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

DATED 21^ST DAY OF NOVEMBER 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 OP for the following reliefs against the OP:-

1. Direct the OPs to pay Rs.1,00,000/- with interest at 24% p.a., from 04.01.2023 until payment.
2. Direct the OPs to pay compensation of Rs.50,000/- regard mental agony, mental trauma, deficiency in service sustained by the complainant.
3. Direct the OPs to pay cost of this litigation to the complainant quantified at Rs.5,000/-.
4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant has purchased Suzuki Access/125 Disc CBS BSVI vehicle bearing NO.KA 41 EU 8724, new vehicle (chassis/Engine No.MB8DP12DJN8DO8485/AF21293978) on 21.09.2022 from Apple auto agency.  Unfortunately the vehicle was theft at his college when it was parked at his Oxford College, situated at 4^th Sector, 19^th Cross, HSR Layout, in basement floor.  This complainant is a student studying MCA at Oxford college and hence he parked his vehicle in basement floor and he went to class room.  When he returned at 12.30 pm to basement he did not find his vehicle.  After that he has filed a complaint before the jurisdictional police on 02.01.2023 at HSR Police station and they have registered the complaint and started investigation and finally they have filed ‘C’ report that the vehicle was not traced and the same has been accepted by the Hon’ble Court.  The police has submitted final report on 16.05.2023.

3. It is a specific case of the complainant that the vehicle was insured with OP and the complainant has taken a policy bearing No.N100405248 valid from 22.09.2022 to 21.09.2023.  After theft of the vehicle he has intimated the OP and the OP have assured to the complainant and received all police records and documents.  The complainant has given all the relevant documents demanded by the OPs.  When the OPs did not clear the claim of the complainant he has got issued a legal notice to the OPs asking claim without further delay regarding the motor cycle.  Inspite of service of notice they have neither cleared his claim nor given reply to the notice.
4. It is further grievance of the complainant that whenever the complainant has approached the OPs they did not clear the claim and they tried to escape giving one or the other reason.  The OPs have also asked the complainant to submit valid OEM Keys/unused keys.  This complainant has submitted one key and informed them that he has left another key with the vehicle dickey at the time of lost the vehicle and the same was explained to the OPs, but the OPs behaving arrogantly even though all the policy conditions were fulfilled and the policy is in force the OPs have denied the claim of the complainant.  There is a deficiency of service on the part of the OPs. Hence this complaint is filed.
5. In response to the notice, OP appears and files version stating that the claim of the complainant is not maintainable and the complainant is not entitled to file the present complaint to maintain the same against this OP.  The complaint is totally misconceived and based on erroneous assumption of facts and in law while making the complaint.  The policy issued is subject to various terms, conditions exceptions, limitations thereof.  The complaint is frivolous and aimed to harass this insurer which is private general insurance limited who is the custodian of public funds.
6. It is the specific case of the OPs that there is no any kind of deficiency of service or unfair trade practice on the part of this OP.  The alleged loss occurred on 02.01.2023 but the matter was informed with the OP on 05.01.2023 after the delay of three days of occurrence which clearly leads to violation of condition NO.1 and also the matter was informed to the police on 04.01.2023 after the delay of two days of occurrence.
7. It is further case of the OP that after receiving the claim intimation this OP has registered the claim and immediately initiated the claim process. They have duly appointed the investigator namely Murthy T., to understand the cause of loss.  There is a sufficient delay in informing the claim intimation and this OP have been deliberately deprived with an opportunity for timely action  to establish the complete chain of events for the incident along with diminishing the possibilities of insured vehicle getting recovered.
8. It is further case of the OP that the delay has caused to violation of the policy condition NO.1 at the time of claim intimation the complainant has mentioned that the original key was left with the vehicle at the time of alleged loss of the insured vehicle and the same has been accepted by the complainant in his complaint copy.  It is clear that the theft was caused due to the gross negligence by the insured, as contributory negligence on the part of the complainant and the loss therefore cannot be covered as the complainant has contributed to the loss due to his negligence.   In this case the complainant left the keys in the insured vehicle leaving the vehicle in a derivable condition and the vehicle got stolen. Therefore the complaint is liable to be dismissed as per the terms and conditions of policy No.4.  The complainant failed to give immediate information about the occurrence of the loss or damage to the vehicle after the incident.  Hence the OP prayed for dismissal of the complaint by denying all the allegations made in the complaint.
9. The complainant has filed his affidavit evidence and relies on 08 documents.  Affidavit evidence of official of OP has been filed and OP relies on 17 documents.
10. Heard the arguments of both parties. Perused the written arguments filed by both the parties.
11. 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?

12. 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

13. 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, written arguments and documents.
14. The complainant filed affidavit evidence and relied on 08 documents and reiterated all the allegations made in the complaint.  It is undisputed fact that the complainant is the owner of the Suzuki Access/125 Disc CBS BSVI vehicle bearing NO.KA 41 EU 8724, new vehicle (chassis/Engine No.MB8DP12DJN8DO8485/AF21293978), having purchased the same on 21.09.2022 from Apple Auto Agency.  
15. It is also clear from the documents produced by the complainant that the vehicle was stolen when he has parked the vehicle at Oxford college where the complainant is studying MCA.  The complainant has parked his vehicle at the basement floor at the Oxford college situated at 4^th Sector, 19^th Cross, HSR Layout.  The complainant left the vehicle in the ground floor and go to college for attending the classes. When he was returned at 12.30 pm., he did not find the vehicle.  Even after thorough search he did not search his vehicle. Hence he has given a police complaint before the jurisdiction police and also given a complaint to the RTO as per Ex.P1.  He has also produced the copy of the temporary registration certificate as per Ex.P2 and insurance policy as per Ex.P3 to show that the vehicle was insured with the OP and they have issued the insurance policy.  He has also produced the copy of the FIR for having lodged complaint before the HSR layout police station as per Ex.P4.  The complainant has also produced the copy of the final C report submitted by the HSR police station as per Ex.P5. 
16. When the OPs have not at all entertained the claim made by the complainant he has also got issued legal notice to the OP as per Ex.P7 and also produced the copies of postal receipt and acknowledgement as per Ex.P8.

17. The main grievance of the complainant is that even though he has filed a complaint before the police and also informed the same to the OP, the OPs have not at all entertained his complaint and they had given evasive reply to the complainant. Inspite of service of notice they have neither come forward to pay the claim nor issued any reply to the complainant and thereby they have committed deficiency of service.
18. On the other hand, the contention taken by the OP is that there is no any kind of deficiency of service or unfair trade practice on their part. One of the authorized person of the OP company have filed affidavit and relied on 17 documents.
19. The main contention taken by them is that the loss occurred to the complainant on 02.01.2023 but he has informed them on 05.01.2023 after lapse of three days of occurrence which leads to violation of terms and conditions of the policy.  They have produced the policy with terms and conditions as per Ex.R1. OP has also produced the statement of the complainant sent to them as per Ex.R2.  After receiving the claim intimation this OP have registered the claim and also appointed investigator namely Murthy T., to understand the cause of loss.  Due to the delay in sending the claim intimation this OP has been deliberately deprived with an opportunity for timely action to establish the complete chain of events for the incident along with diminishing the possibilities of insured vehicle getting recovered.  In addition to this the complainant has left the original key with the vehicle at the time of alleged theft of the insured vehicle and the same has been accepted by the complainant in the complaint.
20. It is further objection raised by the OP is that the said theft caused due to gross negligence by the insured as contributory negligence on the part of the complainant and the loss therefore cannot be recovered.   When the complainant has left the keys in the insured vehicle leaving the vehicle in a derivable condition and the vehicle got stolen.  Under these circumstances the complainant is not entitled for any relief.  In addition to this the complainant having forwarded the final report filed by the police authorities to this OP have failed to produce the original keys required in duplicate.  Hence this OP have sent another letter on 14.06.2023 indicating as “Since documents still remain awaited as to date, so we are compelled to close the claim under ‘Non-Compliance’ on your part for now.”  The complainant has not whispered anything about this non compliance to the letters sent by this OP in order to consider the claim of this complainant and accordingly the claim was repudiated vide letter dated 17.07.2023.
21. In support of their contention the OP have also relied on the decision of the Hon’ble Supreme Court in SLP No.6518/2018, Page 8 para 2 and at page 9.
22. While disposing of the aforesaid SLP the Hon’ble Supreme Court also taken into consideration the decision in Gurshinder Singh (supra) and also the decision in Om Prakash –vs- Reliance General Insurance.

The Hon’ble apex court has clearly held that the owner of the vehicle in the event of theft of the vehicle cannot avoid his responsibility to immediately lodge the FIR.  The repudiation is only the ground of delay in informing the insured has not been approved on the given set of facts.  But the Hon’ble apex court has dismissed the SLP preferred by the insurer on the ground that the complainant in that case has filed the complaint after eight days after the incident. In addition to this it is the specific allegation that the truck in question was left unattended on the road side with ignition keys therein.  The very statement given by the petitioner himself in that case stated that the vehicle was stolen with the ignition keys that being the position. The repudiation of the claim of the petitioner cannot be faulted that and in this case the Hon’ble apex court has dismissed the claim of the petitioner/complainant.

23. In this complaint it is clear from the police records and also the statement of the complainant that he has parked the vehicle in the basement floor of the Oxford college situated at 4^th sector, 19^th Cross, HSR Layout as he is a MCA student.  He left the vehicle in the basement and gone to attend the class.  After finishing the class he returned at 12.30 pm., to the basement and noticed that the vehicle was not there and after that he has lodged complaint before the police within two days and also informed the OP within three days.  There is no inordinate delay in lodging the complaint and giving intimation to the OP about the incident.
24. In this complaint the complainant has submitted OEM Keys /unused keys i.e., one key to the OPs.  It is the case of the complainant that he has left the another key in the vehicle dickey at the time of the incident and he has explained the same to the OP but inspite of that the OP has not entertained the complaint.
25. It is pertinent to note here that, the complainant has not left the vehicle unattended in any road and he has parked the vehicle in a parking allotted by the college in the basement and he has kept the one key in the vehicle dickey.  The facts and circumstances in this complaint and the facts and circumstances in the SLP No.6518/2018 referred by the OP are not similar. Admittedly there is no inordinate delay in filing the complaint and also intimating the OP about the incident.  It is also admitted fact that the vehicle was stolen from a parking place and not from any road and the complainant has parked the vehicle in a parking place which is provided by the college authorities for the parking of the vehicle of their students.
26. Under these circumstances, it is clear that there is no negligence on the part of the complainant in parking the vehicle.  He has done all the formalities which has to be taken in the case of the theft of the vehicle.  After completion of investigation the police have also submitted ‘C’ report before the Hon’ble Court and the same was accepted by the court. Under these circumstances, the OP has failed to establish the negligence on the part of the complainant for loss of his vehicle.
27. When the policy was in force on the date of the incident and the complainant has provided all the information after following all the formalities it is the duty of the OPs to entertain the claim of the complainant.  Instead of entertaining the claim of the complainant the OPs have repudiated the claim by alleging the contributory negligence on the part of the complainant which they are failed to establish before this commission. Therefore the complainant is entitled for the relief claimed in this complaint.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

28. 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. OP is directed to pay the IDV value of Rs.89,886/- with interest at 9% p.a., from 04.01.2023 to till the date of realization.
3. OP is further directed to pay Rs.20,000/- towards compensation with litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.89,886/- 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 21^ST day of NOVEMBER 2024)

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

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