Sri Subhra Sankar Bhatta, Judicial Member
The instant appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the Appellant/ The General Manager Cholamandalam Ms. General Insurance Co. Ltd. who was the sole Opposite Party before the District Consumer Disputes Redressal Forum, Paschim Medinipur (hereinafter referred to as the “District Commission” for short) assailing the impugned judgment and order dated 19.12.2019 passed by the Ld. District Commission in connection with Consumer Complaint Case no. CC/71/2018 whereby the Ld. District Commission was pleased to allow the complaint case with the following directions:
“ORDERED
That the complaint case no. CC/71/2018 be and the same is allowed on contest against the OP with a litigation cost of Rs. 5,000/-. The OP is directed to pay Rs. 6,01,425/-+20,000/-+5,000/- i.e. Rs.6,26,425/- in total by A/C payee cheque in the name of the Complainant Sk. Parvez Kibria within one month from this day failing which the said amount shall carry interest @ 9% p.a. from the date of filing of the case i.e. on and from 28.6.2018 till realisation and shall also deposit a sum of Rs. 10,000/- in the Savings Bank A/C of State Consumer Welfare Fund, West Bengal towards penalty for the benefit of deprived consumers at large.
The Complainant will be at liberty to realise the entire amount by putting this order into execution in accordance with law.
Let the original documents, if any, and the extra sets, if any, be returned to the parties on proper receipt and identification.
Let a plain copy of this order be supplied to the parties free of costs on proper acknowledgment or be sent by speed post, if not collected by the parties within 10 days from the date of order.”
Briefly stated, the facts of the complaint case are that the Complainant viz. Sk. Parvez Kebria was the registered owner of a vehicle bearing Registration no. WB-26R/4041(Chevrolet) and the said vehicle was covered under a valid insurance policy with the OP/Insurance Company. The said vehicle (Chevrolet Cruize) was stolen away by some unknown miscreants on 06.06.2016 and the Complainant duly diarised the said incident before the concerned Police Station by submitting written complaint. It is the specific version of the Complainant that he also informed the fact of such theft of the vehicle before the Superintendent of Police, District Paschim Medinipur on 09.06.2016. It has been also contended that the Complainant also lodged a complaint case before the Court of Ld. Chief Judicial Magistrate, Paschim Medinipur over the incident on 13.06.2016 being MP case no. 369 of 2016 under Section 156(3) of the Cr.P.C. Subsequently, the said complaint was treated as FIR being FIR no. 255 of 2016 on 29.06.2016 by the Police Authority of Khargapur Town Police Station under Section 379 of the Indian Penal Code vide Khargapur (T), PS case no. 428/16 dated 06.08.2016 vide GR case no. 2689/2016. The Police Authority submitted final report after the completion of investigation on 31.01.2017 vide Khargapur (Local), P.S FRT no. 11/17 dated 31.01.2017 under Section 379 of the IPC and the Ld. Chief Judicial Magistrate, Paschim Medinipur accepted the said final report on 28.03.2017. It has been also contended that the Complainant duly informed the fact of theft of the vehicle in question before the Registering Authority, Transport Department, Paschim Medinipur on 15.07.2016.
Further case of the Complainant is that they made correspondences with the Respondent/Insurance Company and submitted necessary papers regarding the theft of the vehicle in question. The Respondent/Insurance Company made some queries to the Complainant and the Complainant replied to the said questionnaires by sending letter on 30.09.2016 and 22.11.2016 respectively. Subsequently, the OP/Insurance Company made written correspondences with the Complainant on 19.04.2016. It has been alleged that despite receiving relevant papers in connection with the theft in question the Insurance Company did nothing. It has been candidly contended that the Complainant submitted required documents before the Respondent/Insurance Company but till date they did not settle the claim of the Complainant. Under the circumstances the Complainant issued demand notice to the Respondent Authority but the OP/Insurance Company did not settle the claim. According to the Complainant the cause of action for the present case arose within the jurisdiction of the District Consumer Disputes Redressal Forum. The Complainant prayed for relief/reliefs as detailed in the petition of complaint. In the petition of complaint the Complainant also detailed regarding the insured vehicle in the schedule.
OP/Insurance Company/Appellant herein contested the complaint case by filing written version wherein the OP/Insurance Company denied all the materials allegations as levelled in the body of the complaint. The OP/Insurance Company contended that the complaint case is not maintainable in its present form and prayer: that the complainant failed to bring cogent document to establish deficiency in service as envisaged under Section 2(1)(g) of the Consumer Protection Act, 1986. Specific defence is that pursuant to the terms and conditions of the policy the Complainant is not entitled to get any claim under the policy in question. It has been alleged that as per condition no. 1 of the policy the notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim. It has been also contended that in case of theft or criminal act which may be the subject of a claim under this policy the Insured shall give immediate notice to the police and cooperate with the Insurance Company in securing the conviction of the offender. It has been also alleged that the intimation of theft was given to the OP at a belated stage i.e. 23 days after the occurrence of the incident and the FIR was lodged at a belated stage. It is the categorical version of the OP/Insurance Company that notice was given to the Complainant seeking explanation and clarification for such delayed intimation and thereafter the OP repudiated the claim of the Complainant vide letter dated 04.11.2016. According to the defence there is no deficiency in service on their part. The OP/Insurance Company prayed for dismissal of the complaint case with costs.
After considering the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record Ld. Commission below was pleased to allow the complaint case on contest with costs against the OP/Insurance Company.
Feeling aggrieved and dissatisfied with the above judgment and order of the District Commission the OP viz. the General Manager, Cholamandalam Ms. General Insurance Company Limited as Appellant has preferred the present appeal on various grounds as canvassed in the memorandum of appeal. It has been contended that the Ld. District Commission passed the impugned order basing upon misconception of fact and law and thus liable to be set aside; that the Ld. District Commission failed to appreciate the relevant facts and circumstances in its proper perspective; that the Ld. Commission below failed to appreciate the terms and conditions of the Insurance Policy executed by and between the Appellant and Respondent/Complainant; that the Ld. Commission below failed to appreciate that the Respondent/Complainant did not report the incident of theft to the Insurance Company as well as to the local police station immediately after happening of the alleged incident and thus violated the terms and conditions of the existing policy; that the Ld. Commission below failed to consider that the incident of theft occurred on 06.06.2017 but the Complainant raised the claim due to such theft after 23 days i.e. on 29.06.2020 to the Insurance Company; that the Ld. Commission below failed to observe that the Complainant/Respondent reported the incident of theft to the police station after 23 days of happening the alleged incident; that the Ld. District Commission ought to have dismissed the complaint case on the ground of devoid of any merit. On all such grounds the Appellant/Insurance Company has prayed for allowing the present appeal after setting aside the impugned judgment and order.
POINTS FOR DETERMINATION:
I) Whether the Ld. Commission below was justified in passing impugned judgment and order
ii) Whether the Ld. Commission below has committed any irregularity or illegality in passing the impugned judgment and order.
iii) Whether the impugned judgment and order deserve interference of this Appellate Commission.
iv) Whether the impugned judgment and order can be sustained in the eye of law.
DECISIONS WITH REASONS
Ld. Counsel appearing for the Appellant/Insurance Company has advanced a marathon argument on the point of delayed intimation of the alleged incident to the Insurance Company. Drawing our attention to the terms and conditions of the Insurance policy Ld. Counsel has vehemently argued that the Respondent/Complainant was required to inform the Appellant/Insurance Company about the incident of theft of the vehicle in question immediately and since the Respondent/Complainant did not intimate the incident of theft in writing to the Insurance Company and consequently violated the terms and conditions of the policy. Resultantly, the Insurance Company was deprived of his right to investigate the matter independently after the alleged theft. The Ld. Counsel for the Appellant/Insurance Company has also urged that delay in giving the intimation is very much fatal and repudiation of the claim on such score was very justified pursuant to the terms and conditions of the policy. Drawing my attention to condition no. 1 of the policy in question Ld. Counsel has strenuously argued that the Respondent/Complainant had breached the condition no. 1 of the policy and as such the Respondent/Complainant is not entitled to get any relief as sought for. It has been also argued that the Respondent/Complainant intimated the incident of theft to the Appellant/Insurance Company at a belated stage of 23 days from the date of happening the incident. Moreover, FIR was lodged at a belated stage from the date of occurrence of such theft. It has been further argued that the Appellant/Insurance Company sent notice to the Respondent/Complainant after 15 days from the date of incident seeking explanation and clarification for such delayed intimation and thereafter the Appellant/Insurance Company was compelled to repudiate the claim of the Respondent/Complainant vide their letter dated 04.11.2016. According to the Ld. Counsel the issuance of insurance policy is a matter of contract between the parties and each party is bound by the terms and conditions of the contract. It has been also argued that there was no deficiency in service on the part of the Appellant/Insurance Company. Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned judgment and order passed by the District Commission, Paschim Medinipur.
Ld. Counsel for the Appellant/Insurance Company has cited the following decisions in support of the above submission:
i) United India Insurance Company Limited—vs.—Harchand Raichandan Lal Appeal (Civil) 6277 of 2004 passed by Hon’ble Apex Court on 24.09.2004.
ii) First Appeal no. 321 of 2005 New India Assurance Company Limited....Appellant—versus—Trilochan Jane….Respondent passed by the Hon’ble National Commission on 09.12.2009.
iii) First Appeal no. 1060 of 2016 Ms. Mahavir Prasad Gupta and Sons—versus—Oriental Insurance Company Limited and Anrs. passed by the Hon’ble National Commission on 19.01.2017.
iv) Revision Petition no. 2765 of 2015 Bajaj Allianz General Insurance Company Limited, New Delhi—versus—Astha Cement Private Limited decided on 18.08.2020 by the Hon’ble National Commission.
On the other hand Ld. Counsel appearing for the Respondent/ Complainant has highlighted much that he was the registered owner of vehicle No. WB26R4041 and the said vehicle was duly insured with the Appellant/Insurance Company under policy no. 3362/00880534/000/02. The said vehicle was stolen by the unknown miscreants on 06.06.2016 i.e. within the coverage period. The Complainant diarised the incident of theft before the concerned police station in writing and also informed the Superintent of Police, Paschim Medinipur on 09.06.2016. It has been alleged that despite receipt of such complaint from the Respondent/Complainant the Police Authority did not take any step and as such the Respondent/Complainant was compelled to file a complaint under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Paschim Medinipur on 13.06.2016. Ultimately, a criminal case was initiated being P.S. Case No. 255/2016 on 29.06.2016 under Section 379 of the Indian Penal Code. Police started investigation and on completion of the same submitted FRT. It has been candidly submitted that the Respondent/Complainant intimated the incident to the Appellant/insurance Company through their Toll Free Customer care No. and the same was registered as Claim No. 3362298345. It has been also submitted that the Respondent/Complainant made a written complaint before the Appellant/Insurance Company on 19.09.2016. According to the Ld. Counsel, case of theft of the vehicle on that relevant date and time is genuine one. Mere delay in intimating the incident of theft to the Appellant/Insurance Company cannot be a good ground to repudiate the claim of the Insured. Ld. Counsel has prayed for outright dismissal of the appeal with costs. In support of the above contention Ld. Counsel has cited the following decisions reported in:
i) (2020)11 Supreme Court Cases 612: GURSHINDER SINGH -Versus- SHRIRAM GENERAL INSURANCE COMPANY LIMITED AND ANOTHER
We have meticulously considered the submissions of the respective Ld. Counsels for the respective parties to the appeal and also perused the materials available on record carefully. We have also gone through the citation of the Hon`ble Apex Court on the point of delayed intimation.
Now, the prime question that arises for consideration as to whether the delayed intimation is fatal or not for the settlement of claim of the Respondent/Complainant.
Admittedly, the Respondent/Complainant is the owner of the vehicle in question (WB26R 4041) and the said vehicle was duly insured with the Appellant/Insurance Company under policy no. 3362/00880534/000/02. The theft of the vehicle in question is also an admitted fact which actually occurred on 6th June, 2016 i.e. well within the coverage period. It is the specific of the case of Respondent/Complainant that he informed the incident of theft to Khargapur (T) Police Station but they did not pay any heed to it. Subsequently, the Respondent/Complainant made a written complaint before the Inspector In-Charge of that police station and also to the Superintendent of Police, Paschim Medinipur on 9th June, 2016 by registered post. Despite receipt of such complaint from the Respondent/Complainant the Police Authority did not take any step and as such the Respondent/Complainant was compelled to lodge a complaint petition under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Paschim Medinipur on 13.06.2016. Basing upon such FIR Police authority initiated PS Case No. 255/2016 on 29.06.2016 under Section 379 of the Indian Penal Code. On completion of investigation Police submitted FRT. It is the clear case of the Respondent/Complainant that he immediately informed the matter to the Appellant/Insurance Company through their Toll Free Customer Care No. and a claim was registered being claim No.362298345. The Respondent/Complainant also made a complaint before the Appellant/insurance Company on 19th September, 2016. It has been categorically alleged on behalf of the Appellant/Insurance Company that the incident of theft of the vehicle in question was occurred on 06.06.2016 but the Respondent/Complainant raised the theft claim at a belated stage i.e. on 29.06.2020 to the Insurance Company. Such long delay of 23 days in intimating the incident to the Insurance Company is certainly fatal and speaks a lot about the genuineness of the incident. The Appellant/Insurance Company repudiated the claim of the Respondent/Complainant on the very ground of delayed intimation. According to the Appellant/Insurance Company the Respondent/ Complainant has violated the condition No. 1 of the Insurance Policy. Let us see the condition No. 1 of the Insurance Policy:
Condition No. 1
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and /or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender”.
The letter dated 19th September, 2016 goes to prove that the Appellant/Insurance Company repudiated the claim of the Respondent/Complainant on the ground of delayed intimation. Ld. Counsel for the Appellant/Insurance Company has highlighted much on the point of such delayed intimation. It has been submitted that the delay in intimating the incident of theft of the vehicle in question is very much important and fatal and repudiation of the Respondent`s/Complainant`s claim on such score was very much justified and legal as per terms and conditions of the policy. On the other hand Ld. Counsel appearing for the Respondent/Complainant has argued that there is no question of delay in intimating the incident to the Appellant/Insurance Company and as such repudiation of the claim from the end of the Appellant/Insurance Company is not at all justified, proper and legal. On this aspect Ld. Counsel for the Respondent/Complainant has relied upon a remarkable decision reported in Gurshinder Singh –VS- Shriram General Insurance Co. Ltd., & another wherein the Hon`ble Supreme Court of India discussed elaborately and eloquently the orders pronounced in OM PRAKASH VERSUS RELIANCE GENERAL INSURANCE & ANOTHER (Civil Appeal No. 15611/2017, decided on 04/10/2017) and ORIENTAL INSURANCE COMPANY LIMITED –VS- PERVESH CHANDER CHADHA ( Civil Appeal No. 6739/2010 decided on 17.08.2010). The condition which falls for consideration in the present appeal is identical with the condition that arose for consideration in both the cases namely OM PRAKASH (supra) and PERVESH CHANDER CHADHA (supra). In PERVESH CHANDER CHADHA (supra) it was observed that no explanation for unusual delay in informing the Insurer was given by the Complainant. In terms of the policy issued by the Insurer, the Respondent/Complainant was duty bound and under the obligation to inform about the incident of theft of the vehicle in question immediately after the incident. On account of delay in intimating the Insurer was deprived of its legitimate right to get an enquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same.
Per contra, in the case of Om Prakash (supra) it was observed that the word “immediately” cannot be construed narrowly so as to deprive the Complainant the benefit of the settlement of genuine claim, particularly when the delay was explained it was further held that the rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of the policy holders in the insurance industries. If the reasons for delay in making a claim are satisfactorily explained, such a claim cannot be rejected on the ground of delay. The condition regarding the delay shall not be the shelter to repudiate the insurance claims which have been otherwise proved to be genuine. Moreover, the Apex Court was also pleased to observe that the Consumer Protection Act aims at providing better protection of the interest of the consumers. It is a beneficial legislation that deserves a liberal construction. Finally the Bench of three Judges of the Hon’ble Apex Court concurred with the view taken in the case of Om Prakash (supra) and held that mere delay in intimating the insurance company about the theft of vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine. It should also be the bounden duty of the Commission to look into the main object of the preamble of the Consumer Protection Act which cannot be and should not be frustrated by any means. It is to be borne in mind that there is no straight jacket formula to explain the word “immediately”. The Appellant/Insurance Company has categorically contended in the memorandum of appeal at page 3 Paragraph no. 6 to the effect that “the incident of theft occurred on 06.06.2017 but the Complainant/Respondent reported the same to the local police station on 29.06.2020 i.e. 23 days after the incident of theft”.
Admittedly, the vehicle in question was stolen on 06.06.2016 at 7 P.M near Kalaikunda Bridge. It is the specific case of the Respondent/Complainant that he immediately informed the incident of theft to the Kharagpur (T) Police Station but the Police Authority did not pay any heed to it. Thereafter, the Complainant/Respondent submitted a written complaint before the Inspector-in-Charge of Kharagpur (T) Police Station and also to the Superintendent of Police, Paschim Medinipur on 09.06.2016. It is also the case of the Respondent/Complainant that finding no other alternative he also filed a complaint under Section 156(3) Cr.P.C. before the Ld. Chief Judicial Magistrate, Paschim Medinipur on 13.06.2016 and the Ld. Chief Judicial Magistrate of Paschim Medinipur was pleased to direct the Inspector-in-Charge of Kharagpur (T) Police Station to treat the said complaint as FIR. Accordingly, the Police Authority registered and started Kharagpur (T) Case no. 255/2016 on 29.06.2016 under Section 379 of the Indian Penal Code. On completion of the investigation Police Authority submitted final report on 31.07.2017. Thus, it can be safely concluded that such delayed intimation of 23 days in intimating the incident of theft cannot be and should not be stand as a bar in order to obtain the claim by the Respondent/Complainant. In our considered view such delay of 23 days is negligible one in lodging the complaint before the Police Station and also intimating the incident to the Insurance Company. Such aspect is quite natural for a prudent man who was engaged in tracing out the vehicle in question during the relevant period. Such delayed intimation cannot be sheltered to repudiate the insurance claim of the Respondent/Complainant. In our considered view the Appellant/Insurance Company was not at all justified in repudiating the claim of the Respondent/Complainant on the ground of such negligible delay.
During the course of hearing Ld. Counsel appearing for the Appellant/Insurance Company has vehemently argued that the vehicle in question was under the hypothecation of Indusind Bank. According to the Ld. Counsel the concerned Bank is the actual owner of the vehicle in question and the Respondent/Complainant is a mere custodian. It has been canvassed much that suppressing all these aspects and without impleading the concerned Bank in the complaint case the Respondent/Complainant instituted the case and as such the complaint case of the Respondent/Complainant is liable to be dismissed in limini on the ground of non-joinder of necessary party.
Undisputedly, the vehicle in question was duly insured with the Appellant/Insurance Company and the alleged incident took place during the subsistence of the coverage period. The Respondent/Complainant instituted the complaint case on 28.06.2018 before the DCDRC, Paschim Medinipur against the sole OP viz. the General Manager, Cholamandalam M/S General Insurance Company Limited. The Respondent/Appellant did not implead Indusind Bank as OP in the complaint petition. The Insurance policy was executed between the Respondent/Complainant and the Appellant/Insurance Company. Any claim relating to the insured vehicle shall lie before the Insurance Company and not before the Lonee Bank. So, the question of impleading the Lonee Bank as party to the complaint case does not arise at all. In this context we have no hesitation to hold that the argument as advanced by the Ld. Counsel for the Appellant/Insurance Company on the point of non-joinder of necessary party has no legs to stand upon and cannot be considered on any score.
With our utmost respect to the observations of the Hon’ble Apex Court we hold and firmly hold that it would not be just, wise, fair and reasonable to reject the genuine claim of the Respondent/Complainant which had already been verified and found to be correct by the Insurance Authority. It is to be borne in mind that the appointed investigator of the Appellant/Insurance Company submitted investigation report for the alleged theft on 04.07.2016. In the said report the investigator admitted the occurrence of theft on 06.06.2016 and also recommended the insurer to deal with the claim file as per terms and conditions of the insurance policy.
Considering all aspects from all angles and keeping in mind the observations of the Hon’ble Apex Court passed in Civil Appeal No. 653 of 2020 Gurshinder Singh—vs.—Shriram General Insurance Company we are compelled to conclude that there is no error, irregularity and illegality in the impugned judgment and order passed by the Ld. District Commission, Paschim Medinipur, in Consumer Complaint Case No. CC/71/2018.
Resultantly, the impugned Judgment and order do not deserve interference of the Appellate Commission.
The impugned judgment and order require to be sustained.
All the points are thus answered in favour of the Respondent/Complainant and against the Appellant/Insurance Company.
It is, therefore,
O R D E R E D
That the present Appeal being no. A/169/2020 be and the same is dismissed on contest against the Respondent/Complainant but considering the circumstances without any order as to costs.
The impugned judgment and order dated 19.12.2019 passed by the Ld. DCDRC, Paschim Medinipur in Consumer Complaint Case no. CC/71/2018 are hereby affirmed.
Thus, the Appeal stands disposed of.
Let a copy of this judgment be transmitted to the concerned District Commission forthwith for information and taking necessary action.
Note accordingly.
