ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not honoring the claim in respect of the theft of autorickshaw bearing No.KA 02 AF 3370 and for the claim of Rs.1,05,000/- being the ID value of the stolen autorickshaw along with interest at 18% p.a., and Rs.50,000/- as compensation for OP causing hardship, inconvenience and monitory loss and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant is the owner of Bajaj autorickshaw model RECOMPACT registered in his name under Reg. NO.KA 02 AF 3370 which is insured with opposite party under package policy from 14.03.2020 to 13.03.2021.

3.      It is contended that the said auto was given to his friend one Govindaraju to run the same for about a week on 10.03.2020 as he (complainant) would not be in station.  On the night of 14.03.2020 the said Govindaraju had parked the said autorickshaw in front of his house.  When he came out of the house at 12.30 pm., in the intervening date of 14/15/03.2020 to check the auto he found that the said auto was not to be seen in the parking area where he had parked.  Immediately he called 100 emergency number of Hoysala police. The Hoysala police and vijayanagar police station officer came to the spot immediately and searched but could not find the same, immediately in the night itself the said Govindraju went to the police station to lodge a complaint wherein he was asked to come in the morning to lodge the complaint.  Since there was a covid situation the police informed that they would intimate the said Govindraju in case they trace the vehicle.   The said Govindraju went to his native due to corona and was in touch with the police enquiring about the vehicle.  

4.      It is contended that the complainant is illiterate and do not know the policy conditions, hence he could not intimate the insurance company immediately after the theft.  He approached the insurance agent at SR insurance opposite to Rajajinagar RTO, and informed him what has happened and the same was intimated to the insurance company and OP assured that it will make good the loss of the stolen vehicle and sought the details of the FIR, and the complaint.  

5.      He is a poor person, earning his livelihood by earning Rs.1000/- per day from hiring the auto.  Due to covid restrictions, he could not earn that money also and suffered financially.  Only on 27.05.2020 he could able to lodge a complaint with vijayanagar police and the said police registered the case on 27.05.2020 under crime No.0111/2020.  The insurance obtained from the OP covers and the theft claim.  OP is liable to reimburse the amount of the value of the vehicle. Whereas, the claim of the complainant was rejected by the OP on the ground of delay in informing the insurance company and hence he has come up with this complaint and prayed the commission to allow the complaint.

6.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or facts and the complainant has not come with clean hands. It has admitted having issued insurance to cover the auto belonging to the complainant. It is contended that though account to the complainant the theft of the vehicle took place on 14.03.2020 the claim was made on 04.06.2020 which is 81 days after the incident and further FIR was lodged with the police on 27.05.2020 i.e., after 73 days of inordinate delay.   After the claim the complainant was informed the procedure which has to be followed. Inspite of it, the physical inspection of the spot was verified by the authorized investigator and a detailed report was given by him which disclosed many facts which were material for the OP to decide regarding the admissibility of the claim.  The inordinate delay of lodging the FIR and intimating the OP affected the right to investigate the facts to ascertain the proof caused and the nature of the loss at the earliest possible opportunity and also leads to diminish the chance of recovery of the vehicle and mitigate the loss which is the breach of condition No.1 of the policy. No reasonable explanation was provided for inordinate delay in lodging the claim with police and with OP. There is non-co-operation and non-submission of the documents from the complainant’s side, regarding the claim and hence the claim in respect of theft of the vehicle was repudiated by the letter dated 29.07.2020. By denying all the other allegations made in each and every para of the complaint prayed the forum to dismiss the complaint.

7.      In order to prove the case, both parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

9.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the vehicle which was stolen has been under insurance with the OP.  The insurance was for the period from 14.03.2020 to 13.03.2021.  Complainant has also produced the copy of the RC, Aadhaar card, form No.42 issued by Department of transport i.e., the transfer permit in respect of the said auto, the driving license and also the copy of the insurance. 

        10.   Further the complainant has also produced the copy of the FIR, the complaint, and also the repudiation letter issued by the OP, wherein it has repudiated the claim of the complainant on the ground of violation of condition No.1, i.e.,

Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage inn the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.  Every letter claims writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt be the insured.  Notice shall also be given in writing to the company immediately after 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.  Wherever details pertaining to any incident which results in a claim, are conveyed by the insured to the insurer after reasonable period, condone the delay in intimation of claim or delay in providing the required information/documents to the insurer.

        11.   It is the contention of the complainant that the vehicle was given to his friend one Sri.Govindraju for running the auto as he was out of station and the said Sri.Govindaraju informed him that on 14.03.2020 while the said vehicle was parked in front of his house, the same was missing and a search was also made but could not find the same. Sri.Govindaraju informed 100 Hoysala Police regarding the theft of the vehicle, upon which they came to the spot along with Vijayanagar police and also searched for the vehicle but could not find the same.  Further when he went to lodge a complaint in the morning as the police were busy in corona pandemic they did not receive the complaint and after long time they received the complaint and FIR was lodged.

        12.   It is in the averment of the complainant that he is not a well-versed person and could not know the implication of intimating or informing the theft of the vehicle to the insurance company and thatswhy there was a delay in giving information to the insurance company regarding the theft.  Since the complainant is a auto driver may not be knowing the intricacies and the implication of the conditions laid down in the complaint. To that effect there is a lapse on the part of the complainant. Though it may be true that at the first instance had the complainant informed the OP regarding the theft, they could have visited the spot very soon and would have got the case investigated.  Inspite of it there are so many instances, wherein even after intimation to the insurance company, they were unable to find out the vehicle or the thief who has stolen the vehicle.  Further it is the duty of the police to investigate and find out the thief with the property.  The ignorance of the complainant in not informing the OP at the earliest point of time after the theft of the vehicle has to be considered as unintentional and without any malafide intention.  Hence even though there is delay in informing the police as well as the insurance company the same has to be treated as an unintentional one and without malafide intention. 

        13.   Except the delay caused in intimating the insurance company and the police, no other reason had been made out by the insurance company to repudiate the contract of insurance. The Supreme Court of India has relied o the decision in 2022(1) CPR 353 (SC) Jaina Construction Company –vs- The oriental insurance company Ltd., in Civil Appeal No.1069/2022 as hereunder;

        Consumer Protection Act, 1986 – Section 23(Consumer Protection Act, 2019 – section 67) – Insurance – Theft of insured vehicle – Repudiation of claim on the ground of delay in informing the insurance company regarding theft of vehicle – Untraceable report filed by police – There was delay of about five months on part of complainant in informing and lodging its claim before Insurance company, nonetheless, Insurance company has not repudiated claim on the ground that it was not genuine – It has repudiated only on the ground of delay – When complainant had lodged FIR immediately after theft of vehicle and when police after investigation had arrested accused and also filed challan before concerned court and when claim of insured was not found to be not genuine, Insurance company could not have repudiated claim merely on the ground that there was delay in intimating Insurance company about occurrence of theft – NCDRC should not have set aside orders to District Forum and State Commission by holding that repudiation of insurance claim by insurance company was justified – Impugned order being erroneous and against settled position of law, deserves to be set aside, and is set aside, accordingly – Appeal allowed, affirming order of State Commission.

14.   As we have held that the said delay in intimating the insurance company and the police as unintentional one and no malafide reasons can be attributable to it, we are of the opinion that the repudiation of the insurance claim of the complainant in respect of the theft of the vehicle amounts to deficiency in service and also unfair trade practice and hence answer Point NO1 in the affirmative.

        15.   POINT NO.2:

It is to be noted here that as per the insurance policy the ID value of the vehicle is Rs.1,00,000/-.  Since the said vehicle has been stolen there is a total loss and hence OP is liable to pay the said amount to the complainant.  The complainant is entitled for interest at 12% p.a., and OP is also directed to pay cost of this litigation amounting to Rs.5,000/- to the complainant and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay a sum of Rs.1,00,000/- to the complainant with interest at 12% p.a., from the date of repudiation of the claim, till the date of payment.
3. OPPOSITE PARTY is further directed to pay a sum of Rs.5,000/- towards litigation expenses to the complainant.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 03^RD DAY OF MARCH 2022)

MEMBER                                PRESIDENT

ANNEXURES

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

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Aadhar Card

Ex P2: R.C. of the vehicle

Ex. P3: Permit in respect of contract carriage issued by the RTO

Ex P4: My Driving licence

Ex P5: DL of the driver

Es P6: Copy of the insurance policy

Ex P7: Copy of the order sheet in crime No.111/2020

Ex P8: Copy of the FIR

Ex P9: Complaint

Ex P10: C report

Ex P11: Letter written by me to the insurance company

Ex P12: Repudiation letter

Ex P13: Letter to the Regional Transport office

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.MOHAMMAD ABRAR GOHAR – Associate

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the police schedule

Ex R2: Copy of the policy term and condition

Ex R3: Investigation report

Ex R4: Repudiation letter

MEMBER                                        PRESIDENT

HAV*