SRI SHYAMAL KUMAR GHOSH, PRESIDING MEMBER

1. The instant appeal has been directed against the judgment and order dated 17/07/2018 passed by ld. DCDRC in connection with consumer complaint case being no – CC/181/2017 wherein the ld. DCDRC concerned while disposing of the said CC case allowed the same on contest against the OPs/Insurance Company with cost and being aggrieved by such order, the present appeal has been preferred by appellants/opposite-parties.

2. Succinctly the facts reveal that the respondent / complainant being a bona fide policy holder under the appellants/ops insurance company purchased a policy being no – OG-2410-1803-00078 against the vehicle being no – WB/33B/5620 covering the tenure from 27/08/2014 to 26/08/2015.

3. The aforesaid vehicle loaded with soya bean oil was driven by one driver namely Sri Goutam Mal and on 29/11/2014 the said loaded truck proceeded towards Chaprawith within the jurisdiction of State of Bihar. Thereafter, at about 9.00 PM to 10.00 PM on the self same day, the respondent/complainant talked with the driver over telephone on last occasion, thereafter, the respondent/complainant and owner of the goods, loaded in the aforesaid truck, tried to make contact with the driver on several occasions but in vain. After long searching, the respondent and the owners of the goods failed to recover the aforesaid goods carriage vehicle. Then and then the respondent intimated the said incident to the O/C Garhbeta Police Station and intended to lodge FIR. But the concerned Police station refused to take the complaint from the end of respondent. Thereafter, a missing diary was lodged by him over the said incident and the same was registered as GDE NO-419 DATED 10/12/2014. The said event was also informed to TATA MOTORS FINANCE LTD on 26/12/2014 and also informed to the appellants/insurance company along with all relevant documents and papers on 19/01/2015. The said matter of theft was also informed to the MV department by the letter dated 02/01/2015. The respondent further submitted that he being a simple village person having no adequate knowledge informed the said incident to several authorities but due to non-receiving of FIR by the O/C, Gorhbeta Police Station save and except the general missing diary on 10/12/2014 after repeated request he has failed to submit his claim before the appellants/insurance company. Subsequently one Akshay Kumar, Manager of CTA Logistics Ltd. Lodged a complaint in respect of stolen vehicle of the respondent at Garhbeta Police Station on 09/05/2015 vide Garhbeta P.S. case no – 51/2015. Thereafter the respondent/ complainant submitted his claim before the appellants /insurance authority on 19/01/2015 but the appellants repudiated his claim without any valid reasons and to that effect the complainant/respondent knocked at the door the ld concerned DCDRC for getting proper relief or reliefs as prayed for against the ops/insurance company.

4. The ops insurance company, appellants herein contested this case by filing written version stating inter alia that the complainant/respondent informed the event of theft at the office of ops / insurance company after lapse of 26 days from the date of occurrence causing clear violation of the terms and conditions of the policy from the end of the complainant/respondent. Therefore, they have lost their opportunity to investigate the matter. The repudiation of the claim of the complainant was very justified and accordingly the ops/insurance company prayed for dismissal of the instant consumer case filed by the complainant.

5. In course of hearing ld counsel appearing for the appellant drew our attention to the observation of the ld DCDRC and pointed out that the ld Trial Commission completely ignored and overlooked the materials and documents on record while passing the impugned order mentioned above. Ld counsel, at the time of argument, pressed upon violation of the terms and conditions regarding delay intimation at the behest of the complainant causing gross negligence on the part of him. The complainant is not entitled to get any relief as prayed for but ld DCDRC allowed the instant complaint case with cost. Under such circumstances, ld counsel has prayed for setting aside the impugned order dated 17/07/2018 passed by the ld DCDRC concerned and dismissal of the consumer case with cost.

6. In course of hearing ld counsel appearing for the respondent /complainant argued that the said vehicle was stolen either on 30/11/2014 or on 01/12/2014. The driver of the said vehicle informed the complainant that he was at Durgapur at about 9 PM to 10 PM on 30/11/2014. Since then the respondent and the owner of the goods tried to make contact with the driver on several occasions but they failed to make any contact with the driver. After long searching the respondent and the owner of the goods visited the police station, Gorhbeta, for lodging FIR but the O/C of the concerned police station neglected them and refused to record any complaint over the said incident. They became very puzzled at that moment and after repeated request the complainant became able to lodge a missing diary and to that effect the O/C, concerned made a note over the said incident vide Garhbeta Police Station GDE no – 419 dated 10/12/2014. The ld counsel further added that subsequently one Akshay Kumar, Manager of CTA logistics Ltd lodged a complaint regarding stolen vehicle of the respondent at the concerned police station and the said complaint was registered vide Garhbeta P.S. Case no – 51/2015. Thereafter the complainant submitted his claim before the concerned ops/ insurance company, herein appellants. But it is very unfortunate the ops/insurance company repudiated the said claim on the ground of delay intimation. Having no other alternatives, the complainant filed the instant consumer case before the Ld Trial Forum for getting reliefs. The ld counsel further submitted that the ops/insurance company contested this case by filing written version but in support of their pleas they did not cited any witness on their behalf in the instant case. So there is no such error or mistake in passing the impugned order dated 17/07/2018 passed by the concerned DCDRC and as such ld counsel prayed for dismissal of the instant appeal filed by the appellants/insurance company.

7. We have heard the ld advocates on both sides at length and meticulously perused all relevant documents and papers.

8. At the time of hearing we feel that the issue of delay in intimation is forthcoming from the end of appellant in order to destroy the claim of the complainant. Now the moot question, at that moment, arises that whether the delay intimation is fatal or not for the settlement of the claim of the complainant. In such situation we try to search our answer of the aforementioned question through elaborate discussions mentioned herein below.

9. The insurance policy being no – OG-15-2410-1803-00000782 covering the period from 27/08/2014 to 26/08/2015 is admitted. The total sum insured of the alleged vehicle being registration no – WB/33B/5620 is at Rs. 16,00,000/- which is clearly revealed from the policy certificate issued by the ops/insurance company. The theft of the vehicle is also admitted. The theft was occurred either on 30/11/2014 or on 01/12/2014 (within the policy period) which is revealed from the GDE being no – 419 dated 10/12/2014 initiated at Garhbeta Police Station.

10. The ld counsel for the appellants urged that the delay in intimation is very fatal and repudiation was very justified as per terms and condition of the policy. Whereas the ld counsel for the respondent/complainant also argued that there is no question of delay in intimation and as such repudiation of the claim from the end of ops/insurance company is not justified and proper. Both the ld. counsels, in this respect, submitted a remarkable citation reported in GURSHINDER SINGH VS SHRIRAM GENERAL INSURANCE COMPANY LTD AND ANOTHER, wherein the Hon’ble Supreme Court discussed elaborately the orders pronounced in OM PRAKASH VS RELIANCE GENERAL INSURANCE AND ANOTHER (CIVIL APPEAL NO 15611/2017 DECIDED ON 04/10/2017) and ORIENTAL INSURANCE CO LTD VS PARVESH CHANDER CHADHA (CIVIL APPEAL NO 6739/2010 DECIDED ON 17/08/2010). The condition which falls for consideration in the present case is identical with the condition that fell for consideration in both the cases, namely Om Prakash (supra) and Parvesh Chander Chadha (supra). In Parbesh Chander Chadha(supra), it was observed that no explanation for unusual delay in informing the insurer was given by the claimant. In terms of the policy issued by the insurer, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delay in intimation the insurer was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same.

11. Per contra, in the case of Om Prakash (supra) it was observed that the word “immediately” cannot be construed narrowly so as to deprive claimant the benefit of the settlement of genuine claim, particularly when the delay was explained. It was further held that the rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of the policy holders in the insurance industries. If the reasons for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. The condition regarding the delay shall not be shelter to repudiate the insurance claims which have been otherwise proved to be genuine. Moreover the Apex court also observed that the Consumer Protection Act aims at providing better protection of the interest of the consumers. It is a beneficial legislation that deserves a liberal construction. Finally the Bench of three judges of superior court concurred with the view taken in the case of Om Prakash (supra) and held that the mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

12. Now we turn into present case. It has been earlier discussed that the theft was occurred either on 30/11/2014 or on 01/12/2014 (within the policy period). The missing diary was lodged on 10/12/2014 and in the said diary the complainant urged that on and from 01/12/2014 he was searching here and there but he failed to recover the aforesaid vehicle and for that reason he intended to lodge this complaint which is clearly revealed from the GDE no – 419 dated 10/12/2014 at Garhbeta Police station. So in our open eyes it is revealed that there is a delay of only 9/10 days. Be it mentioned here that the complainant tried to search the stolen vehicle from the very beginning and after failure on his part the matter was intimated immediately to the police concerned. It should be remembered that there is no straight jacket formula to explain the word “immediately”. Hence the delay in intimation explained in the missing diary is satisfactory as per our observation. Though it is evident from the documents of the record that the complainant reported the said event to the ops insurance company after 26 days from the date of incident yet it should not be forgotten that the he intimated the said incident to the police concerned on 10/12/2014 which shows a good gesture on the part of him. Not only that the complainant tried to lodge the complaint regarding theft of vehicle at the concerned police station but the police personnel did not care him. Rather due to fault on the part of police concerned the complainant suffered a lot a problem. The complainant proved this incident by adducing evidence as PW1 which were marked as exhibit 1 to 14 respectively. It should be quite natural to adduce evidence from the end of the ops/insurance company in order to defend their case but it was very unfortunate that no evidence was adduced as OPW in the ld. Trial Commission.

13. Finally with regard to the decision passed in Om Prakash (supra) it is our view that delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine and it should also be the duty of this Commission to look into the main object of the preamble of the Consumer Protection Act which cannot be frustrated by any means.

14. Keeping in view of the aforesaid observations, there is no hesitation to hold that there is no error, illegality, irregularity, wrong and mistake in passing the impugned order dated 17/07/2018 passed by the concerned DCDRC and as such we affirm the order impugned dated 17.07.2018 passed by Ld. concerned DCDRC.

15. Accordingly, the instant Appeal being no. A/58/2019 be and the same stands dismissed on contest against the O.Ps/Insurance Company.

16. Hence, the instant Appeal stands disposed of as per above observation.

17. Note accordingly.

18. Let a copy of this order be intimated to the Ld. concerned DCDRC for information.