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Judgment
BEING aggrieved by order dated 19.05.2011, passed by Rajasthan State Consumer Disputes Redressal Commission, Jaipur(for short, ''State Commission '') petitioner has filed the present revision petition.
BRIEFLY stated the facts are that petitioner/complainant filed complaint before District Consumer Disputes Redressal Forum, Jhunjhunu (for short, ''District Forum '') on the ground that his truck was insured with respondent no.1/o.p.no.1 with effect from 01.08.2006 to 31.07.2007. On 12.12.2006, his truck loaded with 20 tons of copper by respondent no.2/o.p.no.2 from Khetri was to be carried to Talojioa, District Ramgarh (Maharashtra). But, the truck did not reach its destination till 4.1.2007. Petitioner searched for the truck for many days but failed to find the same. On 4.1.2007, FIR was lodged in the Police Station, Khetri. After investigation, police filed the challan in the criminal court. Petitioner filed its claim with respondent no.1. However, respondent no.1 rejected its claim on 27.8.2009 treating it as ''No claim ''. Thereafter, petitioner asked for reasons of repudiation of his claim under R.T.I. Act and was informed that there was a delay of 23 days in filing of the F.I.R. and intimation to respondent no.1 was given after 59 days. District Forum vide order dated 8.12.2010,dismissed the complaint, holding that there was no deficiency in service on the part of respondent no.1.
BEING aggrieved, petitioner filed appeal before the State Commission which dismissed the same, vide its impugned order.
HENCE , this revision. We have heard the learned counsel for the petitioner and gone through the record.
IT is contended by the learned counsel that since the vehicle was in transit and it did not reach its destination by the expected time, it could not be presumed immediately that the vehicle was either missing or looted or theft has taken place. At the first instance, any prudent person would search for his vehicle and the driver. Petitioner did his best to locate the vehicle as well as driver and when he could not find either of them, then only he lodged a report with the police. As such there is no delay on the part of the petitioner. In support, learned counsel has relied upon a decision of this Commission, "New India Assurance Company Ltd. Vs. Trilochan Jane ", (First Appeal No. 321 of 2005, decided on 09.12.2009)
DISTRICT Forum, while dismissing the complaint held; "Delay in filing the FIR has been held to be a clear violation of insurance policy in the judgment 111(2006) CPJ P 241 cited on behalf of opposite party No. 1. In 111(2003) CPJ P 77 (National Commission), the report of the theft of the vehicle was lodged after 4 days and the insurance company was informed after one month in which the repudiation of the claim by the insurance company was hpheld by taking the same to be violation of insurance policy. In judgment 11 (2001) CPJ P 453 (UP) the Police report was lodged after 48 hours and intimation to the insurance company was given after 20 days, in which the rejection of claim by the insurance company was upheld by treating it in violation of the insurance policy. In the present case also no First Information Report was lodged by the claimant in the Police and the report which was lodged by the Opposite Party No.2 after 23 days and the claimant has informed the insurance company after 59 days treating which is to be violation of conditions No.1 and 5 of the Insurance Policy, the Opposite Party No. 1- the Insurance Company has declared the claim of the claimant to be ''No Claim '' which by no means, is unreasonable and inappropriate. There is no deficiency of service on the part of insurance company-opposite party No.1.The claimant is not entitled to any claim ".
State Commission, while dismissing the appeal in its impugned order observed ; " We have considered his arguments but keeping in view the latest judgment dated 09.12.2009 of the National Commission in First Appeal No. 321/2005 titled as New India Assurance Company Ltd. Vs. Trillochan Jane, cited by the counsel for the opposite parties, and the consistent view taken by this Commission, the filing of FIR after a delay of 23 days and claim after 59 days is considered to be the violation of the rights of the Opposite Parties and violations of the conditions of the insurance policy, we hold that the complaint has rightly been dismissed. Besides it, the theft of the truck is not the result of the investigation of Police, but the same has been embezzled. Hence, on this ground also it does not come under insurance cover. Hence, there is no merit in the appeal, which is, hereby, dismissed ".
AS per averments made in the complaint, the truck had left Khetri on 12.12.06 with loaded goods and the destination was in Maharashtra. Thus, for a truck to cover the distance from Khetri (Rajasthan) to District Ramgarh (Maharashtra) would not have taken more than 3/4 days. However, petitioner waited for 22 days and FIR was lodged only on 4.1.2007. Thus, there was delay of 22 days in the lodging of the FIR. Be that as it may, petitioner has nowhere stated in its entire complaint as to when he had informed respondent no.1 with regard to the above incident.
RESPONDENT no.1 in its written statement has stated, that petitioner informed it only 59 days after the date of incident. There is no explanation on the part of petitioner as to why he took about two months in informing the respondent no.1 about the incident. 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 accident of 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 conviction of the offender ".
IN Trilocachan Jane (supra) this Commission observed; "In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent 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 any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. Hon ''ble Supreme Court of India in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that the terms of Policy have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported ''immediately ''. In the contest of a theft of the car, word ''immediately '' has to be construed strictly to make the insurance company liable to pay the compensation ".
IN the present case admittedly, there has been delay of 59 days in informing respondent no.1 of the incident, which is a clear cut violation of the terms and conditions of the Insurance Policy. In our view, both the fora below, rightly dismissed the claim of the petitioner. It is well settled that under Section 21(b) of the Consumer Protection Act,1986 (for short, ''Act '') scope of revisional jurisdiction is very limited.
HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora ".
THUS , no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since two fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.
THUS , present revision petition having no merits and the same being without any legal basis, is hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).
PETITIONER is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand Only) by way of demand draft in the name of "Consumer Welfare Fund '' as per Rule 10A of Consumer Protection Rules,1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then he shall be liable to pay interest @ 9% p.a. till its realization. List for compliance on 3rd May, 2013.