NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST
APPEAL NO. 426 OF
2004
(From the order dated 17.09.2004 in Complt. No. 353/94
of State
Commission,
The New India Assurance Co. Ltd.
Appellant
Regional Office I, Jeevan Bharati
124,
New Delhi-110001
Vs.
1. Shri Dharam Singh
Respondents
S/O Shri Mal
Singh,
8308/34,
2. M.G.F.(
M.G.F. House,
17-B,
BEFORE :
HONBLE SHRI JUSTICE K.S.GUPTA,
PRESIDING
MEMBER
MRS. RAJYALAKSHMI RAO, MEMBER
For the Appellant
Shri Salil Paul, Advocate
For the Respondents
Shri G.N. Rathi, Advocate
DATED :
O R D E R
This appeal is directed
against the order dated 17.09.04 of State Commission, Delhi allowing complaint
with direction to the appellant/opposite
party to pay insured amount of Rs.2,50,000/- with interest @ 12% from 12.07.93 in addition to Rs.25,000/- towards
compensation for mental agony and harassment as also cost to the
respondents/complainants.
Facts giving rise to this
appeal lie in narrow compass. Respondent
No.1/complainant No.1 purchased with the financial assistance of respondent
No.2 /complainant No. 2 a truck bearing registration No.
DIL 2223 in August, 1986. Truck was
insured for the period from 29.08.90 to 28.08.91 for a sum of Rs.2,50,000/- with the appellant. Policy was subject to hire
purchase endorsement in favour of respondent No. 2. It was alleged that on
17.5.91, truck alongwith driver - Jasbir Singh was hijacked by some unknown
persons for which report was lodged with the police on
15.07.91 by respondent No.1. Respondent
No.2 was also intimated of the incident by respondent No. 1. By the letter dated 18.07.91 respondent No. 2
informed the appellant of the theft/hijacking of truck. Copy of FIR and claim intimation were
allegedly forwarded alongwith the said letter to the appellant. Respondent No. 2 thereafter allegedly sent
reminders dated 5.8.91 and
12.9.91 to the appellant. Alongwith letter dated 6.11.91,
respondent No.2 allegedly forwarded the copy of final investigation report
wherein it was stated that there had been no trace of the truck and driver, to
the appellant. Reminders were allegedly sent on 3.2.92 and 23.3.93 to the
appellant to settle the claim. On
getting no response, the respondent No. 2 approached the Regional Office of appellant through
the letters dated 11.6.93 and 8.7.93 to look into the matter. In the meantime by the letter dated 21.7.93
the appellant intimated
respondent No. 2 that no communications including claim
intimation as claimed were received by it and it was requested that necessary
papers be supplied to it. Alongwith letter
dated 13.8.93
respondent No.2 provided
to the appellant all the relevant
documents sent to it in the past. By the
letters dated 7.9.93,
18.11.93 and 20.01.94 the
respondent No. 2 reminded the appellant to settle the claim on total loss
basis. After serving legal notice dated 3.6.94, respondents filed complaint seeking
payment of the insured amount with interest and compensation which was
contested by filing written version by the appellant. It was alleged that the alleged loss was
stated to have taken place on 17.5.91 and the complaint filed on 12.10.94 is
hopelessly barred by time. It was denied
that any letter between 18.07.91 to 23.03.92 including copies of FIR and final
investigation report were received by the appellant from respondent No.2. Letters allegedly sent during this said
period are forged and fabricated. The
claim was not covered under the policy
issued by the appellant. There was delay of about two months in
lodging FIR by respondent No. 1 with the
police. It was asserted that there is
violation of condition No. 1 of the policy by reason of FIR being lodged and
claim intimation sent by respondent No. 2 highly belatedly.
It will be profitable to
refer here condition No. 1 of the policy
which runs as under:-
1. Notice shall be given in writing to the
company immediately upon the occurrence of any accident or 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 the conviction
of the offender.
Main thrust of argument
advanced by Shri Salil Paul for appellant was that it was only through
respondent No.2s letter dated 11.06.93 (received on 14.06.93) the insurance
company came to know of the occurrence dated 17.5.91. Respondents allege that FIR regarding
occurrence was lodged by respondent No. 1 on 15.07.91 and there was, thus,
breach of condition No. 1 of the policy in as much as that neither FIR of the
occurrence was lodged with the police immediately after the occurrence nor
claim of the loss of insured truck was made after 15.07.91. It was pointed out that the letters allegedly
sent on 18.07.91, 5.8.91, 12.09.91, 6.11.91, 3.02.92 and 23.03.92 were never
received by the appellant and those had been fabricated by respondent No.2 to
cover up the delay in question. It was
further pointed out that though the letters written on 11.06.93 and onwards by
respondent No. 2 admittedly received by the appellant,
bear the acknowledgements regarding receipt thereof but the letters sent
between 18.07.91 to 23.03.92 do not bear any acknowledgement of receipt of any
of them by the insurance company. Reliance
was also placed on the decisions in Davendra Singh Vs. New
India Assurance Co. Ltd. & Ors. {III (2003) CPJ 77 (NC) }, and United India Insurance Co. Ltd. Vs. M/s. Harchand
Rai Chandan Lal (JT 2004 (8) SC 8). On
the other hand, it was urged by Shri G.N. Rathi, for respondents that letters
sent by respondent No. 2 were used to be delivered as per practice without
obtaining signatures on office copies.
In para No. 6 of written version on merit the appellant had admitted
receipt of one of the said letters dated 23.3.92 which does not bear
acknowledgement of receipt thereof by the appellant insurance company. On being intimated of the lodging of FIR on
15.07.91 by respondent No.1, the respondent No. 2 immediately forwarded copy
of FIR to the concerned branch of insurance company alongwith letter dated
18.07.91 in addition to sending therewith the completed claim form. In support of further submission that claim
can not be repudiated on ground of
alleged breach of condition No. 1 of the policy, reliance was placed on the
decisions in B.V. Nagaraju Vs. Oriental
Insurance Co. Ltd. (1996 ACJ 1178) and Kesarben Vs. United India Insurance Co.
Ltd. {III (2000) CPJ 36 (NC)}.
It is not in dispute that copies of five letters allegedly sent by
respondent No.2 to the appellant between the
period 18.7.91 to 3.2.92 do not bear
acknowledgements of their originals having been received by appellant insurance company whereas the
copies of letters addressed by respondent No. 2 to the appellant dated 11.6.93
(at page 62), 8.7.93 (at page 63), 13.8.93 (at page 65), 7.9.93 (at page 66), 18.11.93
(at page 67) and 20.01.94 (at page 69)
bear the acknowledgements of their having been received by appellant insurance company. Para No. 6 of
the written version on merit on which heavy reliance was placed on behalf of
respondents runs as under:-
6. Para No. 6, as
stated, is wrong, incorrect, misconceived, fabricated and concocted; hence
denied. It is specifically denied that
the complainant No. 2 had sent letter dated 3.2.1992 to Opposite Party
Insurance Company. However, letter dated
23.03.92 is admitted to have been received by the respondent Insurance Company
as the first communicated about the loss.
Further in reply para No. 3 of Preliminary Objections may kindly be
referred to.
Para No. 3 of Preliminary Objections
which is material, reads thus:-
3. WITHOUT PREJUDICE TO ABOVE SAID PLEADINGS
it is submitted that the complainants have not come before this Honble
Commission with clean hands. No alleged
letters from the period 18.7.91 to 23.3.92 including copies of FIR and Police
Final Report were ever written or served upon the Opposite Party Insurance
Company. This fact stands corroborated
by Opposite Party Insurance Companys letter dated 21.07.93 addressed to
Complainant NO. 2 (page 29 of complaint) where Opposite Party
Insurance Company has categorically stated that it has verified its record
and has found that no claim pertaining to the alleged loss has been registered
with the Insurance Company.
Hence
all the letters said to have been written by complainant No. 2 to Opposite
Party Insurance Company for the period 18.7.91 to 23.3.92 are denied being
fabricated and forged.
Receipt of the letters for the said
period by the appellant insurance Company is crucial as regards alleged breach
of aforesaid condition NO. 1 of the policy. Copy of the letter dated 21.07.93 at page No.
70 would show that the same was written by appellant insurance company with
reference to respondent No. 2s letters dated 11.6.93 and 8.7.93. This letter notices that after verifying the
records it was found that no claim was registered under the policy for theft of truck No. DIL 2223
and in case respondent No. 2 had got documentary proof to show that the
documents sent by it were received by the office of appellant, the copies of the same be
forwarded to it to find out the exact position. In response to this letter the
respondent No. 2 sent
letter dated 13.8.93 that it was surprised to note that no claim
had been registered so far and no documents were received by the
appellant. It was further stated that it
was usual practice to deliver the dak without obtaining any signatures from the
responsible officials and the documents sent had been misplaced at the end of insurance company.
Two affidavits of complainant and Rajiv Gupta, Director of respondent company
were filed by way of evidence on behalf of respondents before the State
Commission. For the reasons best known to respondent No. 2 it has not filed the
affidavit(s) of the person(s) delivering the said letters, the receipt whereof
is denied by the appellant. Further,
respondent No. 2 has not given any plausible explanation why in respect of
letters sent to the appellant on 18.7.91 and onwards, acknowledgements of
receipt of originals thereof from insurance company were obtained if there was
practice of the letters being delivered in the office of appellant without obtaining signatures
on office copies. It was pointed out by Shri Paul, Adv. that in aforesaid para
No. 6 of the written version on merits the receipt of respondent No.2s letter
dated 23.3.92 was admitted erroneously and in fact it is the letter dated
11.06.93 which was received for the first time from respondent No.2. According to Ld. Counsel, para No. 6 has to be read alongwith said para
No. 3 of the preliminary objections of
written version wherein receipt of the letter dated 23.03.92 had been
specifically denied. Assuming for the sake of argument that receipt of the letter dated 23.03.92
is admitted by insurance company, in view of above pleadings and letter dated 21.07.93 it was for respondent
No. 2 to have proved the delivery of aforesaid letters dated 18.7.91, 5.8.91. 12.9.91, 6.11.91 and 3.2.92 on the appellant. In absence of affidavit(s) of the person(s)
delivering these letters and the circumstance noticed above, we have no
hesitation in holding that the said five letters were not sent and delivered to the appellant
insurance company and copies thereof filed by respondent No. 2 have been forged
obviously to covering up the delay in intimating by respondent No. 2 to
appellant insurance company of the occurrence
wherein the truck was lost and lodging the claim under the policy. Object
behind aforesaid condition No.1 is to enable the insurance company to promptly
verify the alleged cause of loss/damage and extent thereof to the insured
property independently. Since it is not
the case of respondents that any of the
said letters were sent under certificate of posting we are unable to endorse
the conclusion reached by State
Commission that no person would go on sending letters after letters to a party
by obtaining fake postal receipts and retaining the originals with him.
Undisputedly, FIR was lodged on 15.7.91. In our view, conduct of respondent No. 1 in
having waited for about two months for lodging the report with police is unnatural and raises suspicion
in regard to the manner in which the insured truck was lost. Conclusion reached
by the State Commission that
delay in informing the police of the occurrence was of no
consequence, is not convincing. In
Davendra Singhs case (Supra) delay of four days in reporting theft of the
insured vehicle to the police and delay in reporting to the insurer of the
theft after a gap of almost of a month was held in violation of condition of
policy. In M/s. Harchand Rai Chandan
Lals case (Supra) the Supreme Court held that the terms of contract have to be read
strictly. Applying the ratio of this decision in present case there is clear
breach of afore-mentioned condition No. 1 of the policy on the part of
respondent and appellant cannot be said to be deficient in service in not
paying the claim under the policy. Aforesaid two decisions relied on behalf of
respondent have no applicability to the facts of this case. Order of State Commission, thus, deserves to
be set as+ide being not legally sustainable.
Resultantly, the appeal is allowed and
order dated 17.9.04 is
set aside and complaint dismissed with cost of Rs.10,000/- to the
appellant.
J
(K.S.GUPTA)
PRESIDING MEMBER
.
(RAJYALAKSHMI RAO)
MEMBER
Yd/*