MAKANJI KANJI MATA vs NEW INDIA ASSURANCE CO. LTD.

This revision petition has been filed challenging the order dated 3.2.2014 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Appeal No.11 of 2012 by which the State Commission has allowed the appeal of the respondent/OP insurance company and set aside the order dated 6.6.2011 passed by the District Consumer Disputes Redressal Forum, Bhuj, Kachchh in Complaint No.49 of 2010.

Delay of one day in filing this revision petition is condoned.

Briefly stated, the facts leading to filing of this revision petition are that the complainant/petitioner insured his truck No.GJ-12-Y-5854 with the respondent/OP insurance company for the period from 24.4.2008 to 23.4.2009. As per the allegation, the complainant/petitioner wanted to sell the truck and with this intention, he showed it to some

prospective buyers and negotiated the price. Thereafter, the said persons told the complainant that they wanted to show the truck to some mechanic and hence with the consent of the complainant the said persons took the truck with them to a garage on 13.6.2008 but thereafter neither the said persons came back nor returned the truck. So the complainant lodged the complaint with the police station on 18.6.2008 against the said persons for cheating and criminal breach of trust. Thereafter, the complainant filed a claim with the Insurance Co. for the stolen truck. The respondent/opposite party Insurance Co., however, repudiated the claim of the complainant on 12.1.2009 on the ground that there were contradictions in his claim application and the complaint, so the insurance company suspected some malicious intention of the complainant and also that there was no theft of the truck. This led to the filing of the consumer complaint in question before the District Forum against the respondent insurance company for deficiency in service in wrongly repudiating the claim.

On notice, the OP Insurance company appeared and filed its reply in which it was stated that the Insurance company is liable to pay the claim in case of theft of vehicle but according to it the incident in question was not a case of theft but a case of pure and simple cheating accompanied with criminal breach of trust and in conspiracy of concerned persons which is not covered under the purview of the theft as defined under the Indian Penal Code. It was also mentioned that the whole incident had been investigated by the investigator appointed by the Insurance Company who in his detailed report had stated that it was not a case of theft but of cheating (fraud) and as such not covered by the insurance policy and as such the claim was not payable. Denying any deficiency in service on its part, the OP Insurance Co. prayed for dismissal of the complaint. Parties led evidence in support of their contentions and on appraisal of the issues and evidence adduced before it, the District Forum allowed the complaint in terms of the following directions:- "Complaint of the complainant is hereby allowed. Opponents are hereby ordered to pay the amount of Rs.9,45,000/-, insured declared value of vehicle with 9% interest from the date 12.10.2009 and also ordered to pay Rs.3,000/- to complainant as expense.

Complainant should have to be handed over the possession of truck to Insurance Company, if the complainant receives the possession."

Aggrieved of the aforesaid order of the District Forum, the OP Insurance Co. filed an appeal before the State Commission which allowed the same vide its Impugned order and set aside the order of the District Forum. The State Commission also dismissed the complaint of the petitioner while accepting the appeal of the respondent.

We have heard learned Ms. Arunima Dwivedi, Advocate for the petitioner and perused the record. Learned counsel has submitted that the order passed by the State Commission is illegal, erroneous and contrary to the provisions of law and evidence on record inasmuch as, the State Commission failed to appreciate that the petitioner had to suffer huge loss as his truck was stolen away in the year 2008 and till date neither the truck was located by the police nor did the complainant/petitioner receive a single penny from the Insurance Co. She contended that the State

Commission ought to have appreciated that the respondent Insurance Co. had wrongly and illegally repudiated the claim of the petitioner by stating that the Insurance Co. is not responsible to pay the claim as there were contradictions in the claim application and the complaint filed by the complainant and also that there was no theft of truck and hence the claim was not covered under the policy. She would also contend that even if the incident involved criminal breach of trust and cheating, it should have been covered and accepted as loss by "malicious act" as provided for in para 1(vii) of section 1 of the terms and conditions attached to the policy. She, therefore, submitted that the claim of the petitioner should have been accepted by the Insurance Co. under any situation whether the incident was that of theft or the loss was by "malicious act". Keeping this in view, the order passed by the District Forum was based on correct appreciation of the evidence before it and the State Commission gravely erred in reversing the same and as such the impugned order is liable to be set aside.

We have carefully considered the contentions raised by the learned counsel for the petitioner. We may note that whatever nomenclature is given to the incident in question, i.e., whether it is regarded as an act of cheating and criminal breach of trust, "malicious act" or theft, it is very clear that the incident did involve a criminal act by which the petitioner was deprived of his insured vehicle. It is not in dispute that the incident in question took place on 13.6.2008 and the FIR to the police was lodged on 18.6.2008, i.e., after 5 days of the incident. Not only this, admittedly the intimation to the Insurance Co. was given on 21.6.2008, i.e., after 8 days of the incident and 3 days of the lodging of the FIR. In view of this, it must be noted that there was serious violation of an important condition regarding immediate reporting of the occurrence of this incident to the police and the Insurance Co. as required under condition No.1 attached to the policy. The State Commission while accepting the appeal of the respondent Insurance Co. has made the following observations in para 8 of its impugned order which may be reproduced thus:- " 8. Now looking to the facts, firstly the incident has taken place on 13.06.2008 and the complaint has been lodged on 6 day i.e, on 18.06.2008 th without any reasonable cause for the delay. Not only this, but it is also to be noted that the complainant has not even made these four persons, two broker and two persons who took the truck with them, as parties. Not only this, but the complainant has informed the Insurance Company regarding this incident on 21.06.2008 i.e. on the 9 day of the theft of the truck. As per the terms and th conditions of the Insurance policy, on occurrence of such type of incidence they have to immediately inform the insurance company and police. The opponent has clearly stated that looking to the above mentioned incident the claim of the complainant seems to be suspected. That there is prima facie substance in this statement. Moreover, this incidence has taken place in Anjar, whereas it has been informed that the truck was taken to Bhuj. Out of four persons two persons were broker and the two other persons. Now the important facts is that the two persons out of the above mentioned persons were broker, they are resident of Bhuj and they seems to know the complainant as the complainant has other trucks also. Hence, it can be said that the complainant and the brokers are certainly known to each other. It can also be said that they sufficiently know each other. If the truck was taken to Bhuj by the said two persons after the incidence on 13.06.2008 and they did not return, then the complainant would have surely mentioned it to both the brokers. And if such facts are there, then it cannot be believed to lodge the complaint late on 18.6.2008, while incidence had taken place on 13.6.2008. Because these facts of the complainant are believable for one or two days. But

after looking to the distance between Anjar and Bhuj and steps taken to lodge the complaint at police station after 6 days seems to be more suspected. Hence, there is a clear breach of the condition of the insurance and facts mentioned by the complainant are not satisfactory. This point is also to be noted that the complainant has informed the insurance company about the incident on 21.6.2008. If he would have informed the Insurance Company earlier, then the Insurance Company would have approached the police immediately and they would have arrested the persons by their own way and would have taken necessary steps. Looking to the above mentioned facts, the reason mentioned by the opponent while repudiating the claim seems to be proper, to us."

[Emphasis provided]

When we examine the present case in the light of the undisputed facts vis-?-vis the terms and conditions subject to which the policy in question was issued, we have no manner of doubt that no fault could be found with the impugned order passed by the State Commission. Condition No.1of the insurance policy reads as under:- " 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."

[Emphasis provided]

It is thus clear that the petitioner by delaying the filing of the FIR and intimating the Insurance Co., violated the terms of the policy thereby depriving the Insurance Co. of its right to investigate the matter immediately after the theft or alleged "malicious" act. In its judgement delivered in the case of New India Assurance Co. Ltd. Vs. Trilochan Jane (Pronounced on 9.12.2009 in Appeal No.321 of 2005) , this Commission has held that the delay in reporting to the insurer about the theft would be a violation of condition of the policy as it deprives the Insurance Co. of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. It is settled law that the terms of the policy have to be construed as they are and nothing can be added or subtracted from the same (United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 . Similar view has been taken by the Apex Court in the matter of Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha in Civil Appeal No. 6739 of 2010 arising out of SLP (C ) No. 12741 of 2010 decided on 17.08.2010.

In view of the above, it is clear that the impugned order passed by the State Commission is in line with the view taken by this Commission and the Apex Court in such cases where there have been delays in reporting to the police and the Insurance Co. in matters of theft of the vehicle. In the circumstances, we do not find any basis which would justify our interference with the

impugned order. We, therefore, dismiss this revision petition and confirm the order of the State Commission but with no order as to costs.