CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD Vs MAHESH KUMAR & ANR

Counsel for the parties present. Arguments heard.

The truck belonging to Mahesh Kumar was stolen on 28-02-2010 in the area of Police Station Kanina. Satish Kumar, driver of the truck, informed the police and lodged the report on 05-03-2010. The information was given to the insurance company on 20-03-2010. The District Forum vide its order held as under: "The complainant has not explained the delay of five days in lodging the FIR in respect of robbery of his truck and also the delay of 20 days to intimate opposite party No.1 in respect of the said incident. Taking into account every aspect of the case and the latest case law on the delay of lodging the FIR and intimation to the insurance company, the complaint of the complainant fails and same is hereby dismissed with no order as to cost."

Aggrieved by that order the complainant filed an appeal before the State Commission. The State Commission accepted the appeal on the basis of IRDA Circular which is mentioned in Shriram General Insurance Co. Ltd. Vs. Rajesh Kumar, 2014 (2) CLT 390 . The State Commission awarded a sum of Rs.8,55,000/- with interest at the rate of 9% per annum. Rs.8,55,000/- is the IDV value.

We have heard the counsel for the parties. The counsel for the respondents has contended that the driver was lying unconscious for two days and there was some delay in lodging the FIR by five days. He opined that it is for the insurance company to prove that they were not aware of this incident because they had telephonically informed them. Lastly, he pleaded that at the most the respondent is entitled to non-standard compensation as per National Insurance Co. Ltd. Vs. Nitin Khandelwal, reported in 2008 (11) SCC 259 .

We are unable to locate substance in his arguments. It must be borne in mind that it is the complainant and nobody else who is to carry the ball in proving his case. There is no evidence on record that the driver was lying unconscious for two days. It is also surprising to note that even if these excuses are true, where were the owner and other persons connecting with the truck.

The State Commission passed an erroneous order. Perhaps they are not aware of the Supreme Court authority in the case of Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha, CA No.6739 of 2010 decided on 17-08-2010 wherein the Supreme Court came to the conclusion as under: "Admittedly the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle . It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle

his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy ."

Under these circumstances, the directions given by IRDA pales into insignificance.

Counsel for the petitioner submits that there is no evidence on the record that the OP was informed on 20-03-2010. He submits that the insurance company was immediately informed through telephone. We are unable to place any reliance on such like arguments. Such like stories can be created at any time. There should be some authentic record which must be filed before the Commission.

This view by the Apex Court was followed in various other authorities. The Bench headed by Hon''ble Mr. Justice Ashok Bhan in the case of New India Assurance Co. Ltd. Vs. Trilochan Jane, First Appeal No. 321 of 2005, decided on 9.12.2009 discussed the word ''immediately'' which means promptly within a day or two. The Bench also came to the conclusion that judgment of the Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Nitin Khandelwal (supra) is not applicable to such like cases.

We took the same view in Tata Motors Finance Ltd. Vs. Ramesh Kumar & Anr., R.P.No.781 of 2014 , decided on 27-10-2014 . The counsel for the complainant has also cited the case decided by this Commission in the case of Sohan Lal Arora Vs. Branch Manager & Anr. in R.P. No.523 of 2013 decided on 12-08-2013.

The view taken by the State Commission is absolutely wrong. We, therefore, set aside the order passed by the State Commission and restore the order of the District Forum.

The revision petition is allowed.