State Consumer Disputes Redressal Commission
Raj Gopal vs New India Assurance Co. Ltd. on 28 February, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 28.02.2008 Appeal No. A-1802/03 (Arising out of Order dated 06.09.2003 passed by the District Consumer Forum(II), C-22 & 23, Udyog Sadan, Institutional Area, New Delhi in Case No.2604/01) Mr. Raj Gopal Appellant S/o Sh. Kanhiya Lal, Through R/o H.No.27, Sector-16, Mr.Ajit Singh, Faridabad, Haryana. Advocate Versus New India Assurance Co. Ltd. Respondent 415, Main Mathura Road, Badarpur, New Delhi. CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President (Oral)
1. Complaint of the appellant seeking indemnification of the loss of the motorcycle by way of theft against the insurance policy of Rs 30,000/- was dismissed by the District Forum vide its order dated 06.09.03 on the premise that the appellant has failed to place on record any document showing the existence of the vehicle when the insurance policy was taken i.e. on 24.10.2000 and as such the report of theft of the motorcycle subsequent to the policy issued by the respondent does not inspire the confidence and as such the motor cycle was without any insurance cover on 24.10.2000 and further the appellant has failed to show the old insurance policy and this indicates that motorcycle had been stolen much earlier than the insurance policy was taken. Feeling aggrieved the appellant has preferred this appeal.
2. According to the appellant the theft of the motorcycle took place on the intervening night of 3rd and 4th November, 2000 in respect of which a report was lodged with the police. However, the report about the theft of the motorcycle of the appellant in the form of a complaint was a reference made in another FIR lodged by some other person about his motorcycle on the same night. When the claim was filed with the respondent, the same was repudiated after appointing a surveyor. The surveyor asked the appellant to produce any documents of the motorcycle at the time of obtaining the insurance policy which he refused.
3. In our view, the premise on which the claim was rejected is untenable and not justified. Whenever criminal offence of theft takes place and a report is lodged with the police, the only statutory authority to investigate into the matter is police as prescribed by the Code of Criminal Procedure and no other authority including the surveyor or investigator can arrogate this authority. The final report of the police is only basis on which the claim of the insured should be adjudicated. Had there been any false report in this regard, the insurance company should have informed the police for investigation into their allegations but there is no such report or the information of the police showing that the appellant had lodged a false report.
4. Any person lodging false report is guilty u/s 182 of the IPC and is liable to be punished by way of sentence of imprisonment.
5. There are certain presumptions and inferences which are available and should be drawn from the circumstances. The circumstance of issuing an insurance cover by the respondent-company which is a strong circumstance that does not and cannot dislodge such a presumption about the existence of the motorcycle on the date of insurance policy, unless and until sufficient material is produced by the insurance company to show that the motorcycle did not exist on the date of issuing insurance policy or was stolen before the policy was issued. There is no documentary evidence and report of the police in this regard and there is no convincing report of the investigator or the surveyor .
6. Once a report of theft is lodged with the police, the onus of proving the falsehood of the report shifts to the insurance company and the initial onus is discharged by lodging the report of the vehicle during the subsistence of an insurance policy.
7. Another significant circumstance or fact is as to the concept of a contract between the parties. As per definition of Section 2(c) of the IRDA Act, the contract of insurance stands concluded the moment the cover note is issued by the insurance company or any other such evidence is produced as to the conclusion of the evidence. Thus Section defines the cover note as under: -
Cover means an insurance contract whether in the form of a policy or a cover note or a certificate of Insurance or any other form prevalent in the industry to evidence the existence of an insurance contract.
8. Once the existence of the valid contract is proved, the beneficiary of the contract cannot be denied the benefit of the contract unless and until some fraud is played by the insured that may be unearthed by the police.
9. It is a well settled rule of interpretation that every beneficial contract like the one in question has to be provided and receive a beneficial interpretation as well as the beneficial meaning and not the other way round. Contract of insurance is for the benefit of the insured and therefore has to be interpreted in a beneficial manner unless and until insured is found guilty for playing any mischief or indulging in any malpractice or playing a fraud for obtaining the benefit of the insurance policy.
10. Since in the instant case the respondent has miserably failed to prove that the theft of the motorcycle took place much prior to the issuance of insurance policy, the claim of the appellant was wrongly repudiated. It was repudiated merely on surmises and conjectures that the appellant had failed to produce any documentary evidence as to the existence of the motorcycle on the date and also that the loss by way of theft was not proved.
11. Foregoing reasons persuade us to allow the appeal, set aside the impugned order with the direction to the respondent-company to pay the insurance amount less 5% depreciated value being the market value at the relevant time and Rs. 10,000/- for mental agony and harassment and Rs. 5,000/- as compensation which shall include the cost of litigation.
12. The payment shall be made within one month of the receipt of this order.
13. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.
14. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
15. Announced on 28th day of February, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc