Tamil Nadu

South Chennai

CC/358/2013

ICM Logistics Pvt. Ltd., - Complainant(s)

Versus

Bharati AXA General Insurance Company - Opp.Party(s)

T.Natarajan

14 Mar 2019

ORDER

                                                                        Date of Filing  : 08.11.2013

                                                                          Date of Order : 14.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

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

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.358/2013

DATED THIS THURSDAY THE 14^TH DAY OF MARCH 2019

                                 

M/s. ICM Logistics Pvt. Ltd.,

Rep. by its Director

Mr. Naveen Sharma,

Firm Tower, W – 121,

3^rd Floor, 3^rd Avenue,

Anna Nagar,

Chennai – 600 040.                                                     .. Complainant.                                                     ..Versus..

 

1. Bharati Axa General Insurance Company Limited,

Rep. by its Authorised Signatory,

Having its Head Office at:

First Floor, The Ferns Icon,

Survey No.28, Next to Akme Ballet,

Doddanekundi, Off Outer Ring Road,

Bangalore – 560 037.

 

2. M/s. Bharati AXA General Insurance Company,

Rep. by its Authorised Signatory,

Metro Plaza, 2^nd Floor,

No.162, Anna Salai,

Chennai – 600 002.                                             ..  Opposite parties.

 

Counsel for the complainant                  : M/s. T. Natarajan & another

Counsel for the opposite parties 1 & 2  : M/s. M.B. Gopalan & others

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 prays to refund the amount of Rs.14,50,000/- being the insured declared value of the vehicle bearing Registration No.HR 55K 3888 under the Policy No.FCV/I0211104/31/03/C1311B together with interest at the rate of 18% p.a. from the date of claim till the date of payment and to pay a sum of Rs.5,00,000/- towards compensation for mental agony and stress with cost of Rs.25,000/- to the complainant.

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

The complainant submits that the complainant is the owner of a truck bearing Registration No.HR 55K - 3888 purchased through the financer M/s. Kodak Mahindra Bank Limited, Chennai.  The complainant submits that the vehicle was insured with the 2^nd opposite party vide policy No.FCV/I0211104/31/03/c1311B.  The said policy is valid from 05.03.2010 to 04.03.2011 midnight.  The total insured value of the vehicle is Rs.14,50,000/-.  A sum of Rs.26,255/- was paid towards premium.  The complainant submits that when one Sri. Rajendar Sharma, who was in charge of the said vehicle parked the vehicle at Transport Nagar, Ludhiyana on 03.07.2010 found missing in and around 4.00 pm on 04.07.2010.  After hectic search in and around the places through the known persons and various lorry sheds, the truck was not able to be traced out and the matter was informed to the owner on 04.07.2010  and in turn, due complaint was lodged with Division-6, Industrial Area Police Station, Ludhiana City.   The complainant has duly informed the fact of theft to the financier M/s. Kodak Mahindra Bank Limited, Chennai also.  The complainant also has given paper publication in the local area in Punjab Kersai and other prominent news papers.  The complainant preferred the claim with the 2^nd opposite party on the basis of the policy. The 2^nd opposite party issued letter dated:23.11.2010 that they are taking steps for processing the claim.  One Mr. Krishnaraj employed with the 2^nd opposite party personally visited the complainant’s office and the fact of was explained to him also in detail.  The complainant submitted the necessary documents to the 2^nd opposite party in full sent and an e-mail dated:03.02.2011 also issued.  The complainant sent the details to the 2^nd opposite party on 04.03.2011 and 28.06.2011 also.  Since the opposite parties has not responded, the complainant issued letter dated:07.02.2012 and a legal notice dated:30.08.2013 claiming to settle the Insured Declared value Rs.14,50,000/-.  The opposite parties has not taken any steps for settlement and responded to the legal notice.  The complainant submits that there is no delay in registering the F.I.R.   The complainant submits that the driver parked the vehicle in the place were usually the vehicles were parking.   The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.       The opposite parties 1 & 2 state that the truck bearing Registration No.HR 55 K 3888 was insured with the opposite parties vice Policy No.FCV/10211104/31/03/C1311B for the period from 05.03.2010 to 04.03.2011 by the complainant.  The opposite parties also provided the insurance cover subject to the terms and conditions stipulated in the policy.  As per condition Nos.1 ,5 which reads as follows:

        “1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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.  ....... In case of theft or other criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.

5. 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 free 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.

As per condition 1 & 5, the mandatory notice has not been given by the insured/owner or the driver to the insurance company and policy.  There is an inordinate delay of 4 days in lodging the FIR i.e. on 08.07.2010.   The opposite parties state that on enquiry, the driver of the vehicle kept the key inside the vehicle itself that such reckless act of the driver exposed the vehicle to theft which amounts to failure to take reasonable care of the vehicle.  The opposite parties 1 & 2 state that on the basis of the report of the Surveyor, the claim of the complainant was repudiated.   The opposite parties 1 & 2 state that the complainant is not entitled for the total Insured Declared Value.  There is no deficiency in service on the part of the opposite parties 1 & 2. Hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B4 are marked on the side of the opposite parties 1 & 2. 

4.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.14,50,000/- being the insured value of the vehicle bearing registration No. HR 55K - 3888 with interest at the rate of 18% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony with cost of Rs.25,000/- as prayed for?

 

5.      On point:-

       The opposite parties filed their written arguments.  The complainant has not filed any written arguments.  Heard both sides.  Perused the records namely the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that admittedly, the complainant is the owner of a truck bearing Registration No.HR 55K - 3888 purchased through the financer M/s. Kodak Mahindra Bank Limited, Chennai.  It is also admitted that the vehicle was insured with the 2^nd opposite party vide policy No.FCV/I0211104/31/03/c1311B as per Ex.A1.  The said policy is valid from 05.03.2010 to 04.03.2011 midnight.  The total insured value of the vehicle is Rs.14,50,000/-.  A sum of Rs.26,255/- was paid towards premium.  Ex.A2 is the cover note.   Further the contention of the complainant is that when one Sri. Rajendar Sharma, who was in charge of the vehicle who parked the vehicle at Transport Nagar, Ludhiyana on 03.07.2010 found missing in and around 4.00 pm on 04.07.2010.  Even after hectic search in and around the places through the known persons and various lorry sheds, the truck was not able to be traced out and the matter was informed to the owner on 04.07.2010  and in turn, due complaint was lodged with Division-6, Industrial Area Police Station, Ludhiana City as per Ex.A4, F.I.R. copy.  The translated copy of F.I.R. is Ex.A12.  On a careful perusal of FIR, it is very clear in column 8, it reads as follows:

“Reason for delay in reporting by the complainant/ informant: NO DELAY”

 The complainant has duly informed the fact of theft to the financier M/s. Kodak Mahindra Bank Limited, Chennai also.  The complainant also has given paper publication in the local area in Punjab Kersai and other prominent news papers.  The complainant preferred the claim with the 2^nd opposite party on the basis of the policy.  The 2^nd opposite party issued Ex.A5, letter dated:23.11.2010 that they are taking steps for processing the claim.  One Mr. Krishnaraj employed with the 2^nd opposite party personally visited the complainant’s office and the fact of was explained to him also in detail.  The complainant submitted the necessary documents to the 2^nd opposite party in full and Ex.A7, e-mail dated:03.02.2011 also issued.  The complainant sent the details to the 2^nd opposite party as per Ex.A8 & Ex.A9 also.  Since the opposite parties has not responded, the complainant issued letter dated:07.02.2012 as per Ex.A10 and a legal notice dated:30.08.2013 as per Ex.A11  claiming to settle the Insured Declared value Rs.14,50,000/-.  Since the opposite parties has not taken any steps for settlement and responded to the legal notice, the complainant was constrained to file this case.  Further the contention of the complainant is that there is no delay in registering the F.I.R.  Equally, the opposite parties insurance company have no right to take shelter on the ground of delay. 

6.     The learned Counsel for the complainant reported the decisions cited in:

2017 (IV) CPJ 10 SC

SUPREME COURT OF INDIA

Between

Om Prakash

-Versus-

Reliance General Insurance & anr.

Held that

        “10. Condition No.1 of the Insurance Policy states that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require.

11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation.  At first, he will make efforts to trace the vehicle.  It is true that the owner has to intimate the insurer immediately after the theft of the vehicle.   However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances.  The decision of the insurer to reject the claim has to be based on valid grounds.  Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry.  If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay”.

and

2008 (IV) CPJ 1 SC

SUPREME COURT OF INDIA

Between

National Insurance Company Ltd.

-Versus-

Nitin Khandelwal

Held that

        “12. In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle breach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

7.     Further the learned Counsel for the complainant would contend that this is a case of total loss due to theft.  The complainant is entitled to a compensation on non-standard basis. Equally, the opposite parties’ insurance company have no right to appoint any investigators after lodging complaint before the police and cited a decision reported in

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

REVISION PETITION NO.1207 OF 2008

Between

CEO, Cholamandalam MS General Insurance Company Ltd. & anr.

-Versus-

Mr. Abhijat Saini & anr.

Held that

        “In our view the provisions of delay in informing the Insurance Company or lodging the report with the police are of little significance as these are of directory nature and not of the mandatory nature.  What is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or given wrong information to take undue benefit against the insurance policy.  Once the report is lodged with the police may be in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft or accident has taken place or not.  Under the Code of Criminal Procedure only the police has the authority to investigate into the offence registered under the IPC and nobody else.  If the Insurance Companies are allowed to appoint Investigator for going into the truthfulness of the occurrence then there will be two parallel investigations, one by the statutory authority and another by an authority which is incompetent to investigate into a criminal offence.  We have also held that Insurance Companies have  no option than to accept the report of the police with regard to accident or theft of a vehicle or loss of vehicle by way of any other incident or event”.

8.     Further the contention of the complainant is that the driver parked the vehicle in the place were usually the vehicles were parking.  The learned Counsel for the complainant cited a decision reported in:

2012 (IV) CPJ 580

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

National Insurance Company Ltd.

-Versus-

Mayur Raj Singh

Held that

        “The vehicle was stolen and there is no denial about the same.  The insured is not debarred from parking the vehicle at an isolated place.  Even if the complainant did not have permit to go to Rajasthan, this being a case of theft, should have been considered sympathetically.  This is no case of the petitioner that the vehicle was left unattended.  In the case reported as National Insurance Co. Ltd. V. Nitin Khandelwal, IV (2008) CPJ 1 (SC)=2008 CTJ 680 (SC) (CP), the Apex Court was pleased to hold:

          “In the case in hand, the vehicle has been snatched or stolen, In the case of theft of vehicle, beach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

and

2010 (IV) CPJ 297

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

National Insurance Company Ltd.

-Versus-

Kamal Singhal

Held that

        “There has been catena of decisions of the national Commission and also Hon’ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition(s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (RP No.643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No.2097/2009), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar,  (RP No.3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal (RP No.3366/2009).  There has been a landmark judgment of Hon’ble Apex Court in the matter of National Insurance Company Ltd. v. Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon’ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis”.  Hon’ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the ‘non-standard’ basis”

The complainant is claiming a sum of Rs.14,50000/- towards Insured Declared Value with a compensation of Rs.5,00,000/- for the deficiency in service and cost of Rs.25,000/-.

 9.    The learned Counsel for the opposite parties 1 & 2 would contend that admittedly, the truck bearing Registration No.HR 55 K 3888 was insured with the opposite parties vice Policy No.FCV/10211104/31/03/C1311B for the period from 05.03.2010 to 04.03.2011 by the complainant.  The opposite parties also provided the insurance cover subject to the terms and conditions stipulated in the policy Ex.B1.  As per condition Nos.1 ,5 which reads as follows:

        “1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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.  ....... In case of theft or other criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.

5. 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 free 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.

As per condition 1 & 5, the mandatory notice has not been given by the insured/owner or the driver to the insurance company and policy.  There is an inordinate delay of 4 days in lodging the FIR.  On a careful perusal of FIR, it is very clear in column 8, it reads as follows:

“Reason for delay in reporting by the complainant/ informant: NO DELAY”

As per 2017 IV CPJ 10 SC, it is the common knowledge that the person who lost the vehicle may try his level best to find out.  And thereafter, lodging FIR and giving notice to the insurance company etc shall not be treated as delay.   

10.    Further the contention of the opposite parties is that on enquiry, the driver of the vehicle kept the key inside the vehicle itself that such reckless act of the driver exposed the vehicle to theft which amounts to failure to take reasonable care of the vehicle.  As per condition No.5, the opposite party insurance company is liable to pay compensation.  But as per

2010 (IV) CPJ 297

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

National Insurance Company Ltd.

-Versus-

Kamal Singhal

Held that

        “There has been catena of decisions of the national Commission and also Hon’ble Apex Court and the issue is no longer res integra that in case of theft of vehicle, issue of breach of policy condition(s) was not germane to the issue and we profitably refer to few decisions of the National Commission in the matters of (1) National Insurance Company Ltd. v. J.P. Leasing & Finance Pvt. Ltd., (RP No.643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No.2097/2009), (3) New India Assurance Co. Ltd. v. Sou. Bahrati Rajiv Bankar,  (RP No.3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal (RP No.3366/2009).  There has been a landmark judgment of Hon’ble Apex Court in the matter of National Insurance Company Ltd. v. Nitin Khandelwal, IV (2008) CPJ 1 (SC), where the Hon’ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of policy, the appellant Insurance Company ought to have settled the claim on ‘non-standard’ basis”.  Hon’ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the ‘non-standard’ basis”

and

IV (2013) CPJ 218

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

Sukhwinder Singh

-Versus-

Cholamandalam – MS General Insurance Company Ltd. & anr.

Held that

          “The leaving of the key in the ignition of the car on all occasions cannot be termed as so serious breach so as to disentitle the insured from seeking claim under the insurance policy.   Whether or not there is breach of condition will always depend upon the facts of the case.  The car is said to have been stolen when the driver parked the vehicle at road side  and went to ease himself, forgetting to remove the keys from ignition.  The lapse on the part of the driver cannot be treated as wilful breach of condition No.5 on the part of the driver”.  

11.    Further the contention of the opposite parties 1 & 2 is that on the basis of the report of the Surveyor, the claim of the complainant was repudiated.   But the surveyor in his report stated that “claim doesn’t stand maintainable on account of contradictory facts on terms of date of loss and negligence on the part of keys that were inside the truck at the time of theft”; is not acceptable against settled principles of law.  Further the contention of the opposite parties 1 & 2 is that the claim of the complainant is the total  Insured Declared Value cannot be acceptable only non-standard basis  is acceptable. The complainant is entitled for a compensation for a total loss which is 75% of the Insured Declared Value amount to Rs.10,87,500/-.  Considering the facts and circumstances of the case, this Forum is of the considered view that  the opposite parties 1 & 2 are jointly and severally shall pay a sum of Rs.10,87,500/- being 75% of the Insured Declared Value with interest at the rate of 9% p.a. from the date of complaint to till the date of this order with a compensation of Rs.50,000/- and cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.10,87,500/- (Rupees Ten lakhs eighty seven thousand five hundred only) being 75% of the Insured Declared Value with interest at the rate of 9% p.a. from the date of complaint (i.e.) 08.11.2013 to till the date of this order (i.e.) 14.03.2019 and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin 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 Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 14^th day of March 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1		Copy of Certificate of Insurance issued by the opposite parties
Ex.A2		Copy of Insurance Cover note issued by the opposite parties
Ex.A3	08.05.2012	Copy of letter from Kotak Mahindra Bank Ltd., to RTO for hypothecation endorsement
Ex.A4		Copy of FIR copy issued by Ludhiana City Police Station, Industrial area, Division 6
Ex.A5	23.11.2010	Copy of letter from 2nd opposite party to the complainant
Ex.A6	10.01.2011	Copy of email from 2nd opposite party to complainant
Ex.A7	03.02.2011	Copy of email from the complainant to opposite parties
Ex.A8	04.03.2011	Copy of letter from the complainant to 2nd opposite party
Ex.A9	28.06.2011	Copy of email from the complainant to opposite party
Ex.A10	07.02.2012	Copy of letter from the complainant to 2nd opposite party
Ex.A11	30.08.2013	Copy of legal notice addressed to the 2nd opposite party with acknowledgment card
Ex.A12	08.07.2010	Copy of First Information Report

 

OPPOSITE PARTIES’ 1 & 2 SIDE DOCUMENTS:-

Ex.B1		Copy of Commercial Vehicle Insurance Policy
Ex.B2	08.07.2010	Copy of FIR
Ex.B3	01.11.2010	Copy of Investigation Report
Ex.B4	28.06.2011	Copy of letter of the opposite parties to the complainant

 

 

 

MEMBER                                                                  PRESIDENT