APPEAL NO: 2202/2006



Yaseen

R/o Village Jotgameti

Teh.Pahadi, Distt. Bharatpur

Complainant-appellant


Vs.


1. National Insurance Co. Ltd.

Calcutta through its Chairman.

2. Br.Manager, National Insurance Co.Ltd.,

Nai Mandi, Bharatpur.

3. Br.Manager, State Bank of India,

Gopalgarh, Teh. Pahadi,Distt.Bharatpur.


Opposite parties-respondents


Date of judgment 14.5.09


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.Sikandar Punjabi- Member


Mr.Virendra Agarwal counsel for the appellant

Mr.Sanjeev Arora counsel for respondent no. 1 & 2

None present for respondent no.3


BY THE STATE COMMISSION


This appeal has been filed by the complainant appellant

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against order dated 15.11.06 passed by the District Forum, Bharatpur in complaint no. 163/2005 by which the complaint of the complainant appellant was dismissed.


2. It arises in the following circumstances-


That the complainant appellant had filed a complaint before the District Forum, Bharatpur against the respondents on 1.6.05 inter alia stating that for the purpose of agricultural work, the complainant had purchased Icher tractor after taking loan from respondent no.3 and the said tractor bearing registration no. RJ 05/ 1 R 4740 was got insured with the respondent no. 1 & 2 for the period 24.3.03 to 23.3.04 for a sum of Rs. 2 lacs. It was further stated in the complaint that on 11.5.03 the nephew of the complainant appellant Mr. Usman after loading the wheat in the tractor had come to Delhi and bags of wheat were removed from the tractor and the tractor was kept standing before the house of his nephew situated at Malviya Nagar, Delhi. It was further stated in the complaint that on 12.5.03 early in the morning at about 6.30 a.m. when his nephew came outside from his house, he did not find the tractor and for that incident report was lodged with the Police Station, Malviya Nagar, New Delhi on 16.5.03 bearing no. 447/03. It was further stated in the complaint that information of the incident was also given by the complainant to the office of the respondent no. 1 & 2 Insurance Co. and also to respondent no.3 the bank. It was further stated in the complaint that respondent no.3 had forwarded all the relevant papers to respondent no. 1 & 2 and since the matter was not settled by respondent no. 1 & 2, therefore,

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complaint was filed claiming Rs. 2 lacs of which the tractor was insured.


A reply was filed by respondent no. 1 & 2 before the District Forum, Bharatpur on 4.7.05 and the case of the respondents Insurance Co. was that the tractor was insured for a sum of Rs. 1,45,200/- as IDV and the policy was Farmer Package Policy and since the report of the incident was lodged with the police station with delay and since no information was given by the complainant to the office of respondent no. 1 & 2, therefore, from that point of view also the claim was not payable as information to the office of respondent no. 1 & 2 was given by the complainant appellant on 16.3.04 and thus the claim was repudiated by respondent no. 1 & 2 through letter dated 26.10.04 in the following manner-


" Your attention is invited to our letter dated 9.0904 and its reminder dated 24.9.04 vide which we requested to make us available the certified copy by the court of the charge sheet framed on the basis of FIR no. 447/03 u/s 379 of IPC filed by the police station Malviya Nagar, New Delhi. We regret to inform you that neither the insured nor from your office the desired document has been sent. Please note that the file cannot be kept pending for indefinite time and same would be closed as No claim after 15 days."


and it was prayed that complaint be dismissed.


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After hearing the parties, the District Forum, Bharatpur through impugned order dated 15.11.06 had dismissed the complaint inter alia holding that repudiation of the claim of the complainant was justified and since at the time of incident the vehicle in question was being used for commercial purpose, therefore, claim was not payable.


Aggrieved from the said order dated 15.11.06 passed by the District Forum,Bharatpur, this appeal has been filed by the complainant appellant.


3. In this appeal the main contention of the learned counsel for the complainant appellant is that the findings recorded by the District Forum are erroneous one as in case of theft, use of the vehicle is immaterial and thus the claim of the complainant appellant was wrongly repudiated by the respondents Insurance Co. through letter dated 26.10.04 and the District Forum had committed serious error and illegality in dismissing the claim of the complainant appellant. Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.

4. On the other hand, the learned counsel appearing for the respondents no. 1 & 2 has supported the impugned order of the District Forum.


5. We have heard the learned counsel for the appellant as well as for the respondents no. 1 & 2 and gone through the entire materials available on record.


6. Before proceeding further it may be stated here that as per

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the policy in question, it is very much clear that the tractor was insured for a sum of Rs. 1,45,200/- as IDV and not for a sum of Rs. 2 lacs as stated by the complainant appellant.


7. There is no dispute on the point that tractor of the complainant appellant bearing registration no. RJ 05/ 1 R 4740 was got insured with the respondent no. 1 & 2 for the period 24.3.03 to 23.3.04.


8. There is no dispute on the point that the tractor in question was stolen away on 12.5.03 when the tractor was kept standing before the house of his nephew situated at Malviya Nagar, Delhi.


9. There is also no dispute on the point that for that incident report was lodged with the Police Station, Malviya Nagar, New Delhi on 16.5.03 bearing no. 447/03 and the police during investigation had not got recovered the tractor in question as is evident from the report of SHO Malviya Nagar, New Delhi dated 19.1.04.


10. From the facts as narrated by the complainant appellant, it could also be said that the tractor had gone to Delhi after being loaded with the bags of wheat, meaning thereby they were to be sold at Delhi and thus it could be said that the vehicle in question was being used for commercial purpose.


11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents Insurance Co. was justified or not.

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12. It may be stated here that so far as the issue of lodging the report with the police station with delay of four days is concerned, no doubt in this case, report was lodged with some delay but from that it could not be said that no incident had taken place as during investigation the police had arrested some persons but had not been in a position to recover the tractor and therefore, the so called delay would not be fatal.


13. Similarly if there was some delay in informing the respondent no. 1 & 2 Insurance Co., for that claim could not be repudiated by the respondent Insurance Co. as the report was lodged with the police station and information was also given to respondent no.3 the bank and from that point of view also, that delay has no concern so far as the settling of the claim is concerned.


14. The learned counsel for the respondent no.1 & 2 Insurance Co. has placed reliance on a judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Vs. Nitin Khandelwal reported in IV (2008) CPJ 1 (SC) and the question had arisen whether in cases of theft, the Insurance Co. could take the benefit of violation of terms and conditions of the policy or not.


15. In our considered opinion, the Hon'ble Supreme Court in case of National Insurance Co. ( supra ) has answered the above question where the Hon'ble Supreme Court has observed in the following manner-


" In the case of theft of a vehicle, the breach of condition is not germane. The law is well settled that in case of theft of the vehicle, the nature of use of the vehicle cannot be

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looked into and the insurance company cannot repudiate the claim on that basis."


16. When this being the position, the repudiation of the claim on ground of violation of terms of the policy for being used for commercial purpose by the appellants could not be justified.


17. The next question is whether the claim though there was violation of terms of the policy in cases of theft also could be treated as sub-standard or not.


18. A bare perusal of the above decision of the Hon'ble Supreme Court reveals that the Hon'ble Supreme Court has settled the position of law in the manner that in cases of theft of vehicle the breach of condition is not germane and further nature of use of the vehicle should not be looked into. Therefore, from that point of view also the claim should not have been treated as sub-standard.


19. The Hon'ble Supreme Court under an appeal had not intefered with the order of the State Commission as well as with the judgment of the National Commission when the claim was considered as sub-standard but looking to the position of law as stated above and further since in that case no appeal was filed by the complainant, therefore, the Hon'ble Supreme Court did not find a proper case to interfere with the findings by which claim was treated as sub-standard. Therefore, this argument of the learned counsel for the appellants that the claim should have been treated as sub-standard stands rejected.


20. Apart from this, it may be stated here that the institution of

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insurance has the twin objects of providing short range and long range relief. The short term relief is aimed at protecting the assured from loss to property and life by distributing the loss among large number of persons though the medium of professional risk bearers, such as, insurers. The long range object being the economic and industrial growth of the country by investment of huge funds available with the insurers in organized industry and commerce.


21. A contract of insurance is a contract by which one party in considertion of the price paid to him adequate to the risk, becomes security to the other that he shall not suffer loss, damage or prejudice by the happening of perils specified to the certain things which may be exposed to them.


22. The insurance is meant to protect men against uncertain events which may otherwise be of some disadvantage to them not only those persons to whom positive loss may arise by such events occasioning the deprivation of that which they may possess, but also those who in consequence of such events may have interpreted from them the advantage or profits which but for such event they will acquire according to the ordinary and probable course of things.


23. The primary function of insurance is the equitable distribution of the financial losses of insured, in other words, compensating the few who have lost from the fund built by the contribution of all the members. The insured member's contribution to the fund is in proportion to the risk from which he is protected and it is the special function of the insurer to calculate and charge this contribution or premium. It is also his function to

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manage the fund so built up and pay compensation to the insured who have suffered losses. This benefits both the insured and the insurer. The insured feels secure that he will be protected from the

insurance fund and this gives him freedom from anxiety. The insurer benefits from investing the fund.


24. Keeping the above aspect in mind and if the tractor which was insured with the respondent Insurance Co. was stolen away by some one during the insurance period, it was obligatory on the part of the respondent Insurance Co. to indemnify the complainant appellant for the loss suffered by them on account of theft of the tractor and the respondents Insurance Co. have repudiated the claim of the complainant appellant arbitrarily and in a very casual and mechanical manner.


25. For the reasons stated above, the respondent no. 1 & 2 Insurance Co. were not justified in repudiating the claim of the complainant appellant and the respondent no. 1 & 2 have repudiated the claim of the complainant appellant without any basis and on wrong assumption and in an arbitrary manner and in view of this the findings of the District Forum rejecting the claim of the complainant appellant cannot be sustained as they suffer suffer from basic infirmity, illegality and perversity and hence, this appeal deserves to be allowed and the impugned order is liable to be quashed and set aside and the appellant is entitled to get claim amount of Rs. 1,45,200/- under the policy in question alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made alongwith costs of litigation at Rs. 3000/-.


Accordingly, the appeal filed by the appellant complainant

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is allowed and the impugned order dated 15.11.06 passed by the District Forum, Bharatpur is quashed and set aside and the complaint of the complainant appellant is allowed in the manner that the respondent no. 1 & 2, he Insurance Co. are directed to pay to the complainant appellant a sum of Rs. 1,45,200/- as claim amount under the policy in question alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and further to pay a sum of Rs. 3000/- as costs of litigation.



Member President

APPEAL NO: 1513/2007


Standard Chartered Bank,

Br. M.I. Road, Jaipur

through Manager.

Opposite party -appellant

Vs.


Chandra Shekhar Chaudhary

Prop. Ratan Import House,

r/o 1154. Champawat ji ka Mandir,

Johari Bazar, Jaipur.

Complainant - respondent


Date of Judgment 15.5.09


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.G.S.Hora -Member


Mr.Anil Mehta counsel for the appellant


Heard at admission stage.


This appeal has been filed by the appellant bank which was opposite party before the District Forum , with a delay of 134 days against order dated 29.3.07 passed by the District Forum, Jaipur IInd, Jaipur in complaint no. 11/06 by which the complaint of the complainant respondent was allowed in the manner that the appellant was directed to pay a sum of Rs. 3000/- as compensation for mental agony and Rs. 2000/- as costs inter alia holding that the complainant respondent had issued a post dated cheque for a sum

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of Rs. 10,048/- on 28.2.05 for post date was 5.3.05 but the appellant bank had dishonoured the cheque on 1.3.05 and for that deficiency the impugned order was passed.


2. It may be stated here that alongwith the appeal an application u/s 5 of the Limitation Act has also been filed.


3. It may further be stated here that when the impugned order

was passed by the District Forum, Jaipur IInd, Jaipur the learned counsel for the appellant bank was present.


4. In our considered opinion, the application u/s 5 of the Limitation Act is to be rejected and similarly the appeal is to be dismissed as being time barred .


5. In this case since there is an inordinate delay of 134 days, therefore, the appellant bank had to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed.


6. The Hon'ble Supreme Court in the case reported in AIR 1962 SC 36 has observed in the following manner:


" Section 5 of the Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. A large majority of case-law has grown around section 5, its highlights being that one ought not easily to take away a right which has accused to a part by lapse of

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time and that therefore a litigant who is not vigilant about his rights must explain every day's delay...."


7. Taken into consideration the law laid down by the Hon'ble Supreme Court, if the facts of the present case are examined, it clearly appears that delay in the present case was such a delay that could not be condoned though this Commission is of the view that condoning the delay in filing the appeal should be liberally construed but delay of 134 days could not be said to be such a delay which could be condoned. Had there would have been a delay of 20 or 50 days etc., the position would have been different one.


8. For the reasons stated above, this Commission comes to the conclusion that the appellant has miserably failed to substantiate his case for presenting the appeal after such a long delay and for that reason, application filed u/s 5 of the Limitation Act deserves to be rejected and the same is rejected and when the application for condonation of delay is rejected, the appeal filed by the appellant is also dismissed as being time barred and even on merits the findings recorded by the District Forum, Jaipur IInd, Jaipur are liable to be confirmed one as they are based on correct appreciation of entire materials available on record.


Accordingly, the appeal filed by the appellant is dismissed as being time barred as well as on merits.


Member President