CC No.30/2018                                       Date of filing:03.01.2018

                                                            Date of Disposal:02.01.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  2^ND   DAY OF JANUARY 2020

CONSUMER COMPLAINT No.30/2018

PRESENT:

Sri.   Venkatasudarshan  D.R.  B.Com,LL.M.,              …. PRESIDENT

Smt.  L.Mamatha, B.A., (Law), LL.B.                                      ….       MEMBER

COMPLAINANTS:

Sri. Gurunath G.J,

S/o Sri. Janardhan G.N., 42 years,

R/at No.6/1, 12^th cross,

Rangaswamy temple street,

Gandhinagar, Bengaluru-560053.

 (Complainant by Sri.  , Advocate)          

V/s

OPPOSITE PARTIES:

Bajaj Allianz General Insurance

Complainant. Golden Heights,

Rajajinagar, Bengaluru-560010.

Rep by its Branch Manager.

(Opposite party Sri.Manoj Kumar M.R , advocate)

= = = = = = = = = = = =                              

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER ON MERITS//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Gurunath G.J against The Branch Manager, Bajaj Allianz General Insurance Company, Bangalore praying for a direction to the opposite party to pay a sum of Rs.27,526/- being the insured amount in respect of the vehicle Suzuki Access bearing registration No.KA-01-EZ-1202 together with interest 18% p.a. and also to pay Rs.25,000/- towards damages together with cost of the proceedings.

3. It is the case of the complainant that on 13.03.2017 at about 9. A.m. the complainant had parked his vehicle in front of his house and went for his work.When he returned back to his house he was shocked to see that the vehicle was not there at the place where it was parked.Hemade enquires with the neighbours and came to know that the vehicle was stolen by some unknown person.With no other alternative the complainant had lodged the complaint before the City Market Police Station, who registered case in crime No.41/2017 for an offence punishable under section 379 of the Indian Penal Code.

4. The police have taken up investigation.The complainant was hoping that his vehicle would be traced by the police and waited till first week of May 2017.Ultimately when the vehicle was not traced the opposite party was intimated regarding the theft of the vehicle.The complainant submitted all the necessary documents pertaining to the vehicle to the opposite party on 06.05.2017 and made claim vide crime No.OC-18-1701-1802-00000189.On 15.05.2017 the opposite party has rejected the claim for the reason that there was a delay of 52 days in giving intimation to the insurance company about the alleged theft, which deprived the investigation agency an opportunity to the investigate and take timely again to recover the vehicle.On 01.06.2017 the complainant wrote a reply to the complainant stating that he has not deprived any investigating agency to recover the vehicle as he had immediately lodged a complaint before the jurisdictional police and was waiting with a hope that they would trace the vehicle.On 07.06.2017 the opposite party issued another letter stating that the explanation offered is not satisfactory and the repudiation of the claim stands.A legal notice was got also issued by the complainant on 21.07.2017 to the opposite party. But of no avail.Hence, this complaint.

5. There is only one opposite party in this case.After admitting the complaint the notice was ordered to be issued to the opposite party.The opposite party entered appearance through an advocate and filed version.

6. In the version it is contended that there is no deficiency of service or unfair trade practice committed by it.Insurance policy is a contract and both the parties are under obligation to obey and fulfill all the terms and conditions.It is contended that the claim is not maintainable.It is admitted that the complainant is the owner of the vehicle in question and that the same was insured for Rs.27,526/- under the policy bearing number and for the period mentioned in the complaint and contended that the said policy was issued subject to conditions exception and limitation.

7. It is the case of the opposite party that as per the complainant’s case that the alleged theft of the insured vehicle was between the afternoon of 13.03.2017 to 8.00 p.m. of 13.03.2017, but the claim was lodged with the opposite party in respect of the said loss belatedly after the delay of 52 days.As the complainant has failed to give satisfactory reply with the documentary evidence to the queries raised by the opposite party vide letter dated 15.05.2017, the claim was repudiated vide letter dated 07.06.2017. It is denied that the police complaint was lodged, that the police registered the case as averred in the complaint.It is contended that those contentions have been taken by the complainant to patch up the delay in lodging the complaint.It is contended that the complainant has failed to take immediate and proper action by intimating the alleged theft to the jurisdictional police and also to the opposite party and thereby violated the conditions of the insurance policy.It is stated that answer given by way of reply to the pre-repudiation letter dated15.05.2017 was not satisfactory and therefore the claim was repudiated and that the repudiation is valid.The legal notice is admitted.Thus it is contended that there is no deficiency in service on the part of the opposite party.Hence, prays for dismissing the complaint.

8. When the case was set down for recording evidence, the complainant has filed his affidavit evidence.On behalf of theopposite party one person by name Smt. Prathibha .S, Deputy Manager, T.P Claims of Bajaj Allianz General Insurance Company Limited has filed her affidavit evidence.Both parties have produced certain documents about which the reference will be made in the course of the order.

9.   The points that arise for our determination are:-

(1) Whether the complainant proves that there was deficiency in service on the part of the opposite party?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

Point No.1:- In the negative.

Point No.2:- Does not survive for consideration.

          Point No.3:-  As per the final order for the following.

•  
•   This is a complaint filed by the complainant Sri. Gurunath G.J against the opposite party praying for a direction to the opposite party to pay a sum of Rs.27,256/- being the insured value of his two wheeler together with interest at 18% p.a. and also pay Rs.25,000/- towards damages together with the cost of the litigation.

12. In order to substantiate the case the complainant has filed his affidavit evidence.The affidavit evidence contains only the repetition of the averments made in the complaint and with a further statement about the document that are produced.Since the averment in the complaint have already been narrated above in detail there is no need for us to discuss again here about the averments in the affidavit.

13. Similarly on behalf of the opposite insurance company one person Smt. Prathibha .S, Deputy Manager, T.P Claims of the opposite party company has filed her affidavit as evidence on behalf of the opposite party which is nothing but the repetition the averments made in the version.

14. The opposite party is not disputing that the vehicle in question which is the two wheeler was validly insured with the opposite party and the said insurance policy was in force from 17.10.2016 for a period of one year.It is the case of the opposite party that there was a delay of one day in lodging complaint before the police about the theft of the two wheeler.It is also the case of the opposite party that the complainant has intimated the opposite party about the said theft 52 days after the incident.Thus it is contended that there is a violation of condition No.1 of the policy and therefore the claim was repudiated validly.In view of this the only short point for our consideration is whether the repudiation of the claim by the opposite party was just and proper.

15. It is needless to say that in a contract of insurance both the parties i.e., insurer as well as the insured are bound by the terms and conditions upon which the policy was issued.It is also the settled principle of law that the court or any legal authority has no power to add or subtract anything to the terms and conditions of the policy.Keeping this in our mind now we have to see the condition of the policy that was stated have been violated.According to the opposite party there was a violation of condition No.1 of the policy which reads as under;

“As per our policy condition No.1 “Notice shall be given in writing to the company immediately upon the occurrence of any accident or 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”.

The above said condition mandates the insurer to give notice in writing to the company immediately upon occurrence of any accident or loss or damage in the event of any claim.It also provides that the insurer shall give all such information thereafter as the company requires and also assist.So the notice giving intimation about the loss of the vehicle in question must have given by the complainant “immediately”.The word immediately has been explained in one of the decision of the Hon’ble Supreme Court as under;

In a judgement reported in IV (2012) page 141 in New India Assurance Complainant. Ltd., Trilok Jane the Hon’ble National Commission while referring to the word immediately has after discussing about its meaning found in various dictionaries has stated thus:-

Since in the present case, there was a contract between the insured and the insurer and, the word immediately, under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case.

In this case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle.Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced.The insurer can coordinate and cooperate with the police to trace the car.Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commissioner of the theft and to trace help in tracing the vehicle.

In this case it is not in dispute that the intimation was given to the insurance company (opposite party) after 52 of days the alleged theft of the vehicle which has resulted in loss to the complainant. The theft had taken place on 13.03.2017.The intimation was given to the opposite party insurance company in the first week of May 2017.The documents were submitted on 06.05.2017.Thus it is clear that the intimation about the theft which has resulted in loss to the complainant was given long after 52 days from the date of alleged theft.This delay of 52 days cannot certainly be said as the intimation given or notice given “immediately” as contemplated in the condition No.1 of the policy.

16. Further it is not as if the opposite party has straight away repudiated the claim.Before making such repudiationvide letter dated 07.06.2017, the opposite party has called upon the complainant vide its letter dated 15.05.2017 to explain within 7 days as to why the claim should not be repudiated because of the delay of 52 days in giving notice of the accident.The true copy of that letter is produced by the complainant himself at document No.6.The complainant has given reply to that letter vide document No.7 on 01.06.2017.We have perused that reply letter.The contents of the letter does not offer any explanation for the delay of 52 days in giving intimation/notice to the opposite party.On the other hand, the only information which he has given is that he lodged the police complaint and thereby the insurance company has not been deprived of investigation.This explanation cannot be accepted.This is because in the absence of any notice given to the insurance company how do the insurance company come to know that the police complaint has been filed and investigation is on.Had there been such prior notice, the insurance company also would have joined in conducting investigation.That has been deprived by the complainant by causing delay of 52 days in giving notice of theft.Therefore we conclude that there is no notice given to the insurance company about the theft of the vehicle immediately.On the other hand, the notice given 52 days after the theft (incident) resulting in loss cannot be said to be an immediate notice and therefore it is not in compliance of condition No.1 of the policy.Under circumstances it can be said that the repudiation made by the insurance company is justified.

17. In this context we may refer to the decision of the Hon’ble National Commission reported in I (2016) CPJ 450 (NC) in National Insurance Company V/s Sharvana Singh.In that case the theft of the vehicle i.e., the truck was on 22.08.2005.Whereas intimation was given to the insurance company after about the month.The Hon’ble National Commission referring to condition No.1 of the policy and also relying on the judgment of the Hon’ble Supreme Court reported in 2010 (CPJ Soft) 1 SC in Oriental Insurance Company Ltd., V/s Pravesh Chandar Chadha has held that it is a clear case of violation of condition No.1 of the policy and held that the repudiation of the claim by the insurance company is justified.

-:ORDER:-

The complaint filed by the complainant Sri. Gurunath G.J u/s 12 of the Consumer Protection Act is dismissed. No order as to cost.

       Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on   2^nd day of January 2020)                                            

  (L.Mamatha)                             (D.R. Venkatasudarshan)     

     Member                                                President.  

          //ANNEXURE//

Witness examined for the complainant side:

Sri. Gurunath G.J, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

Smt. Prathibha .S, The Deputy Manager  of opposite party has filed her affidavit.

List of documents filed by the complainant:

1. Copy of the registered certificate.
2. Copy of the insurance policy.
3. Copy of the FIR.
4. Copy of the complaint.
5. Copy of the acknowledgement of the respondent.
6. Copy of the letter dated 15.05.2017.
7. Copy of the letter dated 01.06.2017.
8. Copy of the letter dated 07.06.2017.
9. Copy of the legal notice dated 21.07.2017.
10. Copy of the postal acknowledgement.

List of documents filed by the opposite parties:

1. Transcript of proposal for two wheeler package policy certificate of insurance date ‘Nil’ is marked as Ex.R.1.
2. Certificate of insurance in respect of the vehicle in question is marked as Ex.R.2.
3. Package policy schedule is marked as Ex.R.3.
4. The copy of the receipt for the complainant having paid premium is marked as Ex.R.4.
5. The terms and conditions of the policy in 4 sheets is marked as Ex.R.5.