Tamil Nadu

StateCommission

FA/391/2013

NATIONAL INSURANCE CO. LTD., THE SENIOR DIVISIONAL MANAGER - Complainant(s)

Versus

G. VENKATESH BABU - Opp.Party(s)

S. VADIVEL

22 Oct 2021

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH               PRESIDENT

Tmt  Dr. S.M.LATHA MAHESWARI                           MEMBER

                        

F.A.NO.391/2013

(Against order in CC.NO.110/2010 on the file of the DCDRC, Chennai (South)

 

      DATED THIS THE 22^nd DAY OF OCTOBER 2021      

 

The Senior Divisional Manager

M/s. National Insurance Co. Ltd.,

Divisional Office No.III                                                          M/s. S. Vadivel

No.751, II Floor, Anna Salai                                                     Counsel for

Chennai – 600 002                                                        Appellant / Opposite party

 

                                                         Vs.

 

G. Venkatesh Babu

S/o. V. Gopasamy

No.16, G1 B2, Sri Balaji Apartments

Thirumalai Nagar Main Road                                          M/s. Mohammed Ghouse

Hasthinapuram                                                                     Counsel for

Chennai – 600 064                                                    Respondent/ Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Commission dt.4.7.2012 in CC.No.110/2010.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order in the open court:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT  (Open court)

 

1.       This appeal has been filed as against the order dt.4.7.2012 passed by the District Commission, Chennai (South) in CC.No.110/2010 by allowing the complaint filed by the Respondent/ Complainant herein. 

 

 

2.       The brief facts which are necessary to decide the appeal is as follows:

           The complainant had purchased a white colour Chevrolet Tavera vehicle bearing Regn. No.TN 22 AT 9888 on 3.1.2007.  The said vehicle was insured with the opposite party under a Comprehensive policy of insurance, covering all risks, bearing No.500300/31/08/6300000786 for the period from 31.12.2008 to 30.12.2009.   It is a passenger carrying commercial vehicle.  The petitioner had paid a premium of Rs.16,160/- to the opposite party.  The opposite party issued the certificate of insurance on 26.12.2008 reflecting the Insured Declared Value of the said vehicle as Rs.476000/- and incorporating the name of the financier M/s. GMAC Financial services Ltd., with whom the said vehicle was hypothecated.  On 4.4.2009 the complainant took the vehicle to M/s. Car Park, a service centre for repair work and replacement of shock absorbers.  While leaving the vehicle for repair, the complainant casually informed the owner of the said service centre, who was known to the complainant, about his intention to sell the said vehicle, if a good price is offered to him.  While so on 6.4.2009, the complainant was informed that the said vehicle was stolen by some unknown persons.  All the efforts of the complainant to trace-out the vehicle were in vain.  The complainant immediately informed the occurrence of theft to the opposite party on 6.4.2009 itself and also lodged a complaint with the Inspector of Police, Villivakkam Police Station, Chennai, on the same day.  The opposite party also appointed an investigator to whom the complainant furnished all particulars regarding the said vehicle and the incident.  He had also lodged a claim with the opposite party duly enclosing all the claim documents, and the same was received and registered by the opposite party as claim No.500300/31/09/6390000014.  While processing the claim, the Sr. Divisional Manager of the opposite party wanted the complainant to give ‘No objection certificate’ from the financiers, with whom the vehicle was hypothecated.  The complainant under the fond hope that his claim will be settled by the opposite party, paid an additional amount of Rs.260,000/- to the said financiers and obtained the said Form No.35 and No Objection Certificate from the financiers and the same was also submitted to the opposite party.  The opposite party, while processing the claim of the complainant for payment, demanded the complainant to execute a Letter of Subrogation and Indemnity Bond, which was also complied with by the complainant in favour of the opposite party.  After having received the letter of subrogation and Indemnity Bond, the opposite party finally repudiated the claim of the complainant by letter dt.24.11.2009.  The claim was repudiated mainly on the ground that there was a delay of one month in reporting the theft to the police and on the ground that FIR was lodged under Sec.406 IPC and not Sec.379 IPC.  It was contended by the opposite party that it was not a case of theft but it was a case of criminal breach of trust.  The opposite party had further stated that the complainant had violated the policy condition No.5 of commercial vehicle package policy as no complaint has been lodged against the workshop owner.  But the opposite party had repudiated the claim of the complainant.  In fact there was no delay in reporting theft to the police, the complainant had lodged complaint with the inspector of police, Villivakkam on the same day i.e., on 6.4.2009 and they have not registered FIR but demanded the workshop owner to give complaint, so that it would be helpful for further investigation.  It was only after the complainant complained about the non-filing of  FIR to the higher officials in police, the FIR was registered, and FIR copy was given to the complainant only after two days.  Since in FIR Sec.406 was wrongly mentioned instead of 379, the same was amended by the police only after the complainant lodged a complaint with the higher officials, and the change of the sec.379 was duly informed to the XIII Metropolitan Judicial Magistrate, Egmore.  Thus the delay in registering the FIR and wrong quoting of the section are mistakes committed by the police authorities, for which the complainant cannot be penalized.  Thus the claim of the complainant was repudiated on untenable grounds, which amounts to gross deficiency of service.  Therefore, he filed a complaint before the District Commission, claiming the insured value of the said vehicle @ Rs.476000/- alongwith interest @18% p.a., from 4.4.2009 till payment, alongwith compensation of Rs.5 lakhs and Rs.20000/- towards cost. 

 

3.       The case of the complainant was resisted by the opposite party by filing version as follows:

          On a plain reading of the complaint, it can be ascertained that the dispute between the complainant and the workshop owner to whom the complainant had entrusted his vehicle for sale as bailor and bailee.  The complainant himself admitted that he informed the owner of service centre to sell the vehicle if a good price is offered to him.  Though the complainant had come to know the missing of the vehicle on 6.4.2009, the said incident was reported to the police only on 5.5.2009.  Only on the basis of the complaint given by the workshop owner, the V1 Villivakkam Police registered the FIR in crime No.246/2009 dt.5.5.2009 against one Prabakar, S/o. Venkatasamy, an ex-employee of the service station under Sec.406 IPC i.e., for an offence relating to criminal breach of trust.  The complainant had not given any police complaint against the owner of the service centre to whom he entrusted his vehicle for sale.  It is a clear case of criminal breach of trust, and not a theft as contended by the complainant.  The opposite party cannot comply the claim of the complainant.  This opposite party had repudiated the claim of the complainant for valid reasons and had not given any hope to the complainant at any point of time.  The amount paid by the complainant to his financiers at Rs.260000/- was not at the instance of the opposite party, and that is between the complainant and the financier.  The valid reasons were given in the repudiation letter dt.24.11.2009.  The case was closed as undetected by the 13^th Metropolitan Magistrate, on the basis of the No objection given by the defacto complainant Praveen Kothari.  Even thereafter the complainant had not chosen to initiate any action against the owner of the service centre, to whom he entrusted the car for sale.  Therefore, the repudiation is a valid one.  Thus he sought for the dismissal of the complaint. 

 

4.       In order to prove the claim, the complainant and the opposite parties have filed their proof affidavits in support of their cases and four documents filed by the complainant were marked as Ex.A1 to A4, and two documents filed by the opposite party were marked as Ex.B1 and B2. 

 

5.       The District Commission after analysing the entire evidence, has come to the conclusion that there is deficiency in service on the part of the opposite party and thus directed the opposite party to pay a sum of Rs.476000/- being the insured value of the said vehicle alongwith a compensation of Rs.10000/- and cost of Rs.3000/-.  Aggrieved over the said order this appeal is preferred by the appellant/ opposite party. 

 

6.       We have heard the submissions made by the counsels appearing for both parties.   For deciding the appeal following questions have been raised for consideration

          1. Whether the repudiation of the claim made by the opposite party is justifiable?

 

          2.       Whether there is deficiency in service on the part of the opposite party?

 

 

7.       Though very many contentions have been raised by the appellants, the main contention of the insurance company is that there was a delay of one month for lodging the FIR and moreover the FIR was lodged only as against the employee of M/s. Car Park, and the complaint was registered only under Sec.406 of IPC and not for theft, and there is a violation of condition No.5 of the insurance policy. 

          In view of the above, the learned counsel for Respondent/complainant stated that the car was not missing from the possession of the complainant.  He had entrusted the car to M/s. Car Park for repair.  Therefore, at the time of missing of the car, the vehicle was in possession of M/s. Car Park.  Therefore, the   proper person for lodging the complaint is only M/s. Car Park, accordingly the complaint was lodged on 5.5.2009, with a delay of one month.  But since there was a delay of one month in lodging the FIR, that cannot be considered as a ground for rejecting the claim of the complainant.  Though initially the complaint was lodged under Ses.406, the materials available on record would show that subsequently it was converted as Sec.379, and the said complaint also was closed by the XIII Metropolitan Magistrate, since undetected.  Since the FIR was altered as filed under Sec.379, now the opposite party cannot stick on to their stand, since the FIR was originally registered under Sec.406, they are not liable to compensate. 

 

8.       But it is the submission of the counsel for the appellant/opposite party that though the FIR was altered to Sec.379 IPC from 406 IPC, the case was closed by the XIII Metropolitan Magistrate, Egmore, Chennai ‘undetected’ based on the ‘no objection’ given by the defacto complainant Praveen Kothari, who is the owner of the service centre to whom the complainant had entrusted the car for sale.  But the Respondent/ complainant had not taken any steps for initiation of the criminal case either against the owner of the service centre, or against the accused.  Thus he has not taken any reasonable steps to safeguard the vehicle from loss or ay damage.  Hence there is a violation of condition No.5 of the policy.   Condition No.5 reads as follows:

“The insured shall take all reasonable steps to safeguard the vehicle insured 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 insured or any part thereof or any driver or employee of the insured.   Insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if  the vehicle insured 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”. 

 

According to the opposite party, the vehicle should not be left unattended without taking precautions to further loss or damage.  In the instant case the appellant had handed over the vehicle only to the workshop for repairing the same.  The car was missing from the possession of the owner of the workshop.  So it is a clear case of criminal breach of trust by the owner of the service centre.  When the complainant had not taken any action against the owner of the service centre, there is a clear  violation of conditions of the policy. 

         

9.       Having considered the submissions, it is pertinent to note the contentions of the complainant that the concerned police station had not registered FIR immediately, though he made a complaint on 6.4.2009 itself, and on complaint by the complainant to the higher ups, the FIR came to be registered.   But the complainant had not filed any material to prove the above contention.    Therefore, it could not be ascertained that whether there was any deviation in the policy condition or not.   Eventhough we concur with the decision of the opposite party, that the complainant had not intimated the theft immediately, we are of the considered opinion that the opposite party cannot repudiate the claim of the complainant intoto. 

                   In this connection it is pertinent to point out the decision of the Hon’ble Apex Court, that for such kind of violation, the claim can be settled at 75% on non-standard basis, based on the judgement  of the Hon’ble Supreme Court held in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., reported in II (2010) CPJ 9 (SC), wherein it was held that “Any other breach of warranty/ condition :Pay upto 75% of admissible claim”. 

           Therefore, we are of the view that since the allegation with regard to the violation of the policy condition had not been clarified without any ambiguity by the Respondent/ complainant, by producing evidence that inspite of all precautions followed by them, the vehicle was missing, he is entitled only for 75% of the admissible claim as per the Judgement of the Hon’ble Supreme court.

          Therefore, we are of the considered opinion that the opposite party ought to have compensated the complainant by paying 75% of the claim on non-standard basis.  In so far as this aspect is concerned there is deficiency in service on the part of the opposite party in repudiating the claim intoto. Points are answered accordingly.

 

10.     With regard to the above findings, we hereby modify the order of the District Commission accordingly.

 

           

11.     In the result, the appeal is allowed in part by modifying the order of the District Commission in CC.No.110/2010 dt.4.7.2012, by directing the opposite party to compensate the complainant by paying 75% of the IDV of the vehicle @ Rs.4,76,000/-, instead of Rs.476000/-, and confirming compensation of Rs.10000/- and cost of Rs.3000/- as ordered by the District Commission.    There is no order as to cost in this appeal. 

               

 

  S.M.LATHAMAHESWARI                                                            R. SUBBIAH

               MEMBER                                                                               PRESIDENT

 

 

INDEX : YES / NO

Rsh/d/rsj/ Open court