IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 24th day of September, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 114/2012(Filed on 22.06.2012)
Between:
P.C. Oommen,
Panthapattu House,
Niranam North P.O.,
Thiruvalla – 689 621. … Complainant.
And:
1. Bajaj Allianz General Insurance Co. Ltd.,
Regd. Office, GE Plaza, Airport Road,
Yerwada, Pune – 411 006.
2. Cosmic Air Travels, First Floor,
Pothiricans Building, Near KSRTC,
Thiruvalla – 689 101.
(By Adv. Dileep Mathai)
3. Bajaj Allianz General Insurance Co. Ltd.,
3rd Floor, YMCA Building,
Sastry Road, Kottayam. … Opposite parties.
(By Adv. Sam Koshy, for Opps. 1 & 3)
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he along with his wife Sosamma Oommen availed flight ticket for their journey from Cochin to Newyork on 04.08.2011 from the second opposite party and started their journey at 4-20 a.m. on 04.08.2011. They also paid an amount of ` 12,500 to the second opposite party for insuring their journey under Travel Age Insurance Policy of the first opposite party and the second opposite party had also given the said policy to the complainant. With the above said air ticket and the insurance policy, they have traveled to America and reached Newyork at 7-43 a.m. on 05.08.2011. During their journey, they have also carried 4 baggages. When they reached at John.F.Kennedy Air Port, they received only 2 baggages and the Air Port Authority issued a letter stating the missing of 2 baggages during their journey. Later, the Air Port Authority handed over one baggage after 2 days and one baggage after 3 days of their arrival. On getting the said baggages it is noticed that the baggages are completely damaged and many of the articles kept in the baggage are also missing. As per the insurance policy, the coverage was from 05.08.2011 to 18.10.2011. The complainant tried to contact the first opposite party from Newyork, but they did not responded. So he sent a petition to the first opposite party for the settlement of his claim relating the loss of the articles when he reached India. But the first opposite party disallowed the complainant’s claim by stating that the policy is valid from 05.8.2011 and the baggage was delayed/lost on 04.08.2011. The complainant’s journey was on 04.08.2011 at 4-20 a.m. and the insurance coverage should have started from that date and time. But die to the mistake of the second opposite party, the date of commencement of the policy was entered as 05.08.2011 instead of 04.08.2011. The said policy was purchased from India and their journey commenced from 04.08.2011 and the loss of baggages was reported at the Air Port at America at 21-13 hours on 4th August 2011 (US Time). According to Indian Standard Time (IST), the equivalent time in India was 07-43 hours on 5th August 2011. Since the policy was purchased from India, Indian Standard Time should alone be considered for settling the complainant’s claim. Complainant lost one gold chain weighing 24 grams and 2 bangles weighing 16 grams, 2 designer sarees, 3 sets of pants and shirts and costly suit, 4 Nos. of important CD’s, a marriage certificate, one spectacle and 25 Nos. of photographs, thereby the complainant had sustained a loss of 1-50 lakhs. The repudiation of the claim by the opposite parties 1 and 3 due to the mistake of 2nd opposite party are clear deficiency in service of opposite parties and they are liable to the complainant. Hence this complaint for realizing the loss of articles along with compensation of ` 50,000 and cost of ` 5,000 from the opposite parties.
3. In this case, all opposite parties entered appearance and filed their version. The first and third opposite parties filed a common version and the second opposite party filed a separate version.
4. The main contentions of the first and third opposite parties in their version is that the policy in question was issued by them on the basis of the proposal form submitted by the complainant and as per the said proposal form, the period of coverage requested by the complainant is from 05.08.2011 to 18.10.2011. They also admitted that they have received the claim from the complainant on 13.10.2011 for the delayed delivery of the baggages. Accordingly, they have examined the claim and found that the loss was sustained on 04.08.2011 whereas the policy coverage starts only from 05.08.2011. So the alleged peril happened before the policy came into operation. So they repudiated the claim and it is legal and hence they have not committed any deficiency of service. Further, his claim was for damages for the delayed delivery of the baggages and not for the loss of the baggages or the articles contained in the baggages. Moreover, he had not submitted any claim for the loss of the articles mentioned in his complaint. So the complainant is not entitled to raise a new claim in his complaint other than what he had claimed in his claim form. So according to these opposite parties, this complaint is nothing but an untrue claim and he is not entitled to get any of the reliefs prayed for in the complaint against these opposite parties. With the above contentions, opposite parties 1 and 3 prayed for the dismissal of the case with their cost.
5. The main contention of the second opposite party is that the complaint itself is devoid of merits and have no bonafides. The second opposite party admitted that the complainant’s ticket was arranged by them and it was issued to him on 23.05.2011 i.e. 72 days before the departure. The insurance policy was taken by the complainant according to their own choice and the second opposite party is not an agent for the insurance. The complainant had availed the policy from the first opposite party directly and not through the second opposite party. The proposal form was submitted by the complainant himself and hence any mistake, if any, in the proposal form is not due to any act of second opposite party. The complainant himself is an approved insurance agent by profession who thoroughly knows the pros and cons of the insurance policy. Moreover, the said policy was issued on 28.07.2011, i.e. it is prior to the actual date of journey and the policy was in his custody for the said days. Therefore, if the complainant had actually been want to avail the period of insurance from 04.08.2011 onwards, he would have definitely change the date by a mere intimation to any of the branch of the first opposite party any time before his journey. The complainant had enough time to change the date of journey in the insurance policy for getting coverage from 04.08.2011 onwards. But he failed to do so which is a clear laches and negligence on the part of the complainant himself and hence the second opposite party is not liable to the complainant in any way as they have not committed any deficiency in service. With the above contentions, the second opposite party also prays for the dismissal of the complaint with their cost.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral testimonies of PW1, DWs.1 and 2 and Exts. A1 to A5 and B1 to B4. After closure of evidence, opposite parties 1 and 3 filed their argument notes. Thereafter the parties were heard.
8. The Point: The complainant’s allegation is that he along with his wife Sosamma Oommen travelled to America on 04.08.2011 by availing air ticket of Gulf Air Company and Travelage Insurance Policy of the 1st opposite party from the second opposite party. They carried four baggages and at their arrival at John F. Kennedy Air Port on 05.08.2011 at 7.43 a.m, they received only two baggages and two of their baggages were missing. The airport authority also issued certificate for the missing of the luggage. Thereafter one baggage was received after two days and the other baggage was received after three days after their arrival. The baggages were completely damaged and many of the articles kept in the baggage were also missing. On the strength of the Travelage Insurance policy of the 1st opposite party, the complainant claimed an amount of ` 1,50,000 for the loss of the articles missed from the baggage. But the 1st opposite party repudiated the claim by stating that though the complainant started his journey on 04.08.2011 the policy was issued for his journey on 05.08.2011 and hence there is no coverage for the alleged loss. According to the complainant, he took the policy for his journey from the 2nd opposite party who had mistakenly entered the date of journey as on 05.08.2011 in the proposal form which resulted in the rejection of his claim. Moreover, the loss of baggages were reported at America by the air port authority at 21.13 hours on 4th August 2011 (U.S. Time) and the equivalent time in India is 7.43 hours on 5th August 2011 and hence the 1st opposite party’s contention is not sustainable and they are liable to the complainant. Therefore, he argued for allowing the complaint.
9. In order to prove the contentions of the complainant, he adduced oral evidences as PW1 and 5 documents produced by him were marked as Exts.A1 to A5 in favour of him. Ext.A1 is the photocopy of the electronic ticket receipt issued in the name of the complainant. Ext.A2 is the copy of the Travel Age Insurance policy in the name of the complainant. Ext.A3 is the copy of the property irregularity receipt issued in the name of the complainant by American Airlines. Ext.A4 is the copy of baggage tag. Ext.A5 is the repudiation letter dated 20.02.2012 issued by the 1st opposite party in the name of the complainant.
10. The contention of the 1st and 3rd opposite party is that they issued the policy in question as per the proposal form submitted by the complainant in which the date of journey was entered as 05.08.2011 and hence the policy was issued for the complainant’s journey on 05.08.2011. So the loss occurred on 04.08.2011 is not covered by the said policy. Moreover, as per the claim form submitted by the complainant, he had no claim for the missing of the baggages and the missing of the articles kept in the baggages. His claim was only for delayed receipt of the baggages. But in the complaint he claimed for the loss of baggages. The claim in the claim form and the claim in the complaint are different. Therefore, they argued that the complaint is not allowable.
11. In order to prove the contentions of the 1st and 3rd opposite parties, the Senior Legal Executive of the 1st opposite party filed a proof affidavit in lieu of her chief examination along with 4 documents. On the basis of the proof affidavit, she was examined as DW1 and the documents produced were marked as Ext.B1 to B4. Ext.B1 is the policy in question. Ext.B2 is the travel insurance proposal form submitted by the complainant for getting the insurance policy. Ext.B3 is the claim form submitted by the complainant before the 1st opposite party. Ext.B4 is the terms and conditions of the Travel Age Policy.
12. The contention of the 2nd opposite party is that he is not an agent of the insurance company and he is only a travel agent and as such he had arranged the air ticket to the complainant. He had no connection with the insurance policy and the policy was taken by the complainant directly by submitting the proposal form and if any mistake in the date of journey in the proposal form the complainant alone is responsible for the same.
13. In order to prove the contentions of the 2nd opposite party, he filed a proof affidavit in lieu of his chief examination and he was examined as DW2. No documents were produced by 2nd opposite party.
14. On the basis of the contentions and arguments of the parties, we have gone through the materials on record and found that the complainant started his journey on 04.08.2011. But as per Ext.A2 and Ext.B1 policy certificate the coverage of the policy starts from 05.08.2011. On a perusal of Ext.B2 proposal form, the departure date is recorded as 05.08.2011. As per the deposition of the complainant, the proposal form was prepared by the 2nd opposite party. Even if it is admitted for argument sake what prevented the complainant from verifying the proposal form before putting his signature in it. Further, the air ticket and the insurance policy was received by the complainant not at the time of journey. As per the deposition of PW1 the ticket and the policy was received two or three days before the journey. Even then he had not verified the correctness of the ticket and the policy. Thus in all respect we cannot find any fault against opposite parties in this respect. Moreover on a perusal of Ext.B3 claim form, his claim is for delayed baggage and in Ext.B3 he also admitted that one of his baggages was received after two days and the other baggage was received after three days. So as per Ext.B3, complainant had no allegation of missing of the baggages or the articles kept therein. The complainant also admitted in his cross-examination that Ext.B3 claim form was given by him. But his claims in the claim form and the claim in the complaint are different. As per the complaint, he had lost so many articles including gold and he sustained a loss of ` 1,50,000. So it is very clear that the allegation made in the complaint is an after thought for an attempt for getting money from the opposite parties. So we find that the complainant approached this Forum with unclean hands and hence we are constrained to dismiss this complaint.
15. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 24th day of September, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : P.C. Oommen.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the electronic ticket receipt issued in the
name of the complainant.
A2 : Copy of the Travelage Insurance policy in the name of
the complainant.
A3 : Copy of the property irregularity receipt issued in the
name of the complainant by American Airlines.
A4 : Copy of baggage tag.
A5 : Repudiation letter dated 20.02.2012 issued by the 1st
opposite party in the name of the complainant.
Witness examined on the side of the opposite parties:
DW1 : Alice John.
DW2 : Zachariah. K. Varughese.
Exhibits marked on the side of the opposite parties:
B1 : Copy of the Travel Companion Identification and
Schedule.
B2 : Travel insure proposal form submitted by the
complainant before the first opposite party.
B3 : Overseas Travel Insurance claim form submitted by the
complainant before the 1st opposite party.
B4 : Terms and Conditions and the Travelage Policy.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) P.C. Oommen, Panthapattu House, Niranam North
P.O., Thiruvalla – 689 621.
(2) Bajaj Allianz General Insurance Co. Ltd.,
Regd. Office, GE Plaza, Airport Road,
Yerwada, Pune – 411 006.
(3) Cosmic Air Travels, First Floor, Pothiricans Building,
Near KSRTC, Thiruvalla – 689 101.
(4) Bajaj Allianz General Insurance Co. Ltd., 3rd Floor,
YMCA Building, Sastry Road, Kottayam.
(5) The Stock File.
