DHARAM SINGH vs NEW INDIA ASSURANCE CO. LTD.

THROUGH this complaint filed under Section 12 read with Section 17 of the Consumer Protection Act, 1986 the complainant has sought direction to the respondent Insurance Company to pay Rs. 2,50,000/- along with interest @ 18% towards the sum assured under the policy in respect of a truck which was allegedly hijacked along with its driver besides compensation of Rs. 2,41,167/- on account of loss of income at Rs. 5,000/- per month and the cost of Rs. 20,000/-.

PUT briefly the facts leading to this complaint are as under: Complainant No. 1 purchased a truck No. DIL 2223 in August, 1986 with the financial assistance of complainant No. 2. Complainant No. 2 obtained commercial vehicle motor policy in respect of aforesaid truck for the period from 29.8.1990 to 28.8.1991 and sum assured under the policy was Rs. 2,50,000/-. The policy was subject to hire purchase endorsement in favour of complainant No. 2. On 17.5.1991 the truck was given to Sh. Jasbir Singh as its driver in Ludhiana. Incidentally Shri Jasbir Singh happened to the real brother of complainant No. 1. It is alleged that on that date the truck along with the driver was hijacked by some unknown persons and till date neither is there trace of the driver nor of the truck. Complainant No. 1 lodged report for the incident at Ludhiana on 15.7.1991 as he continued making hectic search about his brother and the truck for nearly two months and when there was not trace of the truck and the driver he lodged the report with the police. Complainant No. 2 by its communication dated 6.11.1991 forwarded to the O.P. his claim, intimation about the theft, date of hijack of the vehicle and copy of FIR. On receiving no response from the respondent the complainant sent reminders dated 5.8.1991, 12.9.1991. Vide its letter dated 6.11.1991 complainant No. 2 forwarded to the O.P. copy of final investigation report to the effect that neither the vehicle nor the driver was traceable. Inspite of this the O.P. did not take any action and as a result the complainant approached the Regional Office of the O.P. Still there was no response from the Regional Office. Complainant No. 2 wrote series of letters to the O.P. reminding it about the long outstanding total loss claim followed by legal notice dated 3.6.1994 but to no effect. Hence this complaint.

Preliminary objection raised by the O.P. is that the complaint is time barred as the incident is alleged to have taken place on 17.5.1991 whereas the complainant was filed on 12.10.1994. Main resistance by the O.P. against the claim of the complaint is that the insurance policy covers the risk of ''theft'' only and not of ''hijacking'' and so much so that the complainant failed to intimate about the loss which is alleged to have taken place on 15.7.1991 till 12.7.1993. Further that on receiving the claim intimation the O.P. asked the complainant vide letter dated 21.7.1993 to furnish the relevant documents/information. However, since the intimation regarding alleged theft was not received by the O.P. for about two years after the alleged loss, the O.P. did not get opportunity to verify the incident and such inordinately delayed information or intimation by the complainant is violation and breach of the following terms of the policy which provides as under: "Notice shall be given in writing to the company immediately upon the occurrence of any accident or 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 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 fatal injury in respect of any occurrence which may give rise to a claim under this policy in case of theft or other criminal act which may be subject of claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."

The parties were called upon to file affidavit by way of evidence. The complainants filed and proved the following documents: 1. Copy of the policy. 2. Copy of the FIR dated 15.7.1991. 3. English translation of FIR dated 15.7.1991 4. Copy of communication dated 15.7.2001 from complainant No. 1 to complainant No. 2. 5. Copy of communication dated 18.7.1991 from complainant No. 2 to Insurance Company. 6. Copy of communication dated 14.7.1991 from complainant No. 1 to Station House Officer, Ludhiana. 7. Copy of claim form. 8. Copy of communication dated 5.8.1991 from complainant No. 2 to the insurer. 9. Copy of communication dated 12.9.1991 from complainant No. 2 to the insurer. 10. Copy of communication dated 6.11.1991 from complainant No. 1 to the insurer. 11. Copy of final investigation report dated 29.10.1991 in Gurmuki. 12. English translation of FIR dated 29.10.1991. 13. Copy of communication dated 3.2.1992 from complainant No. 2 to insurer. 14. Copy of communication dated 23.3.1992 from complainant No. 2 to the insurer. 15. Copy of final investigation report dated 14.3.1992 in Gurmukhi. 16. English translation of final investigation report dated 14.3.1992. 17. Copy of communication dated 11.6.1993 from complainant addressed to Mr. P.N. Bhargava, Manager Regional Office I of the insurer. 18. Copy of the communication dated 8.7.1993 from complainant No. 2 addressed to Shri P.N. Bhargava, manager of the insurer at Regional Office. 20. Copy of communication dated 8.7.1993 from complainant No. 2 addressed to Mr. P.N. Bhargava, Manager of the insurer at Regional Office. 21. Copy of communication dated 21.7.1993 from insurer to complainant No. 2. 22. Copy of communication dated 13.8.1993 from complainant No. 2 to the insurer. 23. Copy of communication dated 7.9.1993 from complainant No. 2 to insurer. 24. Copy of communication dated 18.11.1993 from complainant No. 2 to the insurer delivered in the office of the insurer on 19.11.1993. 25. Copy of communication dated 18.11.1993 from complainant No. 2 to the insurer delivered in the office on 23.11.1994. 26. Copy of communication dated 2.1.1994 from complainant No. 2 to the insurer. 27. Copy of notice dated 3.6.1994 addressed to the insurer. 28. Postal receipt.

IN support of its contention that the complaint is time barred the Counsel for the O.P. has placed reliance on Jaswant Nagar Cold Storage v. New INdia Assurance Co., 1998 (2) CPR 87. The ratio of this decision does not apply to the facts of the case in hand. IN the instant case large number of letters, reminders after reminders followed lastly by a legal notice on 3.6.1994 did not have any effect upon the O.P. Moreover they never repudiated the claim of the complainant on this score. Even otherwise, the limitation would start running from the date when legal notice was served whereas it was specifically mentioned that if the claim was not settled it would be presumed that the company has repudiated it. The O.P. company cannot take advantage of acts of its omission and commission. The National Commission has taken consistent view in Kanoria Chemicals and INdustries Ltd. v. National INsurance Co. Ltd., II (1995) CPJ 147 (NC)=1995 (2) Current Consumer Cases 970 (NS); Moti Lal Meghwal v. United INdia INsurance Co. Ltd., II (1995) CPJ 38 (NC)=1995 (2) Current Consumer Cases 918 (NS); and Dr. Rameshchandra Ramniklal Shah v. Lata Constructions, 1995 (2) Current Consumer Cases 797 (NS), that the limitation starts running from the date of repudiation of the claim and not from the date of alleged occurrence. As is apparent from the pleas raised by the O.P. resisting the claim of the complainant, the main plank is that it is a case of hijacking and since hijacking does not amount to theft, the complainant is not entitled to claim as per terms of the policy which does not include loss of the vehicle by way of hijacking through inordinate delay in lodging FIR with the police has been pleaded as violation and breach of the terms of the contract provided that in case of theft or any criminal act, the insurer shall give immediately notice to the Insurance Company upon the occurrence of any loss or damage.

SO far as the delay in lodging the FIR with the police is concerned, the same has been explained by the complainant inasmuch as that the driver of the truck happened to be his brother and, therefore, it was natural for him to trace him out from his own sources or through co-professionals and when his efforts to trace him as well as truck in question ended in vain he sought the help of the police by lodging the report. The said delay on the part of complainant in lodging the report and even failure of police to trace the truck as well as the driver itself fortifies the version of the complainant about the hijacking of the truck by some criminals or the miscreants. Even otherwise delay in lodging the FIR does not falsify the taking place of occurrence of theft or hijacking nor does it absolve the O.P. from its contractual liability, more so when the final result of investigation by the police shows the taking place of the said occurrence as it has failed to not only trace out the vehicle but also its driver. Thus delay in lodging the FIR or not informing the O.P. immediately is not such circumstance that takes away the right of the complainant in claiming the insured amount. In the instant case circumstances were peculiar in nature not mandatory. Complainant was not only concerned with the loss of his truck but also was suffering trauma and guilt for losing his brother and, therefore, it was natural for him to look for him first by making hectic efforts than straightaway rushing to the police. Requirement of informing the O.P. or police immediately after the occurrence is obligatory. Complainant considered it proper to and tracing his brother through known sources or the relatives or the other persons instead of immediately rushing to the police station. Thus element of delay in informing the O.P. is of no significance. Now comes the main and crucial question that is whether hijacking of the vehicle along with driver amounts to theft or not. From the common sense point as well as the legal point of view hijacking necessarily includes theft while the converse may not be. Theft is the genesis of every other act viz. robbery, decoity and hijacking. Word ''hijacking'' is ''illegally seizing control of a vehicle while in transit''. "Theft" as per dictionary meaning is an action or crime of stealing whereas, for our purpose penal meaning as defined in Section 378 of I.P.C. is like this: "Section 390, I.P.C. Theft becomes robbery when a person while taking away property causes or attempts to cause to any person death or hurt. In all robbery, there is either theft or extortion. Robbery becomes decoity. (Section 391, I.P.C.) when five or more persons conjointly commit or attempt to commit robbery. On the same analogy theft becomes ''hijacking'' whenever there is illegally seizing control of a vehicle while in transit."

Thus all these actions or crimes have ''theft'' as an essential and generic element or ingredient and, therefore, to say that hijacking not amount to theft logic chopping.

FOR insurance purposes, the consumer is concerned with the loss of the vehicle and the provider of service is not supposed to indulge in hair splitting as to what is the meaning of the word hijacking or theft and repudiate the rightful claim of the claimant. It is the ultimate result that is relevant whether the vehicle has been lost or damaged and in either eventuality insured is entitled to claim as per terms of the policy. Once it was brought to their notice that not only the vehicle has been hijacked but the driver has also been kidnapped along with vehicle it did not entitle the O.P. to repudiate the claim by taking the plea that the claim is awardable only in case of theft and not in other cases.

WE have failed to persuade ourselves to agree with such a perception which has been intentionally glossed over with the sole intention to repudiate the rightful claim and not on the factual matrix. WE fail to understand that O.P. was so novice that it did not understand the import of word ''loss'' in context of insurance of vehicle whether it was by way of theft or by way of hijacking was immaterial. Word ''loss'' has no two interpretations or meanings. Once the vehicle is lost and the Insurance Company has no mechanism to either trace it or to nail the lie or falsehood perpetrated by the claimant it any has no option than to accept the claim. As a last refuge Counsel for the O.P. has contended that till date, the O.P. has not received any letter in the form of claim preferred by the complainant and, therefore, the question of repudiating the claim does not arise. The complainant claims to have sent large number of letters between 18.7.1991 to 23.3.1992 in respect of his claim. We don''t understand what for he sent so many communications, if not for claiming the insurance amount for which he had paid the premium. We find it difficult to accept such a contention as no person or claimant would go on sending letter after letter to a party by obtaining fake postal certificates and retain the original letters with him. Any person placed in the position as the complainant would not indulge in such a practice as by doing this he would harm own interests and get the claim repudiated. Be that as it may, even if we agree with the O.P. that it received for the first time a claim letter dated 12.7.1993 still it was incumbent upon the O.P. to consider the same and allow it after verifying the facts but it did not do so and its inaction and indifferent attitude amounts to grossest kind of deficiency in service as the aforesaid complainant approached this Commission in the year 1994 after large number of letters/requests sent by the complainant fell on deaf ears. Such cavalier and callous attitude of a provider of service is highly reprehensible and undesirable.

In view of the aforesaid reasons we allow the complaint and direct the O.P. to pay Rs. 2,50,000/-, the insured amount as it is a case of total loss as his claim was wrongly and unlawfully repudiated by the O.P. and award interest @ 12% from 12.7.1993, the admitted date when the O.P. received letters from the complainant as to the claim filed by it though according to the complainant he had preferred the claim for the first time on 18.7.1991. The O.P. shall also pay Rs. 5,000/- towards cost of litigation and Rs. 25,000/- towards compensation for mental agony and harassment suffered by the complainant who was forced to approach this Commission.

A copy of this order, as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to record room. Complaint allowed.