IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the  1^st    Day of  January 2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.110/17

Murukadasan Pillai                           :                  Complainant

S/o Gopalan Nair

Porunnalazhikath Veedu

Thevalappuram Padi.  muri

Puthoor Village, Kollam

V/s

Branch Manager                               :                  Opposite party

National Insurance Company Ltd.

Kollam Branch

Parameswaran Pillai Bhavan

Hospital road, Kollam-691001.

[By Adv.M.Sabu]

ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

                This is a case based on a Consumer complaint filed Under Section 12 of the Consumer Protection Act against the opposite party insurance company alleging deficiency in service and unfair trade practice  in repudiating the insurance claim put forwarded by the complainant.

The averments in the complaint in short are as follows:-

          The complainant is the owner of the Hero Honda bike bearing Reg.No.KL-24-B-9344.  The complainant insured the bike from the year 2010 onwards from the opposite party insurance policy.  On 19^th July 2015 the complainant  renewed the insurance policy and the policy number allotted is 39010231156201452456 and the said policy is valid till 18.07.16.  The opposite party has also issued own damage   policy  to the  complainant  in  respect of the

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above motor bike.  However on 03.05.16 somebody has stolen away the above motor bike worth Rs.30000/- which was kept at the residence of the complainant against which he lodged  FI statement  before  Puthoor  Police and crime 633/2016 under Section 379 IPC was registered.  However  during investigation neither the vehicle could  be traced out nor the person who stolen away has been arrested.  Hence the police has filed UN report.  After conducting investigation Puthoor police has referred the case as  un dictated by filing UN report.  Thereafter the complainant approached opposite party insurance   company   on   several   occasions   by raising  the   claim.     But the opposite party has not paid any  heed to the request of the complainant and on 10.03.17 the opposite party has issued letter No.570504/C/MS/2017 repudiating the claim of the complainant by alleging that the complainant there was negligence on the part of the complainant and hence the vehicle was lost.  The complainant has been keeping the vehicle at the courtyard of his residence and there is no lapse or latches  in keeping the vehicle properly.  The vehicle was at the premised of his house which was surrounded by a compound wall and  iron gate.  As the vehicle has been stolen away by somebody the complainant has sustained a loss of Rs.30000/- and as the insurance policy has not entertained the claim lodged by him and failed to satisfy the genuine request of the complainant, the complainant has sustained mental agony apart from financial loss.  In the circumstance the complainant is entitled to get Rs.30000/- being the value of the motor bike stolen  away from his residence and Rs.25000/- as compensation and costs of the proceedings.

          The opposite party resisted the complaint by filing a detailed version raising the following contentions. 

          The  petition is not maintainable either in law or on facts.  However the  opposite party would admit the issuance of valid insurance policy in respect of the motor bike bearing  No.Kl 24 B 9344  which  belongs to the opposite party, 

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but would deny the liability to compensate the complainant for the alleged theft of motor cycle of the complainant.  According to the opposite party there is non compliance of policy condition No.4  which would  read  that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage.  The owner of the vehicle who have taken all protective measures to prevent the theft of the vehicle as if the vehicle was uninsured.  But in this case the complainant has kept the key of the vehicle in the motor bike itself at the time of the alleged theft by offering opportunity to others to use the vehicle which cannot be termed as  theft.  It is also contented that any loss due to use of key is  exempted from the purview  of the policy.  The opposite party would further  content that there is an inordinate delay in intimating the fact of the alleged theft of the insured vehicle.  Though the alleged theft taken place on 03.05.16 it was informed to the opposite party only in 13.05.16, ie, after 10 days of the alleged theft.  The delay is not properly explained by the complainant.  According to the opposite party the vehicle was lost due to the sole negligence of the complainant and hence the opposite party is  not liable to compensate the complainant.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party insurance company?
2. Whether the repudiation of the insurance claim is legal and proper?
3. Whether the complainant is entitled to get the insurance claim  and  compensation as claimed?
4. Reliefs and costs.

Evidence  on the side of the complainant consists of the oral evidence of PW1 and Ext.P1  to P3 documents.  The opposite party  has not adduced any oral evidence, but got marked one document as D1 subject to objection.  Though the case was posted for filing argument notes and hearing,  the complainant   has  not  filed   any   notes  of  argument  or  advanced  any   oral

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argument.  However the learned counsel for the opposite party has filed notes of argument.

Point No 1 to 3

          For avoiding  repetition of discussion of materials these 3 points are considered together.  The following are the undisputed facts in this case.  The complainant is the owner of the Hero Honda Motor  bike bearing No. KL 24 B 9344 which was insured with the opposite party and the insurance policy was live as on the date of the alleged theft which took place on 03.05.16 at about 2 PM.  At the time of the alleged theft the vehicle was kept at the car porch of  the complainant the key of the vehicle was kept at the vehicle itself and the gate fitted at the compound wall of the house was kept opened.  The complainant lodged a claim before the insurance company which repudiated the claim by issuing  Ext.P2 repudiation letter by alleging that theft of the insured vehicle was due to the culpable negligence of the complainant.  The vehicle happened to be  taken away from the premises of the complainant by using its key and hence the insurance company is not liable to pay the claim.

          It is clear from the available materials that there is an inordinate delay   of 10 days in intimating the fact of alleged theft to the opposite party insurance company which creates doubt in the mind of the forum whether the motor  bike was stolen away or not.  The said doubt aggravates in view of the fact that the vehicle was admittedly removed by using its own key.  Ext.P3 refer report and the oral evidence of  PW1 would indicate that the police who registered the case on the basis of the F.I version of the complaint has referred the same as undetected by filing UN report.  Though it is proved that the vehicle was missing, the alleged theft is not proved  in this case.  The complainant has not disputed the contention of the opposite party stated in  para  3&4  of the written version to the effect that loss of vehicle due to use of its key is exempted from the purview of the policy. It is further to be pointed out that the inordinate delay

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of 10 days in reporting the alleged theft is not properly explained by the complainant.

          Even if theft is proved the complainant is bound to establish that the alleged theft taken place inspite of the fact that he has taken all precautions to prevent the loss of insured vehicle  by way of theft or damage.  But in this case the materials available on record including the admission of PW1 during cross examination would not prove the same. Admittedly the complainant has kept the key of the  vehicle in the  motor cycle itself.  If it was kept with  him safely inside his residence nobody could have stolen away the vehicle from the  house compound of the complainant.    It is  further  to be pointed out that even though the house compound of the complainant is surrounded by a granite compound wall fitted with an iron gate, but the said gate  was also kept opened which has also facilitated the theft of the vehicle.  The keeping of the key of the vehicle at the vehicle itself and keeping the gate opened etc. have  definitely prompted the person to remove the motor bike from the house compound where it was kept.  Hence there is  culpable negligence on the part of the complainant and he has violated condition No.4 of the policy as contented by the learned counsel for the opposite party.

          On evaluating the entire materials available on record we have no hesitation to hold that as there is culpable negligence on the part of the complainant in safely keeping the insured motor bike and  intimating the fact of alleged theft to the opposite party.  In the circumstance the repudiation of the claim put forward by the complainant is justifiable. Hence there is no deficiency in service  or unfair trade practice on the part of the opposite party insurance company.  The points answered accordingly.

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Point No.4

          In the result the complaint stands dismissed.  No costs.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the    1^st   day of  January 2019.         

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Murukadasn Pillai

Documents marked for the  complainant

Ext.P1                  :         Copy of two wheeler certificate-cum-policy shedule

Ext.P2 Series        :         Copy of  UN Report

Ext.P3                  :         Copy of letter dated 10.03.17.

Witness examined for the opposite party:-Nil

Documents marked for the opposite party

Ext.D1 series        :         Two Wheeler package Policy

E.M.Muhammed Ibrahim:Sd/-

                                                                                    S.Sandhya Rani:Sd/-

                                                                                   Forwarded/by Order

                                                                                SENIOR SUPERINTENDENT