National Consumer Disputes Redressal
Kotak Mahindra Prime Ltd. vs Rajaram & 2 Ors. on 3 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 176 OF 2017 (Against the Order dated 23/11/2016 in Appeal No. 02/2015 of the State Commission Rajasthan) 1. KOTAK MAHINDRA PRIME LTD. THROUGH ITS AREA MANAGER, HAVING ITS BRANCH OFFICE AT 304, SHYAM ANUKAMPA ASHOK MARG, C-SCHEME JAIPUR RAJASTHAN ...........Petitioner(s) Versus 1. RAJARAM & 2 ORS. S/O. BHANWAR LAL, R/O. PITHRASAR TEHSIL NOKHA, DISTRICT-BIKANER RAJASTHAN 2. NATIONAL INSURANCE CO. LTD., THROUGH ITS DIVISIONAL MANAGER, PANCHSHATI CIRCLE, BIKANER DISTRICT-BIKANER RAJASTHAN 3. TATA MOTORS LTD. THROUGH ITS AUTHORIZED SIGNATORY, YADAV COMPLEX RANI BAZAR DISTRICT-BIKANER RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : Mr. Sharique Hussain, Advocate For the Respondent :
Dated : 03 Feb 2017 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The complainant/respondent no.1 namely Rajaram purchased a vehicle and got the same registered with the respondent National Insurance Company Ltd. The vehicle was financed by Tata Finance Ltd. The vehicle having been stolen on 21.12.2005, the information of the incident was given to Tata Finance and later to the insurer. The insurer however, rejected the claim on the ground that the intimation of the theft was given to it after 2½ months. Being aggrieved, the complainant approached the concerned District Forum by way of a consumer complaint impleading the insurer and Tata Finance as the OPs in the complaint. The rights of Tata Finance were later purchased by petitioner Kotak Mahindra Prime Limited.
2. The District Forum vide its order dated 22.01.2014, directed Tata Finance and Kotak Mahindra Prime Limited to pay the insured amount to the complainant alongwith interest and compensation.
3. Being aggrieved from the order passed by the District Forum, two separate appeals, one by Kotak Mahindra Prime Limited and the other by Tata Finance were preferred before the concerned State Commission. Vide impugned order dated 23.11.2016, the State Commission holding that they were only financers and therefore, could not be held liable, allowed the said appeals. Being still dissatisfied, the petitioner Kotak Mahindra Prime Limited is before this Commission by way of this revision petition.
4. The grievance of the petitioner is that though the appeal filed by them has been allowed by the State Commission, it has not set aside the order of the District Forum to the extent the insurer was held not liable to reimburse the loss. According to the learned counsel, being successor in interest of the complainant, the petitioner company can recover the insured amount from the insurer. I however, find no merit in the contention. It is an admitted position that there was a delay of more than two months in intimating the theft of the vehicle to the insurer. The vehicle came to be stolen on 21.12.2005 but intimation of the theft was given to the insurer only on 06.03.2006. The delay of more than two months in reporting the theft of the insurer was not explained either by the complainant or by the petitioner. The insured committed breach of a mandatory term of the insurance policy by not giving immediate intimation of the theft to the insurer. As a result, the insurer stood relieved of its obligation to reimburse the insured on account of theft of the vehicle.
5. The issue involved in this petition i.e. the liability of the insurer in a case of delay in reporting the theft to it came up for consideration of this Commission in Reliance General Ins. Co. Ltd. Vs. Vinod Kumar RP No. 157 of 2016 decided on 20.07.2016 and the following view was taken:
11. In Oriental Insurance Company Limited Vs. Parvesh Chander Chadha, Civil Appeal No.6739 of 2010, decided on 17.08.2010, the car in question was stolen between 18.01.1995 and 20.01.1995. The FIR was lodged with the police on 20.01.1995 but intimation of the said theft was given to the insurance company only on 22.5.1995. The claim having been repudiated on the ground of the breach of the conditions of the policy, a complaint was filed by the insured before the concerned District Forum, seeking compensation along with interest. The complaint was resisted by the insurance company on the ground that he had violated the conditions of the policy by not intimating the alleged theft for almost five months. The District Forum, State Commission as well as National Commission, having ruled in favour of the complainant, the matter was agitated by the insurance company before the Hon'ble Supreme Court. Allowing the appeal filed by the insurance company, the Hon'ble Supreme Court inter-alia held as under:
"Admittedly, the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavour to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.
In the result, the appeal is allowed, the impugned order as also those passed by the District Forum and the State Commission are set aside and the complaint filed by the respondent is dismissed".
This issue was discussed by this Commission at length in Reliance General Insurance Co. Ltd. Vs. Jai Prakash, Revision Petition No.2479 of 2015 and connected matters, decided on 11.1.2016 and after considering the standard form of insurance prescribed by Tariff Advisory Committee established under section 64U of the Insurance Act 1938 and the decision of the Hon'ble Supreme Court in Parvesh Chander Chadha (supra), the following view was taken:-
"12. Since the terms and conditions of the insurance policy, which the insured had issued to the complainant in Parvesh Chander (supra), had not been reproduced in the order of the Hon'ble Supreme Court, we perused the order passed by this Commission in the above referred case. However, the terms and conditions of the policy were not reproduced even in the judgment of this Commission. It however, became evident from a perusal of the judgment that the insurance policy was issued for the period from 17.1.1995 to 16.01.1996. On further examination of the issue, we found that standard form for private car policy was prescribed by the Tariff Advisory Committee from time to time, which is binding upon all the insurance companies. The relevant clause of the insurance policy, applicable at the time the complainant in Parvesh Chander (supra) took the insurance policy, reads as under:
"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 or a copy thereof shall be forwarded to the Company immediately on receipt of 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 Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender".
The standard form of the insurance policy applicable to Motor Vehicles was amended by the Tariff Advisory Committee with effect from 01.07.2002 and the revised policy contains the clause extracted in para-8 hereinabove.
13. Section 64 U of the Insurance Act, 1938 provides for establishment of a Committee to be called the Tariff Advisory Committee to control and regulate the rates, advantages, terms and conditions that may be offered by the insurers in respect of general insurance business.
Section 64 UC (1) of the Insurance Act, 1938 to the extent it is relevant, reads as under:
64UC. Power of the Advisory Committee to regulate rates, advantages, etc. -
The Advisory Committee may, from time to time and to the extent it deems expedient, control and regulate the rates, advantages, terms and conditions that may be offered by insurers in respect of any risk or of any class or category of risks, the rates, advantages, terms and conditions of which, in its opinion, it is proper to control and regulate, and any such rates, advantages, terms and conditions shall be binding on all insurers.
Every decision of the Advisory Committee shall be valid only after and to the extent it is ratified by the Authority, and every such decision shall take effect from the date on which it is so ratified by the Authority, or if the Authority so orders in any case, from such earlier date as he may specify in the order.
(4) The decisions of the Advisory Committee in pursuance of the provisions of this section shall be final.
(5) Where an insurer is guilty of breach of any rate, advantage, term or condition fixed by the Advisory Committee, he shall be deemed to have contravened the provisions of this Act".
Thus, the terms and conditions prescribed by the Tariff Advisory Committee uniformly apply to all the insurance policies.
14. On a comparison of the Clause applicable in the year 1995-96 and the clause applicable in the subsequent policies, we find that whereas the previous clause required the insured to intimate the insurance company immediately 'upon the occurrence of any accident or loss or damage', the later clause required him to give such intimation upon the 'occurrence of any accidental loss or damage'. Since theft of a vehicle is also a loss, the earlier clause obviously required immediate intimation of the theft of the vehicle to be given to the insurance company. Therefore, the question which arises for our consideration is as to whether there is any change in the obligation of the insured in this regard, considering that the expression 'accidental loss or damage' is used in the clause contained in the later policies. If the clause contained in the later policies read in isolation, it may give an impression that the notice to the insurance company is required to be given only in the event of the loss or damage to the vehicle due to an accident as it is normally understood, if the insured intends to lodge a claim with the insurer for reimbursement of the loss or damage sustained by him. But, a deeper scrutiny of the later insurance policies, we are satisfied that even a loss or damage, due to theft of the vehicle, is required to be reported to the insurance company immediately after the theft is detected, in case the insured intends to lodge a claim with the insurer for reimbursement of the loss or damage sustained by him.
15. The revised standard form uses the term 'accidental loss' at a number of places, as extracted herein below:
Standard form for private car package policy Whereas the insured by a proposal and declaration dated as stated in the Schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to the Company for the insurance hereinafter contained and has paid the premium mentioned in the schedule as consideration for such insurance in respect of accidental loss or damage occurring during the period of insurance.
"The Company shall not be liable under this Policy in respect of Any accidental loss or damage and / or liability caused sustained or incurred outside the geographical area:
4 (i) Any accidental loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising there from or any consequential loss".
The term accidental loss or damage, wherever, it appears in the standard form of the insurance policy will have to be given the same meaning. If the aforesaid term is interpreted to exclude loss due to theft, as the contention of the complainant is, it would imply that the proposal submitted by the insured which forms the basis of the contract of insurance does not provide insurance against theft of the vehicle, and consequently the insurer is not liable to reimburse the insured for such a loss. This obviously is not the case either of the insurer or of the insured. Similarly, this could not have been the intention of the parties to exclude the consequential loss in case of loss or damage to property due to an accident while not excluding such a loss on account of theft of a vehicle. Hence, there is no escape from the conclusion that the substitution of the term 'accident or loss or damage' in the old standard form by the term 'accidental loss or damage' in the new standard form does not change the scope of the insurance policy issued in respect of a motor vehicle and therefore, the decision of the Hon'ble Supreme Court in Parvesh Chander (supra) would equally apply in respect of the insurance policies issued after 30.07.2002 when the revised standard form came into force.
16. For the reasons stated hereinabove, we have no hesitation in holding that the insured was under a contractual obligation to intimate the theft of the vehicle to the insurer immediately after the said theft came to his knowledge and mere intimating the police or lodging an FIR does not amount to sufficient compliance with the terms and conditions of the insurance policy. Since admittedly, there was substantial delay in intimating the theft of the vehicle to the insurance company in both these cases, the insurer was entitled to repudiate the claim on account of the aforesaid default on the part of the insured."
For the reasons stated hereinabove, I find no merit in the revision petition and the same is accordingly dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER