The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.98 of 2025 (In the matter of application under Articles 226 and 227 of the Constitution of India, 1950). The Manager, New India Assurance Company Limited, Cuttack and another … -versus- Petitioners Amulya Kumar Nayak … Opposite Party For Petitioners : Mr. P.K. Mahali, Advocate For Opposite Party : CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:17.01.2025(ORAL) G. Satapathy, J. 1. This writ petition by the Manager and Authorized Officer of New India Assurance Company Limited under Articles 226 and 227 of the Constitution of India seeks to quash/set aside the order dated 16.10.2024 passed under Annexure-7 by upholding the order dated 19.06.2023 passed under Annexure-6. 2. By Annexure-6, the State Consumer Dispute Redressal Commission, Orissa, Cuttack (SCDRC) by its order dated 19.06.2023 passed in FA No.132 of 2023 WP(C) No.98 of 2025 Page 1 of 11 has set aside the order dated 03.02.2023 passed by the District Consumer Dispute Redressal Commission, Orissa, Cuttack (DCDRC) in CD Case No.113 of 2021 allowing the complaint of the OP-insured by directing the writ petitioner to pay the insured an amount of Rs.8,00,000/- together with interest thereon @ 12% per annum w.e.f. the date of filing of the claim on 30.07.2021 with cost of Rs.3,00,000/- towards mental agony and harassment and a sum of Rs.50,000/- towards cost of the litigation. The aforesaid order of
Legal Reasoning
SCDRC was challenged by OP-insured before the National Consumer Dispute Redressal Commission, New Delhi (NCDRC), which by its order dated 16.10.2024 passed in Revision Petition No.2843 of 2023 has set aside the aforesaid order of the SCDRC and restored the order passed by the DCDRC. 3. Facts involved in this case in precise are, one Ashok Leyland Truck of Model L/2516 bearing Regd. No.OR-05AC-9477 belonging to the OP was stolen on 05.02.2015, but the OP having insured his aforesaid vehicle with the New India Assurance WP(C) No.98 of 2025 Page 2 of 11 Company Ltd. (hereinafter referred to as “the Insurance Company”) with a valid insurance policy covering the period from 14.05.2014 to 13.05.2015 including the date of theft, lodged a claim before the Company for payment of the insured value of the vehicle, but since the driver of the vehicle was the accused and he had been charge-sheeted for commission of offences punishable U/S.379/406/407/ 419/120-B of IPC to face his trial in the Court of law, the Insurance Company repudiated such claim of the OP-owner of the vehicle on 29.03.2016. Being aggrieved, the OP-owner of the said stolen Truck approached the DCDRC on 30.07.2021, but the Insurance Company contested the claim of the OP by raising various points including the limitation of five years. However, the DCDRC passed an order on 03.02.2023 allowing the claim of the present OP-owner of the stolen Truck by rejecting the claim of the writ petitioner. The aforesaid order was in fact challenged before the SCDRC which reversed that order, but ultimately the same was restored by the NCDRC in the revision under the impugned order at Annexure-7. WP(C) No.98 of 2025 Page 3 of 11 4.
Legal Reasoning
In the course of argument, Mr. Prasanta Kumar Mahali, learned counsel for the writ petitioner by taking this Court through the policy conditions and relying upon the decision in Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. And another; (2020) 11 SCC 612, submits that since the OP-owner of the stolen Truck approached the DCDRC with a delay of five years, his claim should not have been entertained, but ignoring such fact, the DCDRC not only entertained the claim of the OP-owner by condoning the delay in filing the complaint before it without any justification, but also allowed the complaint of the OP- owner by directing for payment of insured value of the Truck together with cost for mental agony and harassment as also for the litigation, however, the same was rightly reversed by the SCDRC in the First Appeal in FA No.132 of 2023, but when the aforesaid order passed in FA No.132 of 2023 was challenged by the OP-owner of the stolen Truck in a Revision before the NCDRC, it was wrongly allowed by restoring the order passed by the DCDRC. It is, however, submitted WP(C) No.98 of 2025 Page 4 of 11 by Mr. Mahali that since not only the OP-owner of the stolen Truck had approached the DCDRC with a delay of five years, but he has not adhered/violated the policy conditions and, thereby, he is not entitled to any claim for the insured value, but ignoring such fact, the NCDRC has allowed the claim of the OP-owner of the stolen Truck. Mr. Mahali, accordingly, prays to admit
Decision
the writ petition and issue notice to the OP. 5. Since the writ petition is heard at the stage of admission, this Court considers it apposite to pass an appropriate order on the contentions of the writ petitioner. Practically, the Insurance Company has raised two points in this writ petition, (i) violation of policy conditions and (ii) delay in approaching the DCDRC. This Court considers it apt to extract the relevant policy conditions before proceeding to address the contentions of the Insurance Company. The Policy Schedule-Cum-Certificate of Insurance as filed by the writ petitioner discloses many conditions, out of which the following one condition is relevant for the purpose of adjudication of the claim, which reads as under:- WP(C) No.98 of 2025 Page 5 of 11 “1. 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. Every letter, claim writ summons and/or process or copy thereof 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 or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. 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.” A bare perusal of the aforesaid condition, nowhere it discloses that the claim of the insured should be made within any specific time and it only says that 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. In this case, the FIR story reveals that the vehicle was entrusted to the driver and helper on 03.01.2015, but it was found missing on 05.02.2015 at about 6 PM and on the next day, at about 11 AM, the helper of the vehicle taking some false plea, send the driver to the spot for unloading, but after one hour, the said Truck was not WP(C) No.98 of 2025 Page 6 of 11 found at the spot. However, being informed by the helper, the OP-owner of the stolen Truck suddenly came to Dhenkanal Town and inquired about the Truck and also went to the house of one Biki Routray to collect some information, but as he did not give any information about the driver, on 08.02.2015, the OP-owner contacted the police at Sahidnagar and on 09.02.2015, an FIR was registered. It is, however, true that some explanation has been given by the owner as to the manner in which his vehicle was stolen, but fact remains that there was no inordinate delay in registration of FIR inasmuch as on the admitted facts, the vehicle went missing on 05.02.2015, but FIR was lodged on 11.02.2015. Since, the policy conditions never stipulates any time to lodge an FIR, it cannot be said that mere delay of five or six days is sufficient to repudiate the genuine claim of a person. It is, however, relied on by Mr. Mahali the decision in Gurshinder Singh (supra), but in this decision the Apex Court while dealing with the matter in a similar situation has held the following at paragraph-20:- “20. When an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have WP(C) No.98 of 2025 Page 7 of 11 lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.” In this case, one of the contentions of the Insurance Company is delay in intimating the Company, but the same is not a ground to repudiate the claim as there was no condition stipulated in the policy specifying any time for intimating the company or lodging of FIR, much less condition does not prescribe for intimating the company. The conditions embodied in the Insurance Policy, however, only cast a duty on the insured to give immediate notice to the police and cooperate with the company in securing the conviction of the offender, in case of theft or criminal act which is the subject of a claim under the policy. In the aforesaid background, when the conditions embodied in the policy does not prescribe to intimate the Insurance Company or specifying any time to give notice to police, the first contention as advance for the Insurance company has no basis to interfere with the impugned judgment passed by the NCDRC. WP(C) No.98 of 2025 Page 8 of 11 6. On coming to the next contention with regard to approaching the DCDRC by the OP-owner after a delay of five years, it appears that the same having been adjudicated by the DCDRC holding the delay to be inconsequential and thereby, condoning the delay by entertaining the complaint of OP-owner, but the same having not been challenged by the Insurance Company, it cannot afterwards challenge the same after more than five years of entertaining the complaint by DCDRC after condoning the delay. It is, however, contended by Mr. Mahali that the Insurance Company has taken the delay as one of the grounds before the NCDRC, but the NCDRC while adjudicating the matter, has restored the finding of the DCDRC, which by itself is evident that the NCDRC has considered the aforesaid ground of objection of the Insurance Company in negative. Further, the NCDRC by its order dated 16.10.2024 has held the following in paragraph-12:- “12. From the above, it is seen that State Commission has not given any valid reasons for reversing the decision of District Forum in condoning the delay. District Forum has recorded valid reasons for condoning the delay. The case of Complainant was closed by the Insurance WP(C) No.98 of 2025 Page 9 of 11 that learned Counsel charge-sheet was Company on the ground of arraying of driver as accused and his charge-sheeting. This in itself is not a valid reason for repudiation. If the incident of theft is established and claim is coverable under the policy and there is no violation of policy terms & conditions. While the Complainant claimed filed on 05.09.2019 and same is recorded in the order of District Forum as well, during the hearing on 09.05.2024, Insurance Company was not in a position to categorically state as to whether the date when this form was signed by the police officer represents the date of filing the charge-sheet before the court. We have seen the Final Form (U/s 173 CrPC) available in the records filed in the Court of S.D.J.M. Dhenkanal, The document bears the dates when the concerned Investigating Officer signed this report, but does not reflect as to on which date the charge- sheet was filed in the Court. The true copy of this document is seen certified by the Sheristadar of Civil Courts, Dhenkanal on 31.10.2019.” for True it is that the cause of delay being a disputed question of fact cannot be decided in a writ petition, but the same can be adjudicated by the forum having jurisdiction over such dispute and in this case, the aforesaid plea has already been adjudicated by three forums, which are DCDRC, SCDRC and NCDRC. It, therefore, can be well considered that the plea as advanced by the writ petitioner after five years of passing of the order by the DCDRC in condoning the WP(C) No.98 of 2025 Page 10 of 11 delay as a ground to stamp approval for repudiation of claim of the OP-owner merits no consideration as the same has already been rightly considered by the NCDRC and the plea of delay in approaching the DCDRC as set forth by the Insurance Company having properly adjudicated by the concerned forums requires no interference by the writ Court in exercise of power under Article 226 & 227 of the Constitution of India. 7. In view of the aforesaid discussions made in the foregoing paragraph and taking into account the submission as advanced by the learned counsel for the writ petitioner, this Court does not find any merit in the contention of the petitioner to admit the writ petition and issue notice. 8. Accordingly, the writ petition being devoid of merit stands dismissed. Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2025 18:10:50 (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 17th day of January, 2025/Subhasmita WP(C) No.98 of 2025 Page 11 of 11