Oriental Insurance Co. Ltd. Petitioner(S) v. Brahmanand Javvadi (S).

insurance company, the complainant filed a Consumer Complaint no. 320 of 2013 before the District Consumer Disputes Redressal Forum, Raipur (in short 'the District Forum'). The complaint was contested by the insurance company by filing written statement stating that no intimation was given by the complainant about the theft of the vehicle to the insurance company. It was further stated that due to the delay in filing the FIR, the conditions of the policy have been violated therefore, the claim was not payable. The District Forum, however, allowed the complaint vide its order dated 30.04.2014 as under:

"In view of the above discussion, the complaint of the complainant under section 12 of the Consumer Protection Act is partly allowed and the respondent is directed to pay the following amount within a period of one month from the date of the order:

The respondent will pay Rs.5,15,625/- to the complainant along with simple interest @ 9% from the date of complaint dated 14.08.2013;

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The respondent will pay Rs.10,000/- on account of mental harassment to the complainant; and

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The respondent will also pay Rs.2,000/- to the complainant towards advocate fee and cost of litigation".

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3. Aggrieved by the order of the District Forum, the insurance company preferred an appeal before the State Commission. The State Commission vide its order dated 30.10.2014 has partly allowed the appeal and modified the order of the District Forum as under:

"The order dated 30.04.2014 passed by the District Forum is partially modified and it is directed that the appellant insurance company will pay the sum of Rs.3,86,719/- instead of Rs.5,15,625/- to the respondent/ complainant. Rest of the order passed by the District Forum is not interfered and it will remain same. The cost of the appeal will be borne by the appellant/insurance company himself and the respondent/complainant which is assessed at Rs.3,000/-".

4. Hence, the present revision petition has been filed by the insurance company.

5. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner/ insurance company has stated that in the present case, there is a delay of 13 days in filing the FIR and no intimation was ever received by the insurance company. Learned counsel for the petitioner has stated that as per the latest judgment of the Hon'ble Supreme Court in the case of Gurshinder Singh vs Shriram General Insurance Co. Ltd., and Anr. (Civil Appeal no. 653 of 2020) decided on 24.01.2020, if intimation to the insurance company has been delayed, the claim can still be allowed if the FIR has been lodged immediately after the theft. It was argued that in the present case, FIR has been lodged after 13 days of the incident and therefore, the claim cannot be allowed. Learned counsel has further referred to the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., vs Parvesh Chander Chadha (Civil Appeal no. 6739 of 2010) decided on 17.08.2010 wherein it

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has been held as under:

"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."

6. The Hon'ble Supreme Court has clearly held that if the FIR has not been lodged immediately after the theft, the insurance claim can be repudiated by the insurance company. On the basis of these two judgments, the learned counsel emphasised that in the present case, the claim cannot be allowed even on non-standard basis. It was further stated that there was no sign of any official of the insurance company on the alleged letter dated 03.08.2012 which was produced by the learned counsel for the complainant/ respondent as proof of receipt of intimation to the insurance company. Even if this letter is taken to be the intimation letter, then this letter is also delayed by about 9 days. Clearly, neither the police nor the insurance company got any opportunity to search for the vehicle and to apprehend the culprit. Clearly, if there is a delay in the police action, the person stealing the vehicle may take the vehicle to a far off place and may even dismantle and give a new look to the vehicle, thus, immediate intimation to the police and to the insurance company was essential. Learned counsel has further stated that even the alleged letter dated 03.08.2012 states that the complainant went to the police station on 01.08.2012 and gave information about the theft to the police. Thus, clearly intimation may have been given to the police only after about 5-6 days whereas the complainant had come back from Hyderabad on 26.07.2012 and should have informed the police on the same day or the next day. Clearly condition no. 1 of the policy has been violated. Learned counsel has admitted that copy of the condition has not been filed before any of the Consumer Fora/ Commission. This Commission then directed the learned counsel for the petitioner to file the copy of the policy within 3-4 days with the Court Master for the perusal of the Bench. The same has been filed.

7. Learned counsel for the petitioner has pointed out that the State Commission has relied upon mainly on the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd., vs Nitin Khandelwal - (2008) 11 SCC, 259 and the judgment of the Hon'ble Supreme Court in the case Amalendu Sahoo Vs. Oriental Insurance Company Limited, (2010) 4 SCC 536, wherein it directed the insurance company to pay the claim on non-standard basis. It was argued by the learned counsel that in those cases FIR was timely lodged whereas in the present case, there is a delay of 13 days in filing the FIR. Thus, the judgments relied upon by the learned State Commission cannot be applied in the present case.

8. On the other hand, the learned counsel for the respondent/ complainant has stated that no where it has been revealed by the insurance company that the complainant has violated any specific condition of the policy. No condition of the policy is mentioned as having been violated by the complainant in the written statement filed by the opposite party or in the

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evidence submitted by them. Learned counsel has further argued that the judgment of

Gurshinder Singh vs Shriram General Insurance Co. Ltd., and Anr., (Supra) is not applicable in the present case as circumstances of the case at hand are totally different with that of Gurshinder Singh vs Shriram General Insurance Co. Ltd., and Anr. case. It was stated that when the complainant came back from Hyderabad on 26.07.2012, he did not find his car in the house and then he tried to contract his driver who was not traceable. Obviously, the complainant did not realise immediately that the vehicle could have been stolen. When the complainant could not contact the driver for few days, then it was realised that the vehicle was stolen either by the driver or with the connivance of the driver. Then the complainant contacted the police station and gave information orally to the staff at the police station who advised the complainant to search for the vehicle for some more time and then lodge an FIR. Accordingly, FIR was finally lodged on 07.08.2012. Thus, there was no intentional or purposeful delay in filing the FIR rather it was only a circumstantial delay for which the complainant cannot be penalised. In-spite of receipt of intimation dated 03.08.2012 the insurance company did not appoint any surveyor or any investigator in the present matter. Thus, it is a deficiency in service on the part of the opposite party. The District Forum had relied on the intimation letter dated 03.08.2012 and the circumstances under which FIR was lodged on 07.08.2012 and has allowed the claim on full IDV basis. The State Commission relying upon the case of National Insurance Company Ltd., vs Nitin Khandelwal (Supra) and Amalendu Sahoo Vs. Oriental Insurance Company Limited, (Supra) has modified the order of the District Forum and allowed the claim on non-standard basis. Both the Fora below have given a concurrent finding and allowed the insurance claim of the complainant and there is some difference in the amount only. The scope under the revision petition is quite limited particularly in the light of the concurrent finding given by the Fora below. It was the duty of the insurance company to file the terms and conditions of the policy, before the District Forum and it should have clearly pointed out as to which condition has been violated. In the absence of the said assertion, the insurance company does not have any legal basis to repudiate the claim. The insurance company cannot be allowed to specify the condition at this stage and to file the terms and conditions of the policy.

9. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. Larger Bench of the Hon'ble Supreme Court in the case of Gurshinder Singh vs Shriram General Insurance Co. Ltd., and Anr., (Supra) has observed that delayed intimation to the insurance company will not forfeit the total insurance claim of the insured if the FIR has been lodged immediately within a reasonable time and all other conditions are met. The Hon'ble Supreme Court in the case of National Insurance Company Ltd., vs Nitin Khandelwal has clearly observed that in the case of theft of vehicle breach of policy conditions is not germane. Clearly, there is a breach of condition no.1 of the policy in the present case, that immediate intimation was not given to the police, nor the insurance company was informed immediately. In the matter of theft, intimation to the insurance company may not be much relevant as per the Hon'ble Supreme Court in the case of

Gurshinder Singh vs Shriram General Insurance Co. Ltd., and Anr., (Supra), however, immediate intimation to the police is very important because then the police can search for the vehicle and culprits may be apprehended before they take the vehicle to far off places and succeed in dismantling the vehicle. Clearly all the conditions of the policy are meant to be observed by both the sides, i.e., insurer as well as insured. In the case of National Insurance Company Ltd., vs Nitin Khandelwal (Supra), the driver has lodged the FIR after theft so that

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no question mark was raised on the incident of theft. Learned counsel for the complainant has stated that in the present case, FIR has been lodged and final report has been filed by the police, therefore, the genuinity of the theft is proved but this cannot be accepted in this simple manner. For 12-13 days of theft, no action could be taken by the police because the police was not informed and no FIR was lodged. Even if we believe the letter dated 03.08.2012 of the complainant written to the insurance company informing the incident of theft, it is stated therein that the police was contacted on 01.08.2012. Clearly the complainant contacted the police only after about 5 days of his return from Hyderabad. No reason has been given by the complainant for not informing the police in these 5 days about the theft of the vehicle. Thus, the complainant has allowed the culprit to take the vehicle to far off place in this period and even involvement of the complainant in the theft cannot be ruled out. It is not only a technical breach of the condition of the policy, rather, it has vide and far reaching ramifications as already mentioned. In these conditions, clearly the complainant has breached the very important condition of the policy that the complainant should have informed the police and insurance company immediately after the incident of theft. The Hon'ble Supreme Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited (Supra) has held that if the policy condition is violated in a motor vehicle policy the claim may be settled by the insurance company on non-standard basis upto 75% of the otherwise admissible claim. It is not necessarily to settle the claim in all cases of violation @ 75% of the insurance claim.

10. This Commission in a similar case of United India Insurance Company Limited vs Aji Pal and Ors (in RP no. 2089 of 2019) decided on 13.02.2019, where FIR as well as intimation to the insurance company were delayed, has allowed the insurance claim @ 50% of the IDV. Relying on this judgment, we deem it appropriate to allow the insurance claim @ 50% of the

IDV.

11. Based on the above discussion, the revision petition no.292 of 2015 is partly allowed and the petitioner insurance company is directed to pay Rs.2,57,812/- (Rupees two lakh fifty seven thousand eight hundred twelve only) (i.e., 50% of the IDV of Rs.5,15,625/-) to the respondent/ complainant within a period of 45 days from the date of this order along with interest @ 6% per annum from the date of filing of the complaint, i.e., 14.08.2013 till the actual payment. The order of the District Forum in respect of compensation of Rs.10,000/- for mental agony is set aside, as the interest is being allowed in the form of compensation only. The litigation cost of Rs.2,000/- as well as the cost of appeal of Rs.3,000/- awarded by the State Commission are allowed.

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PREM NARAIN

PRESIDING MEMBER

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C. VISWANATH

MEMBER

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