Karnataka

Bangalore 4th Additional

CC/15/575

Sri. S. Narayanachari - Complainant(s)

Versus

General Manager (Claims) Cholamandalam MS General Insurance Co. Ltd and Others - Opp.Party(s)

S.V. Venugopal

18 Nov 2017

ORDER

Complaint filed on: 27.03.2015

                                                      Disposed on: 18.11.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.575/2015

DATED THIS THE 18TH NOVEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Sri.S.Narayanachari

S/o Subramanyachari,

Aged about 38 years,

R/at Anemadagu village and post, Siddlaghatta Taluk, Chikkaballapur district.

 

By Adv.Sri.K.Narasimha Gowda   

 

V/s

Opposite party/s

Respondent/s:-

 

  1. General Manager (claims) Cholamandalam MS General Insurance Co ltd.,

Authorized signatory

Regd and Head office

2nd floor, Dare house,

2nd NSC Bose road,

Chennai-600001.

 

  1. Manager, (claims)

Authorized Signatory, Cholamandalam MS General Insurance Co ltd.,

Hari Nivas Towers,

1st floor, No.163,

Thambuchetty Street,

Parry’s corner,

Chennai-600001.

 

  1. The Manager (claims), Cholamandalam MS General Insurance co ltd.,

Authorized Signatory,

no.04, 9th floor (level 6),

Golden heights, 59th C cross, Industrial Suburb,

Rajajinagar, 4th M block, Bengaluru-10.

 

By Adv.Sri.S.Krishna Kishore

 

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against Opposite parties no.1 to 3 (here in after referred as Ops), jointly and severally to settle the claim for Rs.7,50,000/- made by him under the claim no.3373013997 dtd.19.06.2012 with interest at 18% from the date of claiming the amount till realization with expenses, costs and also compensation of Rs.1 lakh for the mental torture given by the Ops.

 

          2. It is the case of the Complainant that he was the owner of the vehicle bearing no.KA-40-6029 Tempo Traveler (here in after referred as the said vehicle). The said vehicle was insured with the Ops (herein after called out Ops) under the policy no.3373/00354939/000/00. One Vijaykumar who happens to be the driver of the Complainant informed that someone has engaged him for tour towards Tamilnadu, Kerala and Karnataka which is of nearly 15 days, by saying so, he took the said vehicle and left Chikkaballapur at about 9.00 am. as he has to pick the parties at Devanahalli. On the same day Complainant called to the said Vijaykumar by phone in the evening, it was not reached. It was continued for about 2 to 3 days, in these 2 to 3 days also the phone calls did not reach to Vijaykumar. On being doubt himself along with the family members of the said Vijaykumar lodged the complaint on 11.06.2012 in Chikkaballapur police station to trace Vijaykumar as well as the said vehicle. In respect of the delay in complaint before the police, the Complainant has narrated the circumstances. The concerned police have assured him to take proper action. Further it is the case of the Complainant that the police informed him that the said Vijaykumar was murdered by some unknown persons. Accordingly he and the family members of the Vijaykumar had been to the police station and identified the dead body on seeing the photograph belongs to the Vijaykumar. The said police also informed that the body of the said Vijaykumar was buried. In this context it was take about 10 to 11 days. As he being the common person, do not know the mode of filing of the complaint before the opponents. Therefore on 19.06.2012, he lodged the complaint about the theft of the said vehicle before the Ops. There was a delay of 12 days in placing the complaint before the Ops, Which is neither intentional nor deliberate.

 

          3. Further it is the case of the Complainant that he made the claim about theft of the said vehicle to the Op.no.3, then in turn it was sent to the Op.no.2. After going through the claim papers with regard to the claim made by him, Op.no.2 shown his inability to consider the claim made by the Complainant by quoting clause no.1 & 9 of the policy conditions. There after the Complainant has made several letter correspondences, but there was no response by the Ops to get settle his claim. So it goes to show that the negligence of the Ops and there is deficiency of service. It is also the case of the Complainant that he availed the loan in Canara bank of Siddlaghatta branch for purchasing the said vehicle. Hence he has to discharge the said loan.  

 

          4. Further it is the case of the Complainant that at the first instance, he had filed the complaint before the District Consumer Disputes Redressal Forum, Kolar on 13.10.2014. The learned Presiding officer of the said forum, passed an order dtd.29.11.14 holding that the complaint filed by the Complainant is hit by law of territorial jurisdiction, as the office of the Op.no.1 & 2 is situated at Chennai and the office of the Op.no.3 is at Bengaluru. Thereafter he filed this complaint before this forum. The sum and substance of the complaint filed by the Complainant is that though there was delay of 12 days in informing the theft of the said vehicle to the Ops which is neither intentional nor deliberate. Hence he prays to allow the complaint.

 

          5. The Ops did appear, amongst them Op.no.3 filed the version denying the contents of the complaint filed by the Complainant. It is the specific case of the Ops that the complaint filed by the Complainant is misconceived and not maintainable either in law or on facts. The main contention taken by the Op is that soon after the theft of the said vehicle, the Complainant has not immediately reported the matter to the Ops. Hence the claim of the Complainant is repudiated by invoking the condition no.1 & 9 of the insurance policy which reads thus:

1. Notice shall be given in writing to the company immediately upon the occurrence of any accident 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, summons and all process of copy thereof shall be forwarded to the company immediately on receipt by the insured. 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 my due raise to a claim under this policy. In case of theft or criminal act, which may be the subject of the 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.

 

9. The due observance and fulfillment of the terms & conditions and endorsements of this policy insofar 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.

 

Relying on the above conditions, it is stated that the reasons for such repudiation are just and proper.  When there is volition of the policy conditions, the Ops are liable to be exonerated. On these grounds and other grounds prayed for dismissal of the complaint. 

 

          6. To substantiate his case, the Complainant filed his affidavit evidence by marking the documents as Ex-P1 to P15. Amongst the Ops one Sri.S.A.Vithalpurkar who being the AGM of Op.no.3 filed his affidavit evidence and got marked Ex-B1 to B3. We have heard the learned counsel for the Complainant and the Ops, so also placed reliance on the written arguments filed by both the parties to the lis.

 

7. The points that arise for our consideration are:

  1. Whether the complainant is a consumer as defined u/s 2(1)d of the CP Act ?
  2. Whether the Complainant proves that there is a deficiency of service by the Ops ?
  3. Whether the Ops prove that the claim of the Complainant has been repudiated on account of not reporting the theft immediately, hence there is a violation of policy condition no.1 & 9 ?
  4. Whether the Complainant is entitled for the relief sought for ?
  5. What order ?

                   

           

 

8.  Answers to the above points are as under:

 

Point no.1: In the Affirmative

Point no.2: In the Negative  

Point no.3: In the Affirmative

Point no.4: The Complainant is not entitled for the relief sought for

Point no.5: As per the final order for the following

REASONS

 

          9. Point no.1: During the course of arguments, the learned counsel for the Ops submit that the Complainant has got insured the said vehicle with the Ops, hence he being the consumer as defined u/s 2(1)d of CP Act. Hence it is needless to discuss in detail as the admitted facts need not to be proved u/s 58 of the Evidence Act. Accordingly we answered the point no.1 in the affirmative.

 

 

10. Point no.2 & 3: Since these points are interconnected, hence we have taken these 2 points together for our discussion just to avoid the repetition of the facts.

 

11. It is not in dispute with regard to the theft of the said vehicle. Before embarking on the detail facts of this case, some of the introductory facts are necessary. In this context we placed reliance on the contents of the judgment passed by the Add., Senior Civil Judge & JMFC., at Chickballapur dtd.01.10.2016 in E.C.A.4/2014, wherein the mother of the deceased Vijaykumar who happens to be the driver of the Complainant herein filed the claim petition u/s 22(4) of the Workmen’s Compensation Act of 1923, read with amended Act of Employee’s Compensation Act of 2009. In the said case, the Complainant herein was the respondent no.1 and the Ops insurance company was the respondent no.2. In the said case on behalf of the Ops herein one Sunil Ramesh was examined as RW1 and the Complainant herein was examined as RW2. RW1 Sunil Ramesh being the Asst., Manager of the said insurance company who in his cross examination admitted the deceased Vijaykumar has possessed the driving license. He also admitted that the said vehicle was a light motor vehicle, transport vehicle. Further he has admitted that RC will be insured only after verifying the RC & FC. He has also further admitted that the Complainant has taken the premium to cover the risk of the driver also. Further it is admitted by him that the application given by the Complainant herein shown that the deceased Vijaykumar was shown as driver of the said vehicle. Further he has admitted that the said vehicle has got the valid permit from 23.10.2010 to 22.10.2015. So the contention taken by the Ops herein that the said vehicle has no fitness certificate and permit and has no legs to stand. Considering the evidence i.e. let in by the mother of the deceased Vijaykumar examined as PW1 in ECA 4/2014, the learned Magistrate arrived at the conclusion that the murder of the deceased Vijaykumar was accidental murder. Hence the claim petition was allowed by awarding the compensation to the mother of the said deceased Vijaykumar.

 

12. It is also noticed that the town police Chickballapur have filed the ‘C’ report with regard to the non-tracing of the culprit. The said report has been accepted by the learned magistrate of PRL, Civil Judge & JMFC, Chickballapur by his order dtd.25.02.2014 in Cr.no.104/2012.

 

13. Now we would like to place the reliance on the evidence i.e. let in by the parties to the lis. Admittedly there is a delay of 12 days in intimating the Ops about the theft of the said insured vehicle. In the instant case Ops marked the policy as Ex-B1. The condition no.1 & 9 of the said insurance policy, wherein it is clearly mentioned as

1. Notice shall be given in writing to the company immediately upon the occurrence of any accident 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, summons and all process of copy thereof shall be forwarded to the company immediately on receipt by the insured. 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 my due raise to a claim under this policy. In case of theft or criminal act, which may be the subject of the 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.

 

9. The due observance and fulfillment of the terms & conditions and endorsements of this policy insofar 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.

 

14. From the above stated conditions, it is clear that the insured i.e. the Complainant was duty bound to inform immediately to the police and the insurance company respectively in the event of the theft or criminal act which may be the subject of the claim under the said policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. It is important to note that the contract of the insurance is a contract between the insurer and the insured and they are strictly governed by the terms & conditions of the policy. In this regard, the Hon’ble Apex Court in Oriental Insurance Co. ltd., Vs Soni Cherian, II (1999) CPJ 13 (SC) – VI (1999) SLT 565=II(1999) ACC 196 (SC), held as follows:

“The insurance policy between the insurer and the insured represents a contract between the parties. Since the Insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”

 

15. In the present case the Complainant failed to discharge his obligation under the condition no. 1 & 9. When he did not immediately informed the Ops of the theft of the said vehicle, hence the Ops cannot be fastened with any liability. In this regard we placed reliance on the decision of the Hon’ble Apex Court in Oriental Insurance Co. ltd., Vs Parvesh Chancier Chadha, civil appeal no.6739 of 2010 (arising out of SLP (C) no.12741 of 2010), decided on 17.08.2010 has observed that:

“In terms of the policy issued by the Appellant, the Respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted in to the alleged theft of vehicle and make an endeavor to recover the same. Unfortunately, ail the consumer Foras omitted to consider this grave lapse on the part of the respondent and directed the Appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.”

 

16. We have also placed reliance on the unreported decision of the Hon’ble National Commission dtd.09.12.2009 in first appeal no.321/2005, wherein resort has been made to the dictionary meaning the word ‘immediately.’ As per Oxford Advanced Learner’s Dictionary, the word ‘immediately’ means ‘at once’.

As per Stroud’s Judicial Dictionary, fifth edition, word ‘immediately’ is defined as under:

 

  1. “The word ‘immediately’, although in strictness it excludes all mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing.”

 

As per Black’s Law Dictionary, sixth edition, word ‘immediately’ means:

 

‘immediately’. Without interval of time, without delay, straightway or without any delay or lapse of time. When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of the circumstances of the case”, although strictly, it means, “not deferred by any period of time. The words ‘immediately’ and ‘forthwith’ have generally the same meaning. They are stronger than the expression ‘within a reasonable time’ and imply prompt vigorous action without any delay.”

 

According to Mitra’s legal and commercial dictionary, fifth edition, word ‘immediately’ is defined as under:

 

‘immediately’. ‘immediately’ is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsbury’s laws of England, 4th Ed.Vol.23, para 1618, p.1178.

 

The word ‘immediately’ is stronger than the expression ‘within a reasonable time’, and imply prompt, vigorous action, without any delay. It means all convenient speed. The word ‘immediately’ should not be construed so as to require doing something which is impossible.

 

17. In the said decision there was a delay of only 9 days in reporting the theft of the mini truck to the insurance company. By interpreting the word ‘immediately’ the Hon’ble National Commission has allowed the appeal of the insurance company in justifying to repudiate the claim of the Complainant therein.

 

18. In the instant case there is an inordinate delay of 12 days in informing to the police as well as to the insurance company. As per the pleadings of the Complainant, the said vehicle was taken by the deceased Vijaykumar on 07.06.2012. On the same day the Complainant made a call to him but it was not reached. Again he has tried to contact him 2 to 3 days but the said phone call did not reach to him. Therefore himself and the family members of the Vijaykumar lodged the complaint on 11.06.2012 before the Chickballapur police. After filing of the complaint before the police, what prevented the Complainant to inform the said fact to the Ops, so as to take the coercive steps to search the said vehicle with assistance of the police. In this context, there is no any acceptable evidence on record.

 

19. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the Complainant to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 12 days, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. Hence we come to the conclusion that the Complainant has violated the condition no.1 & 9 of the policy marked as Ex-B1. Accordingly we come to the conclusion that the Complainant has not entitled for any of the relief sought for as there is no deficiency of service by the Ops. Accordingly we answered the point no.2 in the negative and the point no.3 in the affirmative.

 

20. Point no.4: In view of our finding on point no.2 & 3, the Complainant is not entitled for any of the relief sought for.

 

21. Point no.5: In the result we passed the following.

 

ORDER

 

          The complaint filed by the Complainant u/s 12 of the CP Act is dismissed.

 

2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 18th November of 2017).

 

 

 

(SURESH.D)

  MEMBER

 

 

           (ROOPA.N.R)

    MEMBER

 

 

 

           (S.L.PATIL)

 PRESIDENT

 

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.S.Narayanachari, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-P1

FIR dtd.11.06.12

Ex-P2

Police complaint dtd.11.06.12

Ex-P3

Form 2 – motor vehicles taxation card

Ex-P4

RC & FC

Ex-P5

Motor policy schedule cum certificate of insurance

Ex-P6

Letter from Op dtd.31.12.13

Ex-P7

Legal notice dtd.30.07.14

Ex-P8 to P13

Original 3 postal receipts & 3 postal acknowledgements

Ex-P14

Order sheet of Prl, civil Judge & JMFC, Chikballapur Cr.no.104/2012, final report

Ex-P15

Order sheet of Kolar DCDRF CC.no.52/2014 dtd.29.11.14

 

 

2. Witness examined on behalf of the Opposite party/s

by way of affidavit:

 

Sri.Srinivas A Vithal Purkar, who being the Asst.General Manager of Op.no.3 was examined. 

 

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1

Policy issued by Ops to the Complainant with wordings

Ex-B2

Claim form dtd.30.08.12

Ex-B3

Repudiation letter dtd.31.12.13

 

 

 

 

(SURESH.D)

  MEMBER

 

 

           (ROOPA.N.R)

    MEMBER

 

 

 

           (S.L.PATIL)

 PRESIDENT

 

 

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.