State Consumer Disputes Redressal Commission
Mr. Salim B Shaikh vs Reliance General Insurance Co Ltd. on 28 February, 2018
A/15/285 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/285
(Arisen out of order dtd.05/01/2015 in Complaint No.92 of 2014 of District
Consumer Disputes Redressal Forum, Central Mumbai)
Mr. Salim B. Shaikh,
Durga Seva Sang, Plot No.8,
Shivaji Nagar, Gowandi, .....Appellant/
Mumbai. (Org. Complainant)
Versus
Reliance General Insurance Co. Ltd.,
570, Naigaum Cross Road,
Next to Royal Industrial Estate, .....Respondent/
Wadala (West), Mumbai - 400 031. ( (Org. Opposite Party)
BEFORE: Usha Thakare, Presiding Judicial Member
A.K. Zade, Member
PRESENT: Advocate Mr.Bhaskar Yogi for Appellant-Complainant.
Advocate Mr.Rajesh Kanojia for Respondent-Opposite Party.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This is an appeal filed by the Appellant/Org. Complainant against the impugned order dtd.05/01/2015 passed by the District Consumer Disputes Redressal Forum, Central Mumbai by which the complaint filed by the Complainant-Appellant herein was dismissed and the parties were directed to bear their own costs.
2) As per the Complainant, facts of the case are as follows -
The Complainant is a driver and purchased a truck (dumper) for the sole purpose of his self-employment and livelihood, in the year 2004. He has insured the vehicle for the period from 06/11/2009 upto 05/11/2010 with the Opponent-Respondent herein under the Vehicle Package Policy bearing No.1102792343002133. On 22/10/2010, the Complainant had parked his A/15/285 2 vehicle at Rafique Nagar, 90 Feet Road, Shivaji Nagar, Gowandi, Mumbai as a normal course. Complainant always have been parking the said dumper at the same place near his residence. After parking the said vehicle, Complainant went home and on very next day i.e. on 23/10/2010 his neighbour informed him that his dumper is not parked at the said place. The Complainant immediately rushed to check the dumper but he was shocked to note that the vehicle was not at the place. Complainant thereafter informed M/s.N.S.Jain i.e. Mr. Shankar Jain about theft of the said vehicle and whole day the Complainant, Mr. Shankar Jain and his friend tried their level best to search the said vehicle but could not find it. Complainant searched at all the near and close places and also made enquiries with all possible persons but the vehicle was not found. He then visited Shivaji Nagar Police Station, Gowandi, on 23/10/2010 where he was told that only NC will be lodged. The Complainant was asked to search for the vehicle and enquire from all possible persons and even thereafter if the vehicle is not found, then to lodge police complaint.
3) The Complainant thereafter, lodged police complaint on 31/10/2010 as the said vehicle was not traceable in spite of searching everywhere. RTO was also informed about theft of the vehicle. Police conducted investigation to trace out the vehicle but the vehicle was not traceable and the police has issued Final Police Report and submitted "A" Summary Report. The Complainant filed copies of F.I.R., letter dtd.18/12/2010 of Complainant informing RTO and RTO Status Certificate of 'Stolen' and final police report with "A" Summary. The Complainant had also informed the Opponent on 03/11/2010 about the same. As per Complainant, he cannot understand English language but can only put his signature in Hindi still he took all possible steps as soon as possible and completed all formalities of Police and Insurance Company. After about a year, Opposite Party addressed letter stating that Investigator had submitted report and instead of A/15/285 3 settling the claim, Opponent demanded certain documents from Complainant. Complainant submitted the documents but as he did not have previous copy of insurance policy, he could not provide the same to Opponent. As per Complainant, asking previous policy paper by Opponent is irrelevant. Complainant had enclosed Opponent's said letter dtd.03/10/2011. Complainant thereafter personally met the Opponent as there was no response from Opponent in the meantime, on which Opponent wrote on a piece of paper on 26/06/2013 stating that they will inform decision within 15 working days.
4) Thereafter, the Opponent sent letter dtd.08/11/2013 stating that the claim was closed for want of non-submission of pending documents. Opponent had further stated that on request of the Complainant, the case was re-opened which may take another 15 working days to scrutinise. As per Complainant, there was no repudiation of claim by Opponent at any point of time and therefore there was no question of re-opening the case at Complainant's request as he never made such request and therefore, the said letter dtd.08/11/2013 of Opponent was a falsely created document to harass the Complainant. As per Complainant, when he visited Opponents on receiving said letter, Opponent asked Complainant to give in writing that the previous policy was taken through "IFFCO TOKIO Company". The Complainant refused to do so as he was not aware of the previous policy. After repeated visits to Opponent, Opponent handed over repudiation letter dtd.03/12/2013 to him because of which Complainant filed the subject consumer complaint before the Ld. District Forum praying for recovery of claim amount of Rs.5,00,000/- with interest, Rs.2,00,000/- as compensation for mental agony and Rs.50,000/- as cost of proceeding.
5) The Opponent resisted the consumer complaint in its written statement filed before the Ld. District Forum. As per Opponent, the subject A/15/285 4 policy is admitted. NC report produced by the Complainant was not related to the said theft. There was no immediate police complaint filed by the Complainant and the Complainant failed to produce the documents. Therefore, the Complainant's claim was repudiated and as such he was not entitled to the reliefs as prayed. The Ld. District Forum after hearing the parties and going through the record observed that there was no deficiency in service and the Complainant was not entitled for the relief as claimed by him and therefore, dismissed the complaint. It is this order which is the subject matter of the instant appeal.
6) The Appellant/Org. Complainant has filed this appeal on the grounds that the impugned order is unjustified and unreasonable. As per appellant, the Ld. District Forum failed to take notice of the fact that police have investigated the theft case and have confirmed the theft case by giving "A" Summary in final report and therefore, the Ld.Distirct Forum should have allowed the case of Appellant. Also the Respondent failed to produce any such condition No.1 as claimed by the Respondent. He was not given any such terms and conditions at the time of signing the proposal form or alongwith the policy documents and therefore, such unilateral, unsigned and one sided documents are not binding on the Appellant-Complainant. Also no terms and conditions were ever informed or explained to the Appellant- Complainant at any point of time in the language understood by him, the Appellant-Complainant being not able to read or write English. Therefore, the claim should have been allowed by the Respondent-Opponent. The Ld.District Forum failed to do substantial justice by not considering these facts. It is also contended by Appellant-Complainant that the Respondent- Opponent were under obligation to inform decision within six months from the date of theft i.e.23/10/2010 but Respondent-Opponent delayed the matter and gave repudiation letter on 08/11/2013. The Respondent have themselves delayed the matter and therefore cannot take delay in intimation A/15/285 5 of theft as ground for repudiating the claim. When Respondent-Opponent itself took three years to decide the claim, it cannot take delay in informing to police by Complainant as ground for repudiation. Appellant therefore, prayed for setting aside the order of Ld. District Forum it being erroneous, contrary to law, equity and good conscience. Appellant-Complainant therefore, prayed for setting aside the impugned order and to allow prayers in the complaint.
7) Perused record. Heard arguments on behalf of the parties.
8) The Ld. District Forum dismissed the complaint mainly for the reasons of delay on the part of Complainant in lodging police complaint/FIR and also in informing the Insurer. In the instant case, the vehicle was stolen in the night between 22/10/2010 and 23/10/2010. It is contended by Complainant that he had reported the matter to police immediately on 23/10/2010 but the concerned police station registered NC complaint instead of registering F.I.R. However, the Ld. District Forum on perusal of copy of said NC No.3336 dtd.23/10/2010 under Section 507 of I.P.C., which was filed by Complainant himself on record, found that the said NC was not concerned with theft of the vehicle. The actual complaint relating to theft of the said vehicle was lodged with the police on 31/10/2010 which was registered as F.I.R. The Ld. District Forum therefore found that the Complainant lodged police complaint/FIR relating to theft 9 days after the theft while as per the terms and conditions of the insurance policy, it was necessary to lodge police complaint immediately. Also information of theft was given to Opponent on 03/11/2010 i.e. after 12 days of theft. The Ld. District Forum while dismissing the complaint relied on the judgment of Hon'ble National Commission in First Appeal No.321 of 2005, in New India Assurance Co. Ltd. V/s. Trilochan Jane, decided on 9th December, 2009 in which the Hon'ble National Commission held as follows-
A/15/285 6"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 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).
9) Advocate for the appellant argued that no terms and conditions of the policy are given to the Complainant i.e. policy holder and therefore, there is no mention of any terms and condition as to 'in how many days intimation of theft be given.' It was also argued on behalf of appellant that the Appellant-Complainant not being literate, the burden of proof was on the insurer of having explained the terms and conditions to policy holder in the language understood by policyholder. It was further argued that 'A' summary report on ground of "the Offence No.354 of 2010 under Section 379 of I.P.C. was found to be true in investigation but could not be traced and search of the same was not possible" was approved by the concerned Ld.Magistrate. Advocate for the appellant cited judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd V/s. Nitin Khandelwal, decided on 08/05/2008 in which it was held that -
"In the case of theft of vehicle the breach of condition is not germane. The Appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer."
It was also held in the said judgment that Insurance Company cannot repudiate the claim in toto in case of loss of vehicle in theft. By the said judgment, the Hon'ble Supreme Court disposed the appeal without interfering with the order of National Commission which has upheld the A/15/285 7 order of State Commission of granting 75% of claim of Respondent on non-standard basis. Advocate for appellant therefore argued to decide the claim on the non-standard basis in the instant case instead of dismissing claim in toto. We have gone through the above judgment cited by advocate for appellant. In the said case there was theft of the vehicle which was not denied by the Insurance Company. However, claim of the Respondent was repudiated by the Insurance Company solely on the ground that the vehicle though registered and insured as private vehicle at the time of theft, was being used as a taxi for carrying passengers on payment and as such, the said vehicle was being used contrary to the terms and conditions of the Insurance policy. Although facts of the instant case are different than those in the above cited case, we are of the opinion that the guiding principle underlined in the said judgment as reproduced above is applicable in the instant case also.
10) Advocate for Appellant also cited an order of this Commission in Appeal No.RBT/A/15/690, decided on 02/08/2016 in which Insurance Company repudiated the claim on the ground of violation of terms and conditions viz; condition no.5 stating that insured failed to exercise due care and caution to safeguard the vehicle. In the said case, the District Forum had dismissed the complaint holding that Complainant violated condition no.5 of policy against which this Commission passed the above cited order by which the order of the District Forum was set aside and the complaint was allowed on the basis of judgment of Hon'ble Supreme Court in Nitin Khandelwal case referred above. Facts in the said case are different than those in the instant case as the case cited above is related to the theft of the vehicle which was not left under lock and key and the theft was reported the same day. Hence, the said order is not helpful in deciding the instant appeal.
A/15/285 811) Advocate for Opponent argued that the complaint was rightly dismissed by the District Forum as the intimation of theft was delayed by the Complainant in respect of informing to police and also in respect of information to insurer i.e. Opponent. It was only after repudiation, the appellant claimed that appellant had filed NC to the police station on the very next day of theft. However, the said NC is not related to theft at all. We have also gone through the said NC dtd.23/10/2010. The said N.C. is related to quarrel between the Complainant and some other persons and nothing is mentioned about theft in the said NC. The Ld.District Forum had therefore rightly held that the said NC is not concerned with theft of the vehicle. Advocate for Respondent also argued that while Complainant is seeking benefit of the policy, he cannot at the same time deny terms and conditions of the policy and cannot say that they are not binding on him. It was also argued on behalf of Opponent that Complainant cannot claim any benefit on point of literacy for the same reasons and that the Complainant has not explained delay in filing the FIR and in reporting matter to police.
12) Advocate for Respondent have cited judgment of the Hon'ble National Consumer Disputes Redressal Commission, dtd.03/07/2012 in Siraj Khan V/s. Mahindara Finance Ltd. & Ors. In the said judgment the tractor of the Complainant was allegedly snatched away by some unknown persons on 29/12/2006 after kidnapping the son of the Petitioner. While son was released by the kidnappers on 04/01/2007, there was no trace of tractor. As per Petitioner, when he approached the police station Mangrol on 30/12/2006 to lodge report, it was not accepted saying that it was to be lodged at some other police station. It was alleged by the Petitioner that he contacted the police officials and information was also given to all Respondents by letter under UPC. The Petitioner filed complaint in the Court and thereafter, the Petitioner filed consumer complaint with the A/15/285 9 District Forum who dismissed the complaint on the ground of delay in lodging FIR and also in sending information to Respondents amounting to violation of the conditions of insurance contract. When the said order of the District Forum was challenged before the State Commission by the Petitioner, the State Commission also dismissed the appeal against which the said Revision Petition No.3719 of 2011 filed before the Hon'ble National Commission was also dismissed. However, we find that the facts in the instant case are different than those in the judgment cited above and as such the ratio is not applicable in the instant case.
13) Advocate for Respondent cited another judgment of National Consumer Disputes Redressal Commission in First Appeal No.321 of 2005, decided on 09/12/2009 in New India Assurance Co. Ltd. V/s. Trilochan Jane which is already referred in the impugned order. Advocate for Respondent also cited judgment of Hon'ble National Consumer Disputes Redressal Commission dtd.18/01/2013 in Shri.Kuldeep Singh V/s. IFFCO TOKIO General Insurance Co. Ltd. in Revision Petition No.2982 of 2012. In the said case the vehicle was stolen on 19/12/2006 and the information to the Insurance Company was given on 31/12/2006 i.e. after 12 days. No F.I.R. was recorded in the concerned police station on the date of theft and therefore there was violation of condition no.1 of the policy and the claim was repudiated by the Insurer. Consumer complaint filed against it was allowed by Ld.District Forum which order was reversed by the State Commission in appeal which was challenged by Complainant in appeal before the Hon'ble National Commission. The Hon'ble National Commission in the said judgement held that the view taken by the State Commission in line with the decision of Commission in Trilochan Jane case where delay in reporting the theft was held to be crucial in the matter of violation of the terms and conditions of the policy on which basis the claim of the Complainant was found non-suited. It was also held in the said A/15/285 10 judgment that in the contest of the theft of the car word 'immediately' has to be construed strictly to make the Insurance Company liable to pay the compensation. The Hon'ble National Commission therefore did not interfere with the order of the State Commission. However, we find that the facts in the instant case are different than those in the above referred case and as such the ratio is not applicable in the instant case.
14) It is an admitted fact that there is delay of 9 days in reporting to police and in lodging FIR and delay of 11 days in informing the Opponent. However, delay caused by Complainant in reporting theft to police or the insurer is explained by him by his contentions that he was searching and making enquiries for the same, had reported to police through NC and also informed to one Mr. Jain on the very next day who appears to be financer in the instant case. Although it is true that NC was not related to theft and reporting to police and insurer were delayed, the policy document placed by the Complainant on record does not show mention of any such condition of immediate information in case of theft. No such condition is mentioned in the said vehicle package policy-certified-cum-policy schedule available on record. The Opponent also failed to show mention of any such condition in the policy or having explained to policyholder in the language understood by him, the requirement of any such immediate intimation. There is 'A' summary report of concerned police station also on record in which we find that the approved summary report shows that 'the offence of theft is true but in investigation it was found that the said offence registered under Offence No.354 of 2010 under Section 379 of .I.P.C. was found to be true but could not be detected.' This shows that the theft actually took place in the instant case and Complainant cannot be held responsible for it and as such in our opinion, the loss suffered by him needs to be made good by the Insurer under the policy at least on non-standard basis as held by the Hon'ble Supreme Court in the above referred judgment in National Insurance Co.
A/15/285 11Ltd. V/s. Nitin Khandelwal. While repudiating the claim, the insurer has mentioned reason that the earlier policy in respect of the said vehicle was taken from IFFCO TOKIO but the said policy was a fake document. However, this contention of the Opponent or the reasoning stated by Opponent is not acceptable to us as the policy period in the instant case is 06/11/2009 to 05/11/2010 and the theft of the vehicle occurred in between the night of 22/10/2010 and 23/10/2010 which is well within the policy period with the Opponent. Having accepted the premium and having insured the vehicle for a particular policy period, we do not find it justifiable for the Opponent to repudiate the claim on the ground of earlier policy for the earlier period with some other insurer and raising the said issue only at the time of deciding the claim.
15) In view of the above discussion, we are of the opinion that the Complainant's claim needs to be allowed on non standard basis at 75% of the claim amount. However, we find that the compensation of Rs.2,00,000/- and cost of Rs.50,000/- prayed by the Complainant are excessive and unreasonably high. Looking at facts of the case, we find it appropriate to award Rs.10,000/- towards compensation for mental agony & harassment and Rs.5,000/- towards cost to the Complainant. We therefore pass the following order -
ORDER
1. The Appeal No.A/15/285 is partly allowed.
,
2. The order passed by the Ld. District Consumer Disputes Redressal Forum, Central Mumbai in Consumer Complaint No.92 of 2014 on 05/01//2015 is hereby set aside.
3. The Consumer Complaint is partly allowed.
4. The Complainant's claim is allowed on the non-standard basis allowing 75 % of the claim amount of Rs.5,00,000/- (Rupees Five Lakhs Only) claimed by the Complainant i.e. Rs.3,75,000/-
A/15/285 12(Rupees Three Lakhs Seventy Five Thousand Only).
Respondent/Opponent is directed to pay the said amount of Rs.3,75,000/- (Rupees Three Lakhs Seventy Five Thousand Only) to Appellant/Complainant.
5. The Respondent/Opponent is also directed to pay interest @ 6% on the above said amount from the date of filing the consumer complaint i.e. 03/12/2013 till the date of this order.
6. The Respondent/Opponent is also directed to pay Rs.10,000/- (Rupees Ten Thousand Only) for mental agony and harassment to the Complainant.
7. The Respondent/Opponent is further directed to pay cost of complaint which is fixed at Rs.5,000/- (Rupees Five Thousand Only) to the Appellant/Complainant.
8. Cost of this appeal is fixed at Rs.3,000/-(Rupees Three Thousand Only) to be paid by Respondent/Opponent to Appellant/ Complainant.
9. The Respondent/Opponent is directed to comply the above order within a period of sixty days from receipt of this order failing which those amounts will have to be paid alongwith interest @ 9% p.a. for the period subsequent to expiry of above sixty days.
10. Copies of this order be furnished to both the parties free of costs.
Pronounced on 28th February, 2018.
[Usha Thakare] Presiding Judicial Member [A.K.Zade] Member aj