3642 for a sum of Rs. 24,30,000/- for the purpose of earning his living / self-employment which was financed by the opposite party No. 2. The opposite party No. 2 has directed the complainant to get the vehicle insured with the opposite party No. 1 which is a sister concern / group company and accordingly the vehicle was insured with the opposite party No. 1 for the period from 17.02.2011 to 16.02.2012, but unfortunately the insured vehicle met with an accident on dated 23.07.2011 at Bajpur as a result of which one person was injured and the vehicle suffered heavy damage. According to the pleadings, an amount of Rs. 5 Lacs was incurred by the complainant for carrying out the repairs, but inspite of repeated request and demands, the opposite party No. 1 had failed to settle the claim of the complainant till date. No information was conveyed to the complainant whether the claim is being processed or has been rejected. According to the complaint, a subsequent event of theft has occurred on dated 11.01.2012 and the insured vehicle was stolen; a FIR was also lodged at Tona Bajpur, District Udham Singh Nagar under Section 394 IPC. The incident of theft was also intimated to the opposite party No. 1 with all the necessary documents. But the opposite party No. 1 has failed to settle the claim of the complainant. It is further contended in the complaint that the police has also investigated the matter but subsequently a final report was submitted on dated 17.07.2012 in the court of Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar and the same was accepted vide order dated 09.11.2012. Since the opposite party No. 1 had failed either to settle or repudiate the claim of the complainant, the complainant has issued notices dated 18.12.2012 and 22.01.2013 through his counsel but not replied. Hence, the opposite party No. 1 is guilty of deficiency in service as it has failed to take any action on the claim of the complainant till date, therefore, the present complaint was filed.

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2. The opposite party No. 1 has submitted written statement alleging that the surveyor Sh. Sanjeev Kumar conduced survey of the insured vehicle and he has submitted survey report on dated 25.12.2011 mentioning that the estimate produced by the insured - complainant was very late, so the delay has been caused by the complainant himself for which the answering opposite party No. 1 is not responsible. It is true that the insured vehicle bearing No. UP22-T-3642 met with an accident on dated 23.07.2011 and the surveyor was deputed on the same day, who conducted the spot survey. Some bills out of labour charges, repairs charges were duplicate. The complainant has mentioned the name of the driver Sh. Pramod Kumar, later on change the name of the driver Sh. Prabhu who has been driving the insured vehicle on the date of accident. The information about accident was sent six days' delay, but it is not known to the opposite party No. 1 that what manipulation was being done whether it was an accident - robbery, stealing or manipulation. Because six days are more than enough to design up the crime. After coming to know of the alleged incident, the opposite party No. 1 repudiated the claim of the complainant vide letter dated 30.01.2012 due to intimating the loss belatedly as on 16.01.2012, which has allegedly took place on dated 10.01.2012 due to non-observance of condition of the policy. There is no deficiency in service on the part of the answering opposite party No. 1, therefore, the complaint is liable to be dismissed.

3. None has appeared on behalf of the opposite party No. 2. Vide order dated 11.05.2023 an order has been passed that the complaint shall be heard ex-parte against the opposite party No. 2 on account of the absence of opposite party No. 2.

4. The complainant has filed a list (paper Nos. 6 & 7) of twenty six documents in support of his complaint. The complainant has also filed an affidavit in evidence.

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5. The opposite party No. 1 has submitted an affidavit in evidence alongwith some documentary evidence such as surveyor report of Sh. Sanjeev Kumar with annexures and certificate - cum - scheme. The opposite party No. 1 has also filed an affidavit of surveyor Sh. Sanjeev Kumar alongwith certificate - cum - terms and conditions of the Commercial Package Policy.

6. The complainant has filed an affidavit in rebuttal.

7. We have heard learned counsel for the complainant and opposite party No. 1 and perused the material available on record.

8. It is an admitted fact that the complainant is the registered owner of the commercial vehicle bearing No. UP22-T-3642 for earning his self- employment. It is also admitted that the complainant had purchased the above-said vehicle for Rs. 24,30,000/- which was financed by the opposite party No. 2. It is not disputed that the vehicle (hereinafter called 'the said vehicle') was insured with the opposite party No. 1 w.e.f. 17.02.2011 to 16.02.2012. It is also admitted that the said vehicle met with an accident on dated 23.07.2011 at Bajpur, wherein one person was injured and the said vehicle has suffered heavy loss. It is also not disputed that the intimation about the accident was forwarded to the insurance company, who deputed surveyor Sh. Sanjeev Kumar. The surveyor report (paper Nos. 86 to 90) with annexures is available on record, which is approved by the opposite party No. 1 by adducing the affidavit of the surveyor in evidence of the opposite party No. 1.

9. We have perused the above mentioned surveyor report wherein the surveyor has assessed the loss to the tune of Rs. 4,11,342/- and the surveyor has observed in his findings that the cause of accident appears to be genuine and all the damages shown in vehicle were noted and observed at the time

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of spot survey as well as at the time of final survey; the vehicle related bills have been verified by the original as produced by the insured - complainant. The claim may be settled for Rs. 4,11,342/- only in favour of the insured - complainant. The complainant has not raised any objection against the above survey report wherein loss for the incident of accident on dated 23.07.2011 was assessed to the tune of Rs. 4,11,342/-.

10. As per the pleadings, according to the complaint another incident happened with the insured vehicle, when it was stolen on dated 11.01.2012 and FIR was lodged with Tona Bajpur, Udham Singh Nagar under Section

349 IPC. The complainant has proved the same fact by adducing his affidavit and by filing the documentary evidence. The copy of the FIR of the theft / stolen of the said vehicle is available on record (paper No. 16). The chik FIR has proved that as per the tehriri report, the FIR No. 131/12 under Section 394 IPC against four unknown person was registered. It is also admitted that the police investigated the matter and the final report was submitted in the Court of Chief Judicial Magistrate; a copy of which has been submitted in the documentary evidence by the complainant vide paper No. 19.

11. We have perused the above final report, according to which neither the stolen property / vehicle was found, nor the unknown persons were traceable, therefore, the final report was submitted before the competent court. The copy of the order of Judicial Magistrate, Kashipur is also available on record (paper Nos. 20 & 21), according to which it is proved that the final report was accepted as per law.

12. Thus, after appreciation of the above-mentioned documents, it is proved that the theft of the said vehicle took place on dated 11.01.2012 and

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the police could not recover the stolen vehicle, hence the final report submitted by the police was accepted by the competent court.

13. Learned counsel for the opposite party No. 1 has not placed any such arguments that the said vehicle was left unattended and no proper steps taken for safeguarding it from misplacement or theft.

14. It is also admitted that the some other petitioners (third parties) named Smt. Durgesh w/o late Sh. Bablu had filed a claim for getting claim amount from the opposite party No. 1 and M.A.C. No. 290/2011 was filed in the Motor Accident Claim Tribunal / Additional District Judge, Rampur to this effect wherein after considering the pleadings and the evidence, the Tribunal has allowed the claim petition granting the claim amount in favour of the petitioners Smt. Durgesh and others. In the said judgment, the Motor Accident Claim Tribunal / Additional District Judge, Rampur has not found that there were any breach of terms and conditions of the insurance policy. In regard to the occurrence of accident on dated 23.07.2011, the claim of the registered owner was not allowed till today, hence we are of the considered opinion that the complainant is entitled to get the claim amount to the tune of Rs. 4,11,342/- for the repairing work as assessed by the surveyor of the opposite party No. 1 - insurance company.

15. In the written statement of the opposite party No. 1, the main contention is that the complainant has informed about the theft incident after a delay of six months, therefore, the claim of the complainant was repudiated by the opposite party No. 1 - insurance company.

16. So far as the subsequent incident of theft which is alleged to have occurred on dated 11.01.2012 is concerned in this regard the main contention of the opposite party No. 1 is that the intimation about the theft

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of insured vehicle was given to the opposite party No. 1 with a delay of six days' hence the claim of the complainant was repudiated.

17. Learned counsel for the complainant has referred the following case law:-

(i) Sh. Om Prakash Vs. Reliance General Insurance and Anr., 2017 (4) CPR 21 (SC)

(ii) National Insurance Company Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC)

(iii) Civil Appeal No. 2703 of 2010, Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. decided by Hon'ble Supreme Court of India on dated 25.03.2010

(iv) Jain Construction Company Vs. Oriental Insurance Company Limited & Anr., II (2022) SLT 119

18. We have perused the above cited case laws. In the case of Sh. Om Prakash (supra) the Hon'ble Supreme Court has held as under:-

"It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this

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condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act."

19. In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal (supra) the Hon'ble Supreme Court has held as under:-

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"In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle 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. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft."

20. In the case of Amalendu Sahoo (supra), the Hon'ble Supreme Court has held that "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. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis." In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission."

21. As per the cited case law in the above case Om Prakash (supra), the rejection of the claim on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in insurance industry. If the reason for delay in making claim is satisfactorily explained, such a claim

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cannot be rejected on the ground of delay. Thus, the contention of the appellant is not tenable that the information about the incident was not given immediately to the insurer because such ground is not mentioned in repudiation letter of the appellant.

22. In the case of Jain Construction Company (supra), the Hon'ble Supreme Court of India has held that "In the opinion of the Court the afore- stated ratio of the judgment clinches the issue involved in the case on hand. In the instant case also, the FIR was lodged immediately on the next day of the occurrence of theft of the vehicle by the complainant. The accused were also arrested and charge-sheeted, however, the vehicle could not be traced out. Of course, it is true that there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company, nonetheless, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine. It has repudiated only on the ground of delay. When the complainant had lodged the FIR immediately after the theft of the vehicle, and when the police after the investigation had arrested the accused and also filed challan before the concerned Court, and when the claim of the insured was not found to be not genuine, the Insurance Company could not have repudiated the claim merely on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft."

In the above mentioned case the awarded amount was granted with simple interest @ 9% per annum.

23. The above cited laws are fully applicable to the case in hand and the opposite party No. 1 - insurance company cannot repudiate the claim on the ground of delay.

24. As per the FIR, the insured vehicle was stolen by some unknown miscreants. Nothing has been contended on behalf of the opposite party No.

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1 that the said vehicle was left unattended or the driver left the key in ignition mode. So in the absence of above such contention, we are of the view that the theft incident of the insured vehicle took place on relevant date and there was no violation of the terms and conditions of the insurance policy.

25. As per the cited case law in the above case Om Prakash (supra) and

Jaina Construction Company (supra), the claim case cannot be repudiated on the ground of delay, hence repudiation letter rejecting the claim of the complainant is not justified. Such act amounts to deficiency in service on the part of the opposite party No. 1 - insurance company. The interest rate @ 9% as held in the case of Jain Construction Company

(supra) shall be applicable in this complaint case.

26. We are also of the opinion that the principles as cited in the case of

Om Prakash (supra), in the case of National Insurance Co. Ltd. Vs. Nitin Khandelwal (supra), in the case of Amalendu Sahoo (supra) and in the case of Jaina Construction Company (supra) are fully applicable to the case in hand. Thus, we are of the opinion that as per the above cited case law, the complainant is entitled to get 75% (Rs. 17,31,375/-) of IDV Rs. 23,08,500/- on non-standard basis for the loss due to theft of the insured vehicle alongwith simple interest @ of 9% from the date of filing of the complaint dated 21.08.2018 till its actual realization.

27. We are of the considered view that the complainant is also entitled to get Rs. 4,11,342/- as repairing charges alongwith simple interest @ 9% per annum (in regard to the incident of accident) from the date of filing of the complaint case, i.e. 21.08.2018 till its actual realization.

28. Accordingly, consumer complaint is allowed. The opposite party No. 1 shall pay Rs. 17,31,375/-, i.e. 75% of IDV Rs. 23,08,500/- alongwith

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simple interest @ 9% from the date of filing of the complaint dated 21.08.2018 till its actual realization within 30 days from the date of judgment.

It is further ordered that the complainant is also entitled to get Rs. 4,11,342/- as repairing charges alongwith simple interest @ 9% per annum (in regard to the accident dated 23.07.2011) from the date of filing of the complaint case, i.e. 21.08.2018 till its actual realization within 30 days from the date of judgment. The complainant is also entitled to get Rs. 10,000/- as costs of litigation from the opposite party No. 1.

29. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

30. File be consigned to the record room along with a copy of this Order.

(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member

This judgment is dated, signed and pronounced today.

(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member

Pronounced on: 22.05.2023

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