New India Assurance Company Ltd. Through its duly constituted attorney/Manager Regional Office-I vs Pradeep Wadhwa

PETITIONER-New India Assurance Co. Ltd. had issued a House Holder Insurance Policy to the respondent-complainant, covering fire and allied perils, which included burglary, house breaking and all risks for jewellery and valuables etc., for insured sum of Rs.3,27,900/-, which was valid from 13th of February, 2003 to 12th of February, 2004. During the currency of the policy, the insured respondent-complainant, on 7th of July, 2003 lodged a claim alleging that a bag which contained some important documents, jewellery, watches and cash had been stolen from the locker of the almirah. The theft, according to the respondent-complainant, was discovered on 7th of June, 2003 when his wife was to go for her friend''s birthday party. An FIR had been lodged on the very day of the occurrence of the theft though, as per the petitioner-Insurance Company, after receipt of information belatedly. The petitioner-Insurance Company after receipt of information had appointed a surveyor, M/s Ajay Chopra and Associates to ascertain the facts. They also appointed an investigator, M/s Lokendra Claims Cares Corporation to investigate the factum of alleged theft. Based on the reports received from them, the petitioner-Insurance Company repudiated the claim of the respondent-complainant vide their letter dated 8th of April, 2004, stating therein that the complainant had failed to comply with the request to supply the required documents/papers and as recommended by the investigator and valuer.

AGGRIEVED by the non-settlement of his claim, the respondent-complainant approached the Insurance Ombudsman, who vide his order dated 31st of August, 2004, dismissed the complaint, holding that the alleged story of theft was not credible. The respondent-complainant thereafter approached the District Consumer Disputes Redressal Forum, New Delhi Barracks Kasturba Gandhi Marg, New Delhi (District Forum for short) by filing a consumer complaint. On consideration of the written statement filed by the opposite party, (petitioner-Insurance Company) and on appreciation of the pleadings and evidence before it, the District Forum held that the reports submitted by the surveyor and the investigator were biased and the Insurance Company has repudiated the claim on flimsy grounds. The District Forum, therefore, ordered the petitioner-Insurance Company to pay Rs.3,19,000/- and further awarded a compensation of Rs.50,000/- for mental agony, harassment and deficiency in service. The cost of litigation was also assessed at Rs.10,000/- to be paid by the petitioner-Insurance Company to the respondent-complainant. Aggrieved by the order of the District Forum, the petitioner-Insurance Company filed an appeal before the State Consumer Disputes Redressal Commission, Delhi (State Commission for short), who vide its order dated 11th of February, 2008, at the threshold, dismissed the appeal in limine. The State Commission has devoted a major part of its order discussing as to why even after the Insurance Ombudsman appointed under the Redressal of Public Grievances Rules, 1998 and Indian Arbitration & & Conciliation Act, 1996 had adjudicated upon the dispute, the consumer fora under Section 3 of the Consumer Protection Act, 1986 were fully entitled to consider the complaint and has gone on to discuss a number of judgments on the subject.

Further aggrieved, that the opposite party-Insurance Company has filed this revision petition to assail the concurrent order of the fora below.

WE have heard the learned counsel for the parties as also have perused the records of the case. The admitted facts are that a House Holder Policy had been taken by the respondent-complainant, protecting him against fire and allied perils, including larceny or theft, burglary, house breaking, all risks for jewellery and valuables etc. for a sum of Rs.3,27,900/-. The respondent-complainant had given a list of articles to be insured which form part of the policy. According to the respondent-complainant, his wife had kept the jewellery and watches in a rexene bag and put it in the locker situated inside the steel amirah on the 25th of May, 2003, there was no occasion for her to take them out until the 7th of June, 2003 when she had to attend a party and it was only then that she discovered that the bag along with some valuable documents and cash had been missing. To be noted that the almirah was in the daughter''s bedroom which had a single entry, so it could not be frequented by all and sundry. According to the respondent-complainant, the police was informed, who visited their premises during the same night but did not register any FIR until the 1st of July, 2003. The petitioner-Insurance Company have picked this as an argument in their favour to contend that the police was not satisfied with the allegation of theft and that is the reason why they did not register any FIR on that day. Further, from the subsequent investigation and closure of the case, as untraced, it cannot be held with any degree of certainty that the police authorities were at all convinced of a theft. Learned counsel for the petitioner-Insurance Company has referred to the admitted fact that the respondent-complainant had a full time maid-servant and his spouse was a full time housewife. According to her own statement, she used to keep the keys of the almirah herself. In that background, the Insurance Ombudsman has rightly held that when the jewellery was lodged securely in the vault inside a steel almirah and the keys to the vault and of the almirah were in the safe custody of the complainant''s wife, the disappearance of the bag is a mystery. It would not have vanished unless the respondent-complainant was negligent. Both the District Forum as well as the State Commission have rejected this contention, in our view, without sufficient evidence or reason. While the theft occurred on the 7th of June, 2003, it is not denied that the FIR was registered on 1st of July, 2003, i.e. after about three weeks from the date of the incident. This delay has been explained on the ground that the police had been informed on the very day of the occurrence and the police had in fact reached complainant''s residence in the very night but the complainant could not force the police to register the FIR. However, there is no explanation as to what action was taken by the complainant to get the investigation accelerated, thereby forcing the police to at least register the FIR. The complainant not being an illiterate person was aware of the fact that it was his right to obtain a copy of the FIR, which is required to be enclosed with the claim. The delay in getting the FIR registered apart, the complainant does not appear to have promptly filed any claim before the petitioner-Insurance Company, who where approached only on 9th of July, 2003, i.e. after more than a month from the date of the alleged theft of the bag containing the valuables. The explanation offered is that the complainant had approached the official of the petitioner-Insurance Company, who had advised them to file a claim only after the police investigation is complete. That such an oral advice was rendered by the official of the Insurance Company cannot be believed for the reason that neither the date and time nor the name of the official has been stated anywhere. In any case, the least the complainant could have done was that he could have informed the Insurance Company in writing giving some details of the missing valuables with a request to furnish the complete details later. This not having been done, one is left to wonder as to whether there indeed was an incident of theft and, if at all, why was the complainant not anxious and diligent enough to run around and not only get the matter thoroughly investigated at an early date but also at least file his tentative claim urgently with the petitioner-Insurance Company. This Commission in the case of Devendra Singh Vs. National Insurance Co. Ltd. reported in 2004 (1) Judicial Reports Consumer 92 has held that delayed intimation to the Insurance Company deprives the Insurance Company to investigate the matter properly under the terms of the policy and a claimant is supposed to inform them immediately after occurrence.

THE finding of the State Commission that "It is a misconceived notion that unless and until the report was lodged and converted into FIR it is not a report, as no person has control over the police to force it to convert the report into an FIR", in our view, amounts to stretching the argument to an unreasonable limit. In any case, the view expressed by the State Commission that "there is no other agency except the police who is empowered to investigate into the criminal offence once a report is lodged" may be true with regard to criminal offence but to contend that the Insurance Company has no power, option or prerogative would not be a correct view, as the Insurance Company under Section 45 of the Insurance Act, 1938 is legally entitled to get the matter investigated. The delay in lodging the FIR and filing the claim before the petitioner-opposite party-Insurance Company apart, the admission by the wife of the respondent-complainant that she used to carry keys of the almirah with her, which was in the bedroom of his daughter, and further when there was no forcible entry into the residence and no tampering marks on the almirah, specially when she is around the house all through and she does not appear to have cast any suspicion on the maid servant does not extend credibility to the occurrence of theft. To contend that it takes only a few minutes for someone to open the almirah and the vault and take out the bag does not lend support to the mysterious theft, as, if an outsider such as a plumber or electrician was to visit the bedroom of her daughter, either she or the maid servant, in the normal course, is expected to accompany the person, specially when the jewellery and valuables had been kept in that room. Besides, unless a person was aware of the exact location of the bag containing valuables, it would take quite some time for a stranger to first open the steel amirah and then the vault inside and quietly sneak away after closing them once again. The operation will take quite some time and, therefore, we are inclined more to go by the opinion of the Insurance Ombudsman that the mysterious disappearance of the bag, if at all, could take place only if there is not only lack of care but palpable negligence on the part of the complainant/his wife. The other aspects to be noted are that the complainant has not been able to provide details of previous house holder''s policies as to from whom and for what amount had been taken. It has been observed that if the complainant could keep details of FDRs and other accounts, it cannot be believed that he did not keep details of previous house holder''s policies. Further, when he was having a bank locker, how come that the entire set of jewellery was kept at home for so long?

IN view of this discussion, without going into the details as to what were the items or jewellery that were insured and the specific items which were stolen, on which also the details do not tally with the claim and the details given in the insurance policy, we find that both the fora below have erroneously held the petitioner-INsurance Company liable.

THE revision petition accordingly is accepted and the complaint is dismissed with no order as to cost.