State Consumer Disputes Redressal Commission
United India Insurance Company Ltd. vs Kulwant Singh on 4 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.55 of 2013
Date of institution : 21.01.2013
Date of decision : 04.06.2014
1. Managing Director, United India Insurance Company Ltd., 24,
Whites Road, Chennai.
2. Branch Manager, United India Insurance Company Ltd.,
Divisional Office No.2, Sial House Lajpat Nagar Market,
Jalandhar, District Jalandhar.
Both through Dr. S.K. Takyar, Manager, United India Insurance
Company Limited, Regional Office, 136, Feroze Gandhi
Market, Ludhiana.
.......Appellants- Opposite Parties
Versus
Kulwant Singh son of Shri Nirmal Singh, resident of V.& P.O.
Pharala, Tehsil Nawanshahr, District SBS Nagar.
......Respondent- Complainant
First Appeal against the order dated
10.12.2012 of the District Consumer
Disputes Redressal Forum, Shaheed
Bhagat Singh Nagar.
Quorum :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. Vinod Kumar Gupta, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants : Shri D.P. Gupta, Advocate. For the respondent : Shri Sanjay Tangri, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal by the appellants/opposite parties is against the order dated 10.12.2012 passed by District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Kulwant Singh, under Section 12 of the Consumer Protection Act, 1986, was allowed and they were directed First Appeal No.55 of 2013. 2 to pay Rs.5,97,000/-, as the insured amount and Rs.10,000/- as compensation.
2. The complainant alleged in his complaint that he got his jeep make Bolero insured with the opposite parties on 10.1.2011 regarding which policy bearing No.201300/31/10/01/00012110 was issued. The loss on account of theft was also covered under that policy. On 18.4.2011, he went to Phagwara on this vehicle and parked the same outside the house of his friend and came to know on 19.4.2011 that the same had been stolen. Without any delay and within the stipulated period he reported the matter to the police of Police Station City Phagwara, who registered FIR No.33 of 2011 under Section 379 of the IPC. Intimation was also given about the theft to the opposite parties within time. He submitted the relevant documents in support of the claim and requested the opposite parties to pass the claim. On 3.4.2012 a letter was sent by the opposite parties, vide which his claim was closed illegally. The opposite parties were liable to pay the insured amount of Rs.6,29,400/-. The non-payment thereof caused harassment and on account of the harassment suffered by him, they are liable to pay Rs.50,000/- in addition to Rs.15,000/- as counsel fee.
3. The opposite parties filed joint written reply, in which they admitted that the vehicle in question was got insured by the complainant with them and that claim made by him regarding the loss on account of theft was repudiated. While denying the other allegations, made in the complaint, they pleaded that the alleged theft took place on the intervening night of 18.4.2011 and 19.4.2011 First Appeal No.55 of 2013. 3 but the information was given to the police only on 22.4.2011 for getting the FIR registered and the same amounts to the breach of the terms and conditions of the insurance policy. The vehicle was got registered only on 22.4.2011, much after the alleged theft. The driver of the vehicle was not holding a valid and effective driving licence at the time of parking, which also amounts to the breach of the terms and conditions of the insurance policy and the provisions of the Motor Vehicles Act, 1988. In fact, the registration certificate was got prepared in an illegal manner after the alleged theft. In all these circumstances the claim of the complainant was rightly repudiated and, as such, he is not entitled to any such insurance amount or damages.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite parties that the District Forum committed an illegality while allowing the complaint by ignoring the evidence produced on the record that there was no valid registration certificate of the vehicle at the time the alleged theft took place and that no FIR was got registered with the police and the information to the police was not given immediately. The claim of the complainant was validly repudiated on those three grounds and there is nothing on the record to First Appeal No.55 of 2013. 4 conclude that the said repudiation was not valid. Therefore, the order passed by the District Forum is liable to be set aside.
7. On the other hand, it was submitted by the learned counsel for the complainant that the want of registration certificate of the vehicle could not have been made a ground for repudiation. Moreover, the complainant had already applied for the permanent registration number and the case was pending before the DTO. The registration certificate was duly issued just after two days of the theft. It cannot be said that there was no FIR regarding this theft. The complainant proved on record the written application Ex.C-16, which was given by him to the office Incharge of the concerned Police Station and the police mentioned in its proceedings that the application shall be investigated, along with FIR No.33 on 27.2.2011. That FIR itself is to be taken as the FIR regarding the present theft. No evidence was produced by the opposite parties that the registration certificate was obtained by the complainant in an illegal manner. Therefore, there is no ground for setting aside the well reasoned findings of the District Forum. In support of his submissions he relied upon the judgment of the Hon'ble National Commission dated 27.4.2011 rendered in Revision Petition No.171 of 2012 (IFFCO TOKIO General Ins. Co. Ltd., FAI Building, 10, Shaheed Jeet Singh Marg, Qutub Institutional Area, New Delhi and also at Lal Ganga Shopping Mall, G.E. Road, Raipur, District Raipur (C.G.) v. Pratima Jha, R/o Thesil Kawardha, District Kabirdham).
8. Admittedly there was no permanent registration number of the vehicle at the time of the alleged theft. No such certificate of First Appeal No.55 of 2013. 5 registration was proved on record by the complainant. However, the same has been annexed with the appeal and this certificate was issued on 20.4.2011, whereas the theft had taken place on 18.4.2011. Thus, it is to be concluded that there was no permanent registration number/registration certificate of the vehicle at the time the same was stolen. However, that could not have been made a ground for repudiation of the claim in view of the well settled law that the claim cannot be repudiated on a ground which is not germane to the commission of theft. We will like to reproduce the relevant portion of the judgment so relied upon by the learned counsel for the complainant and which has been stated above:-
" We have heard learned counsel for petitioner and have gone through the evidence on record. The facts regarding the insurance of the vehicle and its theft are not in dispute. It is also admitted that the vehicle did not have a permanent registration at the time of its theft. There are, however, a number of judgments of the Apex Court as well as of this Commission including in a recent case [Oriental Insurance Co. Ltd. v. Swami Devi Dayal-R.P. No.497 of 2012 (decided on 14th February, 2012)] in which it was held that the insurance company is not entitled to repudiate the claim only on the ground that the vehicle had not been registered. The First Appeal No.55 of 2013. 6 judgment of this Commission is a binding precedent and we respectfully follow the same." Therefore, in view of the well settled law the claim of the complainant could not have been repudiated by the opposite parties on the ground that the vehicle had not been registered on the date of theft. The finding recorded by the District Forum to that effect is hereby upheld.
8. The repudiation letter was proved on the record as Ex.C-12 and one of the ground of repudiation was, "Permanent R.C. got prepared in an illegal way after theft of vehicle". The opposite parties in their written reply have also taken preliminary objection that the permanent R.C. was got prepared in an illegal manner after the alleged theft but they failed to produce any such evidence from which that fact can be inferred. This fact could not have been proved by direct evidence and the opposite parties were required to prove on record such circumstances from which that fact could have been inferred. They are relying upon the affidavit of Suesh Sharma, Senior Divisional Manager, Ex.R-1, which is nothing but the written statement which has been given the form of an affidavit. The deponent has not deposed about the specific facts in that affidavit and the same is not a valid affidavit so as to constitute the evidence. When that ground has not been made out, the same could not have been made a ground for repudiation of the claim of the complainant.
9. So far as the non-lodging of the FIR regarding the theft by the complainant is concerned, the present case stands at a peculiar footing. The complainant proved on record the written application, First Appeal No.55 of 2013. 7 which was given by him regarding the theft of the vehicle to the Officer Incharge of Police Station City, Phagwara, Ex.C-16. In that application he stated that on 18.4.2011 he had gone on this vehicle to the house of his friend situated at Phagwara and went inside after parking the vehicle outside and on the next day he found that the vehicle had been stolen by someone. The police recorded its proceedings on that application and incorporate therein that though the offence under Section 379 of the IPC is made out from the contents of the application, yet the same shall be investigated in the FIR which had already been recorded regarding the theft (FIR No.33 of 27.2.2011 under Section 379 IPC). The complainant also proved on record the police ziminis (police diaries) Ex.C-10, rough site plan of the place of theft Ex.C-11, application vide which the no trace report was submitted by the police Ex.C-14 and the order dated 26.11.2011passed by the Judicial Magistrate Ex.C-15, vide which the report filed by the police was accepted and the case was filed as untraced. A perusal of all these documents shows that the report lodged by the complainant in the form of his application Ex.C-16 was duly investigated by the police in FIR No.33 of 27.2.2011 but could not trace the vehicle and the case was filed as untraced. In all these circumstances, it cannot be held that there was no FIR regarding this theft.
10. A very serious question has been raised in this case by the learned counsel for the opposite parties that there was non- compliance of the terms and conditions of the insurance policy as the complainant did not lodge the report with the police immediately First Appeal No.55 of 2013. 8 after the delay and that by misapplying the ratio of the judgment mentioned in the order of the District Forum, it was wrongly concluded that there was no such breach of the terms and conditions of the insurance policy.
11. The complainant himself proved on record the insurance policy Ex.C-8, which was a Private Car Package Policy for the period 10.1.2011 to 9.1.2012. However, it is pertinent to note that he did not produce all the pages of this policy. The proforma of Private Car Package Policy was proved on the record by the opposite parties as Ex.R-6. The relevant condition contained therein is reproduced below:-
"1. 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. 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 injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal First Appeal No.55 of 2013. 9 act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co- operate with the Company in securing the conviction of the offender."
A perusal of this condition makes it clear that the complainant was required to give immediate notice of the theft to the police and was to co-operate with the Company in securing the conviction of the offender. It is very much clear from his own application Ex.C-16 that he reported the theft, which had taken place on the night of 18/19.4.2011, to the police on 22.4.2011, i.e. after more than two days. Can it be said that there was compliance of the above said condition? This very question came up for consideration before the Hon'ble National Commission in First Appeal No.321 of 2005 decided on 9.12.2009 (NEW INDIA ASSURANCE COMPANY LIMITED v. TRILOCHAN JANE). In that case the FIR was lodged after two days of the coming to know of the theft. It was held therein that in case of theft where no bodily injury has been caused to the insured, it is incumbent upon the complainant to inform the police about the theft immediately say within 24 hours otherwise valuable time would be wasted in tracing the vehicle. Similarly, it was also held that the insurer should also be informed within a day or two so that the insurer can verify whether any theft took place and to take immediate steps to get the vehicle traced. It was held that this delay can be fatal as in First Appeal No.55 of 2013. 10 the meanwhile the car could have travelled a long distance or may have been dismantled by that time and sold to the Scrap Dealer.
12. Thus, it is to be held that on account of the non-giving of notice immediately about the theft to the police and to the opposite parties the complainant violated the fundamental condition of the insurance policy, which disentitles him to the claim made in the complaint. The District Forum committed an illegality while holding to the contrary.
13. In the result, this appeal is allowed, the order of the District Forum is set aside and the complaint is dismissed.
14. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellants/opposite parties by way of a crossed cheque/demand draft after the expiry of 45 days.
15. The arguments in this case were heard on 29.5.2014 and the order was reserved. Now, the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 04, 2014.
Bansal First Appeal No.55 of 2013. 11