Orissa

Cuttak

CC/135/2016

Md Meherul Haque - Complainant(s)

Versus

Branch Manager,Future Generali India Insurance Co Ltd - Opp.Party(s)

R N Acharya

07 Nov 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.135/2016

 

Md. Meherul Haque,

At: Chandikhol,P.O:Sunguda,

P.S:Badachana,Dist:Jajpur.                                                          … Complainant.

 

                Vrs.

 

Branch Manager,

Future Generali India Insurance Company Ltd.,

Near Agarwalla Pharmaceuticals,2^nd Floor,

Press Chhak,P.O/P.S:Madhupatna,

Dist:Cuttack.                                                                                         … Opp. Party.

 

Present:              Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     24.10.2016. 

Date of Order:  07.11.2017.

 

For the complainant               Mr. R.N.Acharya,Adv. & Associates.

For the O.Ps.                     :       Mr. A.A.Khan,Adv. & Associates.

 

 

 

Sri Bichitra Nanda Tripathy, Member.

                The case is against deficiency in service on the part of the O.Ps.

1. Shortly the case is that the complainant purchased a Tata LPT 2515/48( 10 wheeler),truck during August,2010 and the said vehicle was financed by Cholomandalam Investment &Finance Company Ltd.  The said vehicle was duly registered with R.T.O,Jagatsinghpur vide Regd. No.OR-21-C-5786.(Annexure-1).  & was also insured with O.P insurance company for the period from 12.08.2012 to 11.08.2013 vide policy no.2012-V 1943258-FCV for Rs.11,50,000/- and a sum of Rs.29,993/- was paid as premium.(Annexure-2).  The complainant had repaid the loan amount in full and has obtained No Objection Certificate from the financier i.e. Cholomandalam Investment & Finance Company on 30.09.2015.(Annexure-3).  On 04.05.2013 the said vehicle had taken load of Iron ore at Joda mines to deliver at Paradeep port,Paradeep.  The driver on the way to Paradeep kept the vehicle near the rice mill of Chagali Jena at Chandikhole Chhak and went to his house which was nearby to take his meal.  When he came back at 11.00 P.M, the vehicle was not there.  After thorough search when he failed to trace the vehicle, he immediately intimated the matter to the owner of the vehicle who also searched the vehicle at different places but failed to trace the vehicle.  The FIR was lodged on 08.05.2013 before IIc,Barachana Branch and the said FIR was regisitgered at Barachana P.S vide F.I.R No.92(6) dt.11.5.2013, corresponding to G.S.Case No.431 of 2013.  (Annexure-4).  The complainant also intimated the mater to O.P,Insurance Company and submitted required papers to settle the claim.  The O.P assured the complainant to settle the claim after finalization of the police case.  The police submitted final report on 31.10.2013.(Annexure-5).  The complainant intimated the O.P . on 15.12.2014 for settlement of claim (Annexure-6).  The O.P advised the complainant to submit further documents and clarifications on 05.03.2014(Annexure-7). The complainant submitted the same on 05.04.2014(Annexure-8).  Since the claim was not settled the petitioner served a legal notice on the O.P. on 17.05.2016 to settle the claim within 15 days(Annexure-9).  The O.P replied on 27.05.2016 that the claim has been repudiated as no claim due to violation of policy condition No.1 & 5 of the Insurance Policy.(Annexure-10).

Finding no other way, the petitioner has taken shelter of this Hon’ble Forum.  He has prayed to direct the O.P to settle the claim of the petitioner for Rs.11,50,000/- against cost of the vehicle along with interest @ 10% per annum w.e.f  05.05.2013 till final payment.  He has also prayed for a sum of Rs.10,000/- as cost of litigation and a further sum of Rs.50,000/- towards mental harassment against the O.P.

2. The O.P vide their written version dt.17.04.2017 has intimated that they have issued a Future Secure Commercial Motor Insurance Comprehensive Policy bearing No.2012-V-1943258-FCV which was valid from 12.08.2012 to 11.08.2013 subject to certain terms and conditions of the insurance policy.(Annexure-A & A/1).  The claim was lodged with the O.P on 19.05.2013 alleging therein that his truck bearing No.OR-021C-5786 was insured with the O.P and was stolen on 04.05.2013 at 11 P.M in the night.  The said truck was kept in front of Chagali Jena Rice Mill,Chandikhol Chhak.  The claim intimation was given to O.P. almost 15 days after the alleged loss in gross violation of the condition No.1 of the Insurance Policy as such the O.P is not liable to pay any amount.  Though the alleged theft was incurred on 04.05.2013 the FIR was lodged with Barachana Police Station on 11.05.2013 after 07 days of the incident violating condition No.1 of the insurance policy (copy of FIR vide Annexure-B).  After receiving the claim intimation the O.P had deputed the Intrepid Claims Private Limited  Investigating Agency for detail investigation of the case and during the course of their investigation, they have contacted the complainant, his father and the driver  of the concerned vehicle and had obtained their statement in writing from which it clearly transpires that at the time of theft of the vehicle, the vehicle was kept unattended and one of the ignition keys, as well as all the original documents were kept inside the cabin of the truck.  The driver, while leaving the truck for taking dinner at his residence had not locked the door of the cabin as the locking system of the said cabin door was not working properly. This clearly establishes the fact that the complainant has failed to take reasonable care to safeguard the insured vehicle by violating the terms and conditions of the insurance policy and such an act has become direct and proximate cause for the theft of the insured vehicle.  Therefore, the O.P is not liable to pay any award. (Copy of such investigation report, statement of the insured, statement of the father of the insured, statement of the driver are annexed vide Annexure-C,C/1,C/2 & C/3 respectively). The police had submitted final report after investigation on 31.10.2013(Annexure-D).  After receipt of the final report, the O.P called upon the complainant vide letter dt.05.03.2014 to produce the required documents as stated therein and also to submit the clarification regarding lodging of FIR after 7 days and lodging of  insurance claim after 15 days from the date of  the incident.  Since the complainant did not reply to the above letter of the O.P, The O.P wrote another letter to the complainant on 19.04.2014, again on 03.07.2014 but the complainant did not reply.  (Copy of such letters dt.05.03.2014, 19.04.2014 and 03.07.2014 are annexed vide Annexure-E,E/1 & E/2).  The O.P intimated the complainant vide their letter dt.09.10.2014 that by lodging FIR after 07 days from the date of theft of the vehicle  and by lodging insurance claim after 15 days from the date of loss/theft of the vehicle the complainant has violated condition No.1 of the insurance policy.  Again by keeping the ignition key in the cabin, leaving the vehicle unattended and without locking the cabin door the complainant has violated condition No.5 & 8 of the insurance policy.  For the above reasons the complainant was called upon to submit his explanation as to why the claim should not be rejected.  (Copy of such letter vide Annexure-F).   Vide letter dt.12.12.2014 of the O.Ps the complainant was also asked to submit his response within 15 days from the date of receipt of such letter failing which the claim should be closed.  (The said letter dt.12.12.2014 is enclosed vide(Annexure-G).  In reply to legal notice of the complainant, the O.P replied vide their letter dt.27.05.2016 that the claim was repudiated vide letter dt.12.12.2014 and as such there is no deficiency in service on the part of the O.P.(Copy of letter dt.27.03.2016 vide Annexure-H).
3. We have gone through the case records in details, heard the learned advocates from both the sides at length and observed that the vehicle of the complainant bearing Regd. No.OR-21C-5786 was insured with the O.P for the period from 12.08.2012 to 11.08.2013 vide Policy No. 2012-V 1943258-FCV.  The said vehicle was a Tata LPT 2515 truck and was insured for Rs.,11,50,000/-.  The driver of the vehicle on the way to Paradeep from Joda, poarked the vehicle near Chagali Jena Rice Mill at Chandikhbole Chhak and went to his house to have dinner.  The vehicle was left unattended.  When he came back at about 11 P.M. on 4.5.2013 he found that the vehicle was not there.  The driver and the owner of the said vehicle searched for the vehicle but in vain.  On 11.5.2013 one FIR was lodged at Badachana Police Station vide FIR No.92(6)/2013 and G.R.Case No.431/2013 regarding theft of the vehicle on 04.05.2013 at about 11 P.M..  The insurance claim was lodged on 19.05.2013.    Thus the FIR was lodged after 7 days of the incident and insurance claim was lodged after 15 days of the incident.  The police submitted final report on 31.10.2013 as “FRT No clue”.  On receipt of the claim as lodged by the complainant for the purpose, the O.P engaged Intrepid Claims Pvt. Ltd. to investigate in to the matter.  The said Investigating agency has reported that one of the original keys was kept inside the vehicle at the time of theft.  From the copy of the written statement as submitted by the owner of the vehicle i.e. the, complainant, his father and the driver of the said vehicle Sri Manoj Thakar it is also learnt that one of the keys was left inside the vehicle at the time of theft.  Driver Sri Manoj Thakar has further admitted that the cabin door was also not locked.  From the above circumstances, it is clear that the FIR was lodged after 7 days of the theft and claim with insurance company was lodged after 15 days of the theft/loss.  One of the ignition keys was left inside the vehicle at the time of theft and the door of the vehicle cabin was also not locked.

The condition No.1 of the Insurance Policy says 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 shall give all such information and assistance as the company shall require.  Notice shall also be given in writing to the company immediately; the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy.  In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.”

The condition No.8 of the said policy says that “The due observance and fulfillment of the terms, conditions and endorsements 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 answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under this Policy.”

The condition No.5 of the said policy says that “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 repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the Insured’s own risk.”

Since the condition No.1,8 & 5 were violated the O.P vide their letters dt.09.10. 2014 repudiated the claim.  The complainant was asked to submit his views vide letter dt.12.12.2014 of the O.P and the claim of the complainant was treated as No claim vide letter dt.27.5.2016 of the O.P.

Vie Revision Petition No.991 of 2016 (against the order dt.29.01.2016 in Appeal No.93/2014 of the State Commission,Chhatishgarh it was decided by Hon’ble National Commission on 20.01.2017 that insured is under a contractual obligation to intimate theft of vehicle to insurer immediately after theft came to his knowledge.[2017(1) (PR 443 (NC)].  Vide Revision Petition No.1241 of 2015 (against the order dt.04.02.2015 in Appeal No.22/2014 of State Commission,Chhatishgarh it was also decided by Hon’ble National Commission on 18.4.2017 that “Delay in reporting to insurer about theft of vehicle would be a violation of condition of policy.” [2017(1) CPR-558(NC)].

In the present case, the insured had intimated the matter to the insurer after 15 days of the incident.  Hence the insured is at fault as per clause condition 1 of the policy.  Similarly vide Revision petition No.3614 of 2012 it was decided by Hon’ble National Commission on 09.10.2012 that “theft cases must be immediately reported to police”.  In the present case FIR was lodged after 7 days of the theft.  Hence the insured is also at fault as per condition 1 of the policy.  One of the ignition keys and all important documents relating to the vehicle were also kept inside the vehicle at the time of theft.  The vehicle was left unattended.  The cabin door of the vehicle was also not locked which indicates that the require degree of care was not taken to safeguard the insured vehicle.  Thus the insured is again at fault for not taking proper care of the vehicle as per condition No.5 of the policy.  Vide Revision petition No.3974 of 2013 the Hon’ble National Commission has decided on 14.12.2012 that “negligence in safe guarding insured vehicle may vitiate insurance cover. [2016(1) CPR 606(NC)]

In the present case the complainant had failed to intimate the insurer immediately after the said theft and also failed to lodge FIR immediately.  He had failed to take reasonable care of the insured vehicle by leaving the vehicle unattended and also by keeping one of the ignition keys inside the vehicle and also by not locking the door of the cabin at the time of theft.  Under the above noted circumstances the insurer has repudiated the claim.  The insurer had also intimated such matter prior to repudiation of the claim vide their various letters dt.04.07.2014,09.10.2014,15.12.2014 which was not responded by the complainant.

 

 

                                                                                ORDER

                Basing on the facts and circumstances as stated above, the complainant failed to prove deficiency in service on the part of O.Ps, hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 7^th day of November,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                           Member.

                                                                                                    

                                                                                                    (  Sri D.C.Barik )

                                                                                                               President.

                                                                                                      (Smt. Sarmistha Nath) 

                                                                                                  Member(W).