-Complaint filed on: 09-11-2011
Disposed on: 21-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2047/2011
DATED THIS THE 21st SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Sathish Kumar
S/o. Late Balakrishna,
Aged about 36 years,
Proprietor of Marshal and Tours and Travels, No.715/2, Om Plaza,
3rd Main, West of Chord Road,
Mahalakshmipuram,
Bangalore
V/s
Opposite parties: -
1. Future Generali India Insurance
Company Ltd,
Corporate and Registered office:
001, Delta Plaza, 414,
Veer Savarkar Marg,
Prabhadevi, Mumbai-15
2. Future Generali India Insurance
Company Ltd,
Branch office: Pasadena no.18/1,
(Old no.125/A),
3rd Floor, Ashok Pillar Road,
Jayanagar, 1st Block,
Bangalore-02
Reptd by its Branch Manager
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP no.1 and 2, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to pay an amount of Rs.4,20,000=00 under the policy bearing no.2010-V0582199, to pay compensation of Rs.1,00,000=00 and cost of Rs.1,00,000-00 in the interest of justice.
2. The brief facts of the complaint can be stated as under.
The complainant is a registered owner of TATA Indigo of January 2010 model bearing registered no.KA-02-AA-6393 and the said vehicle was registered at RTO office, Rajajinagar, Bangalore and he has purchased the same in order to lead his livelihood. During the course of purchase of the vehicle, the complainant had insured the said vehicle with the OP by paying the premium amount of Rs.13,502=00 and as such the OP had issued the policy cover note no.A5608210 dated 27-1-2010 vide certificate no.2010-V0582199-FTX for the period from 27-1-2010 to midnight of 26-1-2011. The complainant had got the permit to run the taxi vehicle through out Karnataka state vide form no.42 bearing P.C.P.No.KA-02/LT/612/2009-2010 dated 18-2-2010 and the validity of the permit would commence from 18-2-2010 to 17-2-2015. During the course of running the vehicle on 18-5-2010, the said vehicle went missing in the noon while it was parked near the complainant’s office and for that the complainant gave the police complaint before the jurisdictional policy station, Mahalakshmipuram, Bangalore informing that the aforesaid vehicle was robbed by some unknown persons without the complainant’s knowledge and immediately on the same day, the complainant got contacted the official by name Basit Ali Jandi (Sayed) and told about the fact of the theft of vehicle and requested him to know about the procedure to be done on such happening of the event and the said official got contacted the manager and told that the complainant should approach after getting the documents or the report from the police officials. Then the police authority told to make an enquiry with the drivers or else from his officials staffs regarding the vehicle and then would register the case. Believing the words of the said police authorities the complainant made an enquiry regarding the vehicle from his official staff and also from his drivers who were present there on that day. Later, the complainant called upon the drivers who had gone out of state on their personnel capacity and finally found out that nobody had the knowledge about the vehicle and immediately the complainant went to the police station and got informed the same on 29-6-2010 and the police authorities got registered the case vide FIR no.0175 on 29-6-2010. After conducting the investigation, the vehicle was not traceable and as such the police authorities got issued the endorsement as not traceable. Immediately on 7-7-2010 the complainant got preferred a claim form before the OP’s for an amount of Rs.4,20,000=00 by submitting all the documents. But the complainant did not get any information from the OPs and as such made several correspondences to the OPs enquiring about the claim of the complainant and the OPs told that they would intimate the same later. Since the complainant did not get any information from the OPs. On 21-7-2010 the complainant went to the office and asked about the fate of his claim, but the OPs tried to postpone the same by saying that they have not got the information from the police authority and then after several demands from the complainant, finally one of the official of the OPs gave an endorsement by putting signature without putting the seal, but when the complainant submitted that he had given the same on 7-7-2010 itself, then the said official of the OP’s told that since they seek the clarification from the police authorities they would put the later date and also got assured that his claim would be settled at the earliest. Despite the fact of follow ups on several days, the OPs did not contact the complainant nor send any information and then the complainant got issued legal notice on 10-3-2011 and the OPs replied to the legal notice and rejected the claim of the complainant by stating that there was a delay in intimating the fact of theft of the said vehicle. Thus the very act on the part of the OPs in not entertaining the claim of the complainant by paying the amount under the policy amounts to unfair trade practice and deficiency of service on the part of the OPs and there is breach of the contract of policy and for which the complainant has suffered a lot of mental agony as he has lost his source of income. The complainant being aggrieved by the repudiation of his claim under the policy and though the premium was paid to indemnify the loss on the happening of the event and though there was a contractual obligation on the part of the OPs under the policy to make good the loss the OPs only with an intention to deprive the legitimate right of the complainant has repudiated the claim which is opposed to law and so the complainant is entitled for damage in the form of compensation. Hence the present complaint is filed.
3. After service of the notice, the OPs have appeared through their counsel and filed objections contending interalia as under:
The complaint of the complainant is not maintainable, as it is totally misconceived and is based on erroneous assumption of facts and the policy issued is subject to various terms, conditions, exceptions and limitations. The insured of the vehicle as per the registration certificate and policy of insurance was and is Mr.Sathish Kumar, Proprietor of Marshal and tours and travels, Mahalakshmipuram, Bangalore. As well, as per the photo copy of the driving licence of the complainant being so forwarded does indicate that the complainant did possess licence to drive motor cycle with gear with endorsement to drive the insured vehicle TATA indigo CS LS Luxury Taxi, the complainant does not fall within definition of section 2 (d) of CP Act. So the complaint is to be dismissed. As per the averment of the complaint that, on 18-5-2010 the aforesaid vehicle went missing in the noon while it was parked near the complainant’s office and in this regard the complainant gave the police complaint before the jurisdictional police station stating that the aforesaid vehicle was robbed by some unknown persons, the word robbed does indicate as it is taken from or cheated from possession of the same. The complainant failed to lodge a police complaint to the jurisdictional police station about the missing of the TATA indigo vehicle immediately after the incident. However the letter dated 19-5-2010 of the complainant addressed to the police inspector, Mahalakshmipura police station does not contain the seal of signature or to prove the fact that the complainant had lodged the complaint before the police. The complainant had delayed in lodging the complaint to the jurisdictional police station, but the complainant has lodged the complaint to the jurisdictional police station only on 29-6-2010. However the complainant asserts that the police authorities delayed in taking complaint etc. At no point of time the complainant had so contacted the official of the OPs, whatever stated in this regard is totally falsehood, the OPs being a private General Insurance Co. Ltd would never the less deal with its clients with correspondence rather than oral communication. The insured in guilty of misrepresentation non disclosure and hence the contract is vitiated. The complainant having submitted the claim form on 21-7-2010, the OP has realized and processed the claim of the complainant based on the documents submitted and repudiated the claim of the complainant as the complainant has violated the terms and conditions of the policy. There is no deficiency of service or negligence on the part of the OP as alleged, and no compensation be awarded even on this ground. The complaint of the complainant is not maintainable as there is no deficiency in service on the part of the OP. The date of receipt of the claim has been acknowledged by OP on 21-7-2010 and that the repudiation of the same has been communicated to the complainant on 13-9-2010 and not orally. The present claim is not payable due to violation of the policy terms and conditions. Hence it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, he has intimated the fact of theft of the vehicle to the OPs on the same day, but the OPs are setting back from their duty by saying, they have not received any sort of information and the very act of the OPs in not entertaining his claim amounts to unfair trade practice and deficiency of service on their part and due to that he has suffered a lot of mental agony?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 12 copies of documents. On the other hand, one H.C.Mamatha, Authorized signatory of the OP has filed her affidavit and produced 12 copies documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties meticulously.
7. One Sathish Kumar, who being the complainant has filed his affidavit by way of evidence stating that, he is the registered owner of TATA Indigo vehicle bearing Reg. No.KA-02-AA-6393 of January 2010 model and registered the same at RTO office, Rajajinagar, Bangalore and he has purchased the same in order to lead his livelihood. During the course of purchase of the vehicle, he has insured the vehicle with the OP by paying the premium amount of Rs.13,502=00 and the OP has issued the policy cover note no.A5608210 dated 27-1-2010 vide certificate no.2010-V0582199-FTX for the period from 27-1-2010 to midnight of 26-1-2011, and he has got the permit to run the taxi vehicle through out Karnataka state and the validity of the permit would commence from 18-2-2010 to 17-2-2015. During the course of running the vehicle on 18-5-2010, the said vehicle went missing in the noon while it was parked near his office and in this regard he has given the police complaint before the jurisdictional policy station, Mahalakshmipuram, Bangalore informing that, the vehicle was robbed by some unknown persons without his knowledge and immediately on the same day, he got contacted the official by name Basit Ali Jandi (Sayed) and told about the fact of the theft of vehicle and requested him to know about the procedure to be done on such happening of the event and the said official told to him contact the manager and the manager told that he should approach the OPs only after getting the documents or the report from the police officials. The police authority had asked him to make an enquiry with the drivers or otherwise from his officials staffs and then would register the case, and accordingly, he made an enquiry regarding the vehicle from his official staff and driver and came to know that nobody had the knowledge about the vehicle and immediately, he went to the police station and got informed the same on 29-6-2010 and the police registered the case vide FIR no.0175 on 29-6-2010, and after conducting the investigation, the vehicle was not traceable and also police got issued the endorsement as not traceable. Immediately on 7-7-2010 he got preferred a claim form before the OP’s for a sum of Rs.4,20,000=00 by submitting all the documents. But the OP did not give the endorsement immediately and told that they would first enquire and confirm the documents submitted by him with the police and then would intimated the same, he did not get any information from the OPs and in this regard making several correspondences. On 21-7-2010 he went to the office and asked about the fate of his claim or else at least to give an endorsement, but the OPs tried to postpone the same by saying that they have not got the information from the police officials, finally one of the official of the OPs gave an endorsement by putting signature without putting the seal, as if he has received the same on 7-7-2010 itself, then the official told him that since they sought the clarification from the police authorities they would put the later date and also got assured that his claim would be settled at the earliest. The OPs did not settle his claim, and he got issued legal notice on 10-3-2011, but the OPs had rejected his claim stating that there was a delay in intimating the fact of theft of the vehicle. In fact, he has intimated the fact of the theft to the official of the OP on the same day, but the OPs are setting back from their duty by saying that they have not received any sort of information. Thus the very act on the part of the OPs in not entertaining his claim amounts to unfair trade practice and deficiency of service on the part of the OPs. So the present complaint is filed and order be passed as prayed in the complaint.
8. By reading the averment of the complaint and evidence of the complainant as mentioned above, it is made clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral evidence of the complainant is supported by his documentary evidence or not. Document no.1 is the copy of certificate of registration issued by RTO, Rajajinagar, Bangalore dated 4-2-2010, wherein the name of the registered owner mentioned as the complainant name and the vehicle Reg. number mentioned as KA-02-AA-6393, and in the class of vehicle column, it is mentioned as Luxury Taxi. Document no.2 is the copy of insurance policy issued by OP in the name of the complainant for a period from 27-1-2010 to midnight of 26-1-2011, and the total premium amount is of Rs.13,502=00. Document no.3 is the copy of permit in respect of a particular contract carriage in form no.42 issued by the RTO dated 17-4-2010 in the name of the complainant for a period from 18-2-2010 to 17-2-2015, and permit is valid throughout Karnataka State, and in the registration mark column, it is mentioned as KA-02-AA-6393. Document no.4 is the complaint copy given by the Marshall Tours “N” travels to the Police Inspector, Mahalakshmipuram police station, Bangalore dated 19-5-2010 stating that, on 18-5-2010 their vehicle bearing Reg. no.KA-02-AA-6393 was parked near their office and some thieves have stolen, and the vehicle be traced. But it is pertinent to note that, the said document does not bear either the signature or the seal of jurisdictional police station. Document no.5 is the copy FIR registered by the police under section 379 of IPC on the complaint of the complainant. The said FIR reveals that, the complainant has filed the complaint on 29-6-2010 at 3.45 PM. No satisfactory explanation was given in the FIR for making delay in filing the complaint. Document no.6 is the copy of notice issued to the complainant by the police stating that, the accused and vehicle are not traced. Document no.7 is the copy letter issued by the complainant dated 7-7-2010 to the RTO, Bangalore intimating that, his vehicle bearing Reg. No.KA-02-AA-6393 has been missing from 18-5-2010. Document no.8 is the copy of legal notice dated 10-3-2011 issued by the complainant to OP stating that, this complainant preferred his claim to OP for Rs.4,20,000=00 regarding loss of vehicle, the OP neither replied nor made any payments, so calling upon the OP to pay Rs.4,20,000=00 within 15 days from the date of receipt of this notice and pay a sum of Rs.2,000=00 toward charge of this notice, and in the said legal notice, the complainant has not explained on which date he made claim to the OP alongwith relevant documents, the entire copy of legal notice is ominous silent on this vital aspect. Document no.9 and 10 are the postal receipts and postal acknowledgement cards of the OPs. Document no.11 is the copy of reply given by the OP dated 5-4-2011 to the legal notice of the complainant stating that, he has not informed to them about the theft of the vehicle on 18-5-2010 and intimation to the police station was given on 29-6-2010, and as per the policy condition, the insured should immediately inform the police with regard to the theft, but the complainant has informed the police and to their company late, and there is breach of terms and conditions of the policy by the complainant, and accordingly the claim of the complainant has been rejected by the OP, and one more copy of notice issued by the OP to the complainant is found in documents of the complainant, where it is stated that, there is breach of condition by the complainant in informing the police and also to OP, so the claim of the complainant is rejected. The documents of the complainant as mentioned supra go to reveal that on 18-5-2010 the vehicle of the complainant bearing Reg. No.KA-02-AA-6393 was missing while the vehicle was parked near the office of the complainant and date of the complaint as per the document no.4 is dated 19-5-2010, the complainant has failed to inform the police immediately after the incident and for that document no.5 of the complainant being copy of FIR registered by the police under section 379 of IPC show that the complainant has intimated the police at 3.45 PM on 29-6-2010 and not on 18-5-2010 and delay of one month 10 days approximately in filing of the complaint has not been explained satisfactorily. No doubt in the FIR, the complainant has given explanation that as he made enquiry with the drivers, relatives and friends, so he has filed the complaint late, the explanation given in the FIR is not found in the complaint. The complainant has not satisfied the forum with documentary evidence on which date he submitted his claim to the OP calling to grant a sum of Rs.4,20,000=00 alongwith relevant documents. Documents produced on behalf of the complainant in this regard are wanting for reasons best known to the complainant. In the absence of the producing any convincing documentary evidence, the only presumption to be drawn by the forum is that, the complainant has intimated the OP late and not immediately. As per the condition no.1 of policy produced by the OP at Ex.R-2 it is made clear that, the 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. So looking to the averment of the complainant and relevant policy condition, the OP i.e. condition no.1, it is no doubt true that, the complainant has not informed either to the police or to the OP immediately after the incident of theft and there is breach of condition by the complainant. The oral evidence of the complainant to effect that he immediately informed the police about the theft and also made claim with the OP is not corroborated by any documentary evidence. On the other hand, the authorized signatory of the OP by name H.C.Mamatha has stated in her affidavit evidence that, the complainant has not made his claim to their company immediately after the incident so also the complainant did not inform the police immediately after the theft of the vehicle. On the other hand, the complainant has made his claim on 21-7-2010, and since there is breach of condition of the policy, so they have repudiated the claim of the complainant. In order to prove the contention of the OP, the OP has produced the terms and conditions of the policy issued in the name of the complainant at Ex-R-2 and as per the condition no.1 of the policy it is mandatory on the part of the insured to give notice to the OP immediately upon occurrence of any accidental loss or damage in the event of any claim. Ex.R-4 is the claim form submitted by the complainant to the OP duly signed dated 21-7-2010 and evidence of the OP that, the complainant has neither filed the complaint nor made claim to their company immediately after the incident of theft is countenanced by terms and conditions of the policy and claim form of the complainant. So, making comparative study of evidence of both parties, we are of the view that, the material evidence of the OP is more believable trustworthy and acted upon than the oral and documentary evidence of the complainant. Having considered the totality of the oral and documentary evidence of both parties, it is vivid and clear that, the complainant who comes to the forum seeking relief has utterly failed to prove this point by placing clear cogent and consistent material evidence and as such, we answer this point in a negative.
9. In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, no order as to cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 21st day of September 2012.
MEMBER MEMBER PRESIDENT
