State Consumer Disputes Redressal Commission
Iffco Tokio General Insurance Company ... vs Munna Lal Nayak on 28 June, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/109
Instituted on : 04.02.2013
Iffco Toko Geneal Insurance Company Limited,
Through : Legal Manager, Third Floor,
Shop No.345-347, Lal Ganga Shopping Mall,
Raipur (C.G.) ... Appellant.
Vs.
Munna Lal Nayak, S/o Shri Ghurau Ram Nayak,
R/o : Village - Chandan,
Tehsil - Kasdol, District Mahasamund (C.G.) ... Respondent.
PRESENT: -
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K.PATIL, MEMBER
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri P.K. Paul, for appellant.
None for respondent.
ORDER
Dated : 28/06/2013 PER: - HON'BLE SHRI V.K. PATIL, MEMBER This appeal has been filed by the appellant/Insurance Company having been aggrieved by the order dated 07.01.2013 of District Consumer Disputes Redressal Forum, Mahsamund (C.G.) in Complaint Case No.32/2010, whereby complaint of the complainant, alleging deficiency in service on the part of the appellant/Insurance Company towards nonpayment of claim amount in respect of theft of his vehicle, has been allowed as per the impugned order.
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2. Facts of the case necessary for disposal of the appeal are that the complainant had insured his Bolero vehicle having Registration .no. CG-04/DD-5900 with O.P. / Insurance Company under policy no.38803474 for period from 21.04.2008 to 20.04.2009. As per his averment, he along with his friend Nirbhay Singh had reached village Jhalap on 30.11.2008 during mid night at 2.00 PM and parked the vehicle under an open shed in front of his said friend's house adjoining main road but the next day morning it was found missing there. After thorough search when the vehicle could not be traced out, the incident of theft was reported to Police Thana at Pithora on 01.12.2008 and when the police after investigation could not locate it, ultimately closed the file on 06.05.2009. Complainant filed insurance claim with the O.P. /Insurance Company on 14.06.2009 after collecting prescribed forms through its authorized agent The Mahindra Insurance Broker Ltd. but the same had not been settled despite frequent follow up which amounted to deficiency in service, so he filed consumer complaint before the District Forum and prayed for seeking direction to the O.P./Insurance Company to pay him the insured amount Rs.5,71,405/- along with interest @ 12% p.a. from 14.06.2009 till payment and compensation of Rs.10,000/- towards compensation for mental agony and also appropriate cost of litigation.
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3. O.P. / Insurance Company in its reply, while denying other averments of the complaint, averred that the complainant was the owner of the insured vehicle but he intimated it the incident of its theft very late after a period of 6 months of the incident which was a violation of the terms & conditions of the insurance policy resultantly it was deprived of its vital right to investigate into the claim. O.P. further averred that the vehicle was insured for the purpose of private use and the claim was payable only if there was no violation of insurance policy conditions. The complainant utilized the vehicle for transportation of wine in an unauthorized way which was a violation of the terms & conditions of the insurance policy. O.P. averred to have repudiated claim of the complainant on 04.11.2009 due to giving late intimation of the theft incident and also in view of the aforesaid violation of terms & conditions having utilized the vehicle for transporting wine unauthorizedly, as such it committed no deficiency in service, thus prayed for dismissal of the complaint.
4. Learned District Forum after having perused the documents produced before it and heard arguments of parties allowed the complaint partly on non standard basis and directed O.P. / Insurance Company to pay claim amount Rs.4,28,554/- to the complainant along with interest @ 6 % p.a. from the date of filing complaint i.e. 07.08.2010 till the date of payment and also to pay Rs.5,000/- towards compensation for mental agony and Rs.2,000/- towards cost of litigation.
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5. We have perused the documents on record and heard arguments advanced by the parties.
6. Prior to the impugned order, the case was decided by learned District Forum on 07.05.2011 dismissing the complaint hence the complainant had filed Appeal No. 307/2011 and vide order dated 03.11.2011 the case was remanded back to the District forum with the direction to provide one more opportunity to the parties for filing affidavits/documents and then to decide the case afresh on merit.
7. Defence of the appellant/Insurance Company is that the respondent/complainant had intimated it about the theft of the vehicle after about 6 months of its happening and thus deprived it of the vital right to investigate into the incident, besides he had been utilizing the vehicle for transporting wine unauthorizedly, thus violated the terms & conditions of the questioned insurance policy.
8. We observe that as per version of the respondent/complainant supported by his affidavit and also affidavit of his friend Nirbhay Singh, the incident of theft occurred during intervening night of 30.11.2008/1.12.2008 and they lodged FIR with the police on 01.12.2009 whereas according to the document at page s.no.31, FIR was lodged with the Police on 2.12.2008 at 10.00 AM and the cause of delay in filing FIR was mentioned as 'because of searching the vehicle which could not be traced'. Respondent/complainant did not care to report the incident to //5 // the appellant insurance company from whom he had to collect the insured amount. The investigation officer Shri T. Lalit of Reliable Investigation Agency entrusted by the appellant/insurance company had observed in column no.25 of his report supported by his affidavit dated 25.11.2011 that one key of the vehicle was reported lost and only one key was submitted with him. If this was the situation about loss of one key then respondent/complainant ought to have filed FIR with the police by himself without wasting time and should have intimated the insurance company promptly but the FIR was lodged by his friend Nirbhay Singh. Respondent/Complainant took one day period to search the vehicle without any satisfactory reasons and lodged FIR after a lapse of one day. As regards the allegation of transporting wine by the respondent/complaint is concerned, the investigation report filed by the investigation Officer Shri T.Lalit entrusted by the appellant/insurance company though mentions about wine business of the respondent/complainant but it is not supported by affidavits of the witnesses mentioned therein. One of the aforesaid witnesses Nirbhay Singh has denied the fact in his affidavit dated 02.02.2011 that the respondent/complainant was involved in wine business. Neither in the complaint nor in the affidavit of the complainant nor in the police report there is reference about wine business of the complainant; therefore definite conclusion cannot be drawn about wine business of the respondent/complainant. As per photocopy of the questioned insurance policy (document at page s.no.34 to 36) filed by the //6 // respondent/complainant, it is also mentioned under head "Limit of liability (page s.no.36) "subject to Terms Exceptions and conditions of the Private Car and IMT Endorsement mentioned herein." Since the policy document was dated 29.04.2008, the respondent/insured thereafter had enough opportunity to gather relevant information in respect of the policy thus he could not take a plea that he was not aware of the terms & conditions of the policy and related claim procedure. By way of earlier appeal, when the case was remanded back to the learned District Forum by this commission, the appellant insurance company has also submitted a booklet of relevant terms & conditions in original whereby it is stipulated that " In case of theft or criminal act which may be in respect of a claim under the policy the insured shall give immediate notice to the office and co-operate with the company in securing the conviction of the offender." Otherwise also as a prudent measure the insured/complainant was expected of intimating to the appellant/insurer about the theft of the questioned vehicle at the earliest from whom he was to get the insurance claim and thereby to provide sufficient opportunity to it to investigate into the incident and fully satisfy about the bonafides of the claim but he miserably failed to do so and intimated the incident after about 6 months period of its happening, which was a violation of the insurance policy condition.
9. Learned counsel for the appellant/Insurance Company relied upon case of Iliyaz Khan vs. I.C.I.C.I. Lombard General Insurance Co.
//7 // Ltd. decided by this Commission recently on 04.06.2013 in Appeal No.FA/12/139, which was based on the pronouncement of Hon'ble National Commission in the case of New India Assurance Company Ltd. vs. Trilochan Jane in First Appeal No.321/2005 decided on 09.12.20093 (NC). It is a landmark pronouncement on the question of delayed intimation where under earlier judgments including National Insurance Co. Ltd. vs. Nitin Khandelwal, (2008) 11 SCC 256, have been discussed. In Nitin Khandelwal's case the Apex court had held that in cases of theft of vehicle, breach of policy condition is not germane. In this context Hon'ble National commission has observed:-
"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 F.I.R. after 2 days of 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 Kabadi (scrap dealer)".
10. In the instant case also delayed intimation of 6 months to the insurer and filing of FIR with police late by one day about the theft incident was also of still higher degree than the aforesaid cited case as such was fatal and if the appellant insurance company denied the claim then it could not be said to have committed deficiency in service though //8 // the copy of repudiation letter dated 04.11.2011 as referred by the appellant/insurer has not been placed on record.
11. In view of the observations made hereinabove, the appeal of the appellant/ Insurance Company, is hereby allowed and the impugned order of learned District Forum, being not sustainable, is set aside. Accordingly the complaint of the respondent/complainant filed before learned District Forum is also dismissed. No order as to cost.
(Smt.Veena Misra) (V.K.Patil) (Ms. Heena Thakkar)
Presiding Member Member Member
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