National Consumer Disputes Redressal
New India Assurance Company Limited vs Trilochan Jane on 9 December, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 321 OF 2005 (From the Order dated 03.06.2005 in C.D. Case No. 60 of 2001 of Orissa State Consumer Disputes Redressal Commission, Cuttack) NEW INDIA ASSURANCE COMPANY LIMITED APPELLANT VERSUS TRILOCHAN JANE RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR THE APPELLANT : MR. SALIL PAUL, ADVOCATE. FOR THE RESPON DENT : MR. MANOJ KUMAR DAS, ADVOCATE. PRONOUNCED ON : 09.12.2009 O R D E R
ASHOK BHAN J., PRESIDENT New India Assurance Company Limited-appellant herein, which was the Opposite Party before the Orissa State Consumer Disputes Redressal Commission, Cuttack (hereinafter referred to as the State Commission for short), has filed this Appeal against the Order dated 03.06.2005 passed by the State Commission in C.D. Case No. 60 of 2001 whereby the State Commission has allowed the Complaint.
Briefly stated, the facts of the case are:-
Complainant-respondent had purchased one mini truck bearing registration no. OR-02-F-9857, which he insured with the appellant-Insurance Company. It is stated that on 06.04.2000, respondent had kept the vehicle near Aigenia Potato Godown and found the same missing on 08.04.2000. Respondent, after some search, reported the matter to Khandagiri Police Station by lodging F.I.R. on 10.04.2000. On the basis of the said F.I.R., police registered a case and took up investigation. As the vehicle could not be traced, Police submitted the Final Report as untraceable stating that though the theft had taken place but no clue could be found. Thereafter, respondent gave the information regarding theft of the vehicle to the appellant-Insurance Company on 17.04.2000. Immediately on receipt of the information, appellant appointed Shri S.K. Patnaik, Surveyor to give the valuation report and to find out the market value of the insured lost vehicle.
The said Surveyor, vide its Report dated 07.12.2000, on the basis of the market survey, assessed the market value of the insured vehicle on the date of loss at Rs.2,40,000/-. After receipt of the Report of the Surveyor, appellant repudiated the claim of the respondent on the ground that there was delay in reporting the theft to it and the complainant did not take adequate steps to safeguard the vehicle in violation of Clause 5 of the Insurance Policy. Aggrieved by the letter of repudiation, respondent filed a Complaint before the State Commission.
Appellant, after being served, filed its Written Statement stating therein that the claim of the respondent has rightly been repudiated on the ground that there was a delay of 9 days in reporting the theft to it, which deprived the appellant of its right to investigate the matter and that the respondent had not taken adequate steps to safeguard the vehicle in violation of Clause 5 of the Insurance Policy. Thus, denying all the allegations of deficiency in service, appellant prayed for dismissal of the Complaint.
The State Commission, after taking into account the pleadings as well as the evidence led by the parties, held that complainant cannot be said to be guilty of laches in reporting the incident as respondent had reported the matter to the appellant within a reasonable time. That the complainant had not kept the vehicle in a lonely place which could facilitate commission of theft. Over-ruling the grounds of repudiation, State Commission allowed the Complaint and directed the appellant to pay to the respondent, the insured amount of the vehicle, i.e., Rs.3,40,000/- with interest @ 6% p.a. from the date of filing of the Complaint, i.e., 13.07.2001 till payment.
Appellant, being aggrieved by the Order passed by the State Commission, has filed the present Appeal.
Counsel for the parties have been heard at length.
Counsel for the appellant contends that in terms of the insurance policy, the respondent was required to inform the appellant about the theft of the vehicle immediately and, since, the respondent did not inform, he violated the terms of the Policy and deprived the appellant of its right to investigate the matter immediately after the theft. It was also contended that the appellant had also breached condition no. 5 of the Standard Motor Policy as he failed to take reasonable care to safeguard the vehicle by parking the same unattended from 06.04.2000 to 08.04.2000. Counsel for the respondent has supported the finding recorded by the State Commission.
Condition no.1 of the Insurance Policy reads as under:-
1. Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and 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 shall be forwarded to the Company immediately on receipt by the Insured. Notice shall be given in writing to the Company immediately the insured shall have knowledge of any impending. Prosecution Inquest Fatal Injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act, which may be subject of 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.
(Emphasis Supplied) Word immediately has not been defined under the Act. Resort has to be made to the dictionary meaning assigned to it.
As per Oxford Advanced Learners Dictionary, the word immediately means at once.
As per Strouds Judicial Dictionary, Fifth Edition, word immediately is defined as under: -
(1). The word immediately, although in strictness it excludes all mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing.
As per Blacks Law Dictionary, Sixth Edition, word immediately means: -
Immediately. Without interval of time, without delay, straightway, or without any delay or lapse of time. When used in contract is usually construed to mean within a reasonable time having due regard to the nature of the circumstances of the case, although strictly, it means, not deferred by any period of time. The words immediately and forthwith have generally the same meaning. They are stronger than the expression within a reasonable time and imply prompt, vigorous action without any delay.
According to Mitras Legal and Commercial Dictionary, Fifth Edition, word immediately is defined as under: -
Immediately. Immediately is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsburys Laws of England, 4th Ed. Vol. 23, para 1618, p. 1178.
The word immediately is stronger than the expression within a reasonable time, and imply prompt, vigorous action, without any delay. It means all convenient speed. The word immediately should not be construed so as to require doing something which is impossible.
As per Oxford Advanced Learners Dictionary, the word immediately means at once whereas Strouds Judicial Dictionary, Fifth Edition, word immediately in the context of contract has to be taken as reasonable requisite time for doing the thing. As per Blacks Law Dictionary, Sixth Edition, word immediately means doing of a thing straightway or forthwith but when used in the context of contract, it is usually construed to mean within a reasonable time having due regard to the nature of circumstances of the case. More or less to the effect, is the same meaning assigned in Mitras Legal and Commercial Dictionary, Fifth Edition. Since, in the present case, there was a contract between the insured and the insurer and, the word immediately, under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case.
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 for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.
Honble Supreme Court of India in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that the terms of Policy have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported immediately. In the context of a theft of the car, word immediately has to be construed strictly to make the insurance company liable to pay the compensation.
To the similar effect, is the Judgment of this Commission in The New India Assurance Company Limited v. Shri Dharam Singh and Another in First Appeal No. 426 of 2004 decided on 04.07.2006.
Learned Counsel for the respondent, relying upon the Judgment of Honble Supreme Court in National Insurance Company Limited v. 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 Judgment 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).
In our view, the State Commission erred in holding that the respondent/complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time. We are not going into the other question regarding violation of Condition no. 5 of the Insurance Policy as we have non-suited the respondent/complainant on the first ground.
For the reasons stated above, the Appeal is accepted. Order under challenge is set aside and the Complaint is ordered to be dismissed leaving the parties to bear their own costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER