National Consumer Disputes Redressal
Budha Ganesh vs New India Insurance Company Ltd. on 21 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3936 OF 2012 (From the order dated 17.07.2012 in Appeal No. 344/2008 of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal) Budha Ganesh S/o Kodulal Saket R/o Village Pahari P.S. & Tehsil Maihar Distt. Satna, (M.P.) Petitioner versus New India Insurance Company Ltd. Through Divisional Office Divisional Manager Rewa Road, Satna, (M.P. 485 001) Respondent
BEFORE HONBLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner(s) Mr. Pancham Lal Advocate For Respondent Mr. R.C. Mishra, Advocate PRONOUNCED ON : 21st JANUARY 2014 O R D E R PER SURESH CHANDRA, MEMBER Petitioner in this case is the complainant and the Respondent Insurance Company was the Opposite Party before the District Forum.
The only issue that arises for our consideration and decision in this case is the effect of delay in reporting theft of the insured vehicle to the Police and/or the Insurance Company.
2. Briefly stated, the tractor and trolley of the petitioner was insured with the OP Insurance Company for the period from 31.12.2005 to 30.12.2006. It was alleged that the tractor and the trolley were stolen on 9.9.2006 during the period of insurance. However, the FIR was filed on 13.9.2006 and the Insurance Company was informed on 19.9.2006. Though, the information was delayed, yet, the Insurance Company appointed an investigator who gave the report that it was not the case of theft, but the persons traveling with the insured in the tractor had taken it away after putting some intoxicating substance in his food at a dhaba where all of them had alighted to have food. The Insurance Company after receiving report of the surveyor repudiated the claim of the insured/complainant on the ground of delay in reporting the matter. It also alleged that the investigation done by the surveyor indicated that the incident of theft is false and concocted. This led the complainant to file a consumer complaint against the Opposite party/Insurance Company for deficiency in service before the District Forum which vide its order dated 01.01.2008 accepted the complaint in terms of the following directions:
i) That Respondent the insurance Company should decide the claim of applicant within 60 days.
ii) That non applicant should pay Rs.3,000/-
for deficiency of service.
iii) If Rs.2,96,593/- the price of tractor is not paid within 60 days then the complainant will be entitled to get 12% interest from 29.5.2007 till payment.
iv) The non-applicant will pay the cost of complainant Rs.5,000/-.
3. Aggrieved by the aforesaid order of the District Forum, the Opposite party/Insurance Company filed an appeal before the Madhya Pradesh Consumer Disputes Redressal Commission, Bhopal bearing No. 344 of 2008. The State Commission vide its impugned order dated 17.7.2012 set aside the order of the District Forum and allowed the appeal while dismissing the complaint of the petitioner. It is against this impugned order of the State Commission that the present revision petition has been filed by the petitioner who is aggrieved of the impugned order.
4. We have heard learned Shri Pancham Lal, Advocate for the petitioner and Shri R.C. Mishra, Advocate for the Respondent/Insurance Company. It is not in dispute that the alleged theft had taken place on 9.9.2006, but the FIR came to be filed on 13.9.2006 and the Insurance Company was intimated about the incident on 19.9.2006. The State Commission has upset the finding of the District Forum mainly on the ground of delay on the part of the Petitioner/Complainant in filing the FIR and informing the Insurance Company about the theft. In returning its finding the State Commission has relied on the judgment and order of this Commission in the case of New India Assurance Company Ltd. Vs. Trilochan Jane (Pronounced on 9.12.2009 in Appeal No. 321 of 2005) while non-suiting the claim of the petitioner and dismissing the complaint.
Learned Counsel for the petitioner contended that the petitioner is an uneducated person who does not understand the legal implications and importance of the condition given in the insurance policy. He, therefore, submitted that keeping in view the violation of the condition of the policy regarding immediate filing of the FIR and intimation to the Insurance Company about the incident of theft, the claim of the Petitioner/Complainant can be settled on non-standard basis to the extent of 75% of the value of the vehicle insured keeping in view the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. Vs. Nitin Khandelwal (2008) 11 SCC 259. He contended that the impugned order of the State Commission based on the order in Trilochan Jane Case (Supra) decided by the National Commission be set aside and relief be granted to the petitioner in terms of the ratio laid down by the Apex Court in the Nitin Khandelwal Case (Supra).
5. Per contra, learned Counsel for the Respondent has contended that the facts and circumstances of the present case are similar to those of Trilochan Jane Case (Supra) and as such, the ratio of Nitin Khandelwal Case (Supra) would not be applicable to the present case. He submitted that the State Commission has already considered this aspect and hence there is no merit in the revision petition and the same is liable to be dismissed.
6. We have carefully considered the rival contentions and perused record.
Admittedly, there was delay in not only filing the FIR, but also informing the Insurance Company. The State Commission has observed that the delay in the matter on the part of the petitioner prevented the Insurance Co. and the police from tracing out the tractor and the trolley during the initial period soon after the theft and this delay goes to the root of the matter since time is of essence in such matters where theft of the vehicle has taken place. Keeping this aspect in view, the State Commission has rightly decided the appeal applying the judgment and order of this Commission in the case of Trilochan Jane. In the case of Trilochan Jane there was delay only in respect of intimation of the incident of theft to the Insurance Company. Even then, this Commission held it to be a serious violation of the condition of the Insurance policy which would justify the repudiation of the claim on this ground. The ratio of Nitin Khandelwals case cannot be applied to the present case because that judgment was in a totally different context. In this regard, we reproduce the observations of this Commission made in the case of Trilochal Jane case, which would amply clarify this aspect:
Learned Counsel for the respondent, relying upon the judgement of Honble Supreme Court in National Insurance Company Ltd.
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 judgement 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 the terms of 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 F.I.R. after 2 days of the coming to know of the theft and 9 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).
7. In view of the 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.
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(SURESH CHANDRA) MEMBER k