Complaint filed on: 20-03-2010<br /> Disposed on: 10-08-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.614/2010<br /> DATED THIS THE 10th AUGUST 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> Sri.P.Manirajan, aged about 59 years,<br /> S/o. Palaniswamy,<br /> Residing at No.71/10,<br /> Annipura Road, Sudhama Nagar,<br /> Bangalore-27 <br /> <br /> <br /> V/s<br /> Opposite parties: - <br /> <br /> 1. The Manager, <br /> Oriental Insurance Co. Ltd,<br /> No.14-158/1, Palace extension,<br /> Kuppam – 517 425<br /> Chittoor district,<br /> Andhra Pradesh <br /> 2. The Manager, <br /> Oriental Insurance Co. Ltd,<br /> Regional office No.44-46<br /> Leo complex, Residency road,<br /> Bangalore-25 <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The brief facts of the complaint filed by the complainant against the opposite parties are that, he was the absolute owner of a lorry, RC of which stand in his name and it was insured with the Ops with valid insurance policy from 13-5-2005 to 12-5-2006. That he had entrusted the lorry to one Mr.Dharmesh on a monthly rental basis. Accordingly he used to maintain the vehicle by paying monthly rent. During December -2005 that Dharmesh informed that he was going to his native place in Channarayapatna taluk and he would come back after completion of Sankranthi festival. That Dharmesh thereafter did not turn up and stated that he died later on, and he was informed that Dharmesh had not taken the lorry to his native place. Then he gave a complaint to the police on 21-4-2006 but the lorry was not traced. Then he got issued a legal notice to the Ops on 18-10-2008 calling upon them to pay compensation in respect of missing lorry, but the Ops sent untenable reply on 31-10-2008. Then he preferred a complaint before district forum in complaint No.CC.2806/2008 seeking relief against the Ops in which the forum had allowed him to make a claim with the Ops for payment of compensation with necessary documents. Then on the claim made by him, the Ops have refused to pay compensation and therefore has prayed for a direction to the Ops to pay the insured value of the lorry amounting to Rs.2,50,000/-. <br /> <br /> 2. Ops have appeared through their advocate and filed version contending that the complaint is not maintainable and is liable to be dismissed. Ops have admitted the ownership of the complainant over missing lorry have also admitted that the complainant had declared insured value at Rs.2,25,000/- and it had policy coverage from 13-5-2005 to 12-5-2006 by further contending that the policy was issued subject to terms and conditions and have stated that the lorry was though missing during December 2005, the complainant intimated them about missing through a legal notice dated 18-10-2008 after lapse of more than 2 years which was replied by them. Further stated that the complainant did not even forward license of Dharmesh who was the driver and made claim after lapse of more than 2 years and therefore justifying their action of repudiating the claim have prayed for dismissal of the complaint. <br /> <br /> 3. In the course of trial, the complainant and authorized signatory of 2nd OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith complaint has produced a copy of policy, copy of letter he had addressed to the Ops, copy of a legal notice and copy of order passed on earlier complaint in CC.No.2806/2008. Ops have also produced a copy of policy and copy of terms and conditions of the police. We have heard the counsel for both the parties and perused the records. <br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that Ops have caused deficiency in their service in not paying the insured amount on account of missing of the lorry?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Answer Point No.1: In the negative <br /> 2. Answer Point No.2: To see the final order<br /> <br /> REASONS<br /> <br /> 6. Answer on Point No.1: The complainant who had filed an earlier complaint in CC.No.2806/2008 taking advantage of the observation made by the forum in that proceeding has filed this complaint in second round of litigation. The forum in the earlier complaint had observed since the OP did not repudiate the claim of the complainant at any point of time no cause of action accrued to the complaint and therefore left it to the complainant to make a claim to the Ops. The complainant thereafter on making a claim with OP, the OP is rejected his claim vide letter dated 6-3-2010 and therefore has filed this complaint. <br /> <br /> 7. We find no dispute between the parties, that the lorry owned by the complainant was insured with the Ops and it had valid policy from 13-5-2005 to 12-5-2006. The complainant alleges that he had given the lorry to one Dharmesh on hire for rental and that the lorry was missing from December-2005. With this the complainant had chosen file a missing complaint to the police on 21-4-2006. Thereafter the complainant again kept quite without informing the Ops about the missing of lorry or its theft and until he got issued a legal notice to the Ops on 18-10-2008, he did not inform the missing or theft of lorry to the Ops. The complainant who is a party to the terms and conditions of the policy. Conditions of the policy warrant that insured shall give notice in writing to the company immediately upon the occurrence of any accidental loss or damage extending information and assistance. But in the instant case the complainant did not inform the Ops about the missing or theft of the lorry. The complainant has even taken his own leisure time to give a complaint police also. Which has denied a reasonable opportunity to the Ops to initiate process for tracing the lorry etc,. The complainant who has caused in ordinate delay in giving police complaint and informing the insurance company can not be compensated for the loss. <br /> <br /> 8. The learned counsel representing the complainant, in the course of his arguments submitted that though there is delay in giving complaint and making claim with the Ops, that cannot be a ground to the Ops to refuse to reimburse the loss and in support of his arguments relied upon a decision reported in III (2007) CPJ 308 of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur and another decision of Hon’ble National Commission reported in IV (2007) CPJ 32 (NC). These two decisions are not applicable to the facts of this case. In the earlier decision Chhattisgarh State Commission considering the complainant was an illiterate was not aware of existence of the policy as a legal representative of the insured was liberally construed and relief was granted. In the second decision the Hon’ble National Commission facts are different which have no relevancy to the facts of this case. Whereas the counsel for the Ops by referring to an unreported decision of the Hon’ble National Commission delivered in first appeal No. 312/2005 dated 9-12-2009 submitted that the complainant did not take adequate steps to safeguard the vehicle and there was delay in reporting the theft of the vehicle to the Ops and justifying repudiation has submitted for dismissal of the complaint. In the decision referred to above the National Commission has held that the delay in filing complaint to police and intimation to insurance company would amounts violation of the terms and conditions of the policy and therefore held that the complaint in a such case in not entitled for relief. The decision relied upon by the counsel for the OP in all force apply to the facts of this case and therefore we hold that the complainant who has violated the terms and conditions of the policy cannot complain deficiency against the Ops and the complaint is liable to be dismissed with the result, we answer point no.1 in the negative and pass the following order:<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Both the parties to bear their own costs. <br /> <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 10th August 2010.<br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Both the parties to bear their own costs. <br /> <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 10th August 2010.<br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br />