KAMALJIT KAUR vs UNITED INDIA INSURANCE CO. LTD

PRESENT revision petition has been filed by Petitioner/Complainant under Section 21 (b) of the Consumer Protection Act, 1986 (for short, ''Act '') for setting aside order dated 13.2.2013, passed by Punjab State Consumer Disputes Redressal Commission, Chandigarh (short, "State Commission).

ALONG with it, an application seeking condonation of delay of 28 days has also been filed. For the reasons mentioned in the application, the same is allowed. Delay condoned. Brief facts are that petitioner got insured her truck bearing registration No.HR -13GA -0164for Rs.2,00,000/ - with respondent/O.P., vide insurance policy which was effective from 7.4.2006 to 6.4.2007. It is further stated that the vehicle was stolen on 27.2.2007. A claim was lodged with the respondent. The surveyor so appointed by the petitioner also came to the conclusion that the theft was committed in respect of the truck. However, the claim was repudiated by the respondent on the ground, that the theft took place on account of the negligence of the driver of the petitioner and the claim was not lodged immediately after the theft. According to the petitioner, Sukhwinder Singh, who was driver of the truck, took the same to Faridabad and parked it near his house after locking the cabin thereof. Next day, he did not find the truck at that place and informed her about the theft thereof. She as well as the driver tried their best to trace out the truck and made enquiries but no clue was found. Ultimately, her son Baljinder Singh reported the matter to the police and FIR No.48 under section 379 IPC was registered in PS -SGM Nagar, Faridabad on 6.3.2007. She along with her claim submitted the requisite documents. Her claim was repudiated on false ground. Therefore, petitioner is entitled to the insurance claim of Rs.2,00,000/ - along with interest @ 12% p.a. with effect from 27.2.2007 and Rs.20,000/ - as compensation for unnecessary harassment caused to her by the respondent.

IN the written reply, respondent took the plea that the claim of the petitioner was repudiated after considering the facts, documents and due application of the mind. The driver of the petitioner did not take care to safeguard the truck, as he left the key in the truck itself which facilitated the commission of the theft. Shri B.R.Sharma was appointed as the investigator and recorded the statement of Sukhwinder Singh, driver who stated the said fact in that statement. There is no deficiency of service on its part and as such, petitioner is not entitled to any such insurance amount of compensation.

DISTRICT Consumer Disputes Redressal Forum, Ludhiana (for short, "District Forum ") vide order dated 27.02.2009, allowed the complaint and held; "We feel that repudiation of the claim of the complainant by the opposite party was not at all justified. Because the complainant or her driver had never infringed the terms and conditions of the policy. The driver was not negligent and irresponsible by keeping the ignition key inside the truck, nor he facilitated the theft nor he ever left ignition key inside the truck. Consequent, we set aside the repudiation letter Ex.R -2 dated 31.12.2007 of the opposite party and allow the complaint and direct the opposite party to settle the claim of the complainant within 30 days of the receipt of copy of the order in view of the insurance policy Ex.R.1. For thrusting this litigation they are also ordered to pay compensation of Rs.5,000/ - (Rupees five thousand only) and litigation cost of Rs.2,000/ - (Rupees two thousand only). "

Being aggrieved by the order of the District Forum, respondent filed an appeal before the State Commission which accepted the same, vide its impugned order.

HENCE , this revision petition.

WE have heard the learned counsel for the petitioner and gone through the record of the case. It has been contended by learned counsel for the petitioner, that the driver of the vehicle has never violated any condition of the policy nor facilitated the theft by keeping ignition key in the truck. Respondent did not prove the above charge and has not placed on record that the key was left in the truck. In support, learned counsel has relied upon following judgments ; (i) National Insurance Co.Ltd. Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC) and (ii) United India Insurance Co.Ltd. Vs. Harchand Rai Chandan Lal (Civil Appeal No.6277 of 2004, decided on 24.9.2004).

THE short question which arise for consideration is as to whether the driver of petitioner ''s truck had left the ignition key inside the truck or he had taken the same along with him. The best person to depose about this fact was Sukhwinder Singh, the driver of the petitioner. However, this driver was never examined by the petitioner before the District Forum, for reasons best known to her. Hence, adverse inference has to be drawn against the petitioner for withholding the best evidence. Be that as it may, petitioner has not placed on record the primary document, i.e., First Information Report lodged with the police so as to show as to what were the contents of the FIR. As per averments made in the complaint, petitioner ''s case itself is that the truck driver parked the said truck near his house. This shows the truck driver had taken the truck to his house and parked there and which is the report of surveyor of respondent - company also. The theft in this case took place on 27.2.2007, whereas FIR was got registered only on 6.3.2007. However, there is no explanation as to why there was delay of 8 days in lodging of the FIR.

STATE Commission in its order observed ; "6 ... ...The theft took place on 27.2.2007 whereas the FIR was lodged on 6.3.2007 and the claim was lodged after that date. While interpreting the word ''immediately '' it has been held by the Hon ''ble National Consumer Disputes Redressal Commission in First Appeal No.321 of 2005 decided on 9.12.2009 (NEW INDIA ASSURANCE COMPANY LTD. VS. TRILOCHAN JANE) that FIR must be lodged with the police and the claim must be lodged with the Insurance Company within 24 hours of the theft. The ratio of that judgment fully applies to the facts of the present case. Therefore, the complainant was not entitled to any such insurance amount and as there was no deficiency in service on the part of the OP, so it is not liable to pay any such compensation.

It is the case of the complainant herself that the theft of the truck took place on 27.2.2007 when it was in possession of her driver Sukhwinder Singh, who had taken it to his own place of residence. The complainant never examined that Sukhwinder Singh to disprove the averment of the OP that the key was left in the truck itself which facilitated the theft thereof. The investigator appointed by the OP recorded the statement of that Sukhwinder Singh, who stated in so many words that duplicate key of the truck was left in the truck itself. Keeping of the duplicate key of the truck cannot be said to be such an act of negligence on the part of the insured so as to hold that the terms and conditions of the insurance policy were violated. The position would have been different if the truck had not been locked by the driver. 8. There is force in the other argument raised by the counsel for the OP. It is an admitted fact that the theft of the truck took place on 27.2.2007 and the FIR was lodged on 6.3.2007. The claim with the OP was made after the lodging of the FIR itself. Thus, there was delay of more than 9 days in lodging the FIR and the claim with the OP. 9. Condition No.1 of the insurance policy reads as under : - "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 co -operate with the company in securing the conviction of the offender. "

Similar condition was there in the insurance policy, which was the subject -matter of the above referred case (Trilochan Jane ''s case) before the Hon ''ble National Commission. After interpreting the word "immediately ", it was held that in the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the complainant to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether theft had taken place and also to take immediate steps to get the vehicle traced. It was further held that the delay in reporting to the insurer about the theft for 9 days would be a violation of the condition of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and trace/help in tracing the vehicle. Similar interpretation was given by the Hon ''ble Supreme Court in "United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal " [JT 2004 (8) SC 8]. 11. The ratio of these judgments fully applies to the facts of the present case and it is to be held that the complainant committed breach of the condition of the insurance policy by not reporting the theft of the truck to the police and to the OP immediately. In that eventuality, the complainant was not entitled to any such amount claimed in the complaint and a wrong finding to that effect has been recorded by the District Forum. Such a finding is liable to be set aside. Accordingly, this appeal is accepted. The order of the District Forum dated 27.2.2009 is set aside. " 12. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Thus, the order passed by the District Forum is not sustainable. We find ourselves in full agreement with the above view taken by the State Commission which does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. The judgments cited by learned counsel for the petitioner, are not applicable to the facts of the present case at all.

THUS , present petition has no legal merit and same is hereby dismissed with cost of Rs.5,000/ - (Rupees Five Thousand only).

PETITIONER is directed to deposit the cost of Rs.5,000/ -, by way of demand draft in the name of ''Consumer Legal Aid Account '' of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization. List on 6.12.2013 for compliance.