State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs Sh. Tilak Raj Taneja on 13 November, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 13.11.2014 First Appeal-235/2012 (Arising out of the order dated 30.01.2012 passed in District Forum-X, Udyog Sadan, C-22 & 23 Institutional Area, New Delhi in Complaint Case No. 921/2006) In the matter of: The Oriental Insurance Company Ltd. Through the Manager 57/204, Manjushah Building Nehru Place, New Delhi-110019 .Appellant Versus 1. Shri Tilak Raj Taneja S/o Late Sh. Jetha Mal Taneja R/o Pocket A-9, Flat No. 3-C Gomti Appartments, Kalkaji Extn. New Delhi-110019 2. The Manager, Financier Associates, Pushpa Bhawan, Pushpa Bhawan New Delhi-110062 .Respondent CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member 1. Whether reporters of local newspaper be allowed to see the judgment? 2. To be referred to the reporter or not? S.A.Siddiqui , Member (Judicial) JUDGEMENT
1) Oriental Insurance Company (OP-1) filed this appeal under Section 15 r.w. Section 17 of the Consumer Protection Act 1986 (in short the Act) against the order dt. 30.01.2012 passed by District Forum-X, Udyog Sadan, C-22 & 23 Institutional Area, New Delhi in Complaint Case No. 921/2006.
2) Complainant/Respondent Sh. Tilak Raj Taneja purchased a new TATA Safari vehicle and got it insured with appellant/OP on 04.05.2000 for a sum of Rs. 8,69,735/- for a period 04.05.200 to 03.05.2011 and paid a premium of Rs. 27,960/-. Complainant/respondent raised loan/financial assistance from the OP-2 financier associates. During the intervening night of 15/16.03.2001 this vehicle was stolen while it was parked in front of the house of one Sh. Mohd Sayed, the driver and a friend of the complainant. When in the morning Sh. Mohd Sayed found that vehicle was missing, he lodged an FIR (No. 142/2001) with the Police Station Hazrat Nizamuddin on 16.03.2001 itself. A case under Section 379 IPC was registered by the police and was investigated. However, vehicle could not be traced during the investigation and the police submitted final report. The complainant lodged a claim with the insurance company with all necessary documents. When the matter was brought to the notice of the insurance company it appointed a surveyor to investigate and asses the loss; the complainant was ultimately informed that the insurance company has closed the claim. Under the circumstances the complainant/respondent was left with no choice but to file a consumer complaint in the District Forum having jurisdiction for direction to insurance company to pay insurance amount, compensation for mental pain and agony and costs of litigations.
3) During the course of proceedings before the District Forum OP/appellant filed its written version. It was alleged that the complainant did not cooperate with the investigator/surveyor appointed by the insurance company and failed to provide requisite documents. It was alleged that the FIR of the alleged theft was lodged by one Sh. Mohd Sayed in the capacity of the owner of the vehicle. Complainant was requested to rectify the FIR but in vain. During the investigation it was found that the vehicle in question was not in actual physical possession of the complainant at the relevant time and that it was sold to Sh. Mohd Sayed who used the vehicle for commercial purpose i.e. for hire/reward. It was further alleged that complainant failed to give notice/intimation to the insurance company regarding the occurrence of theft. The complaint was also time barred. The parties led evidence in support of their cases.
The Ld. District Forum evaluated the evidence on record and came to the conclusion that by closing/repudiating the genuine claim of the complainant, the insurance company was guilty of deficiency in service and therefore decreed the complaint with the directions of making payment to complainant/respondent a sum of Rs. 8,69,735/- along with interest @ 9% p.a. plus Rs. 5,000/- towards costs of litigations.
4) The OP-1/insurance company felt aggrieved and preferred this appeal inter-alia on the following main ground, besides the others.
a) That the Ld. District Forum failed to appreciate that the complaint was time barred under Section 24(a) of the Act.
b) That the Ld. District Forum also failed to appreciate that the complainant was guilty of breach of the terms and conditions of the insurance policy in as much as complainant failed to intimate the insurance company about the theft of the vehicle immediately as provided under the policy, the intimation was given after a lapse of three months.
c) That the FIR was lodged by one Sh. Mohd Sayed claiming to be owner of the vehicle but the District Forum failed to notice this important aspect of the matter.
d) Lastly, the Ld. District Forum also erred in granting higher rate of interest.
5) The complainant/respondent filed reply. It was maintained in the reply that claim was not time barred and it was filed well within two years provided under section 24 of the Act. The complainant was registered owner of the vehicle in question as his name was recorded in RC. This fact was also rightly noticed by the Ld. District Forum. It was further alleged that the impugned order dt. 30.01.2012 was passed on proper appreciation of evidence on record and it does not suffer from any illegality or irregularity, therefore the appeal was liable to be dismissed. The complainant/respondent further maintained that his claim was genuine the informations of the theft was give to the police immediately after the occurrence i.e. 16.03.2001. In its reply to ground d of the appeal it was maintained that the complainant immediately informed the insurance company for settlement of the claim after the loss of TATA Safari vehicle, but still they did not take any step for settlement of the claim. Thus the appeal was bereft of merits and was liable to be dismissed.
6) We have heard Sh. Saurav Kumar, Ld. Counsel for the appellant and Sh. Raman Rai Handa, Ld. Counsel for the Respondent. We also perused the ruling relied upon by the appellant/OP. Appellant relied upon the following rulings:-
i.
Dharamvir V/s Oriental Insurance Company Ltd. RP No. 1542/2012 decided on 10.10.2013 by National Consumer Disputes Redressal Commission.
ii.
New India Assurance Company Ltd. Vs Trilochan Jane FA No. 321/05 National Consumer District Redressal Commission, New Delhi decided on 09.12.2009.
iii.
The complainant also relied upon the ruling of the Honble National Commission in FA No. 141/09 New India Assurance Company Ltd. Vs Ram Avtar.
7) It has not been disputed that the theft of the vehicle occurred during the intervening night 15/16.03.2001. It is further not disputed that FIR was lodged with the local police by Sh. Mohd Sayed in front of whose house the vehicle was parked. The information to the police was given without any delay in the morning of 16.03.2001 itself.
The core issue before the Ld. District Forum was whether there has been delay of three months in giving intimation/information to the insurance company.
8) It was argued by the Ld. Counsel for the respondent that no doubt there is a provision in the insurance policy that in case of theft, the incident should have been intimated to the insurance company immediately but the provision is not directory in nature and that it is mandatory provision. The incident of theft was immediately reported to the local police by lodging an FIR No. 142/2001, which was registered under section 379 IPC and the investigation was started.
The police was the competent statutory authority to investigate the theft case intimation to the insurance company was not a mandatory feature of the matter. Proper claim was lodged with the insurance company with all the documents and the insurance company instead of settling the genuine claim of the complainant did not pay the claim which by itself was deficiency in service. So far as the ownership matter is concerned it has rightly been noted by the Ld. District Forum that the name of the complainant was duly entered in the registration certificate of the vehicle.
Sh. Mohd Sayed was a friend and driver of the complainant. The factum of ownership was never in doubt and the theft had taken place during the subsistence of the insurance policy, therefore the claim was rightful and should have been paid by the insurance company. This right cannot be taken away on the technical ground of delay in giving information to the insurance company. Although the insurance company had knowledge about it and the police was informed without delay and started investigation in right earnest.
9) On the other hand, Counsel for the appellant argued that the alleged theft took place during the intervening night of 15/16.03.2001 and intimation was given by the complainant to the insurance company by 11.06.2001 i.e. after about three months. The terms and conditions of the insurance company were equally binding upon both the parties i.e. insurer and insured. The information of the theft should have been given to the insurance company immediately i.e. within 24 hours as held by Honble National Commission in New India Assurance Company Ltd. Vs Trilochan Jane. The insurance company has direct interest in the matter in as much as in the case of theft, it was to indemnify the owner of the vehicle. Therefore, the incidence of theft should have been promptly intimated to the insurance company so that the alleged theft could have been investigated promptly and efforts ought to have been made to recover the stolen vehicle. Thus, there was flagrant violation of the terms and conditions of the insurance policy and information after a lapse of three months was fatal to the interest of the insurance company. Hence, there was no deficiency of service on the part of the insurance company in denying the claim of the complainant. It was also argued that the vehicle was in the custody Sh. Mohd Sayed the driver of the vehicle who was using the same for commercial purpose. From this angle as well, the impugned order dt.
30.01.2012 was erroneous.
10) It is a fact that there is no evidence on record to prove that intimation of theft was given to the insurance company prior to 11.06.2001 when insurance claim was lodged. The insured-complainant was bound by the terms and conditions of the insurance policy; one of the important conditions being giving intimation to the insurance company immediately in case of theft. In Trilochan Janes case it was held that ....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 coming to know about the theft and nine days to insurance company, can be fatal as in the meantime the car could have travelled a long distance may be have been dismantled and sold to kabadi (scrap dealer). In the present case, though the information to the police was given without any delay but information to the insurance company was given after a very long delay of about three months. Obviously this constitutes open violation of the terms and conditions of the insurance policy.
11) The Ld. District Forum committed grave error when it failed to appreciate that factum of inordinate delay in intimating the insurance company regarding the incidence of theft was fatal. At the best, it should have been given within 48 hours of the incidence. The Ld. District Forum also erred in holding that the complainants claim was genuine and insurance company in repudiating the same was not justified, without giving reasons for the conclusion reached. The Ld. District Forum should have given cogent reasons for its decision. Therefore the impugned order dt.
30.01.2012 is erroneous and cannot be sustained. As regards allegation of commercial use of the vehicle in question by the driver to use the same for hire/reward we do not agree with the contention of the Ld. Counsel of the appellant that this has some bearing on the matter in issue. It was a simple case of theft and the incident of theft occurred during the subsistence of the insurance policy and therefore the claim of the complainant could not have been legally repudiated on this ground.
12) In view of the above discussion we have come to the conclusion that the impugned order dt. 30.01.2012 is found erroneous and deservers to be set aside.
13) Appeal is accordingly allowed. The impugned order dt. 30.01.2012 is set aside. The complaint Case No. 921/06 stands dismissed.
14) Let a copy of the order be made available to the parties free of cost as per rule and thereafter file be consigned to record room.
15) FDR if any be released in favour of the appellant as per rule.
(S.A.SIDDIQUI) MEMBER (JUDICIAL) (S.C.JAIN) MEMBER FATIMA