BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^TH DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OPs to pay Rs.2,00,000/- with interest at 24% p.a., from 05.09.2023 till the date of realization on the heads of loss and special damages for their deficiency in service on their part and also insured value of the vehicle Honda Activa bearing Reg. No.KA01 JC8484, as per policy No.3361/60141805/000/00 in the interest of justice and equity.
2. The case set up by the complainant in brief is as under:-

The complainant is the owner of two wheeler vehicle Honda Activa bearing Reg.No.KA01 JC 8484 gray colour with chassis No.ME4JF50AKJT574532 and engine No.JF50ET7574611, the vehicle engine insured with the OP bearing policy No.3361/60141805/000/00. The said vehicle was stolen on 05.09.2022 at about 7 pm from the parking place of Indiragandhi Circle, J.P.Nagar, Bangalore.  In this regard the complainant had lodged the complaint before J.P.Nagar police on 18.10.2022.  He has not lodged the complaint immediately as he was under the bonafide assumption and presumption that his friends might have taken to fool him. After thorough searching from his friends circle and upon confirming the fact that the vehicle has been stolen then only the complainant has choose to file a complaint on 18.10.2022.

3. It is further grievance of the complainant that inspite of valid insurance and inspite of furnishing the required documents the OP have wantonly rejected the claim of the complainant on their own grounds which are baseless and the same are untenable.  The complainant had made his best possible efforts and sincere attempts in persuading for his claim, but all his humble attempts and sincere requires and demands were went in vein. Hence the complainant has got issued legal notice on 18.05.2023 calling upon the OP to compensate him.  The OPs even after received the legal notice neither choose to comply the demands nor replied. Hence there is a deficiency of service on the part of the OP and due to their negligence they have not complied the terms of the policy for his vehicle. Hence the complainant has filed this complaint.

4. In response to the notice, OP appears and files version. They have admitted about the policy and ownership of the vehicle of the complainant. They have further admitted that the complainant has filed the complaint before the J.P.Nagar police in FIR No.243/2022.

5. It is the specific objection raised by the OP is that the complainant has lodged complaint after lapse of 43 days before the J.P.Nagar police and a legal notice was issued to the OPs after lapse of 255 days of delay from the date of occurrence of the alleged theft. This creates serious doubt as to the theft of the said vehicle as no prudent man would wait so many days to inform the police and insurance company about the theft of the vehicle.

6. Further the reason assigned by the complainant for the delay in filing the police complaint is not acceptable.  The delay assigned by the complainant for the delay in lodging the FIR that he was under the assumption and presumption that his friends might have taken the vehicle to fool him is a concocted story and absolute false.

7. It is further contention taken by the OP that as per the condition No.1 of the policy 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. Every letter claim written summons and/or process or copy thereof shall be forwarded to the company immediately by the insurer.  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 co-operate with the company in securing the conviction of the offender.  As per condition NO.8 the company reserves to repudiate the claim on any other grounds that may come to light at any time in future.  The rationale behind the condition of informing the police and registering the FIR about the theft of the vehicle is to provide an opportunity to the police to search for the vehicle and to save the vehicle from being sold in scrap market. In cases of theft of vehicle delay in informing the police and registering the FIR will make the vehicle to be sold in scrap market and there is every possibility of vehicle being taken out of state borders which make it impossible for the police authorities to trace the vehicle. In this case the delay of 43 days in registering the FIR is serious breach of the policy condition and fatal to the claim of insurer.  The complaint is false and the narration of the theft of the vehicle is totally false and the complainant is trying to make unjust enrichment by creating false story regarding theft of the vehicle. The theft of the vehicle is seriously doubted. Hence there is no deficiency of service on the part of OPs in refusing to honour the claim and compensation for theft of vehicle in view of serious breach of policy condition in informing the police and the OPs about the theft of the vehicle immediately after the alleged theft of the vehicle. Hence the OP prayed for dismissal of the complaint.

8. The complainant has filed his affidavit evidence and relies on 12 documents.  Affidavit evidence of official of OP has been filed and OP relies on 03 documents.

9. Inspite of sufficient time was given, complainant has not addressed their arguments, hence arguments of the complainant is taken as nil.  OPs have submitted their arguments.  Perused the documents filed by both the parties.

10. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

11. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

12. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, and documents.
13. The complainant is claiming an amount of Rs.2,00,000/- with interest for the loss and special damages for the deficiency in service on the part of the OP and also the insured value of the vehicle.
14. It is clear from the evidence and documents of the complainant that he is the owner of two wheeler Honda active bearing Reg.No.KA01 JC 8484 gray colour with chassis No.ME4JF50AKJT574532 and engine No.JF50ET7574611, and it is insured with the OP and the policy was in force.
15. The said vehicle was stolen on 05.09.2022 at 7 pm when it was parked at Indiragandhi Circle parking place J.P.Nagar. The complainant has lodged the complaint after thorough search before J.P.Nagar police station on 18.10.2022. The police have registered the complaint.  After that the complainant has informed the OP about theft of his vehicle and raised the claim. The OP have rejected the claim of the complainant on the ground of delay and also violation of policy condition NO.1 and 8.  The OP have rejected the claim only on the ground that there is a delay of 43 days in lodging the complaint and giving intimation to their company and there is a 255 days delay in sending the legal notice to the OP company. Only on the basis of these two grounds they have repudiated the claim of the complainant.
16. The OP have also relied on the decisions of the Hon’ble NCDRC in New India Assurance company –vs- Trilochan Jane IV 2012 CPJ 441 (NC)= MANU/CF/0163/2009 and in Ranga Lal & others –vs- The Manager, United India Insurance Co. Ltd., * others.  It is clearly held in the above two decisions the delay of nine days and also 13 days in informing the police and also delay of 77 days in informing the insurance company about the theft of the vehicle is unconscionable delay and is fatal to the claim of the complainant.
17. The complainant in support of his contention has filed his affidavit evidence and relied on 13 documents, Copy of the FIR, marked as Ex.P1, Copy of the complaint, marked as Ex.P2, Copy of the notice sent to the complainant, marked as Ex.P3, Copy of the complainant vehicle registration certificate, marked as Ex.P4, Copy of the legal notice along with copy of postal receipts, marked as Ex.P5 to P7, Copy of the RPAD acknowledgements, marked as Ex.P8 & P9, Copy of the insurance policy, marked as Ex.P.10 and Copy of letter dated 09.02.2023 & 04.05.2023, marked as Ex.P.11 & P12. On the other hand legal manager of the OP company has filed his affidavit evidence and relied on three documents. Copy of the motor two wheeler package policy No.3361/601441805/000/00, marked as Ex.R1, Copy of the policy wordings and terms and conditions, marked as Ex.R2 and Authorisation letter marked as Ex.R3.
18. The only objection raised by the OP to entertain the claim made by the complainant is that the complainant has not given complaint immediately to the police and he has also not intimated to the OP immediately after the incident. There is a delay of 43 days in informing the police and also the OP regarding the theft of the vehicle. They have repudiated the claim only on the ground of delay in giving intimation to the police and also the OP company.
19. On this back ground we have gone through the decision of the Hon’ble Supreme court of India in Civil Appeal No.1069/2022 between Jaina Construction company –vs- The oriental insurance company limited and another in the above decision, the Hon’ble Supreme Court has allowed the claim of the complainant even though the complainant has intimated the insurance company after five months after the incident. The Hon’ble apex court has also made an observation that the insurance company has not repudiated the claim on the ground that it was not genuine, it has repudiated only the ground of delay.  
20. In this complaint also the only ground for rejection of the claim is that there is a delay in lodging the complaint before the police and also intimating about the theft to this OP.  After received the complaint, the police have also registered the complaint as per Ex.P1 in CR No.243/2022 and they have done the investigation.  The complainant has not lodged the complaint immediately after the incident as he was under the assumption and presumption that his friends might have taken the vehicle to fool him.
21. Under these circumstances, the delay is not the criteria to repudiate the claim of the complainant by the OP.  When the police have conducted the investigation about the theft of the vehicle and the vehicle was not traced it is the duty of the OP to compensate the complainant, when the policy is valid and the incident took place within the policy period.  The OP would have entertained the claim of the complainant when the vehicle was having valid policy and the incident took place within the policy period. The conduct of the OP clearly discloses that they have simply rejected the claim of the complainant in order to avoid making payment to the complainant.
22. As per the value of the vehicle is concerned the complainant has clearly stated in the complaint that it is worth Rs.40,000/-. The policy issued by the OP as Ex.P10 and also Ex.R1, the sum insured is Rs.43,114/- and they have also value the vehicle at Rs.43,114/-. Under these circumstances, the claim made by the complainant for Rs.2,00,000/- is highly exorbitant. The complainant is only entitled for the value of the vehicle and the sum assured i.e., Rs.43,114/-. The complainant is entitled for litigation expenses of Rs.10,000/- and damages for loss of vehicle and  mental agony is Rs.10,000/-.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
23. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OPs are directed to pay Rs.43,114/- with interest at 8% p.a., from the date of repudiation till realization to the complainant.
3. OPs are further directed to pay Rs.10,000/- towards litigation expenses and Rs.10,000/- towards loss of vehicle and mental agony to the complainant.
4. The OPs shall comply this order within 60 days from this date, failing which the OP shall pay interest at 10% p.a. after expiry of 60 days on Rs.43,114/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^TH day of MAY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;