(Delivered on 05/05/2022)
PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.`
1. Appellant M/s. Green Ponds through H.R. Manager, Shri Deepak Baliranji Rahate has preferred the present appeal under Section 15 of the Consumer Protection Act, 1986 feeling dissatisfied by the impugned judgment and order dated 11/10/2017 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/13/574, 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/appellant – M/s. Green Ponds is a partnership firm and had purchased one Mahindra Bolero vehicle on 19/01/2009 from Provincial Automobile Company Pvt. Ltd., Nagpur and for the same had taken finance from Cholamandalam D.B.S. Finance Ltd. The vehicle purchased by the complainant was also duly registered with the Regional Transport Authority and was also duly insured with the O.P.-National Insurance Company for the period from 17/01/2010 to 16/01/2011. The complainant has alleged that in the month of May 2010 the vehicle of the complainant was plying at Pune along with driver- Mr. Raju Dhind. On 01/05/2010 after the work was over the vehicle was parked in front of Annapurna Apartment, near Rescon Industries, Yerandwna, Pune at 10.00 p.m. On the next date i.e. on 02/05/2010 it was found that the vehicle was stolen. The complainant then lodged the report with Kothrud Police Station on 05/05/2010, vide Crime No. 159/2010. The complainant has alleged that oral intimation was also given to the National Insurance Company. The complainant has further alleged that since the vehicle was not traced the complainant lodged the claim with the National Insurance Company- O.P. on 16/11/2010. The O.P. then gave reply on 07/12/2010 asking for explanation for the delay in lodging the claim. The complainant informed the O.P. – National Insurance Company that the delay was caused as the complainant was pursuing the matter with the Police but this explanation was not accepted by the O.P. and claim of the complainant came to be repudiated and same was communicated to the complainant on 11/08/2011 by letter. The complainant had already given the explanation for delay so was convinced that there was deficiency in service on the part of the O.P.- National Insurance Company by not accepting the claim of the complainant. The complainant therefore filed the Consumer Complaint against the O.P.- National Insurance Company under the Consumer Protection Act, 1986. However, the learned Additional District Consumer Commission, Nagpur, dismissed the complaint on the ground that there was huge delay in giving intimation to the O.P.- National Insurance Company. The learned Additional District Consumer Commission, Nagpur also came to the conclusion that there was breach of terms of contract of insurance and so the learned Additional District Consumer Commission, Nagpur dismissed the Consumer Complaint No. RBT/CC/13/574 by judgment and order dated 11/10/2017. Against this impugned judgment and order dated 11/10/2017 the appellant has come up in present appeal.
3. We have heard Mr. Khadakkar, learned advocate for the appellant and Mrs. Anita Mategaonkar, learned advocate for the respondent. We have carefully gone through the documents and papers placed on record by both the parties.
4. There is no serious dispute that the complainant had purchased Mahindra Bolero vehicle and same was duly insured with the respondent /O.P.-National Insurance Company and period of insurance was from 17/01/2010 to 16/01/2011. There is also no serious dispute that the vehicle of the complainant was stolen in the intervening night between 01/05/2010 and 02/05/2010 when it was parked at Yerandwna, Pune. It is also not in dispute that the complainant informed the theft of the vehicle to Kothrud Police Station on 05/05/2010 and offence was also registered vide Crime No. 159/2010. The complainant has contended in his complaint that after lodging the report the complainant was pursuing the matter with the Police Authority. The complainant had also approached the National Crime Record Diary and on 06/10/2011 he came to know that his vehicle Mahindra Bolero was not traceable at all and so he lodged the claim with the O.P.- National Insurance Company on 16/11/2010. At this stage it would be pertinent to deal with the documents placed on record by the appellant /complainant. The appellant /complainant has placed on record the copy of First Information Report (FIR) which shows that the report was lodged with Kothrud Police Station on 05/05/2010 vide Crime No. 159/2010. The complainant has also filed on record one copy of claim as well as copy of repudiation letter regarding the Repudiation of his claim by the respondent /O.P. National Insurance Company. If we go through the repudiation letter dated 16/11/2011, the respondent /O.P. National Insurance Company has repudiated the claim of the appellant /complainant on the ground that there was delay of six months in lodging the claim. On this aspect we have heard Mr. Khadakkar, learned advocate for the appellant. The learned advocate for the appellant has submitted that the delay had taken placed in lodging the claim only because the complainant was seriously pursuing the theft of his vehicle but has contended that the theft had taken placed during the period when the vehicle was insured namely from 17/01/2010 to 16/01/2011. It was submitted on behalf of the learned advocate for the appellant, in case of theft of vehicle the issue of breach of policy condition was not at all germane. On this aspect Mr. Khadakkar, learned advocate for the appellant has heavily relied upon several judgments delivered by the Hon’ble Supreme Court as well as Hon’ble National Consumer Commission. On the other hand Mrs. Anita Mategaonkar, learned advocate for the respondent has strenuously submitted before us that it was mandatory for the complainant /policyholder to give due intimation to the insurance company immediately and delay in giving intimation amounts to breach of policy condition. However, first we would like to dealt with the judgments on which reliance has been placed by Mr. Khadakkar, the learned advocate for the appellant. In the case of the National Insurance Company Vs. Nitin Khandelwal, judgment delivered on 08/05/2008 in Appeal (Civil) 3409 of 2008 by the Hon’ble Supreme Court of India, it has been observed in para 13 of the judgment that in case theft of vehicle beach of condition is not germane and also 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. It is further observed that even assuming that there was a breach of condition of the insurance policy the insurance company ought to have settled the claim on non standard basis and insurance company cannot repudiate the claim in toto in the case of loss of vehicle due to theft.
5. Appellant has also relied upon one judgment of Hon’ble State Consumer Commission, Chattisgarh in the case of Iffco Tokio General Insurance Company Limited Vs Shri Kheer Sagar Patel, delivered on 26/05/2014 in Appeal No. FA/13/372. In this case also the Hon’ble State Consumer Commission was dealing with the theft of vehicle and the Hon’ble State Consumer Commission has also placed reliance upon the judgment in the case of National Insurance Company Vs. Nitin Khandelwal (cited supra). The appellant has further placed reliance upon one more judgment of the Hon’ble Supreme Court of India in the case of Om Prakash Vs. Reliance General Insurance and Anr. delivered by the Hon’ble Supreme Court of India on 04/10/2017 in Civil Appeal No. 15611 of 2017, in this case also the insurance company has rejected the claim on the ground of delay of 8 days in giving intimation to the respondent. It was observed by the Hon’ble Supreme Court of India that it was necessary for the Insurance Company to verify the cause of delay before rejecting the claim of the policy holder. Further, the learned advocate for the appellant has also relied upon some judgments delivered by the Hon’ble State Commission.
6. In the light of the aforesaid judgments, it is submitted by Mr. Khadakkar, learned advocate for the appellant that the respondent – National Insurance Company ought not to have rejected the claim of the complainant /appellant without verifying the reasons and cause for delay of six months. On the other hand, Mrs. Anita Mategaonkar, learned advocate for the respondent has submitted before us that the terms and of the insurance contract have to be construed strictly. No doubt in the present case before us the facts on record show that the theft had taken place on 01/05/2010 and 02/05/2010 at Pune and report was also lodged to the Police Station, Kothrud on 05/05/2010 but the claim was lodged on 16/11/2010. The complainant /appellant has specifically pleaded in para No. 5 of the complaint that he had also given oral intimation regarding theft of his vehicle to Pune office of National Insurance Company and thereafter the complainant was pursuing the matter with the Police Authorities and was making attempts to recover the stolen vehicle but if we go through the copy of repudiation letter issued by the respondent/O.P. National Insurance Company, the respondent–National Insurance Company has summarily rejected the claim of the complainant on the ground that there was breach of policy condition No. 1 which speaks that immediate notice should be given to the company.
7. During the course of argument Mr. Khadakkar, learned advocate for the appellant has also placed reliance upon one more judgment of the Hon’ble Supreme Court of India in the case of Gurshinder Singh Vs. Sriram General Insurance Co. Ltd. delivered on 24/01/2020 in Civil Appeal No. 653/2015 wherein it has been observed in para No. 20 that when an insured has lodged the FIR immediately after the theft of a vehicle and the police after investigation has lodged a final report , 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.
8. In the light of the observations made in the various judgments of the Hon’ble Supreme Court of India as well as Hon’ble National Commission of India, we are of the view that it was not open to the respondent – National Insurance Company to reject the claim of the complainant summarily on the ground of delay in lodging the claim, particularly when it was the case of theft of vehicle and theft had taken placed during the period of insurance policy. We are therefore of the view that the learned Additional District Consumer Commission, Nagpur had not appreciated this aspect in proper perspective and has thereby rejected the complaint and so the order passed by the learned Additional District Consumer Commission, Nagpur dated 11/10/2017 will have to be set aside and complaint will have to be remanded back to the learned Additional District Consumer Commission, Nagpur for deciding the same afresh as per law. As such we hereby allowed the appeal and proceed to pass the following order,
ORDER
i. Appeal is hereby partly allowed
ii. Impugned order dated 11/10/2017 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. RBT/CC/13/574 is hereby set aside. Complaint is remanded back to the learned Additional District Consumer Commission, Nagpur for decision afresh in accordance with law.
iii In these circumstances both parties shall bear their own costs.
vi. Copy of order be furnished to both the parties, free of cost.
