SHRIRAM GENERAL INSURANCE CO. LTD. vs RAMCHARAN DHOBI S/O SH.BADRILAL

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 16.01.2015, passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (hereinafter referred to as ''the State Commission'') in First Appeal No.1162/2013.

Brief facts of the case are that the respondent/complainant got insured a commercial vehicle Bolero Jeep bearing registration no.RJ-34-TA-0649 with the petitioner insurance company vide policy no.106020/31/12/031955 dated 14.12.2011 for IDV of Rs.5,18,000/- for a period from 14.12.2011 to 13.12.2012. The vehicle was taken to Karauli for some personal work on 23.5.2012 and the vehicle was parked near Circuit House at about 5-6 p.m. Suddenly some unknown person took away the vehicle out of reach of the sight of the respondent before his eyes and the respondent tried to stop the vehicle by running behind it. The respondent informed the police regarding theft and an FIR No.251/12 dated 23.05.2012 was got registered at the police station, Kotwali, Karauli on the same very day. The respondent informed the petitioner insurance company on 13.06.2012 regarding alleged theft dated 23.05.2012 for the first time, vide the claim Intimation Slip No.97442 dated 13.06.2012. The petitioner company repudiated the claim of the respondent vide its letter dated 16.06.2012 on the ground of delayed information to the petitioner company. The respondent being aggrieved by the repudiation of claim by the Insurance Company, filed a consumer complaint against the petitioner company before the District Consumer Disputes Redressal Forum, Karauli (hereinafter referred to as ''the District Forum'') which was registered as Complaint No.13 of 2013. The petitioner company filed a detailed written statement to the complaint of the respondent/complainant. The learned District Forum, vide its final order dated 19.09.2013, allowed the complaint of the respondent/complainant as under : "In view of entire discussion in this case, if the claim amount stated in insurance policy is not paid to the complainant it amounts to deficiency in service.

In view of entire discussion above the complaint is accepted with direction to OP insurance company that after deducting compulsory excess amount the insurance claim amount be released to the complainant within 2 months from the date of this order. Before this the complainant will deposit all the necessary documents with the OP insurance company in writing thereafter the insurance company will release the above amount. The insurance company will also pay Rs.5,000/- (Rupees five thousand ) as litigation expenses & mental agony within 2 months from the date of order; in case of non compliance of above order interest @ 9% will be levy-able."

Being aggrieved by the order of the District Forum, an appeal was preferred by the petitioner before the State Commission which was registered as Appeal No.1162 of 2013 against the judgment and order dated 19.09.2013 of the District Forum. The Ld. State Commission was pleased to dismiss the First Appeal No.1162 of 2013 in limini vide its order dated 6.01.2014 without going into the merits of the case. The petitioner filed revision petition before this Commission against the order dated 6.1.2014 of the State Commission, which was registered as R.P. No.1187 of 2014, and this Commission was pleased to allow the revision petition vide order dated 16.10.2014 and remanded back the matter to the State Commission, with direction for deciding it fresh. The Ld. State Commission again dismissed the First Appeal No.1162 of 2013 vide impugned judgement and final order dated 16.01.2015.

Hence, the present revision petition.

Heard the learned counsel for both the parties and perused the record.

The learned counsel for the petitioner argued that the information of the theft was given to the insurance company after 21 days of theft and due to this delay, even the survey could not be conducted. Based on this delay, the claim was repudiated. The learned counsel stated that the IRDA Circular dated 20.9.2011 relied upon by the State Commission is only applicable in those cases where the intimation of damage or loss may have been given with delay to the insurance company due to unavoidable circumstances. In the present case, the complainant has not explained the delay in informing the insurance company.

The learned counsel for the petitioner referred to the judgement passed in the case of Shriram General Insurance Company Ltd. vs. Sh. Anand Singh, R.P. No.3269 of 2014, decided on 27 th April, 2016 , wherein the following has been held:

So far as IRDA circular referred to by the State Commission in the impugned order is concerned, it may be noted that the State Commission has misread the aforesaid circular. The circular provides that the condition regarding giving intimation of loss to the insurer within stipulated period should not prevent the settlement of genuine claims particularly when there is a delay in intimation or in submission of documents due to unavoidable circumstances. In this case, the complainant has not been able to explain or point out any unavoidable circumstance which prevented him from giving the written intimation about the theft to the respondent/insurance company. Thus, this is a clear case of violation of condition No.1 of the insurance contract, which is mandatory. Hon''ble Supreme Court in the matter of Oriental Insurance Co. Ltd. V. Parvesh Chander Chadha, Civil Appeal No.6739/2010 decided on 17.8.2010 while dealing with the similar condition in the insurance contract observed as under: -

" Admittedly, the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dated 22.5.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for this unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.9.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, if not impossible, to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.1.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy."

It was further pointed out by the learned counsel for petitioner that condition no.1 of the insurance policy clearly stipulates that: "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."

Specifically, in case of theft, the following is mentioned:

"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."

Thus, in case of theft, the complainant was required to immediately inform the police and lodge the FIR as well as to inform the insurance company. However, the complainant has totally failed in informing the insurance company immediately after the theft. Thus, this is a clear violation of terms and conditions of the policy and hence, claim is not payable.

Learned counsel for the respondent/complainant stated that the theft was committed on 23.5.2012 and FIR was lodged on the same day. The insurance company was also informed immediately after the FIR. The question of theft is not in doubt because the thieves have been caught and arrested as is clear from the Final Report/Charge-sheet filed by the police in the court of C.J.M., Karauli. The learned counsel particularly mentioned the following portion of this Final Report/Charge-sheet dated 29.9.2012 as follows: " From the entire investigation, statements of the witnesses, map of the scene of the crime, arrest warrant of the accused, memo of information under section 27EV Act, confirmation of the map of the scene of the crime and recovery of R/C, insurance fitness, permit and number plate etc. the case was found to be proved against the accused Kamlesh alias Kalla alias KK s/o Kalua caste Meena, age 25 years R/o Govindpur at P.S. Kudgaon under Section 379 IPC.

Therefore, in the present case the charge sheet no.239 dated 29.9.2012 under section 379 IPC against the accused Kamlesh alias Kalla alias KK s/o Kalua caste Meena, age 25 years R/o Govindpura P.S. Kudgaon, Distt. Karauli was prepared and presented and is requested that after the closing of the case the accused is presently under the judicial custody."

It was further stated by the learned counsel for the respondent that the Circular dated 20.9.2011 of IRDA clearly states that claims should not be repudiated only on the ground of delay in genuine cases. The present case is clearly a genuine case because the theft had really occurred and the thieves have also been caught.

The learned counsel also emphasized that both the fora below have allowed the claim of the complainant and the power of this Commission in the revisional jurisdiction is very limited and relates only to the jurisdictional aspects. Accordingly, the learned counsel prayed that the revision petition be dismissed.

We have gone through the material on record and have considered the arguments advanced by the learned counsel for both the sides. There is no doubt that the theft of the vehicle occurred within the currency of the policy in question. The relevant portion of the IRDA Circular No. IRDA/HLTH/MISC/CIR/216/09/2011 reads as under: "The insurers'' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time."

The whole idea behind this circular of IRDA seems to be that the genuine claims should not be rejected on technical grounds, like delay in informing the insurance company etc. The condition of the policy is that the damage or loss should be informed immediately to the insurance company. The complainant in his complaint has stated in para 2 as under: "That the complainant intimated the OP on 23.5.2012 same day of theft itself. The OP insurance company asked the complainant to submit duly filled form, therefore the complainant submitted duly filled claim form with the OP insurance company which was registered as claim No.10000/31/13/C/0163888. The complainant also sent copy of FIR, Registration, insurance, permit, fitness licence with the claim form to the OP insurance company."

In the written statement submitted by the OP, the assertions of para -2 have not been denied in definite terms. The OP has stated the following in the written statement: " 2. That the contents of para 2 of the complaint, as stated, are completely concocted, baseless and wrong hence denied. Even for presumption if these are taken as it is, still these facts shows negligence on the part of complainant while parking his above vehicle in non-parking area without any attendant. Even otherwise as the incident is stated the vehicle was taken away by another person in the presence of the complainant, the vehicle was not followed with the help of another vehicle, nothing is produced on record that the police was intimated immediately, and FIR was reported, thereafter surprisingly the complainant filed an affidavit on 17.08.2012 after about three months of alleged incident stating that the above vehicle of the complainant was stolen by Kamlesh @ K.K. and that the original papers of the vehicle are with Kamlesh and on the basis of this affidavit the accused was arrested by the police after one month on 18.09.2012 and recovered number plates and original papers of above vehicle, itself shows that the complainant intentionally conspired in collusion with the accused known to him and police registered false FIR for taking claim amount, which apparent to be forged from the contentions of charge-sheet. The complainant intimated the insurance company on 3.6.2012 for the first time regarding above incident i.e. after a huge delay of 22 days of alleged theft. The complainant never intimated regarding above incident to the insurance company in any manner. The complainant concocted wrong and false story in this behalf, the complainant has not produced on record that from which telephone number and on which telephone number or mobile number and to whom the intimation was given by him, nowhere mentioned in the complaint which itself shows the falsehood of the complainant. In these circumstances it is clear from above facts that the complainant with his free-will gave ample opportunity to the accused to destroy the above vehicle with malafide intentions to obtain false claim relying upon the concocted story and collusive action with police in conspiracy and on the basis of present complaint, which is liable to be dismissed at the very threshold."

On the other hand, there is also some weight in the assertion of the petitioner insurance company that the condition no.1 of the policy provides that the notice/information should be given immediately to the insurance company in writing, whereas no notice has been given to the insurance company within the reasonable period of time. However, all the insurance company are bound to observe the guidelines issued by IRDA. As per IRDA Circular dated 20.9.2011 which has already been mentioned above, no genuine claim should be rejected on the technical ground of delay. However, we must distinguish between those informing the damage/loss in time to the insurance company as per the terms and conditions and those who do not comply completely with the terms and conditions of the policy. Prima facie, the claims of those who do not comply with the terms and conditions of the policy may be rejected as violation of terms and conditions of the policy, however, directions of IRDA vide Circular No.IRDA/HLTH/MIS/CIR/216/09/2011 dated 20.9.2011 provide for non-rejection of genuine cases even though there is some violation in complying with the terms and conditions of the policy in certain cases, like delay in informing the insurance company etc. Hence, taking the spirit of the IRDA Circular into account, we are of the view that the insurance claim of the complainant for theft of his vehicle may be allowed but not to the tune of 100%, because there has been deficiency on the part of the complainant in informing the insurance company in writing and in time as per the terms and conditions of the policy. Hon''ble Supreme Court in the case of Amalendu Sahoo vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC) has observed that the insurance claim may be allowed upto 75% in cases of breach of warranty/condition of policy. From the facts of the case and the final report/charge-sheet filed by the police in the instant case, we reach to the conclusion that interest of justice would be served if the insurance claim is allowed for 60% of the insured value of the vehicle.

Based on the above discussion, the revision petition is partly allowed and the petitioner insurance company is directed to pay to the respondent/complainant 60% of the total insured value of the vehicle within a period of 30 days from the date of this order, failing which interest @ 9% shall be payable on this amount from the date of this order till actual payment.

The order of the State Commission dated 16.01.2015 and order of the District Forum dated 19.09.2013 stand modified accordingly.

No order as to costs.