Supreme Court - Daily Orders
Kanwarjit Singh Kang vs M/S Icici Lombard General Insurance Co. ... on 29 March, 2022
Bench: Dinesh Maheshwari, Aniruddha Bose
1
ITEM NO.7 COURT NO.14 SECTION XVII-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 6518/2018
(Arising out of impugned final judgment and order dated 15-09-2017
in RP No. 214/2017 passed by the National Consumers Disputes
Redressal Commission, New Delhi)
KANWARJIT SINGH KANG Petitioner(s)
VERSUS
M/S ICICI LOMBARD GENERAL INSURANCE CO. LTD. & ANR. Respondent(s)
Date : 29-03-2022 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Petitioner(s) Mr. Arvinder Singh, Adv.
Mr. Vibhuti Sushant Gupta, Adv.
Mr. Ram Naresh Yadav, AOR
For Respondent(s) Mr. Gourab Banerji, Sr. Adv.
Mr. Gautam Jha, AOR
Mr. Subhro Mukherji, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The petitioner made an insurance claim, in terms of the policy of insurance taken from the respondent, on account of the alleged theft of his insured truck. His claim was repudiated by the respondent essentially on two grounds pertaining to the violation of the terms of policy: one, that there was an abnormal delay of eight days in lodging the FIR and of sixteen days in informing the Signature Not Verified Digitally signed by Rajni Mukhi Date: 2022.04.02 insurance company about the alleged theft; and second, that the 14:03:21 IST Reason:
vehicle was left unattended on a Highway with ignition keys and thereby, the petitioner or his employees failed to take requisite 2 steps to protect the insured truck from any loss or damage.
The reasons as stated in the repudiation letter could be usefully reproduced as under: -
“1) The keys of the vehicle were left with the vehicle. It is mentioned in the notarised statement given by you that the vehicle was stolen with the ignition key. This is a gross negligent act of leaving key with the vehicle which led to the incidence of the insured asset being stolen. Sufficient care was not taken which a prudent man ought to have taken. This is violation of terms and conditions of insurance policy issued to you which states- The insured shall take all reasonable steps to safeguard the vehicle from loss or damage.
2) The date of loss as informed by you is 25 th March 2010 and the notice/intimation to the police is dated 2nd April 2010. Condition 1 of the Motor Insurance policy wordings is as follows:- Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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 copy thereof shall be forwarded to the Company immediately on receipt by 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 co-operate with the company in securing the conviction of the offender.
There has been a delay in intimation of 8 days delay in intimating the police whereas; the aforementioned conditions speaks of immediate notice to the police authorities.” On the complaint made by the petitioner, the District Forum, the State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission have concurrently returned the findings against the petitioner. Of course, the State Commission did not find the ground of leaving the ignition keys in 3 the vehicle to be a valid reason for repudiating the claim but endorsed the other ground that there had been unexplained and inordinate delay in lodging the FIR and informing the insurer about the alleged theft.
The National Commission, while dismissing the revision petition filed by the petitioner has, inter alia, observed as under:
“5. We do not find merit in the above contention. Perusal of the order of the District Form would show that District Forum has categorically reported that as per the terms and conditions of the insurance policy, in case of theft, the insured was supposed to give immediate notice in writing to the insurance company. Admittedly, no intimation of theft in writing was given to the insurance company. Therefore, the concurrent findings of the Fora below to the effect that the petitioner has violated the aforesaid condition of the insurance contract cannot be faulted. Further, perusal of the record would show that the claim of the petitioner was also repudiated on the ground that the petitioner or his employees had failed to take reasonable care to protect the insured truck from any loss or damage. This conclusion was drawn on the basis of the fact that the driver and the cleaner of the truck had left the truck unattended at roadside on National Highway No. 2, leaving the keys in the truck. Regarding this violation, no contention has been raised. Therefore, concurrent finding of the Fora below in this regard also cannot be faulted.” It is sought to be argued that the respective fora have failed to appreciate the fact that the theft of the truck took place in the State of West Bengal and the owner of the truck had to travel all the way from Ludhiana in Punjab to a place near Vardhaman in West Bengal to get the FIR lodged and then, he came back and provided information to the insurance company. According to the learned counsel for the petitioner, the peculiar facts and 4 circumstances of the present case clearly make out adequate justification towards the time consumed before lodging the FIR and informing the insurer but, that ought not to operate against the bona fide claim of the petitioner.
Learned counsel has referred to and relied upon a 3-Judge Bench decision of this Court in the case of Gurshinder Singh vs. Shriram General Insurance Company Limited and Another: (2020) 11 SCC 612. Learned counsel has also referred to another decision of this Court in Dharamender vs. United India Insurance Co. Ltd. & Ors.: Civil Appeal No. 5705 of 2021 decided on 13.09.2021. During the course of submissions, the learned counsel for the petitioner has also drawn our attention to the affidavit of the driver of truck filed in support of the complaint case, who asserted the basic facts that the vehicle had been properly locked and also that they had been searching for the vehicle with the police before arrival of petitioner.
Per contra, learned counsel appearing for the respondent-
insurer has submitted that the concurrent findings against the complainant call for no interference in the present case, particularly on the admitted facts that there had been a huge delay of eight days in lodging the FIR and the insurance company was informed about the theft sixteen days after the alleged date of incident. Learned counsel would submit that the decisions sought to be relied upon do not make out a case in favour of petitioner for specifically distinguishable facts as also the issues involved therein. It is pointed out that in the case of Gurshinder Singh (supra), the FIR had, in fact, been lodged on the very same day of 5 the theft of the vehicle and the question only related to the delay in informing the insurer. Similarly, in the case of Dharmender (supra), the fact of delay in lodging the FIR was not a ground for repudiation and therefore, that aspect was not examined by this Court.
Having heard learned counsel for the parties and having perused the material placed on record, we find no reason to consider interference in the concurrent findings against the appellant whereby, repudiation of his claims by the respondent- insurer has been affirmed.
So far as the cited decisions are concerned, they do not make out a case for consideration in favour of the petitioner for different fact situations and different issues examined therein. Learned counsel for the petitioner has broadly relied upon the observations in paragraph 19 and 20 of the decision in Gurshinder Singh (supra), whereas the learned counsel for the respondent would refer to the observations and findings in paragraph 14, 15 and 16 thereof. We may usefully reproduce paragraph 14 to 20 of the said decisions as under: -
“14. We find that the second part of Condition 1 deals with the “theft or criminal act other than the accident”. It provides that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In case of theft, the insurance 6 company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company at the most, could ascertain the factum regarding the theft of the vehicle.
15. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation.
16. As observed by the Bench of two learned Judges in Om Prakash, after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration of the FIR, in our view, would be conclusive proof of the vehicle being stolen.
17. That the term “cooperate” as used under the contract needs to be assessed in the facts and circumstances. While assessing the “duty to cooperate” for the insured, inter alia, the court should have regard to those breaches by the insured, which are prejudicial to the insurance company.
Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of “duty to 7 cooperate” of the insured.
18. We concur with the view taken in Om Prakash that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hypertechnical view. We find that this Court in Om Prakash has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.
19. We find that this Court in Om Prakash has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.” It is at once clear that so far as the requirement of immediately lodging of the FIR is concerned, in the decision in Gurshinder Singh (supra), this Court has endorsed the view taken by 2-Judge Bench of this Court in Om Prakash vs. Reliance General Insurance: (2017) 9 SCC 74. Thus, it remains beyond cavil that on occurrence of such an event like theft of the vehicle, the owner of the vehicle (the insured), cannot avoid his responsibility to immediately lodge the FIR. In both the aforesaid decisions in 8 Gurshinder Singh and Dharamender, the repudiation only on the ground of delay in informing the insured has not been approved on the given set of facts. The present one is a case of unexplained and inordinate delay of eight days in lodging the FIR. The said decisions do not make out a case for interference.
In any case, the necessity of giving immediate notice to the police cannot be gainsaid and if that had not been done, the entire claim would come under a thick cloud of suspicion and the onus is then heavy on the insured to justify the delay. In the present case, towards such justification, the submission on behalf of the petitioner is that it took him longer time in travelling from Ludhiana in the State of Punjab to Vardhaman in the State of West Bengal and therefore, the FIR was lodged after a delay of eight days. The three fora have observed, and rightly so, that with the means of faster communications available, delay of eight days in lodging the FIR remains unexplained and does not stand in conformity with the requirement of immediate action.
Moreover, the other pertinent part of the matter, that there had been want of reasonable care on the part of the petitioner or his employees in taking reasonable care of the insured vehicle, operates heavily against the petitioner. It is specifically found that the truck in question was left unattended on the roadside with ignition keys therein. Though learned counsel for the petitioner has referred to the assertions made by the driver in his affidavit that they had parked the vehicle on the road side ‘after properly locking the same’, but such a statement is incompatible with the statement given by the petitioner himself 9 that the vehicle was stolen with the ignition keys. That being the position, repudiation of the claim of the petitioner cannot be faulted at.
In view of the above, no case for interference is made out. The special leave petition, therefore, stands dismissed. All pending applications also stand disposed of.
(SNEHA DAS) (RANJANA SHAILEY) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)