Orissa High Court
The Manager vs Amulya Kumar Nayak … Opposite Party on 17 January, 2025
Author: G. Satapathy
Bench: G. Satapathy
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 ... Petitioners
Assurance Company Limited,
Cuttack and another
-versus-
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
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. 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
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 haveWP(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
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 that charge-sheet was filed on
05.09.2019 and same is recorded in the order of
District Forum as well, during the hearing on
09.05.2024, learned Counsel for 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.”
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.
(G. Satapathy)
Signature Not Verified Judge
Digitally Signed
Signed by: SUBHASMITA DAS
Designation: Sr. Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 20-Jan-2025 18:10:50
Orissa High Court, Cuttack,
Dated the 17th day of January, 2025/Subhasmita
WP(C) No.98 of 2025 Page 11 of 11
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