in second week of June, 2009, then // 14 // for the first time the appellant (complainant) sent intimation to the respondent No.1 (O.P.No.1) in this regard. It appears that the appellant (complainant) intentionally did not take the vehicle on Supurdnama and left the vehicle in Boipariguda Police Station. If the vehicle had been taken by the appellant (complainant) on supurdnama, then the vehicle would not have burnt in the bomb blast committed by the Naxalite in Police Station. Therefore, the appellant (complainant) himself is negligent in not taking the vehicle on supurdnama from Boipariguda Police Station, for period of near about 6 months.
22.. It is not disputed that on 07.06.2009 at about 9.25 P.M. Naxalite attacked Boipariguda P.S. and exploded the P.S. building, set fire the seized scorpio bearing Regd. No.CG 04HA6156, due to which the vehicle in question burnt. It appears that the vehicle in question was burnt in Naxals attacks.
23. In Muralidhar Sarangi vs. New India Assurance Co. Ltd. 2000) 3 Supreme Court Cases 466; Hon'ble Supreme Court has observed thus :-
"8. Endorsement No .IMT 21, which has been reproduced above, consists of two distinct parts. The first part speaks of mutiny assuming the proportion of popular rising, military rising, rebellion, revolution, insurrection etc. The second part consists of :-
"Any act of any person acting on behalf of or in connection with any organization with activities directed towards the overthrow by force of the Government de jure or de facto or to // 15 // the influence of it by terrorism or violence or by the direct or indirect consequence of the said occurrences."
13. When read in the light of the above statutory provisions as also the attending circumstances of this case, it becomes clear that provision (b) of Endorsement No. IMT 21 of the insurance policies did not cover the risk complained of. The trucks were destroyed by acts of terrorism and a driver of the truck was also shot dead. The National Commission was, therefore, fully justified in its conclusion that the respondent was not liable for the loss suffered by the appellant at the hands of Bodo activists who completely destroyed the trucks of the appellant by setting them on fire and killed one of the drivers."
24. In the case the vehicle in question was burnt by the naxalite, therefore, the respondent No.1 (O.P.No.1) (Insurance Company) is not liable to indemnify the appellant (complainant). The appellant (complainant) is not entitled to get any compensation or Insured Declared Value of the vehicle in question from the respondent No.1 (O.P.No.1) (Insurance Company).The impugned order passed by the learned District Forum, does not suffer from any infirmity or illegality, and does not call for any interference by this Commission.
25. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
/03/2015 /03/2015 /03/2015