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Friday, November 15, 2013

Theft of a car - Immediate issuing of notice of theft is must = No notice was given immediately after the theft was occurred so the complainant is not entitled to any insurance claim = New India Assurance Co. Ltd.-vs- Ram Avtar= Published in http://164.100.72.12/ncdrcrep/judgement/00131111121816967FA14109.html

Theft of a car - Immediate issuing of notice of theft is must = No notice was given immediately after the theft was occurred so the complainant is not entitled to any insurance claim =
It appeared that the Respondent/Complainant took almost one month to give intimation about the alleged theft with a view to hide various facts and avoid detection of the fraud played by him on the Appellant/Insurance Company.  Specifically it was contended that the Respondent/Complainant’s contention that the vehicle was stolen outside Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was not correct because the brother had actually expired 9 months prior to the theft.  Further, it came to light during enquiries made by the Investigator that the vehicle which was hypothecated by the Respondent/Complainant in favour of M.G.F. India Ltd. had a specific clause that it could not be used for hire or reward whereas enquiries revealed that it was being used for hire and reward i.e. for commercial purpose and not for his personal use.  In fact, the enquiries also revealed that the Respondent/Complainant was not running a soap factory and had a very modest financial status.  The above facts were communicated to the Respondent/Complainant by the Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing to his notice the various anomalies and contradictions found in the statements made by him from time to time.  It was also pointed out that the inordinate delay in informing the Appellant/Insurance Company about the theft of the vehicle was clearly against the terms and conditions of the insurance policy, according to which information about the theft should have been immediately conveyed to the Appellant/Insurance Company. Respondent/Complainant, however, did not reply to this letter and, therefore, the claim was rightly repudiated by the Appellant/Insurance Company.

“CONDITIONS
1.       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.”

Thus, as per the terms and conditions of the insurance policy, the Insuree was required to immediately inform the Appellant/Insurance Company about the theft of the vehicle which he admittedly failed to do.  
We are unable to accept the finding of the State Commission that this provision in the insurance policy is not mandatory but directory in nature since this issue is squarely covered and decided by the Hon’ble Supreme Court in Parvesh Chander Chadha (supra), in which case also pursuant to a vehicle having been stolen between 18.01.1995 and 20.01.1995 an FIR was lodged with the Police on 20.01.1995 but the Insuree did not inform the Insurance Company immediately about the incident as required under the terms and conditions of the insurance policy.  
The relevant part of the judgment of the Hon’ble Apex Court is as follows :
 “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 Pawarthrough 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 endeavor 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.”

10.     Respectfully following the above judgment of the Hon’ble Supreme Court, we are unable to accept the order of the State Commission that the claim was wrongly repudiated and, therefore, set aside the same in toto.  The present First Appeal is, accordingly, allowed.  No order as to costs.      
  
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

FIRST APPEAL NO. 141 OF 2009  
(Against the order dated 27.11.2008 in Complaint No. 170/2001 of the
Delhi State Consumer Disputes Redressal Commission)

New India Assurance Co. Ltd.
Registered & Head Office
New India Assurance Building
87, Mahatma Gandhi Road
Fort, Mumbai-400001

Also at
J-129, Kirti Nagar
New Delhi-110075

Also at
Delhi Regional Office-I
Jeevan Bharti Building
Connaught Circus
New Delhi                                                                         …    Appellant
Versus
Ram Avtar
S/o Shri Khachauri Mal
R/o 4/420, Bhola Nath Nagar
Shahdara, Delhi-110032                                                    …    Respondent

BEFORE:
          HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER  

For Appellant                        :             Mr. P.K. Seth, Advocate
For Respondent                    :             Mr. A.K. Verma, Advocate    

Pronounced on 11th November, 2013

ORDER  

PER VINEETA RAI

        This First Appeal has been filed by New India Assurance Co. Ltd., Appellant herein and Opposite Party before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) against the order of that Commission which had allowed the complaint filed against it on grounds of deficiency in service by RamAvtar, Respondent herein and Complainant before the State Commission.
2.       In his complaint before the State Commission, Respondent/Complainant had contended that his Tata Sumo vehicle which was financed by M.G.F. India Ltd. and insured by Appellant/Insurance Company for a period of one year i.e. from 19.08.1997 to 18.08.1998, was stolen on 24.02.1998 when it was parked near Guru Teg Bahadur Hospital, Shahdara, Delhi. Respondent/Complainant on the same date lodged an FIR under Section 379 IPC at Police Station Seemapuri, Delhi. On 20.03.1998 Respondent/Complainant also submitted a claim form to the Appellant/Insurance Company and requested that an Investigator be appointed to look into the case of theft of the insured vehicle.  On receipt of this information, Appellant/Insurance Company appointed one Sanjeev Nijhawan as Investigator, who sought certain clarifications of the theft of the insured vehicle which were replied to by the Respondent/Complainant.  However, despite this, vide letter dated 19.03.1999 Appellant/Insurance Company unjustifiably repudiated the claim, after which Respondent/Complainant made a complaint to the Grievance Cell of the Appellant/Insurance Company, which was also rejected.  It was further contended that the Police also could not recover the stolen vehicle and sent an untraced report on 25.05.1998.  Being aggrieved by the deficiency in service on the part of Appellant/Insurance Company, Respondent/Complainant filed a complaint before the State Commission seeking a total compensation of Rs.5,35,000/- from the Appellant/Insurance Company, which included Rs.4,65,000/- being the insured value of the vehicle, Rs.50,000/- on account of tension and mental agony and Rs.20,000/- as litigation costs.
3.       Appellant/Insurance Company, on being served, filed a written rejoinder denying the allegation that the claim was wrongly rejected.  It was stated that the Respondent/Complainant informed the Appellant/Insurance Company about the theft of the vehicle only on 30.03.1998 i.e. approximately one month after the vehicle was allegedly stolen which was against the terms and conditions of the insurance policy which required the Insuree to give immediate intimation about the theft.  The Investigator appointed by the Appellant/Insurance Company to enquire into the nature, cause, circumstances and genuineness of the claim after conducting the necessary enquiries concluded that there were serious reasons to doubt the genuineness of the claim.  It appeared that the Respondent/Complainant took almost one month to give intimation about the alleged theft with a view to hide various facts and avoid detection of the fraud played by him on the Appellant/Insurance Company.  Specifically it was contended that the Respondent/Complainant’s contention that the vehicle was stolen outside Guru Teg Bahadur Hospital, where his brother was admitted for treatment, was not correct because the brother had actually expired 9 months prior to the theft.  Further, it came to light during enquiries made by the Investigator that the vehicle which was hypothecated by the Respondent/Complainant in favour of M.G.F. India Ltd. had a specific clause that it could not be used for hire or reward whereas enquiries revealed that it was being used for hire and reward i.e. for commercial purpose and not for his personal use.  In fact, the enquiries also revealed that the Respondent/Complainant was not running a soap factory and had a very modest financial status.  The above facts were communicated to the Respondent/Complainant by the Appellant/Insurance Company vide letter dated 12.02.1999 specifically bringing to his notice the various anomalies and contradictions found in the statements made by him from time to time.  It was also pointed out that the inordinate delay in informing the Appellant/Insurance Company about the theft of the vehicle was clearly against the terms and conditions of the insurance policy, according to which information about the theft should have been immediately conveyed to the Appellant/Insurance Company. Respondent/Complainant, however, did not reply to this letter and, therefore, the claim was rightly repudiated by the Appellant/Insurance Company.   
4.       The State Commission, after hearing the parties, allowed the complaint and held the Appellant/Insurance Company guilty of deficiency in service.  In its detailed order, the State Commission inter alia concluded that the delay in informing the Insurance Company was not a ground for rejecting the claim since this provision in the insurance policy was of a “directory nature” and not a mandatory requirement.  The relevant part of the order of the State Commission is reproduced:
“20.    The provision of informing the insurance company or lodging the report with the police immediately after the occurrence is of directory nature and not of mandatory nature. What is relevant and material for adjudicating the claim whether the theft had taken place or not and whether the occurrence took place within the subsistence of the insurance policy or not. The grounds raised are confused and immaterial and not to be taken into consideration as the insurance cover is against the theft of the vehicle.

21.     Once a criminal offence takes place and a report is lodged with the police, the police is the only statutory authority to investigate the case and no other authority and the final report of the police has to be acted upon. Some delay of few days in intimating about the information and lodging the claim by the insured to the appellant-company cannot form a ground for doubting the theft or burglary. If the insurance company finds that the report lodged by the insured was false it can always approach the police u/s 182 of the Cr.P.C.

22.     As regards the objection that the vehicle was being used as a commercial vehicle and not a private vehicle, the facts of each and every case have to be scrutinized and scanned on its own. It was a simple case of theft of vehicle and not a case where the breach of some provisions of Motor Vehicle Act were committed and if at all this was a case, the complainant could have been prosecuted under the Motor Vehicle Act but cannot deny the insurance claim covering the risk of theft.”

The State Commission, therefore, directed the Appellant/Insurance Company to pay to the Respondent/Complainant (i) the insured value of the vehicle less 5% as depreciation value; (ii) Rs.50,000/- as compensation towards mental agony and trauma and (iii) Rs.10,000/- as litigation costs.  The State Commission also directed the Respondent/Complainant to take necessary steps to transfer the ownership of the vehicle in the name of the Appellant/Insurance Company. 

5.       Hence, the present First Appeal by the Appellant/Insurance Company.
6.       Counsel for the parties made oral submissions.
7.       Counsel for the Appellant/Insurance Company contended that the State Commission erred in allowing the Respondent/Complainant’s complaint despite accepting the fact that the Respondent/Complainant had taken almost a month to inform the Insurance Company about the theft of the vehicle by observing that the provision in the insurance policy requiring theInsuree to immediately inform the Insurance Company was of a directory nature and not of mandatory nature.  On the other hand, it is well settled through a catena of judgments (including of the Hon’ble Supreme Court in Oriental Insurance Co. Ltd. V. Parvesh Chander Chadha rendered in Civil Appeal No. 6739 of 2010) that an insurance policy being a contract between the two parties, its terms and conditions are binding on both parties.  Therefore, in accordance with the terms and conditions of the insurance policy, Respondent/Complainant was required to immediately inform the Appellant/Insurance Company about the theft of the insured vehicle, which he failed to do.  Respondent/Complainant also had not been able to successfully refute various contradictions and anomalies regarding the facts of the theft as also his financial status, which further lent credence to the fact that the claim was not genuine.
8.       Counsel for the Respondent/Complainant on the other hand stated that the Respondent/Complainant had orally informed an officer of the Appellant/Insurance Company about the theft of the vehicle on the same date and denied that he had filed a bogus and fabricated claim.  It was further reiterated that the vehicle was purchased by the Respondent/Complainant for his personal use.  The State Commission on the basis of credible evidence produced before it had rightly allowed his complaint.  The present First Appeal may, therefore, be dismissed.
9.       We have heard the submissions made by the Counsel for the parties and also considered the evidence on record.  The fact regarding the vehicle being insured by the Appellant/Insurance Company for a period from 19.08.1997 to 18.08.1998 is not in dispute.  It is also an admitted fact that although an FIR was lodged with the Police on the same date, information in writing was conveyed to the Appellant/Insurance Company 35 days after the theft of the vehicle. When we specifically asked the Counsel for the Respondent/Complainant whether there was any plausible explanation for this delay, he stated that the information about the theft was conveyed to the Appellant/Insurance Company orally on the same date.  However, we note that this fact was not mentioned in the complaint and no evidence to support this contention was produced either before the State Commission or before this Commission; not even the name of the official to whom the complaint was purportedly made was stated.  We have perused the terms and conditions of the insurance policy and we note that the relevant provision inter alia reads as follows :
“CONDITIONS
1.       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.”

Thus, as per the terms and conditions of the insurance policy, the Insuree was required to immediately inform the Appellant/Insurance Company about the theft of the vehicle which he admittedly failed to do.  We are unable to accept the finding of the State Commission that this provision in the insurance policy is not mandatory but directory in nature since this issue is squarely covered and decided by the Hon’ble Supreme Court in Parvesh Chander Chadha (supra), in which case also pursuant to a vehicle having been stolen between 18.01.1995 and 20.01.1995 an FIR was lodged with the Police on 20.01.1995 but the Insuree did not inform the Insurance Company immediately about the incident as required under the terms and conditions of the insurance policy.  The relevant part of the judgment of the Hon’ble Apex Court is as follows :
 “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 Pawarthrough 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 endeavor 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.”

10.     Respectfully following the above judgment of the Hon’ble Supreme Court, we are unable to accept the order of the State Commission that the claim was wrongly repudiated and, therefore, set aside the same in toto.  The present First Appeal is, accordingly, allowed.  No order as to costs.      
  


Sd/-
(D.K. JAIN, J.)
PRESIDENT


Sd/-
(VINEETA RAI)

MEMBER


Mukesh                          

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