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Anandbhai Mansangbhai Chaudhury At Navin Paru v/s Oriental Insurance Company Limited Umiya Shopping Center, Gujarat


Company & Directors' Information:- THE ORIENTAL INSURANCE COMPANY LIMITED [Active] CIN = U66010DL1947GOI007158

Company & Directors' Information:- NAVIN AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1988PTC033506

Company & Directors' Information:- GUJARAT CORPORATION (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51909GJ1948PTC000288

Company & Directors' Information:- ORIENTAL CORPN PVT LTD [Active] CIN = U51909GJ1937PTC000133

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    Revision Petition No. 3812 of 2017

    Decided On, 11 February 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Petitioner: Akhil Dave, Advocate. For the Respondent: Ajay Singh, Advocate.



Judgment Text


The present revision petition has been filed against the judgment dated 07.04.2017 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (‘the State Commission’) in Appeal no.101 of 2015.

2. The brief facts of the case are that the petitioner/ complainant bought Maruti SX 4 car in the year 2010 bearing registration number GJ 02 AP 9910. The said car was insured with the respondent/ insurance company for Rs.6,00,000/-. On 15.03.2012 the said car was stolen. On 16th March 2012, the claim intimation was given on phone and by personal visit. On 26.02.2014 company repudiated the claim on the ground that there was a delay of 27 days in giving intimation.

3. The complaint was resisted by the respondent/ opposite party/ insurance company stating that the claim of the petitioner was repudiated vide letter dated 26.02.2014 on the ground that the intimation of theft of the vehicle was given after a delay of 27 days and the earlier claim taken from the earlier insurance company ICICI Lombard was not mentioned in the proposal form.

4. Aggrieved by the repudiation of the claim, the petitioner/ complainant filed a consumer complaint being complaint no.40 of 2014 before the District Consumer Disputes Redressal Forum, Mehsana (‘the District Forum’). The complaint was resisted by the insurance company on the grounds mentioned in the repudiation letter. However, the District Forum vide its order dated 02.12.2014 allowed the complaint as under:

“The complainant’s complaint number 40 of 2014 is partly allowed. The opponent to pay Rs.6,00,000/- (Rupees six lakh) within 30 days to complaint filing which the complainant is entitled for 9% interest from the date of complaint. The opponent to pay Rs.2000/- to complainant for expenses. The opponent to pay Rs.1000/- to complainant”.

5. Aggrieved by the order of the District Forum, the insurance company, preferred an appeal being FA no.101 of 2015 before the State Commission. The State Commission vide its order dated 07.04.2017 allowed the appeal of the insurance company and dismissed the complaint of the complainant.

6. Hence, the present revision petition.

7. Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner states that the incident had happened on 15.03.2012 and the claim intimation in the requisite proforma was sent to the insurance company on 16.03.2012 and FIR was filed on 17.03.2012. Thus, there was no delay in giving information to the insurance company or in filing the FIR. However, the State Commission has given a finding that the insurance company was intimated with delay and therefore, the repudiation by the insurance company was perfectly in order.

8. The learned counsel for the petitioner has further stated that the State Commission has relied on the information given by the insurance company. During the investigation the investigator has found that after the theft of the vehicle, the vehicle was serviced in a garage having the same engine number and chassis number though with different number plate. It is alleged by the insurance company before the State Commission that the incident of theft was not genuine and that complainant was involved in the matter. Learned counsel for the petitioner has mentioned that the fact is that after investigator’s report the insurance company has requested the police to restart the criminal investigation and the same was done again by the local police and it was found that the theft was genuine and there was no involvement of the complainant. Learned counsel has further mentioned that all these things have not come on record as nothing has been mentioned in this regard either in the repudiation letter or in the written statement filed by the insurance company before the District Forum. It was further stated that the State Commission has not given any logical conclusion on this issue. However, it seems that the State Commission has relied upon this piece of information given by the insurance company in dismissing the complaint.

9. On the other hand, the learned counsel for the respondent/ insurance company has stated that it is wrong to say that intimation was given to the insurance company on 16.03.2012. The claim form which is being said to have been submitted to the insurance company on 16.03.2012, does not bear the seal of receipt or stamp of the insurance company and therefore, the same cannot be believed. The insurance company got the intimation only on 10.04.2012, i.e., after 27 days of the alleged date of theft. Even the FIR has been lodged after two days of the incident, whereas the policy condition requires that immediate intimation should be given to the police in case of theft of the vehicle. Thus, condition no.1 is totally violated by the petitioner. It is further stated that the petitioner has not filed any subsequent police investigation report, where the allegation levelled by the investigator has been found to be untrue. Therefore, the State Commission has rightly relied upon this information given by the insurance company that the vehicle was serviced in some garage having the same engine and chassis number but with different number plate.

10. Moreover, in the repudiation letter, it was also stated that the complainant has not given information at the time of taking the policy in respect of two claims which the complainant had taken from the earlier insurance company for repairs of the vehicle after the accident. Had this information been given at the time of proposal, the IDV of the vehicle should have been reduced by the insurance company. Thus, the complainant is guilty of not providing the complete information in the proposal form. In this regard, the learned counsel for the petitioner has stated that the proposal form was not signed by the complainant rather it has been filled by the agent of the insurance company. Learned counsel for the respondent has argued that whosoever fills the form, the responsibility remains with the proposer/ complainant. Clearly, the relevant information was withheld by the complainant from the insurance company.

11. I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. I agree with the argument of the learned counsel for the insurance company that the papers submitted by the petitioner is only a claim form duly filled on 16.03.2012, but it does not carry any seal/ stamp of the insurance company which may prove the receipt by the insurance company. If the same was sent by post, no receipt of the post has been filed by the petitioner therefore, the State Commission has rightly given a finding that the intimation to the insurance company was given 27 days later.

12. Coming to the other allegation of the insurance company that the information in respect of two claims taken by the complainant from the earlier insurance company, i.e., ICICI Lombard was not given in the proposal form. The explanation given by the petitioner/ complainant does not seem to be tenable. The responsibility for filing the proposal form rests with the proposer/ complainant and if the signature on the proposal form is denied by the complainant then the complainant is not entitled to the claim that he applied for, as the policy issued in the name of the complainant would not have been valid. In these circumstances, the contention of the complainant that he did not sign the proposal form cannot be accepted. Clearly there is no mention of these two claims taken by the complainant in the proposal form, therefore, the allegation of the insurance company stands proved that the relevant information in respect of the two claims earlier taken by the complainant was not provided in the proposal form. Clearly, there is force in the argument of the learned counsel for the respondent/ insurance company that lack of information given in the proposal form incapacitated the insurance company to put the correct IDV of the vehicle.

13. Now coming to the question of investigator’s report, it seems that the repudiation was made after receipt of the investigator’s report by the insurance company. Whatever was the result of the investigator’s investigation and further the police investigation, if any, must have been incorporated in the repudiation letter.

14. Nothing has been mentioned in the repudiation letter about the recovery of the vehicle having the same engine number and chassis number but with different number plate as reported in the investigator’s report. It is further seen that nothing of this sort has been mentioned in the written statement filed by the insurance company. The Hon’ble Supreme Court in the case of M/s Galada Power and Telecommunication Ltd. Vs. United India Insurance Co. Ltd. & Anr. Etc., Civil Appeal Nos.8884-8900 of 2010, decided on July 28, 2016 has held that if any objection has not been raised either in the repudiation letter or in the written statement, the same cannot be raised subsequently by the insurance company as mentioned below:

“12. The National Commission has relied upon Clause 5 and on that basis has rejected the claim by putting the blame on the complainant. The letter of repudiation dated 20th September, 1999, which we have reproduced hereinbefore, interestingly, does not whisper a single word with regard to delay or, in fact, does not refer at all to the duration clause. What has been stated in the letter of repudiation is that the claim lodged by the complainant does not fall under the purview of transit-loss because of the subsequent investigation report.

It is evincible, the insurer had taken cognizance of the communication made by the appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause.

In this regard, Mr. Mukherjee, learned senior counsel appearing for the appellant has commended us to a decision of High Court of Delhi in Krishna Wanti v. Life Insurance Corporation of India[1], wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view.”

15. On the basis of the above decision of the Hon’ble Supreme Court M/s Galada Power and (Supra) it is clear that the issue of recovery of the vehicle having the same chassis number and engine number but with different number plate should not have been raised by the insurance company and the State Commission should not have considered the same.

16. Thus, only the two reasons which are given in the repudiation letter are to be considered for deciding the claim of the complainant. As examined above, both these reasons of giving intimation to the insurance company with delay of 27 days and not giving information in respect of two claims taken by the complainant from the earlier insurance company in the proposal form are clearly proved. However, it is a fact that the information has been given to the police within a reasonable time, therefore, violation of condition no.1 of the policy is proved as the intimation to the insurance company was not given in a reasonable time and delay of 27 days has occurred. Due to this delay, the insurance company could not get the opportunity of getting a surveyor appointed which could have given insight into the aspect of theft of the vehicle. The insurance company also lost the opportunity to help police in investigation and also to take up independent investigation.

17. I also agree with the assertion of the learned counsel for the insurance company that non-submission of information of earlier two claims from the other insurance company has caused the insurance company to take a higher IDV of the vehicle. Thus, clearly, the two important conditions of the policy have been violated in the present case. In the circumstances, the circular issued by the Insurance Regulator Development Authority (IRDA) no. IRDA/

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HLTH/MISC/CIR/216/09/2011 dated 20.09.2011, has instructed to all its general insurance companies to consider the genuine claims filed even with delay and should not be rejected only on the ground of delay. Keeping this in mind and keeping this fact that the important conditions have been violated, I deem it appropriate to allow 50% of insurance claim on the basis of the judgment of the Hon’ble Supreme Court in the case of Amalendu Sahoo vs Oriental Insurance Company Ltd., - II (2010) CPJ 9 (SC), wherein the Hon’ble Supreme Court has laid down that the insurance claim upto 75% can be admitted if some condition of the insurance policy has been violated. In the present case, the theft has been proved in the police report and the insurance company has also not disputed the theft of the vehicle either in the repudiation letter or in the written statement. 18. Based on the above discussion, revision petition no. 3812 of 2017 is partly allowed and the order of the State Commission dated 07.04.2017 is set aside and the order of the District Forum dated 02.12.2014 is modified to the extent that the insurance company shall pay Rs.3,00,000/- (i.e., 50% of Rs.6,00,000/-) to the petitioner. Rest of the order of the District Forum shall remain unchanged. The order be complied with by the insurance company within a period of 45 days from the date of receipt of this order.
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