ORDER
This revision petition has been preferred against the order of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') dated 09.10.2014 wherein the State Commission dismissed the appeal preferred by the Petitioner. Hence the petitioner filed the present revision petition before this commission.
2. Briefly put, facts relevant for the disposal of the petition are that the complainants/respondents are farmers and they got their tractor bearing no. HR-51-A/4760 insured with the Opposite Party insurance company/petitioner for the period from 09.08.2008 to 08.08.2009 against the policy cover note no. 687209. On 12.6.2009, the tractor of the complainant had been stolen by unknown persons from the grain market, Hathin. The complainant lodged a complaint on 13.6.2009 with the police but the police did not register the FIR. FIR No. 353 under Section 380 IPC was recorded on 25.10.2009 on the direction of Superintendent of Police. The insurance company was also informed on 02.12.2009. Untraced report was prepared by the Police. The complainants filed claim with the Insurance Company but the petitioner repudiated their claim vide letter dated 16.06.2010 on the ground of delay in lodging FIR and delay in intimation to the insurance company.
3. Complainant served a legal notice dated 23.11.2010 to the petitioner company. Complainant further alleged that there was deficiency in service on the part of the OP and complainant had suffered due to that. So complainant filed a consumer complaint in the District Forum, Palwal praying for the direction to the OP/petitioner to pay Rs.4, 02, 000 along with interest @ 18% pa as insured sum of the vehicle; Rs. 50, 000/- as compensation and Rs.11, 000/- as litigation expenses.
4. District Forum allowed the complaint and directed the Opposite Party to pay Rs.4, 02, 000/- price of tractor with interest @ 9% pa from the date of filing of this complaint till realization of the amount within 30 days from the receipt of this order to the complainant. The OP was also directed to pay Rs.10,000/- as compensation towards mental agony, harassment and for rendering deficiency in services along with Rs.5500/- as litigation expenses.
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5. Aggrieved by the order of the District Forum opposite party made an appeal before the State commission, Haryana. However, State Commission vide its order dated 9.10.2014 dismissed the appeal.
6. OP has approached this Commission in revision petition against the above said order of the State Commission.
7. Heard the learned counsel for both the parties and perused the records.
8. The learned counsel for the petitioner stated that first of all both the fora below have not considered the violation of intrinsic conditions No.1 & 5 of the policy. On 12thof June 2009 the tractor was stolen and FIR was lodged on 25.10.2009 and the Insurance Company was informed on 2.12.2009. Clearly, the condition No.1 has been violated which envisages that in case of theft the police must be informed immediately and Insurance Company is also to be informed immediately so that the search and investigation may proceed effectively. Due to delay in intimation to the police and to the Insurance Company neither the police nor the Insurance Company could properly investigate the matter for recovery of the vehicle. It gave sufficient time to the culprits to take away the vehicle far off and to dismantle the same for their benefits. In this regard, learned counsel referred to the decision of the Hon'ble Supreme Court in Oriental Insurance Company Ltd. Vs. Parvesh Chander Chadha, Civil Appeal No.6739 of 2010, decided on August 17, 2010 (SC) wherein Hon'ble Supreme Court has held the following:-
"In terms of the policy issue 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."
9. The learned counsel for the petitioner further also relied upon the judgment of this Commission in New India Assurance Company Limited Vs. Trilochan Jane, 2009 SCC OnLine NCDRC 201, wherein this Commission has dismissed the complaint on the basis of delay of only 9 days in informing the Insurance Company.
10. Further the learned counsel for the petitioner Insurance Company stated that claim is to be submitted within 14 days as per condition No.5 of the Insurance Policy whereas in the present case the intimation was given after 5 months to the Insurance Company. Thus, this condition is also violated. The State Commission has allowed the complaint relying upon a circular dated 20.9.2011 of the IRDA wherein it is mentioned that Insurance Companies may not reject a genuine claim even if filed with delay. The question is whether this is a genuine claim. Had the FIR been lodged immediately the genuinity of the claim would have been established. But in the present case even the FIR has been lodged after 4 months. The complainant is relying on the "untraced report" submitted by the police but the question is that when the FIR was lodged so late there was no other alternative for the police but to submit the said report as no investigation was possible. As neither the police nor the Insurance Company
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was timely informed the connivance of the complainants in the theft of the said tractor cannot also be ruled out. In these circumstances, the learned counsel requested that the order of the State Commission be set aside and the complaint be dismissed.
11. On the other hand the learned counsel for the respondents/complainants stated that both the fora below have given concurrent findings and have allowed the complaint and under these circumstances the scope under the revision petition is quite limited as the facts cannot be reassessed by this Commission in the revision petition. It was further stated by the learned counsel for the respondents that it is wrong to say that Police was not immediately informed. In fact a complaint was filed with the concerned police station on 13.6.2009 itself and the copy was received by the respondents which bears the seal of the concerned police station. The requirement under the policy is only to give intimation to the police and this condition has been met by presenting a complaint to the police on the next day of theft. As the FIR was not lodged by the police the respondents had to approach the higher authorities and only after the orders of the Superintendent of Police FIR was lodged by the concerned police station on 25.10.2009. The intimation was also given to the bank and the bank was supposed to inform the Insurance Company. Learned counsel referred to recent judgment of Supreme Court in
Om Prakash Vs. Reliance General Insurance & Anr., Civil Appeal No.15611 of 2017, decided on 04.10.2017, wherein Hon'ble Supreme Court has allowed the claim even when the Insurance Company was informed quite late. In the light of this judgment and the circular dated 20.9.2011 of IRDA, the revision petition of the petitioner Insurance Company deserves dismissal and order of the State Commission needs to be upheld.
12. I have given a careful consideration to the arguments advanced by both the parties and have examined the record. The condition No.1 of the Policy clearly stipulates that in case of any damage or loss Insurance Company should be immediately informed and in case of theft police should also be intimated. In the present case the FIR has been lodged on 25.10.2009 and intimation to the Insurance Company has been given on 02.12.2009 whereas the theft of tractor had occurred on 12thJune 2009. Even if the version of the respondents/complainants is taken to be true that a complaint was given to the local Police Station on 13.6.2009 even then the condition is violated as the Insurance Company was not informed in time. It is also to be noted that the judgment of Hon'ble Supreme Court in Om Prakash Vs. Reliance General Insurance & Anr. (supra) relates to a case where the intimation was given to the Insurance Company after a delay of 8 days whereas in the present case there is a delay of more than 5 months. Moreover, Supreme Court has held that the delay can be condoned if it is properly explained. In the present case the delay has not been properly explained. Clearly the Insurance Company could not get the opportunity to investigate the matter and to help police in future investigation. In addition condition No.5 has also been violated as claim has not been submitted to the Insurance Company within 14 days of the incident. Thus, basically two conditions have been violated in the present case. It is true that the IRDA has issued guidelines to all the general Insurance Companies to examine the claims on merits received with delay if the claims seem to be genuine. Though in the present matter the FIR has been lodged on 25.10.2009 but a complaint was given to the local Police Station on 13.6.2009, therefore, to some extent the genuinity of the theft can be assumed because this fact has not been controverted by the Insurance Company and is also supported by the fact of 'untraced report' submitted by the police. Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) has held that if some conditions of the policy are
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violated under a motor insurance, then it can be considered to allow claim up to 75%. As two conditions have been violated in the present case, relying upon the complaint filed with the local police on 13.6.2009 and the IRDA circular dated 20.9.2011as well as guidelines given by the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (supra), I deem it appropriate to allow 50% of the Insurance claim.
13. It is also seen from the orders of the fora below that they have allowed claim as submitted by the respondents for Rs.4,02,000/- which is the price of the tractor whereas the tractor was insured for Rs.3,42,000/- only. Both the fora below have not considered this aspect that in a case of theft only the IDV can be allowed. Hence, both the fora below have erred in allowing a claim of Rs.4,02,000/- instead of Rs.3,42,000/- which was the IDV of the tractor under the Insurance policy.
14. Based on the above discussion, the revision petition is partly allowed and the Insurance Company is directed to pay Rs.1,71,000/- (50% of the IDV of Rs.3,42,000/-) along with 7% interest from the date of the order of the District Forum i.e from 30.10.2013. Accordingly, the orders of the fora below stand modified in this regard. As the respondents have themselves delayed the submission of claim they are not entitled to any compensation for mental agony and harassment and the order of the District Forum for award of Rs.10,000/- as compensation is set aside. However, the order in respect of award of cost of litigation of Rs.5,500/- is maintained.
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PREM NARAIN
PRESIDING MEMBER
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