State Consumer Disputes Redressal Commission
Tata Aig General Insurance Company ... vs Nasir Ahmed And Others on 9 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 148 / 2011
Tata AIG General Insurance Company Limited
through its Authorised Signatory
Lotus Towers, 1st Floor
Community Centre, New Friends Colony
New Delhi - 110 025
......Appellant / Opposite Party No. 1
Versus
1. Sh. Nasir Ahmed S/o Sh. Basir Ahmed
C/o Sh. Junaid Hussain, Ashmina Vihar
Lane No. C-3, Turner Road
Clement Town, Dehradun
2. Sh. Rajiv Nanda S/o late Sh. H.L. Nanda
R/o 95-A, Neshvilla Road
Dehradun
......Respondent Nos. 1 and 2 / Complainants
3. Officer Incharge
ICICI Bank, Cantt. Road
Dehradun
......Respondent No. 3 / Opposite Party No. 2
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. S.K. Gupta, Learned Counsel for Respondent Nos. 1 and 2
Sh. Yogesh Sethi, Learned Counsel for Respondent No. 3
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 09/10/2013
ORDER
(Per: C.C. Pant, Member):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 08.06.2011 passed by the District Forum, Dehradun in consumer complaint No. 181 of 2009. By the order impugned, the District Forum has allowed the consumer complaint against the appellant - opposite party No. 1 and directed the 2 appellant to pay sum of Rs. 4,69,755/- to the respondent Nos. 1 and 2
- complainants together with interest @9% p.a. from the date of filing of the consumer complaint till payment and Rs. 5,000/- towards mental agony and litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant No. 1 had purchased one Toyoto Innova 2.0 GI (Petrol) vehicle, which was financed by the opposite party No. 2 - bank. It is alleged that the complainant No. 1 was having financial constraints and was unable to pay the loan installments to the financier bank. The complainant No. 1 asked the complainant No. 2 to provide some financial assistance to him and an agreement was executed between the complainants and as per the said agreement, the loan installments were to be paid by the complainant No. 2. The said vehicle was insured with the opposite party No. 1 - Tata AIG General Insurance Company Limited for the period from 05.02.2008 to 04.02.2009 at an IDV of Rs. 4,69,755/-. It was further alleged that the insured vehicle was stolen on 03.03.2008 and an FIR of the incident was lodged with the police and intimation was also given to the insurance company as well as the financier bank, but the insurance company did not settle the claim. Therefore, alleging deficiency in service on the part of the opposite parties, the complainants filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that the vehicle No. UA07-N-2077 was insured in the name of Sh. Nasir Ahmed; that the complainant No. 1 - Sh. Nasir Ahmed has sold the insured vehicle to the complainant No. 2 - Sh. Rajiv Nanda and at the time of the incident, the insured vehicle was under the control and custody of the complainant No. 2;
3that the FIR of the incident was lodged by Sh. Rajiv Nanda on 12.03.2008; that the FIR of the incident was lodged after a period of 8 days'; that the intimation of the incident was given to the insurance company by Sh. Rajiv Nanda on telephone on 14.03.2008; that on the date of the incident, the complainant No. 1, who was the insured, was not having any insurable interest in the vehicle; that there was delay in lodging the FIR as well as giving intimation to the insurance company and, as such, the claim was rightly repudiated by the insurance company and that there has been no deficiency in service on the part of the insurance company.
4. The bank filed written statement before the District Forum and pleaded that the loan installments were not regularly paid by the complainant No. 2 to the bank and that there has been no deficiency in service on their part.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 08.06.2011 against the insurance company in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
6. We have heard the learned counsel for the parties and have also perused the record.
7. We need not enter into the controversy as to whether the complainant No. 1 - Sh. Nasir Ahmed has sold the insured vehicle to the complainant No. 2 - Sh. Rajiv Nanda, as is mentioned by the insurance company in para 13 of the written statement. Although the investigator Vikaas Kumar & Associates appointed by the insurance company to investigate the matter, have mentioned in their 4 investigation report dated 31.03.2007 (Paper Nos. 32 to 41) that the insured Sh. Nasir Ahmed has sold the vehicle in question to Sh. Rajiv Nanda in February, 2008 for Rs. 6,12,000/- and there is statement dated 30.03.2008 of Sh. Nasir Ahmed (Paper No. 42) to the effect that he had sold the vehicle No. UA07-N-2077 to Sh. Rajiv Nanda in January, 2008 and Sh. Rajiv Nanda has also given statement (Paper Nos. 46 to 49) that he has purchased the vehicle from Sh. Nasir Ahmed on 04.02.2008, but he did not get the vehicle transferred in his name. But the same is of little importance because both Sh. Nasir Ahmed and Sh. Rajiv Nanda have jointly filed the consumer complaint before the District Forum and have arrayed themselves as complainants.
8. The main dispute in the present case is that the intimation regarding theft of the insured vehicle was belatedly given to the insurance company. The insured vehicle was stolen on 03.03.2008 and the insurance company have specifically pleaded in para 4 of their written statement that intimation regarding theft of the insured vehicle was given to them on 14.03.2008 and the FIR was lodged on 12.03.2008. The complainants have not filed any evidence to controvert the said plea taken by the insurance company. The District Forum has also observed in its impugned order that in the present case, there has been delay of 8 days in lodging the FIR. The complainants have nowhere stated as to why there was delay in lodging the FIR with regard to the theft of the insured vehicle as well as giving intimation to the insurance company. It is now a settled law that in the case of theft of the insured vehicle, delay in lodging the FIR and giving intimation to the insurance company with regard to the theft of the insured vehicle, is fatal for the insurance claim and in such an eventuality, the insurance company can not be saddled with the 5 liability to pay any compensation to the insured and the repudiation of the claim on the said ground can not be said to be unjustified.
9. Learned counsel for the appellant - insurance company pressed into service a decision of the Hon'ble National Commission in the case of Din Dayal Vs. National Insurance Company Limited and another; I (2013) CPJ 10 (NC), wherein the Hon'ble National Commission has held that the requirement of law is that the report with the police must be lodged immediately without any delay and that the delay in lodging FIR is fatal. Learned counsel also cited another decision of the Hon'ble National Commission in the case of Tejbir Singh Vs. Oriental Insurance Company Limited; I (2013) CPJ 446 (NC), wherein it was held by the Hon'ble National Commission that the delay in reporting the insurer about theft of the vehicle would be violation of condition of policy as it deprives the insurer of a valuable right to investigate as to commission of theft and to help in tracing the vehicle.
10. On 07.10.2013, learned counsel for respondent Nos. 1 and 2 cited certain decisions in support of his submissions. He pressed into service the decision dated 08.05.2008 of the Hon'ble Apex Court rendered in Civil Appeal No. 3409 of 2008; National Insurance Co. Ltd. Vs. Nitin Khandelwal, wherein it was held that in case of theft of vehicle, breach of policy condition is not germane. In the said case, the claim was repudiated by the insurance company on the ground that at the time of the accident, the use of the vehicle was contrary to the terms and conditions of the insurance policy. In the present case, the question is not regarding use of the vehicle at the time of incident of theft, but the question is of delay in reporting the matter of incident of theft of the vehicle to the police as well as to the insurance company. He also cited a decision of the Hon'ble National Commission in the 6 case of National Insurance Company Ltd. Vs. Hardeep Pal Singh and another; I (2012) CPJ 377 (NC). In the said case, the claim was repudiated on the ground that the vehicle was registered as private vehicle and whereas the same was used by the complainant as taxi. It was held that where the vehicle has been stolen or snatched, breach of condition is not germane and the insurance company is liable to indemnify the owner of vehicle. As is stated above, in the instant case, there has clearly been delay in reporting the incident of theft to the police and also the insurance company. Thus, the case laws cited on behalf of respondent Nos. 1 and 2 do not provide any help to them.
11. Learned counsel for respondent Nos. 1 and 2 has also cited the following decisions:
(i) National Insurance Company Limited Vs. Subhash Chand Kataria and another; II (2008) CPJ 324 (NC)
(ii) Oriental Insurance Company Limited Vs. Lal Chand; I (2009) CPJ 556.
12. After going through the above decisions, we are of the view that the facts of these cases are also different from the facts of the instant case. However, in the light of the law laid down by the Hon'ble National Commission in the case of "Din Dayal" (supra) and "Tejbir Singh" (supra), the repudiation of the claim is justified on the ground that the insurer was intimated about the alleged theft not within time. The FIR was also lodged belatedly.
13. The District Forum has not properly considered the above aspect of the matter and has erred in allowing the consumer complaint per impugned order, which can not be sustained in the eyes of law and 7 is liable to be set aside and the consumer complaint is liable to be dismissed.
14. For the reasons aforesaid, appeal is allowed. Order impugned dated 08.06.2011 of the District Forum is set aside and consumer complaint No. 181 of 2009 is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K