The present appeal arises from the final judgment and order dated 24.01.2018 passed by the National Consumer Disputes Redressal Commission (for short “the National Commission”), New Delhi in Revision Petition No 3415 of 2016. c)
Also Read: https://newslaw.in/supreme-court/setting-aside-work-order-for-non-compliance-with-tender-clause/
In the letter of repudiation which referred to the statement of the driver Mam Chand, it was mentioned that Mam Chand alighted from the vehicle and went to enquire about Mittal’s Farm, after leaving the key of the said vehicle inside the key hole. party has totally failed to render sufficient services to the complainant.” xxx xxx xxx “a)
Direct the opposite party to pay the insured amount of the theft vehicle i.e Rs.
02.07.2008, informed, for the first time, that your above said Dumper No HR-55C-5385 had been stolen on 26.06.2008. It may please be noted.” g)
When the matter stood thus, the complaint CPA No 515 of 2009 came up before the District Forum on 22.11.2020 when the following statement appears to have been recorded of the advocate for the appellant, in CPA No 515 of 2009: “I, Surender Kumar Gulia, Advocate, state that I do not want to proceed with my case. In the complaint, the appellant prayed for a direction to the Insurance Company to pay the insured an amount of Rs.8,40,000 with interest @ 18% p.a. The plea of the complaint, being barred by limitation, was addressed by recording a finding that the delay, if any, was already condoned, by the Forum, by order dated 06.03.2012 under Section 24A of the Consumer Protection Act. No finding was recorded on the aspect of the bar in filing the present complaint after the order dated 22.11.2010 dismissing CPA No 515 of 2009 as withdrawn. It was contended that the intimation of the theft was given to the Insurance Company only on 02.07.2008 i.e., six days after the theft, therefore it was argued that Condition No.1 of the insurance policy was violated. Their point about the delay of six days in intimation was brushed aside by referring to the Circular Ref: IRDA/ HLTH/ MISC/ CIR/
216/ 09/ 2011 dated September 20, 2011 issued by Insurance Regulatory Development Authority (for short “IRDA”), which stated that even if there was a condition in the policy regarding delay in intimation, the insurer cannot take it’s shelter to repudiate the claim, which is otherwise proved to be genuine. The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. m)
The State Commission clearly recorded that, soon after the theft of the vehicle on 26.06.2008, the FIR was lodged on 27.06.2008 with the Police and the Insurance Company was informed.
Equally so, with regard to the argument on the breach of Condition No.1, it was recorded that there was an obligation of the claimant to give intimation in writing of the theft of the vehicle. 6) Para 6 of the order of the State Commission is extracted hereinbelow:- “Learned counsel for the Appellant-Insurance Company has assailed the order of the District Forum by raising two-fold arguments. In fact, the Complainant had alleged that the Insurance Company was lingering on with the issue and had complained of not rendering “sufficient service”; (ii) Secondly, pending that complaint, it was on 15.10.2009 that the repudiation letter was issued on purported breach of Condition Nos. (iv) Fourthly, in the complaint filed on 06.03.2012, the appellant avers that since the lawyer for the opposite party – Insurance Company was taking numerous dates for arguments, his counsel getting annoyed with the attitude of the advocate of the opposite party withdrew the above said case by mistake.
File be consigned to record room after due compliance.” It will be noticed that the National Commission was under the wrong impression that the original Complaint No 515 of 2009 was filed in respect of repudiation of the insurance claim and it proceeded on the erroneous premise that having challenged the repudiation in Complaint No 515, the withdrawal of the complaint unconditionally on 22.11.2010 was fatal to the appellant. The said complaint was withdrawn by the advocate of the complainant on the pretext of the case being prolonged by the advocate of the Insurance Company, without having express instructions for withdrawal of the said complaint. In support of this interpretation to Condition No.1 and to bolster her plea that the appellant-Claimant did not breach Condition No.1, learned counsel for the appellant relied on the recent judgment of this Court in Jaina Construction Company vs Oriental Insurance Company Limited and Another, [(2022) 4 SCC 527], wherein relying on and reiterating the judgment of a three- Judge Bench in Gurshinder Singh vs Shriram General Insurance Co. Parvesh Chander Chadha, [(2018) 9 SCC 798], on the question as to whether the delay occurred in informing the Insurance Company about the occurrence of the theft of the vehicle, though the FIR was registered immediately, would disentitle the claimant of the insurance claim, the matter was referred to a three-Judge Bench.
It further provides that a notice shall also be given in writing to the company immediately by the insured if he 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. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, 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.”
Also Read: https://newslaw.in/supreme-court/courts-analysis-in-disciplinary-case/
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 court concerned, 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.” It is contended by the appellant that breach of condition No.5, if any, cannot result in total repudiation of the claim. It is argued by him that, while in Nitin Khandelwal (supra) and in Amalendu Sahoo (supra) the cause of repudiation was not germane to the theft, in the present case, the cause was germane to the theft.
Swaran Singh and Others, [(2004) 3 SCC 297] and Lakhmi Chand vs Reliance General Insurance, [(2016) 3 SCC 100] ] 15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? Green, left the bus in that lay-by at the bus stop at about 2.35 p.m. Green had left the bus in the lay-by, would pick the bus up and drive the same route. vs Camden London Borough Council [1984] QB 342, the Court of Appeal held as under:- “In so far as the case is put on the basis that to leave the bus unlocked and with the key in the ignition on the Highway near a public house is to create a special risk in a special category, it is pertinent to refer to a passage in the judgment of Lord Justice Robert Goff (as he then was) in P.
It may be added that that there is no evidence that the malefactor had been frequenting the public house that is shown in the picture; we do not know who he was, nor is there any evidence or presumption that persons who do frequent that particular public house are particularly likely to steal vehicles and engage in joy-riding.” ( underlining is ours )
Case Title: ASHOK KUMAR Vs. NEW INDIA ASSURANCE CO. LTD. (2023 INSC 659)
Case Number: C.A. No.-004758-004758 / 2023
