(Delivered on 05/05/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant Joginderkaur  Ghotra has preferred the present  appeal challenging the impugned judgment and order dated 19/07/2017 passed by the learned  Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/12/611, by which  the complaint filed by the complainant/appellant came to be dismissed.

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant – Joginderkaur Ghotra is resident of Baba Budhaji Nagar, Teka Naka, Nagpur. Complainant  had purchased  one  Truck bearing registration No.  CG-04/DB-8581 and had insured  the same with the  O.P.-National Insurance Company for an insured  value  of Rs. 10,40,000/- and period of policy  was from  29/03/2009 to 28/03/2010. The complainant  has alleged that  during  the subsistence of the policy in force the truck came to be  stolen  from Baley Nagar road, near Kalamna Basti in the  intervening night of 11/06/2009 to  12/06/2009. On 11/06/2009 during the night  the driver  left the truck with  the conductor  to take care of the truck  at Baley Nagar at about 9.00 p.m. The conductor was sleeping in the truck and had locked the cabin door. At about 1-1.30 p.m.  the conductor came out for answering  the natures call and  when he came back, he found  the truck  missing.  The Complainant  has contended that  she along with  her husband  then came to  the spot  of incident and  started searching for  the truck  but  truck could not  be traced and so they came to  Kalamana Police Station but Kalamana Police Statioin  did not register  the FIR immediately  and asked the complainant  to search for the truck and if it is  not   traceable then they can  lodged  the FIR. The complainant  has alleged that  they were searching   for  the truck but  the same was not  traced out and so she lodged the FIR on 18/06/2009. After lodging the complaint the Police were conducting investigation and some persons involved in the theft were also caught. The complainant  has alleged that  on 18/06/2009 since  there was delay  in lodging the  report  with the Police the   husband of the complainant  had given written  intimation  to the office of the O.P. After receipt of the intimation by the O.P.- National Insurance Company, the investigator  was deputed   and  he investigated  the matter and also took  the statement of the witness  from the husband of the  complainant. The investigator also asked certain documents and they were duly supplied  by the complainant. The complainant and her husband thereafter approached the O.P. several time and asked them to settle the claim but the O.P.  told complainant  that  the papers  were  sent  to the Head Office, Kolkata  for the settlement  as the claim was over  7 lakhs . The complainant’s husband again approached the O.P.  after 10 days but  the  report from the Head Office  was not received.  The complainant was made to  run from Divisional Office to Regional Office of the insurance company  several times. The complainant has contended that she had completed all the formalities for settlement of claim. The complainant  has therefore, alleged that  the O.P. namely National Insurance Company had failed to  decide the claim of the complainant  within  the stipulated  time as per  guidelines  framed by the I.R.D.A. and same amounted  to deficiency  in service  and unfair trade practice  on the part of the O.P. and so the complainant  was compelled  to file the Consumer Complaint against  the  O.P.- National Insurance Company.

3.         The National Insurance Company (O.P.) has appeared and filed written version  on record denying  all the allegations. The O.P. has admitted that it had issued Insurance policy in favour of the complainant and same was valid for the period from 29/03/2009 to 28/03/2010. The O.P. has denied  that the vehicle  was stolen during the intervening  night  on 11/06/2009 to 12/06/2009 and  or  that  complainant  had given any report  immediately  to Kalamna Police Station.  The O.P. has contended that the complainant had not given written intimation immediately to the O.P. and had also failed to furnish required documents to support the claims. The O.P. has taken a plea that the theft of the vehicle had taken place as the vehicle was parked in a negligent manner   and was also lying unattended without safety measures. Due to non submission of papers the claim of the complainant could not be scrutinized and so the claimed was closed on 24/07/2012. There was also delay in lodging the report with the police and so there was also breach of Condition No. 1 and Condition No. 5 of the Insurance policy. There was no deficiency in service on the part of the O.P. National Insurance Company and so complaint deserves to be dismissed.

4.         The learned Additional District Consumer Commission went through the evidence affidavit  as well as documents  filed by the complainant as also documents filed by the O.P.- National Insurance Company. The learned Additional District Consumer Commission, Nagpur also went through the written notes of argument filed by both the parties.  The learned Additional District Consumer Commission, Nagpur after appreciating the evidence adduced on record, came to the conclusion that the complainant had committed breach of Condition Nos. 1 and 5 of the terms and conditions of the Insurance Policy.  The learned  Additional District Consumer Commission, Nagpur also came to the  conclusion  that  there was  no deficiency  in service on the part of the O.P. and so the learned  Additional District Consumer Commission, Nagpur dismissed the complaint by judgment and order dated 19/07/2017. Against this judgment and order dated 19/07/2017 the present appellant has come up in appeal.

5.         We have heard, Mr. Kaushik Mandal, learned advocate for the appellant/complainant and Mr. Sachin Jaiswal, learned advocate for the respondent/O.P.– National Insurance Company.  We have also gone through the copies of documents which are  filed on record.

6.         Prior to dealing with rival contentions advanced by both the parties it would be useful to  state certain undisputed facts. There  is no dispute  that the complainant  had purchased  one Tata Truck bearing  registration No.  CG-04/DB-8581  and same was insured  with the  O.P.- National Insurance Company for  Rs. 10,40,000/- and the period  of  insurance  was from 29/03/2009 to 28/03/2010. There is also no serious dispute that the Tata Truck owned by the complainant was stolen from Kalamna Basti in the intervening night of 11/06/2009 to 12/06/2009. The complainant has alleged that the theft of Tata Truck had taken place when the truck was parked.  According to the complainant the conductor was sleeping  in the cabin of Tata Truck and at 1.00 am -1.30 am,  he came out of the cabin to answer the nature call but  when he returned  back  he found  the truck was missing and so he went  to the house of the complainant  and informed  about the theft. As per case of the complainant she along with her husband were searching for the truck but when it was not traced, the husband of the complainant lodged the report with Kalamana Police Station. The complainant  has stated that  though  theft took place on 11/06/2009 sufficient   intimation  was given to the police  of Kalamna Police Station  on the next day and  thereafter the  Kalamna Police itself   told the complainant  to carry out the detailed search and then to lodge the report and so First Information Report (FIR) came  to be registered by the Kalamna Police Station on 18/06/2009 vide  Crime No. 146/2009.

7.         Mr. Kaushik Mandal, learned advocate for the appellant has pointed out that  though  the offence of theft was actually registered on 18/06/2009 but in fact the  police was informed  regarding theft orally on 12/06/2009 on  the next day of the theft and so there was no delay or laches  on the part of the complainant in  giving intimation  to the  police but this aspect  was not duly considered. Secondly, it  is contended by the learned advocate for the appellant that  the contention of the  respondent  that  the  necessary documents  were not  supplied   was also erroneous.  In this regard Mr. Kaushik Mandal, learned advocate for the appellant has drawn our attention to copies of police papers which includes the copy of intimation given to the Police Station, Kalamana on 12/06/2009. According to Mr. Kaushik Mandal, learned advocate for the appellant the necessary documents were also supplied to the National Insurance Company namely the copy of F.I.R. and other papers. The respondent –National Insurance Company has tried to take plea that the statement of the conductor was not supplied by the complainant.  Mr. Kaushik Mandal, learned advocate for the appellant  has submitted  that  the statement of conductor  was not  with the complainant  at all. In any case after due intimation  is given  to the insurance company Investigator  is always appointed  and he conducts necessary  investigation. In our view it was easily open to the Investigator  to collect the statement  of conductor  and  other  witnesses, if  required  from   Kalamna Police Station instead of  demanding the same from the complainant.

8.         If we turned to the written version, the respondent  has tried to take  a plea that there was negligence on the part of the complainant  but we find that  the  respondent  has not  filed any  documents  to support  this contention. On the other hand the complainant has placed on record papers including copy of FIR and also copy of statement of  Mr. Himmatsingh Ghotra, husband of the complainant. The statement of Mr. Himmatsingh Ghotra, husband of the complainant shows that the truck was handed over to driver and conductor and truck was to   start only early morning at 4.00 a.m. and the conductor was himself sleeping in the cabin by locking  door. Further Himmatsingh Ghotra has himself lodged the report immediately   to Kalamna Police Station and so there was no question of negligence on the part of the complainant or her husband.  However, on 12/06/2009 the statement of husband of the complainant was also recorded by the Police Station Kalamna. However, we find that the learned  Additional District Consumer Commission, Nagpur has observed that there was delay of 18  days in lodging FIR. The learned Additional District Consumer Commission, Nagpur has also  observed that  there was no proper  explanation  given  by the appellant /complainant  regarding  delay  in lodging  FIR but we have  pointed out  that  though  the  FIR  registered on 18/06/2009, due intimation  in writing  was given  to the  Police Station Kalamana on 12/06/2009 and thereafter  the complainant  was  searching for the vehicle  on the specific directions  of the Police. Mr. Kaushik Mandal, learned advocate for the appellant has also rebutted the contention of the respondent that the appellant / complainant had not supplied the necessary documents.  The learned advocate  for the appellant  has submitted that  he had duly  complied the same and  secondly, it was also open  to the Investigator/Surveyor appointed by the O.P/respondent  to obtain the necessary  documents from Kalamna Police Station. We do find considerable force in this contention.

9.         During the course of arguments Mr. Kaushik Mandal, learned advocate for the appellant has vehemently submitted that as per Circular dated 20/09/2011 issued by  Insurance Regulatory & Development Authority ( I.R.D.A.) the decision to  reject the claim shall be based   on sound  logic and valid grounds. It may be noted that such  limitation  clause does not work in isolation and is not absolute . One  needs to see the merits and good sprit of the clause  without  compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the  insurance industry, giving  rise to excessive litigation.   It is argued by  Mr. Kaushik Mandal, learned advocate for the appellant  that  the  learned Additional District Consumer Commission, Nagpur has not taken  into consideration  the guidelines  given in the  Circular  dated 20/09/2011. Further  Mr. Kaushik Mandal, learned advocate for the appellant  rebutted  the  contention that  there was delay  on the part  of the complainant  in lodging  the report  in Police Station (FIR) but  we have already  discussed  earlier  that  though  actually  FIR came to be registered  on 01/07/2009 but  on the very next date of incident  of theft i.e. on 12/06/2009 the complainant  had not only  give intimation  to the Police but thereafter  the statement  of Himmatsingh Ghotra  was also recorded  by the  Police Station, Kalamana and copy of the same is also  placed on record. The complainant  has led ample  evidence on record to show that  the  Police from the Kalamana Police Station  was not only conducting the investigation  but also  asked  the complainant  to trace the vehicle and to cooperate  with the Police but this  aspect  was not  properly  considered by the learned Additional District Consumer Commission, Nagpur.  Mr. Kaushik Mandal, learned advocate for the appellant has also rebutted  the contention of the O.P. namely National Insurance Company that  there was any negligence on the part of the complainant  in taking  reasonable  steps  to safeguard  the vehicle as per Condition No. 5 of the Terms and Conditions of the Insurance Policy. On this aspect Mr. Kaushik Mandal, learned advocate for the appellant  has heavily  relied upon  one judgment  of the Hon’ble National Consumer Commission in the case of Oriental Insurance  Company Ltd. Vs. Shree Balaji Steel & Cement Traders, delivered by the Hon’ble National Consumer  Commission on 17/05/2017 in First Appeal No. 875/2016.  We have gone through  the said judgment. In that  case  there was no material  on record  to show that the unauthorized  parking had contributed to the theft of the vehicle.  In the present  case before us also there is no material  to show that there was  any negligence  in the parking  of the vehicle. In the case  before us in fact the police papers shows that  the conductor was himself  sleeping  in the cabin of the truck. As such  no fault can b attributed  to the complainant in respect of negligence  and so the judgment  in the case of Oriental Insurance  Company Ltd. Vs. Shree Balaji Steel & Cement Traders, delivered by the Hon’ble National Consumer  Commission on 17/05/2017 in First Appeal No. 875/2016 (cited supra) is squarely applicable to the facts of the present  case. Mr. Kaushik Mandal, learned advocate for the appellant has also relied upon on judgment  of the Hon’ble National Consumer Commission in the case of Shriram General Insurance Co. Ltd. Vs. Abdul Rehman Sahabuddin Siddique, decided on 26/04/2019 in Revision  Petition No. 3876/2017.  In that case  also intimation  was given  about  the theft of the truck immediately  to the Police Station  but the Police Station  had committed delay  in registering  the complaint. Further  in that case  the cabin of the truck was also locked. It was observed  by the Hon’ble National Consumer Commission that  the insurance company was not justified   in repudiating  the claim and same  constitute  deficiency in service. Here in the present  case  also the  facts are  quite similar and statement  of Mr. Himmatsingh Ghotra was recorded on 12/06/2009 falsify  the claim of the respondent  insurance company. As such the case of Shriram General Insurance Co. Ltd. Vs. Abdul Rehman Sahabuddin Siddique, decided on 26/04/2019 in Revision  Petition No. 3876/2017 is squarely applicable  to the facts of the present case.  Lastly,  it is contended  by Mr. Kaushik Mandal, learned advocate for the appellant   that  the complainant had supplied all the necessary  documents to the respondent / O.P.- Insurance Company  and therefore, the  respondent – Insurance Company  cannot take the  help of any  exclusion  clause. On this aspect he has relied upon one judgment of the Hon’ble Supreme Court of India in the case of Bharat Watch Company Vs. National Insurance Co. Ltd. delivered by the Hon’ble Supreme Court  on 12/04/2019 in Civil  Appeal No(s) 3912 of 2019 @ SLP( C) No. 25468/2016.  

10.       We have also  heard Mr. Sachin Jaiswal, learned advocate for the respondent. If we go through  the judgment  delivered by the  learned Additional District Consumer Commission, Nagpur, the learned Additional District Consumer Commission, Nagpur has given findings  that  there was delay in lodging  FIR which came to be lodged on 01/07/2009 after delay of 18 days but we have already discussed  earlier  that  the complainant  has  given adequate  explanation  for this delay and so the findings  given by the  learned Additional District Consumer Commission, Nagpur on this aspect  cannot be  sustained. Similarly the appellant /complainant  has led adequate material  on record and  also supplied  the necessary documents  to the Insurance Company. As such  we are compelled  to hold  that  the findings and order passed by the learned Additional District Consumer Commission, Nagpur cannot  be sustained and  will have to be set aside. As such we are here by partly allowed the appeal and proceed to pass the following order.

ORDER

i.          Appeal is hereby partly allowed

ii.          Impugned order dated 19/07/2017 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/12/611 is hereby set aside and  Complaint is  hereby partly allowed.

iii.         It is hereby declared that  the respondent /O.P. was committed deficiency  in service.

iv.        The respondent /O.P. is hereby directed to pay sum of Rs. 10,40,000/- to the appellant /complainant  along with interest at the rate of 12% p.a.

v.         The respondent /O.P. is further directed to pay sum of Rs. 25,000/- towards mental and physical harassment and Rs. 15,000/- towards cost of litigation to  the appellant/ complainant. .

vi.        Copy of order be furnished  to both the parties, free of cost.