BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 22nd April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.47/2014
(Admitted on 29.01.2014)
Mrs. Supreetha R.Shetty,
W/o Mr. Rajendra Shetty,
R/at Karmbar Gutthu,
Bajpe Post, Mangalore,
Karnataka.
….. COMPLAINANT
(Advocate for the Complainant: Sri DS)
VERSUS
1. Authorised Signatory &
Branch Manager,
M/s Royal Sundaram Alliance
Insurance Co. Ltd, 3rd Floor,
Emjays Shalimar Complex,
Kankanady, Mangalore.
2. Authorised Signatory &
Branch Manager,
M/s. Royal Sundaram Alliance,
Insurance Co. Ltd,
Sundaram Towers, 45 & 46,
Whites Road, Chennai 600014
Tamilnadu.
….........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 & No.2: Sri UKS)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complaint contends risk policy in respect of his tipper No. KA QD.169. He secured comprehensive policy from opposite parties with declare value 12,31,000/ with valid from 19.1.2011 to 18.1.2012. Vehicle was purchased under Hire-Purchase agreement of the Corporation Bank, Permude Branch situated at Bajpe in Mangalore. The tipper was being used for transporting road metal from one place to another. The subject vehicle and as well as other vehicle belonging to complainant would be parked outside the compound of the house of complainants elder sister at Permude. On 6.9.2011 as usual subsequent to the transport of the load of road metal in day time at 5:00 pm Mr. Saveen Kumar his driver parked the vehicle and locked the doors and gone away. On 7.9.11 at about 10:00 Am the driver came back to the spot the vehicle parked was not to be seen. Despite enquires complainants sister confirming having seen it at about 11:30 pm on previous night. Despite the vehicle was not traced and hence complaint was lodged to the jurisdictional police. Police also in spite of investigation could not locate the stolen vehicle and filed final C report to the concerned jurisdictional court. Claim was laid with opposite party which was intimated about the theft soon after the theft. Opposite party appointed surveyor Mr. Praveen Chandra Shetty after survey issued survey report. In his report he had stated that using a 3 inch long simple nail used in carpentry work the vehicle could be started. It could also be started once finding access into the subject vehicle by opening the cabin door by joining together wires under ignition switch barrel which positively requires no tool in the slightest. When the complaint laid to opposite party for under the terms of the policy opposite party repudiation of the claim as unjust ground hence seeks relief as claimed in the complaint.
II. Opposite parties in the written version contend the claim is barred under section 24.A of C P Act as filed after two years from the date of loss as the vehicle was stolen on 6.09.2011 and the complaint filed on 3.2.2014. It also claims for the purpose of limitation expired on 5.9.2013 the cause of action should run from the date of loss. The further claim the complaint is barred by Res judicata and the matter of the dispute has already been decided on merits by the quasi judicial authority i.e. Insurance Ombudsman who was pleased to dismiss the complaint by order dated 21.10.2013. It also claims that the complainant is running a commercial fleet business as himself admitted in complaint at para 6 that the subject vehicle and the another one vehicle was used for transporting road metal from one place to another and the vehicle was used for commercial purpose complainant is not a consumer. Opposite parties also contend that Mr. Saveen Kumar honestly admitted writing that he had kept the vehicle key in the dashboard of the vehicle and closed the cabin doors before leaving home. The said fact that the vehicle was left unattended and unlocked on the mid night of 6.9.2011 has been confirmed in writing by the complainant as he has given the same in writing and further investigation done by the independent investigators M/s. Universal Claims investigations has confirmed that the theft occurred due to sheer negligence of the vehicle driver. Hence in view of condition No.5 of the policy opposite parties contention is not liable to answer the claims hence seeks dismissal of the complaint.
2. In support of the above complaint Mrs. Supreetha R. Shetty filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C28 as detailed in the annexure here below. Mr. Praveen Chandra Shetty (CW2) Insurance Surveyor was examined. On behalf of the opposite parties Mr. Aneesh Bhaskaran (RW1) Senior Executive Legal, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R10 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the complaint is barred by time?
- Whether the complaint is barred by Principal of Res-judicata?
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the party. Our findings on the points are as under are as follows
Point No. (i) : Negative
Point No. (ii) : Negative
Point No. (iii) : Affirmative
Point No. (iv) : Affirmative
Point No. (v) : As per the final order.
REASONS
IV. POINT No. (i): opposite party has taken a stand that as the incident of the theft took place on 6.9.2011 and as such the complaint filed on 3.2.2014 being beyond 2 years from the date of theft the complaint is barred by time. It is to be noted that after the theft the complainant laid claim with opposite party under the terms of the policy for payment towards the loss of the vehicle by theft. As per complaint Ex.C19 dated 26.7.2012 the intimation given to complainant by opposite party, opposite party has repudiated the complainants claim by invoking condition No.5 of the policy. As seen from the complaint the complaint was filed on 29.1.2014 within 2 years form the date of repudiation under Ex.C19. Hence the cause of action for the complaint arouse from the date of repudiation under Ex.C19 i.e. on 26.7.12.
2. Section 24A of C P Act on Limitation Period reads thus:
24A Limitation period-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
3. In fact the Apex Court in the Transport Corporation of India Ltd., vs M/s Veljan Hydrair limited AIR 2007 SC (sup) 543 held in a circumstance of identical nature i.e. when the transporter to whom the consignment was entrusted went on taking promises to transport the goods when the delivery was sought. It was held by the Apex Court that as there was promise of delivery that when the goods is located will be delivered. It was held from the date of such last promise the period of limitation beings to run. Hence the argument of opposite party that complaint is barred by time is unsustainable. Hence we answer point No.1 in the favour of the complainant in negative.
POINT No. (ii): The complainant mentioned tipper of complainant was insured under the policy issued by opposite party during the period of theft is unjustified. Ex.C3 is the copy of the policy schedule.
2. It was argued for opposite party that the complaint even as complainant’s allegation was owing fleet of tipper as another tipper is belonging to complainant. Hence the present complainant does not come under within the word of consumer used in the C P Act 1986. Section 2 (1) (d) of C P Act reads thus:
d) Consumer means any person who (i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose);
(Explanation: For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment;)
3. In Smt. Niharika Maurya vs Chief Manager and others National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.3687/2010 while revising the order of the insurance company that the detailed questions was raised for their complainant cannot be considered as a consumer allowed the revision petition and reversed the findings of the State Commission and confirmed the findings of the District Forum. Hence the case on hand in our view is identical on in the reported case. As such we are of the opinion that the complainant is a consumer within the meaning of the definition consumer used in C P Act. Opposite party being admittedly issued the insurance policy covered is the service provider. Opposite party having repudiated the complainants claim there is a live dispute between the parties.
4. The claim of complainant was repudiated on the ground (1) The driver of complainant before the police left the key of the lorry tipper in the admitted dash board of the tipper and then by closing the cabin doors left the vehicle. Hence according to opposite parties the complainant left the vehicle unguarded however the claim on this count cannot be justified. As even according to complainant own appointed surveyor Mr. Praveen Chandra Shetty in his report of Ex.C1 make specific mention as follows:
It is a known fact to the motor claim department that the Tata trucks/tippers can be started using a 3 Inch long simple mile steel nail used I carpentry work. It can also be started once the cabin door is opened by joining together the wires under ignition switch barrel, for which no special tool is required. In this case, the police documents clearly stated that the driver locked and secured cabin door before leaving the place of parking.
Thus that the ignition key of the lorry was left in the cabin cannot be construed that complainant left the vehicle unguarded.
5. Thus on going through the above and the complaint Ex.C15 we are of the view the claim and the contention of opposite party that the matter in this raised by the complainant in the present case was referred to ombudsman and he had given after hearing the both sides as complainant consented for a decision by the ombudsman. Ex.R1 is the letter addressed by opposite party to complainant Ex.R1 is the intimation given by office of insurance ombudsman in respect of the present incident of the theft. It is dated 24.11.12 much before the complaint was lodged. Copy of the representation made by present complainant to the Manager of the Insurance Ombudsman Office, Hyderabad is produced by the opposite party along with Ex.R1. There is request made to Ombudsman by the complainant for an order against insurance company. Ex.R2 is copy of the order passed by the Insurance Ombudsman one Mr. G. Rajeswara Rao, IRS, in Award No. I.O.(HYD)/A/GI/2035/2013.14 as seen from the said order dated 21.10.2013 the operative while where are relevant reads :
The allegation of negligence against the complainant is clearly proved.
In view of the circumstance, in which the theft took place, I hold that the insurer had not acted unfairly in applying the policy condition No.5, in repudiation of the claim.
In the result, the complaint is dismissed without any relief.
6. However as seen from the internet web site https://www.irda gov.in of I ndian of insure Insurance Regulatory and Development Authority of India Functions of Ombudsman which is dated 11.8.2003 while considering the functioning of ombudsman as to what in respect of recommendations of amount and award the following is stated:
Recommendations of the Ombudsman:
When a complaint is settled through the mediation of the Ombudsman, he shall make the recommendations which he thinks fair in the circumstances of the case. Such a recommendation shall be made not later than one month and copies of the same sent to complainant and the insurance company concerned. If the complainant accepts recommendations, he will send a communication in writing within 15 days of the date of receipt accepting the settlement.
Award:
The Ombudsman shall pass an award within a period of three moths from the receipt of the complaint. The awards are binding upon the insurance companies.
If the policy holder is not satisfied with the award of the Ombudsman he can approach other venues like Consumer Forums and Courts of law for redressal of his grievances.
Ongoing through the above quoted portion it is clear that nothing is produced before us to show that the complainant accepted the recommendation of the Ombudsman and that communication was sent in writing within 15 days of the receipt of the recommendation to accept that settlement. That apart, as seen from the above the last para sentence, the portion in the italics it is clear that the award is not binding on the parties and it is open to the complainant to approach before consumer Forum and or court of law for redressal of his grievance. Hence the claim of opposite party that the present complaint is barred by principle of res judicata is completely misconceived. Hence we answer this point No.2 in the negative.
POINT No. (iii): As considered earlier the complainant being the person
who insured the vehicle with opposite party and as found out from the definition of the word consumer in section 2 (1) (d) quoted at para 2 of the reasoning we are of the opinion that the claim of opposite party that the vehicle is purchased by the complainant is used for commercial purpose cannot be accepted as correct. Even if, complainant use the vehicle for commercial purposes it cannot be said that the policy purchased was with commercial intention. Hence the ground urged on this count for opposite party is not tenable. Hence the complainant in our opinion is a consumer within the terms of the definition used in the section 2 (1) (d) of the C P Act.
2. In fact our view on this count is fortified by a reported case relied upon by learned counsel for complainant in Supreme Court and National Commission Consumer law cases 1996.2005 in Harsolia Motors vs National Insurance Co. Ltd it is wherein it is held:
Consumer Protection Act, 1986, Section 2(1)(d) Commercial purpose Insurance Policy Whether insurance policy taken by commercial units could be held to be hiring of services for commercial purpose and thereby excluded from the purview of the Consumer Protection Act? Question answered in negative held that a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose Policy is only for indemnification and actual loss It is not to generate profit.
3. In Kaveri Telecom Ltd vs. Vijaya Bank & Anr in IV (2014) CPJ 302 (NC) also held even though the services in question was hired for consideration it was held that are not excluded the complainant as such is held as commercial by relying in the ratio case in Apex Court I (2008) CPJ 13 (SC) inter alia:
(i) Consumer Protection Act, 1986 Sections 2(1)(d), 21(a)(i) Consumer Commercial purposes Person who obtains goods for resale or for any commercial purpose is excluded but services hired for consideration, even for any commercial purposes are not excluded Complainant is consumer Ratio laid down in Kishore Lals, I (2008) CPJ 13 (SC) case followed.
In respect of the claim made by complainant having been not accepted by opposite party that is to pay the claim of complainant in respect of the theft of the vehicle shows there is a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence answer Point No.3 in the affirmative.
POINT NO. (iv): learned counsel for complainant referred to reported cases in Oriental Insurance Company Ltd. And Another vs. Sanjeev Kumar respondent in (2009) CJ 594 (NC) while considering the case of theft of a vehicle by referring to various provisions of the C P Act it is held:
Consumer Protection Act, 1986 Sections 2(1)(o), 14(1)(d), 17 and 21(b) Insurance Theft of vehicle Repudiation of claim Claim repudiated by Insurance Company, for violating terms and conditions of policy on the ground that vehicle was used as a taxi when it was stolen though it was insured as a passenger car District Forum allowed complaint on non standard basis and directed Insurance Company to pay 75% of admissible claim Appeal dismissed by State Commission No material irregularity or jurisdictional error in order passed by lower Fora warranting interference under Section 21(b) Revision petition dismissed.
2. The learned counsel for complainant referred to I (2014) CPJ 430 (NC) National Insurance Company Ltd vs Ajay Kumar Amichand Kheera it is held:
Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d), 21(b) Insurance Theft Police filed untraced report Negligence of driver in parking vehicle Claim repudiated Violation of condition of policy alleged Alleged deficiency in service District Forum allowed complaint State Commission dismissed appeal Hence revision Vehicle was parked in a place where such transport buses and tourist vehicles are normally parked Investigator reported that N.H. 8 is a busy thoroughfare on which thousands of buses pass by round the clock, moreover such luxury tourist buses are common feature and until and unless there happens to occur any specific incidence, people residing near roadside/route do not pay much heed to passing vehicle Violation of condition of policy not proved.
The facts of the reported case where such that the bus driver and the cleaner by parking the vehicle near the national highways at night went to meal at the daba and when they returned after their meal and they found bus was theft kept the key in the bus. Thus circumstance in the reported case and the case one on hand are identical. Hence the law laid down in this reported case that there is no violation of the condition of the policy is liable to be accepted.
3. Similarly the view expressed in III (2014) CPJ 663 (NC) New India Assurance Company Ltd & Anr. Vs. Girish Gupta it is held in this reported case also as followed:
Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d), 21(b) Insurance Theft of Vehicle Driver left key in vehicle Violation of condition of policy alleged Claim repudiated Deficiency in service District Forum dismissed complaint State Commission allowed appeal Hence revision Driver alighted from vehicle to answer call of nature Leaving of key in ignition of car on all occasions cannot be termed as so serious breach so as to disentitle insured from seeking claim under insurance policy Lapse on part of driver not wilful breach Repudiation not justified.
4. Similarly the view expressed by the National Commission in IV (2013) CPJ 218 (NC) in Cholamandalam Vs. MS General Insurance Company Ltd & Anr even in that case the facts where such the driver forgot to remove the key from ignition switch. However it was held that it is justified the ground to repudiate the claim.
5. Thus on going through these reported judgment we are of the view that the facts of the reported cases in IV (2010) CPJ 297 (NC) National Insurance Company Ltd vs. Kamal Singhal considering the fact that the driver of the car by leaving a key in the car left answer nature’s calls and in the meantime the 3 persons whom the driver had picked up in the way who were in the car drove away with the car and committed theft the negligence of the driver in leaving the key in the car was taken as a ground for repudiation and nonstandard basis compensation was awarded by the National Commission.
6. Thus on going through the above case laws where National Commission and even the Apex Court entry consist held in identical circumstances as in the present case repelled the argument of the insurance companies to repudiate the claim. Hence by applying the same principle to the facts on the hand we are of the view opposite party cannot escape from liability to pay compensation under the terms of the policy to complainant.
7. The learned counsel for opposite party also referred to various reported cases in II (2012) CPJ 357 (NC) Devinder Kumar vs. National Insurance Company Ltd in the reported case by referring to section 2(1)(g) and 21(b) of the C P Act 1986 considering that while lodging the complaint there is no mention that the key was left inside and that cabin lock was not working was omitted it was held that the complaint is not correct. Under such circumstance complaint was held as liable to be rejected.
8. In II (2008) CPJ 182 (NC) were it is held:
Consumer Protection Act, 1986 Section 21(b) Insurance Driving licence Validity disputed Vehicle stolen Claim repudiated Negligence of person at wheel alleged Vehicle left unattended with ignition key lying on dashboard complaint allowed by Forum Order upheld in appeal Hence revision Surveyors report ignored by Forum Surveyor being independent and qualified person appointed under Insurance Act, Surveyors report not to be dismissed summarily Varying statements of complaint and associated interested persons cast reasonable doubts on their overall bona fides Validity of driving license of person at wheel immediately prior to incident, assumes importance order allowing complaint set aside.
9. But in the facts of case on hand opposite party produced Ex.R7 the report of one G G Patil, Chief Investigator of Universal Claims Investigators in respect of the complainant claim of theft of the vehicle No.KA.19/D.0169 the report is dated 16.7.2012. At Ex.R7 findings by the investigator due to negligence of the insurer and her driver the theft of the tipper in question hence and on that basis opposite party repudiated complainants claim. Ex.R9 is the repudiation letter dated 26.7.2012.
10. As seen from Ex.R3 the copy of the policy schedule of complainants stolen vehicle the IDV insured declared value is Rs.12,31,000/ and the insurance coverage issued for the period from 19.1.2011 to 18.1.2012 by opposite party hence is shall liable to pay this amount to complainant as insured complainant under the terms of the police i.e. Ex.R3.
POINT No. (v): Opposite parties shall be directed to pay compensation of Rs. 12,31,000/ the IDV of the vehicle, as per the terms of the policy condition with interest at 9% from the date of repudiation as per Ex.C19 i.e. 26.07.2012 till the date of payment. Opposite party shall also be directed to pay compensation towards mental agony fixed at Rs.30,000/ and another Rs.5,000/ as towards advocate fee. Hence we answer point No.4 in the affirmative. Wherefore the following
ORDER
The complaint is allowed with cost. Opposite party is directed to pay Rs.12,31,000/ (Rupees Twelve lakh Thirty One thousand only) to complainant with interest at the rate of 9% from the date of repudiation i.e. 26.07.2012 Ex.C19 till the date of payment.
2. Opposite party shall also pay Rs.30,000/ (Rupees Thirty thousand only) as compensation to complainant.
3. Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).
4. The above payments shall be made within 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 18 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 22nd April 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Supreetha R. Shetty
CW2 Mr. Praveen Chandra Shetty Insurance Surveyor
Documents marked on behalf of the Complainant:
Ex.C1: Communication of Mr. Praveen Chandra dated 25.07.2012
Ex.C2: R.C
Ex.C3: Policy Schedule
Ex.C4: Permit
Ex.C5: FIR
Ex.C6: C Report dated 19.05.2012
Ex.C7: Complaint of Sujith Shetty dated 07.09.2011
Ex.C8, C9
& Ex.C10: Statement of witness recorded by the police
Ex.C11: Sketch of the scene of occurrence
Ex.C12, C13: Statement of witnesses recorded by police
Ex.C14: Spot Mahazar
Ex.C15: Report dated 17.05.2012 submitted by police
Ex.C16: Intimation of J.M.F.C Court
Ex.C17: Communication of opposite party dated 15.03.2012
Ex.C18: Bill issued by Mr. Praveen Chandra for a sum of Rs.5,000/ dated 25.07.2012
Ex.C19: Communication of opposite party No.2 dated 26.07.2012
Ex.C20: Communication of opposite party No.2 dated 2.08.2012
Ex.C21: Communication of complainant dated 03.08.2012
Ex.C22: Communication of opposite party dated 16.08.2012
Ex.C23: Communication of opposite party informing repudiation of claim dated 25.08.2012
Ex.C24: Communication of complainant dated 10.09.2012
Ex.C25: Reply of Advocate dated 29.08.2012
Ex.C26: Communication of complainant dated 10.9.2012
Ex.C27: Communication of complainant dated 05.10.2012
Ex.C28: Account statement of corporation bank from 12.1.11 to 31.3.2011
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Aneesh Bhaskaran, Senior Executive Legal
Documents marked on behalf of the Opposite Party:
Ex.R1: Copy of the complaint preferred by complainant before the Authority under the Redressal of Public Grievances Rules, 1998
Ex.R2: Copy of the order passed by the Authority
Ex.R3: Copy of the policy along with its terms and conditions
Ex.R4: Copy of the claim form
Ex.R5: Copy of the written statement given by the driver Mr. Saveen Kumar
Ex.R6: Copy of the excerpt from the Jaya Kiran local newspaper Dated 08.09.2011
Ex.R7: Copy of investigation report
Ex.R8: Copy of with the statement of complainant
Ex.R9: Copy of claim denial letter dated 26.07.2012
Ex.R10: Copy of letter written by the investigator with a copy of the email dated 25.08.2012
Dated: 22.04.2017 PRESIDENT
