JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainant owned a truck which he has got insured with the petitioner company. During subsistence of the insurance policy taken by the complainant, the above referred truck, loaded with goods, was allegedly taken by his driver from Mandi Gobindgarh to Cuttack, though the date on which the truck allegedly left for Cuttack is not given in the Consumer Complaint. According to the complainant, the driver of the truck called him up on 30.11.2011 from Jharkhand and informed him at that time he was passing through Chutupalo Valley. Thereafter, the driver did not contact him. The truck, according to the complainant, was expected to reach Cuttack in 6-7 days of its leaving Mandi Gobindgarh. On 23.12.2011, the theft of the truck was intimated by the complainant to the insurer. On 07.01.2012, an FIR was lodged by him at Police Station Ramgarh, alleging therein that some unknown criminals had abducted his driver alongwith truck loaded with goods.

2. The claim of the complainant, for reimbursement in terms of the insurance policy taken by him, was repudiated by the insurer vide letter dated 19.08.2013 which to the extent it is relevant reads as under: With reference to the above mentioned subject, we would like to bring to your kind attention that the vehicle is stolen on 30.11.2011 (as per FIR) and the same was reported to police authority on 07.01.2012 which is after 38 days & same loss intimated to us on 23.12.2011 which is after 23 days from the date of theft. In this regard, we would like to invite your attention to condition 1 of the motor policy which runs as follows:

Notice shall be given to the company immediately upon the occurrence of any accident loss or damage in the event of any claim. 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.

By delaying the intimation there was no opportunity given by you to us for conducting a proper investigation. In view of the above we regret our inability to settle the claim and treat the same as Repudiated. We are sure that you would appreciate our stand that payment of any claim has to be in accordance with the conditions and provisions of the policy issued. While expressing our inability to pay this claim due to the above-mentioned reasons, we reiterate our commitment to pay all admissible claims fairly and promptly.

3. Being aggrieved from the repudiation of the claim, the complainant approached the concerned District Forum by way of a Consumer Complaint.

4. The complaint was resisted by the insurer primarily on the ground that on which the claim had been repudiated.

5. The District Forum having dismissed the complaint, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 06.03.2017, the State Commission allowed the appeal and directed the insurer to pay IDV of the vehicle to the complainant alongwith interest on that amount @ 9% per annum, compensation quantified at Rs.50,000/- and cost of litigation quantified at Rs.15,000/-. Being aggrieved by the order of the State Commission, the insurer is before this Commission.

6. A condition identical to condition No.1 of the insurance policy issued to the complainant came up for consideration of a Three Members Bench of the Honble Supreme Court in Gurshinder Singh Vs. Sriram General Insurance Co. Ltd. & which to the extent it is relevant Anr.Civil Appeal No.653/2020 decided on 24.01.2020, reads as under:

13. In our view, applying the aforesaid principles, Condition No.1 of the Standard Form for Commercial Vehicles Package Policy will have to be divided into two parts. The perusal of the first part of Condition No. 1 would reveal, that it provides that a notice shall be given in writing to the company immediately upon theoccurrence of any accidental loss or damage. It further provides,that in the event of any claim and thereafter, the insured shallgive all such information and assistance as the company shallrequire. It provides, that every letter claim writ summons and/orprocess or copy thereof shall be forwarded to the insurancecompany immediately on receipt by the insured. It furtherprovides, that a notice shall also be given in writing to thecompany immediately by the insured if he 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.

14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give anotice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle.

16. 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. As observed by the bench of two learned Judges in the case of Om Prakash (supra), 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.

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.

7. In the present case, the FIR with the concerned police station was not lodged immediately after the theft or even within a few days thereafter. Though the complainant has not disclosed the date on which the truck left from Mandi Gobindgarh to Cuttack, the FIR lodged by him on 07.01.2012 would show that it had not been stolen till 30.11.2011. The FIR also shows that there was no contact between the complainant and his driver after 30.11.2011 as noted earlier. This is complainants own case that a truck takes about 6-7 days to reach from Mandi Gobindgarh to Cuttack. Even if, it is assumed for the sake of arguments that the truck left from Mandi Gobindgarh only on 30.11.2011, in the ordinary case, it ought to have reached Cuttack latest by 07.12.2011. The complainant having not received any call from the driver after 30.11.2011, he could have reasonable inferred soon thereafter, or latest by 07.12.2011, that the vehicle had been stolen. Therefore, in terms of the requirement of condition No.1 of the insurance policy, he ought to have lodged FIR with the concerned police station on 07.12.2011 or immediately thereafter. The FIR, however, came to be lodged only on 07.01.2012.

8. In the Consumer Complaint, it is alleged that due to health problems the complainant was unable himself to search the truck and its driver. However, no material was produced by him before the District Forum to prove that he was having some health issues at the time when vehicle came to be stolen. In my opinion, it was necessary for the complainant to submit proof of the alleged health problem when the claim was rejected by the insurer solely on the ground that there was delay on his part in intimating the theft to the insurer. Since the complainant failed to furnish any such proof, it would be difficult to accept that he was having some health issues which prevented him for lodging an FIR. Even if he was unable to travel to Jharkhand, he could have sent a complaint to the concerned Police Station or concerned Superintendent of Police/Director General of Police by post from the place where he was living at that time. There is no such evidence or even allegation of such a complaint having been sent by the complainant soon after the theft of the truck. Even in the FIR, which the complainant ultimately lodged through his attorney on 07.01.2012, it was not claimed that the complainant had some health problems which prevented him from searching the vehicle and/or alleging an FIR with the concerned Police Station. In these circumstances, there is no escape from the conclusion that there is no satisfactory explanation given by the complainant for the abnormal delay of at least one month in lodging report with the concerned Police Station.

9. The purpose of requiring a prompt lodgement of FIR with a Police Station in a case of theft is to ensure that the concerned Police Station is able to make an effort to trace the vehicle at the time when there is some possibility of the vehicle being traced by the police. Such an opportunity is lost when there is such an abnormal delay in lodging an FIR with the concerned Police Station.

10. Otherwise also the view taken by the Honble Supreme Court in Gurshinder Singh (supra) where the Honble Apex Court inter-alia Vs. Sriram General Insurance Co. Ltd. observed as under:

15. We find, that the second part of Condition No. 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 a case of theft, the insurance 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 Per contra, the surveyor of the insurance company, at the most, couldvehicle. ascertain the factum regarding the theft of the vehicle. (emphasis supplied)

11. It would thus be seen that the Honble Supreme Court placed emphasis on prompt lodgement of FIR with the Police Station so that police machinery can be set into motion and efforts can be made to recover the stolen vehicle. The Honble Supreme Court also noted that in its earlier decision in Om Prakash Vs. Reliance General Insurance and Anr. it had observed that the person who lost his vehicle would (Civil Appeal No.15611/2017) immediately lodged an FIR and the immediate conduct that would expected of such a person would be to assist the police in search of the vehicle. The Honble Apex court further observed that the registration of the FIR regarding theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate of the complainant that the vehicle was stolen. It was felt that if the surveyor finds that the claim of theft is genuine, this, coupled with immediate registration of FIR would be conclusive proof of the vehicle is stolen. Thus, the Honble Supreme Court was of the view in Gurshinder Singh that if an FIR is promptly lodged with the concerned Police Station in case of theft(supra) of a vehicle, the delay in intimating the insurer would not be fatal to the claim of the insured.

12. However, in the present case, not only there was delay of at least one month in lodging the FIR, no valid explanation for the said delay has been forthcoming from the complainant. Therefore, the benefit of the decision of the Honble Supreme Court in in my opinion, is not available to the complainant. Gurshinder Singh (supra),

13. The learned counsel for the complainant relies upon the report of the investigator. That report, in my opinion, would not take away the right of the insurer to repudiate on account of delay in lodgement of FIR.

14. For the reasons stated hereinabove, the order passed by the State Commission cannot be sustained and same is hereby set aside. Consequently, the Consumer Complaint is dismissed, with no order as to costs. ......................J

V.K. JAIN PRESIDING MEMBER