BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF MARCH 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to set aside the letter of repudiation dated 17.02.2017 issued by OP-2 and direct the OPs to process the claim No.OC-17-1701-1801-00002653 lodged by the complainant on 09.05.2016 and further disburse the approved amount of Rs.2,95,000/- along with interest for the delay in payment, to pay an amount of Rs.1,00,000/- as compensation for mental agony, loss and hardship caused and to grant costs of the proceedings.

2. The brief allegations made in the complaint are as under:

The complainant is the owner of the Mahindra Scorpio Car bearing registration No.KA-03-MD-8220 (herein after referred as the said vehicle).  The said car has been insured by OP-2 vide private car package policy No.OG-16-1701-1801-00027810.  The said policy was issued by OP-2 on 31.07.2015 for the period commencing from 03.08.2015 00.01 (Hrs) to 02.08.2016 (midnight).

That on 05.05.2016 the said car was parked outside the residence.  On the following day i.e., on 06.05.2016 around 8.15 A.M in the morning the said car was missing.  In this context complainant approached along with her husband to Ramamurthy Nagar Police and lodged the complaint on the same day i.e., on 06.05.2016.  Accordingly the police have registered the case and set law into motion.  The complainant also sent intimation to the RTO Office, Indiranagar with regard to the theft of the car on 12.05.2016.  Since the said car was not traced hence the complainant lodged a claim with OP by approaching OP-2 and the same was registered as claim No.OC-17-1701-1801-00002653.  On receipt of the claim complainant was introduced to one Mr.Sandeep from the office of OP-2, who personally met the complainant and her husband and collected all the documents required for processing the claim.  He also assured the claim within a timely manner and has given his contact number.  Thereafter the said Sandeep called the complainant and informed that her claim had been processed for an amount of Rs.2,95,000/- have been sanctioned/approved in satisfaction of the claim lodged by the complainant and that the same would be disbursed after submission of the Non Traceable Certificate (NTC) hereinafter called as (NTC).  Thereafter the complainant and her husband waiting for the process of the claim but to the shock and surprise she received a letter from OP-2 dated 09.12.2016 requesting her to submit NTC on the police station within 7 days from the receipt of the said letter.  The aforesaid letter was also followed by another letter dated 29.12.2016 stating that the claim was pending with OP-2 and that OP-2 was unable to proceed further for want of NTC from the police station.  Even after the receipt of the said letter complainant and her husband contacted OP-2 over telephone and also met one Mr.Sandeep and explained to him that the NTC would be furnished as soon as issued by the police and the same was not within the control of the complainant and her husband.  In this context the complainant and her husband following of the police regarding the investigation.  In this regard they are also addressed letter to the OP-2 explaining the situation.  Inspite of the best efforts the NTC was not available well within time.  OP-2 utmost disregard to the request made by the complainant and her husband proceeded to issue a letter dated 17.02.2017 stating that the claim of the complainant stands repudiated and that no further proceedings initiated in this regard.  For which the complainants given their reply vide letter dated 23.02.2017 but there was no any proper response.  Any how the Ramamurthy Nagar police filed ‘C’ report on 17.05.2017 and the same was submitted to the 10^th Additional CMM Court, Mayo Hall, Bangalore on 17.05.2017.  The said ‘C’ report was furnished to the complainant and her husband on the same day.  Immediately thereafter the complainant furnished ‘C’ report to the OP-2 on 24.05.2017 and they requested to process the claim.  But the said request was not considered.  In this context the complainant addressed a letter dated 30.08.2017 to the Grievance Redressal Cell of Insurance Regulatory and Development Authority of India (IRDAI).  To the said complaint it was informed that the complaint lodged by her and forwarded to the OPs electronically and that the OPs will respond to the said complaint directly to the complainant but the complainant has not received any response from OPs.  Hence she issued a lawyer notice dated 19.01.2018 to the OPs.1 & 2.  The same was served on OPs.1 & 2 on 25.01.2018 and 24.01.2018 respectively.  For which the OPs neither replied nor addressed any grievances raised by the complainant.  Hence the complainant is constrained to file this complaint as against OPs basis on the cause of action arouse on 05.05.2016 to set aside the letter of repudiation dated 17.02.2017 issued by OP-2 and direct the OPs to process the claim No.OC-17-1701-1801-00002653 lodged by the complainant on 09.05.2016 and further disburse the approved amount of Rs.2,95,000/- to the complainant along with interest for the delay in payment.    

3. On receipt of the notice, OP’s have filed common version admitting the theft as well as informing the theft to the police on the same day.  OP also admitted in respect of the said policy was in force at the time of theft.  The contention taken by the OPs are that, the complaint is liable to be dismissed for want of cause of action.  Further submits that, there is a four days delay in informing the fact of the theft to OP-2.  Further submits that at a later point of time vide complainant letter dated 29.05.2017 forwarded the copy of the ‘C’ report, as well as, therein being hypothecation in lieu with financier i.e., Syndicate Bank and accordingly policy being issued with IMT endorsement No.7.  Further submits that in view of the fact that there being an endorsement in regard to hypothecation in lieu with the Banker’s/Financiers and accordingly and endorsement IMT No.7 being endorsed in the policy of insurance so issued in respect of the insured complainant’s vehicle bearing No.KA-03/MD-8220.  It was so quite now and then requested to the complainant to forward the Hypothecation cancellation letter and Form No.35 and that the complainant had so all along dodged with the submission of the Hypothecation cancellation letter and Form No.35 to the Respondents and that it was only for the last date of hearing, wherein the matter being listed on 16.08.2018 for objections of the Respondents, the complainant had so forwarded the said Hypothecation cancellation letter dated 27.07.2018 and Form No.35 dated 27.07.2018 to the colleague of the counsel appearing on behalf of the Respondents.  Hence, the averments in para 11 of the complainant are all false and baseless and as well that the complainant was also aware of and had so the knowledge of as to that the complainant having so not submitted the Hypothecation cancellation letter and Form No.35, this claim was pending.  Further it is contended that the delay of four days in intimating about the alleged theft of the insured vehicle to the OPs.  As the OP has sought for the better particulars in respect of ‘C’ report submitted by the police as well as the non submitting Hypothecation cancellation letter and Form No.35 the claim has been repudiated.  Hence OPs pray for dismissal of the complaint.

4. After filing the version the complainant has filed the rejoinder which is nothing but the contents of the complaint.  In the counter claim the complainant has given better particulars in respect of approaching the police station, RTO office and also for getting the NTC ‘C’ report.  It is also stated that in the letter dated 09.12.2016, 29.12.2016 and 17.02.2017 there was no reference to hypothecation cancellation letter or Form No.35.  Even though the complainant was obtained hypothecation cancellation letter and Form No.35 dated 27.07.2018 and furnished the same to the colleague of the counsel on 16.08.2018 so as to enable the OPs to process the claim and settle the matter but OP did not process the claim.  

5. To substantiate the allegations made in the complaint power of attorney holder of complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Smt.Prathibha S W/o Harish M.T, Authorized Signatory of OP tendered her evidence by way of affidavit.  Both parties produced written arguments.  Complainant and OPs produced certain documents.  We have also heard oral arguments.

6. The points that arise for our consideration are:

        7. Our answer to the above points are as under:

REASONS

8. Point No.1:- It is not in dispute that, the said vehicle was missing on 06.05.2016.  Accordingly it was intimated to the Ramamurthy Nagar Police Station and the case has been registered.  It is also not in dispute that, the fact of missing of the said vehicle also informed to the RTO office, Indiranagar by letter dated 12.05.2016.  It is also not in dispute that the said vehicle was insured and the policy was in force at the time of missing/theft.

9. The only contention taken by the OP is that, since the non-traceable certificate i.e., ‘C’ report submitted by the police has not been furnished within 7 days from the receipt of the letter.  As the final report was not submitted by the jurisdiction police hence it could not possible to submit the NTC to the jurisdictional police.  Any how the jurisdiction police have filed ‘C’ report on 17.05.2017 to the 10^th Additional CMM Court, Mayo Hall, Bangalore.  The ‘C’ report was furnished to the complainant and her husband on the same day.  Immediately the complainant furnished the ‘C’ report to the OP-2 on 24.05.2017 and requested to process the claim.  ‘C’ report can be seen at document No.8.  The better particulars sought for by the OPs by letter dated 09.12.2016 to the complainant to submit the NTC from the Police Station within seven days from the date of receipt of the said letter.  But when the ‘C’ report has been submitted on 17.05.2017 the question of submitting NTC within seven days from the receipt of the letter dated 09.12.2016 does not arise.  Soon after the receipt of ‘C’ report the complainant has promptly furnished the NTC along with hypothecation cancellation letter along with Form No.35.  When such being the fact the OP ought to have been considered the same but it has rejected the claim on untenable grounds.  In this context complainant has placed reliance on the decision of the Hon’ble Supreme court in the case of Om Prakash Vs. Reliance General Insurance and Ors in Civil Appeal No.15611 of 2017.  This judgment is also relied by OPs.1 and 2.  For just disposal of this case, we place reliance on the said judgment, wherein it was held as under:

Case Note:

Consumer – Deficiency of service – Delayed filing of complaint – Appellant’s his truck, insured with Respondent-company, was stolen – Respondent repudiated insurance claim of Appellant on ground of failure to inform about loss/theft of vehicle – Appellant filed complaint before District Forum – District Forum dismissed complaint holding that there was no deficiency of service on part of Respondent – Appellant’s appeal was dismissed by State Commission – National Commission dismissed Appellant’s review petition – Hence, present appeal – Whether National Commission rightly rejected revision petition on ground that Appellant filed his claim after a delay 8 days from occurrence of theft.

Facts:

Appellant’s his truck, insured with Respondent No.1, was stolen.  Consequently, an FIR was lodged Under Section 379 of Indian Penal Code.  Thereafter, the Appellant visited the office of the first Respondent but the office was found to be closed.  Then the Appellant went to the place of theft and met the driver and then he went to the concerned police official.  The Appellant along with the truck driver went with the police officials for their assistance to search the vehicle.  The Appellant lodged the insurance claim with the Respondent-company and provided the necessary documents which were demanded by the Respondent-company.  An Investigator, appointed by the Respondent-company, confirmed the factum of theft.  Consequently, the Corporate Claims Manager approved an amount for the said claim of the Appellant.  Thereafter, the Appellant made several requests and demands to the Respondent-company inter alia, seeking speedy processing and disposal of his insurance claim.  Finally, the Appellant served a legal notice to the Respondent-company.  However, the Respondent-company repudiated the insurance claim of the Appellant citing breach of Condition No.1, i.e. immediate information about the loss/theft of the vehicle.  The Appellant filed complaint before the District Forum, seeking a direction to the Respondent-company for payment of claim amount with an interest along with compensation.  The District Forum dismissed the complaint of the Appellant thereby holding that there was no deficiency of service on the part of Respondents.  The Appellant filed an appeal before the State Commission, which dismissed the said appeal.  This order was challenged by the Appellant by way of Revision Petition before the National Commission.  This petition was dismissed by the National Commission.  The Appellant questioned the legality and correctness of the said order in the present appeal.

Held, while allowing the appeal:

(i) It is common knowledge that a person who lost his vehicle may not straightway go to the Insurance Company to claim compensation.  At first, he will make efforts to trace the vehicle.  If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.  It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator.  The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine.  The Consumer Protection Act aims at providing better protection of the interest of consumers.  It is a beneficial legislation that deserves liberal construction.  The Appellant gave cogent reasons for the delay of 8 days in informing the Respondent about the incident.  The Investigator had verified the theft to be genuine and the payment towards the claim was approved by the Corporate Claims Manager, which was just and proper.  The National Commission was not justified in rejecting the claim of the Appellant without considering the explanation for the delay.  The Appellant was entitled for the compensation.  The orders of the National Commission, State Commission and the District Forum were set aside. (11), (12) and (13).

10. The said judgment is applicable to the contention taken by the complainant but not to the contention taken by OPs.  It is settled proposition of law that the law laid down by the Hon’ble Supreme Court is binding nature under Article 141 of the Constitution on all the courts.  In this context we come to the conclusion that, the claim repudiated by the OPs for non furnishing the NTC as well as non furnishing the hypothecation, cancellation letter and Form No.35 is not acceptable.  In this context if we direct the OPs to process the claim of the complainant in respect of the declared value of the said vehicle for an amount of Rs.2,95,594/-, we hope the ends of justice will met sufficiently.  Further looking to the arbitrarily decision taken by the OPs in repudiating the claim, the complainant has put into the great hardship, much less the mental agony.  In this context, we proposed to fix an amount of Rs.5,000/- being compensation and also an amount of Rs.2,000/- being cost of litigation.  Accordingly we answered point No.1. 

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is allowed in part.  OPs are directed to process the claim of the complainant for the declared value of the said vehicle for an amount of  Rs.2,95,594/-.  Further OPs are directed to pay compensation of Rs.5,000/- and litigation cost of Rs.2,000/- to the complainant. 

This order is to be comply within four weeks from the date of receipt of the order. 

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 20^th day of March 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 19.09.2018.

Sri.M.Shanthi Kumar.

Documents produced by the complainant:

   Witnesses examined on behalf of the Opposite parties
   dated 07.12.2018.

          Smt.Prathibha S.

Documents produced by the Opposite parties.

MEMBER                                                               PRESIDENT

Vln*