Tamil Nadu

South Chennai

44/2012

R.Jaffar Khan - Complainant(s)

Versus

Bharathi AXA General Insurance - Opp.Party(s)

M/s.Mohamed Rafi

12 Jan 2018

ORDER

                                                                                                                           Date of Filing  : 16.02.2012

                                                                          Date of Order : 12.01.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                   :  MEMBER-I

CC. NO.44/2012

FRIDAY THE 12^th DAY OF JANUARY 2018

Mr. R. Jaffar Khan,

Having office at No.36,

200Ft. Road,

Ganesh Nagar,

Kulathur,

Chennai 600 009.                                       .. Complainant.

                                      ..Vs..

1. The Manager,

Claims Department,

Bharati AXA General Insurance Co. Ltd.,

Plot No.844/4, Mezzanine Floor,

For Republic, Shah Industrial Estate,

New Link Road,

Andheri West,

Mumbai 400 053.

 

2. The Managing Director,

Bharti AXA General Insurance Co Ltd.,

1^st Floor, Ferns Icon,

Servery No.28,

Doddnabundi Village,

K.R.Puram, Hobli,

Bangalore – 37.

 

3. The Regional Manager,

Bharati AXA General Insurance Co. Ltd.,

2^nd Floor, Metro Plaza Complex,

162, Anna Salai,

Chennait – 2.                                            .. Opposite parties.

 

 

Counsel for complainant         :  M/s. M. Mohammed Rafi & other    

Counsel for opposite parties  :   M/s. M.B. Gopalan

ORDER

 

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum  of Rs.6,00,000/- being the vehicle insured amount  and also to pay a sum of Rs.10,00,000/- towards compensation for mental agony and to pay cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that  he is the owner of the lorry bearing registration No.TN-04-Q-5695 insured with the opposite parties for the period from 6.3.210 to 5.3.2011.   The complainant further state that on 7.11.2010 and 8.11.2010 in the mid night when the lorry was parked at Hammam Pagadai parking in Nevi Mumbai someone had committed theft of the said lorry. Immediately on 9.11.2010 the complainant lodged a complaint before the Kalamboli Police Station Navi, Mumbai and the same was  registered in Cr.No.491/2011 dated 2.6.2011 as per Ex.A6.  After due enquiry submitted a report before Judicial Magistrate First Class Raigad District and issued an order in No.419/2011  stating that  “the vehicle was not traceable”.   Immediately after  the complainant submitted the claim form before the opposite parties insurance company and due investigator was appointed by the opposite parties.   The complainant also state that  he has taken all reasonable steps to safeguard the vehicle and has not violated any conditions of the policy.  Accordingly the complainant was constrained to issue legal notice dated 20.9.2011 to the opposite party.  Immediately after the receipt of the legal notice within 15 days the opposite parties  as usual did not respond to the said the legal notice.  As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant. 

2. The brief averments in the written version filed by the opposite parties is as follows:

The  opposite parties deny each and every allegations except those that are specifically admitted herein.  The opposite parties submit that the complainant has conveniently suppressed the policy terms and conditions  and has not came to this forum with clean hands and filed this case.   Further the contention of the opposite parties is that  the policy condition 4 & 8 are as follows:

        The insured shall take all reasonable steps to safeguard the vehicle from loss  or damage and to maintain it in efficient condition and the Company shall have at all times fee and full access to examine the vehicle or any part thereof or any driver or employee of the insured.  In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent  further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

          The due observance and fulfillment of the terms and conditions and endorsement of this policy in so far as they relate to anything  to be done or complied with by the insured and the truth of the statements and answer in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.

The complainant  has thus committed breach of condition No.4 and 8 of the policy.  Hence the opposite parties had rejected the claim by detailed letter dated 29.9.2011.   Hence there is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A.11 marked.  Proof affidavit of the opposite parties filed and Ex.B1 to Ex.B3  marked on the side of the opposite parties.

4.      The points for consideration is :

1. Whether the complainant is entitled to a sum of Rs.6,00,000/- being the vehicle insured amount as prayed for ?

2. Whether the complainant is entitled to pay a sum of Rs.10,00,000/- towards compensation for mental agony as prayed for?

5.      POINTS 1 & 2 :

        Both parties filed their respective written arguments.    Perused the records (viz) complaint, written version, proof affidavit and documents.    Admittedly the complainant is the owner of the lorry bearing registration No.TN-04-Q-5695 insured with the opposite parties for the period from 6.3.210 to 5.3.2011.   Ex.A1 is the copy of  policy.   The learned counsel for the complainant contended on 7.11.2010 and 8.11.2010 in the mid night when the lorry was parked at Hammam Pagadai parking in Nevi Mumbai someone had committed theft of the said lorry.   Immediately on 9.11.2010 the complainant lodged a complaint before the Kalamboli Police Station Navi, Mumbai and the same was  registered in Cr.No.491/2011 dated 2.6.2011 as per Ex.A6.  After due enquiry police submitted a report before Judicial Magistrate First Class Raigad District and issued an order in No.419/2011  stating that  “the vehicle was not traceable”.   Immediately  the complainant submitted the claim form before the opposite parties insurance company and due investigator was appointed by the opposite parties.  The investigator after enquired the complainant in such a hurried nature without holding proper enquiry filed his report  as per Ex.B2. In Ex.B2 the complainant left the vehicle with key unattended resulting theft is absolutely false.  Since the FIR and all other record will prove very clearly that the lorry was  parked in a public place opposite to a Petrol bunk with key.  It is not denied by the opposite parties that the  Petrol bunk will function around clock.   Further the contention of the complainant is that since the opposite parties  has not attended the claim for more than 10 months.  The complainant was constrained to issue legal notice dated 20.9.2011 to the opposite party.  Immediately after the receipt of the legal notice within 15 days the opposite parties  repudiated the claim with untenable contention stating that there is violation of policy condition No.4.  Hence the complainant is constrained to file this case for claiming compensation of Rs.6,00,000/- as insured amount for the lorry with compensation of Rs.10,00,000/-.  

6.     The contention of the opposite parties is that the owner of the vehicle and policy also admitted.   The complainant has conveniently suppressed the policy terms and conditions  and has not came to this forum with clean hands and filed this case.   Further the contention of the opposite parties is that  the policy condition 4 & 8 are as follows:

The insured shall take all reasonable steps to safeguard the vehicle from loss  or damage and to maintain it in efficient condition and the Company shall have at all times fee and full access to examine the vehicle or any part thereof or any driver or employee of the insured.  In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent  further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

The due observance and fulfillment of the terms and conditions and endorsement of this policy in so far as they relate to anything  to be done or complied with by the insured and the truth of the statements and answer in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.”

But in this case  the vehicle was parked opposite  to the Petrol Bunk which is functioning around clock  is not denied. Similarly immediately after the alleged theft the complainant lodge a complaint before the Kalamboli Police Station Navi, Mumbai and the same was  registered in Cr.No.491/2011 dated 2.6.2011 and submitted a report not traceable.   The allegation that there is  inordinate delay in registered FIR is absolutely false.   The opposite parties has not challenged the claim.    Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.6,00,000/- being the insured amount for the complaint mentioned vehicle and shall pay compensation of Rs.30,000/- towards  mental agony with cost of Rs.5,000/- and the points are answered accordingly.

        In the result the complaint is allowed in part.  The opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.6,00,000/- (Rupees Six lakhs only) being the insured amount for the complaint mentioned vehicle and shall pay compensation of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

          The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts  shall carry interest at the rate of 9% p.a. to till the date of payment.

          Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of January 2018. 

MEMBER –I                                                                           PRESIDNET.

COMPLAINANT’S SIDE DOCUMENTS:

Ex.A1- 6.3.2010   - Copy of Insurance policy.

Ex.A2- 23.5.2006 - Copy of registration certificate.

Ex.A3- 19.7.2010 - Copy of National Permit

Ex.A4- 15.11.2010 – Copy of Road Tax receipt.

Ex.A5- 9.11.2010 - Copy of FIR.

Ex.A6- 9.11.2010 - Copy of Translated notarized FIR.

Ex.A7- 20.9.2011 - Copy of Notice.

Ex.A8- 23.9.2011 - Copy of Ack. Card.

Ex.A9- 29.9.2011 - Copy of letter sent by the opp. party.

Ex.A10- 12.11.2011- Copy of legal notice.

Ex.A11- 24.11.2011- Copy of Ack. Card.  

OPPOSITE  PARTIES SIDE DOCUMENTS:  

Ex.B1-             - Copy of Insurance policy with terms &  conditions.

Ex.B2- 18.8.2011- Copy of  investigation report.

Ex.B3- 29.9.2011- Copy of repudiation letter.

MEMBER –I                                                                           PRESIDNET.