Tamil Nadu

South Chennai

CC/263/2014

L.G.Shahul Hameed - Complainant(s)

Versus

ICICI Lambard General Insurance Company Ltd., - Opp.Party(s)

M/s.A.Duraikannan

13 Mar 2019

ORDER

                                                                        Date of Filing  : 04.06.2014

                                                                          Date of Order : 13.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER-II

 

C.C. No.263/2014

DATED THIS WEDNESDAY THE 13^TH DAY OF MARCH 2019

                                 

L.G. Shahul Hameed,

S/o. Mr. L.A. Ghouse Mohideen,

No.4/24, Agathimuthan Street,

Ice House,

Triplicane,

Chennai – 600 005.                                                     .. Complainant.                                             

              ..Versus..

 

1. ICICI Lombard House,

Rep. by its Managing Director,

No.114, Veer Savarkar Marg,

Near Siddhi Vinayak Temple,

Prabhadevi,

Mumbai – 400 025.       

 

2. The Manager,

ICICI Lombard General Insurance Company Ltd.,

No.140, Chhotabhai Center,

Nungambakkam High Road,

Chennai – 600 034.

 

3. The Sub Inspector of Police,

D4 Police Station,

Zambazzar,

Royapettah,

Chennai – 600 014.                                                ..  Opposite parties.

          

Counsel for the complainant                : M/s. A. Duraikannan & others

Counsel for the opposite parties 1 & 2 : Mr. Micheal Marie Antony

Counsel for the 3^rd opposite party        : Mr. Ponram Rajaa

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to pay the insured amount of Rs.65,045/- with interest at the rate of 24% p.a. from 25.04.2013 onwards till realisation and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and financial hardship, pain etc with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he purchased a Bajaj Pulsar bearing Registration No.TN 06 J 3792 bearing Engine No.DHZ CDL 27597 and Chassis No.MDZA11CA4DCL35987 on 15.03.2013.  The complainant submits that the said vehicle is registered in the name of the complainant and was insured with the opposite parties 1 & 2 on 16.03.2013 vide policy No.3005/2010696206/0000005159 for the period from 16.03.2013 to 15.03.2014.   The complainant submits that he used to park and kept locked the motor cycle in front of his house during night times.  On 25.04.2014 at about 11.30 pm in the night, the complainant parked the motor cycle infront of his house and locked.  On 26.04.2013 in the morning at around 6’00 clock when the complainant came out of the house and saw that the motor cycle was found missing.  Immediately, the complainant informed the fact of missing / theft to the opposite parties 1 to 3 through SMS and written complaint to the 3^rd opposite party.  But the 3^rd opposite party has  refused to entertain the complaint.  Even after repeated requests and demands and persuasions, the 3^rd opposite party registered a case on 06.05.2013.   The opposite parties 1 & 2 registered the claim and requested to keep ready with RC, DL Insurance policy etc for inspection.  The 3^rd opposite party after registering the case in Crime No.254/2013 on 06.05.2013 mentioning the date of occurrence as 25.04.2013 night 11.30 pm.  After investigation, the 3^rd opposite party has issued certificate as non-traceable on 21.08.2013.  Hence the complainant sent claim form along with documents to the mailing address on 26.09.2013.  The opposite parties 1 & 2 has not taken any steps for settling the claim. Hence, the complainant issued legal notice dated:12.03.2014 to the 1^st opposite party which was received on 14.03.2014.  On 26.04.2013, the opposite parties 1 & 2 repudiated the claim caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The opposite parties 1 & 2 state that the complainant has purchased the motor cycle bearing Registration No.TN 06 J 3792 which was insured with the opposite parties 1 & 2 for the period from 16.03.2013 to 15.03.2014 and the policy is subsisting.  The complainant has duly informed the opposite parties 1 & 2 with regard to the alleged theft.   But failed to lodge a complaint before local police station namely D-4 Zambazaar Police Station immediately.  Immediately, the complainant has not given intimation to the insurance company and lodged police complaint.  The police complaint is given only on 26.04.2013.   The opposite parties 1 & 2 state that the letter dated:04.06.2013 sent to the complainant for production of GD entry and other records to substantiate the complaint given to the police on the same day of loss, so as to process the claim.  However, the complainant did not reply to the same.  Thereafter, on 27.07.2013, we forwarded a letter to the complainant stating since the FIR has been lodged after 11 days of the theft of vehicle, which is a policy violation.   The complainant had committed breach of the terms and conditions as stipulated in the policy, the claim of the complainant was repudiated by the opposite parties 1 & 2 in a detailed repudiation letter dated:27.07.2013 attributing the reasons thereof.   There is no negligence or deficiency in service on the part of the opposite parties 1 & 2 and hence the complaint is liable to be dismissed.

3.      The brief averments in the written version filed by 3^rd opposite party is as follows:

The 3^rd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 3^rd opposite party is unnecessary party and misjoinder of party in this case.  The complaint that on 26.04.2013 itself the complaint had given to the 3^rd opposite party and on the same day the 3^rd opposite party enquired about the stolen vehicle and the complainant continuously went to the 3^rd opposite party place for lodging complaint from 27.04.2013 onwards.  The 3^rd opposite party registered FIR after 11 days.  The 3^rd opposite party states that the complainant had come to the 3^rd opposite party police station only on 06.05.2013 and gave written complaint on 06.05.2013 and immediately registered the complaint in FIR No.254/2013 under section 379 IPC and investigated into the matter and stolen vehicle could not be found out therefore filed final report to that effect vide FRRC No.51/2013 dated:21.08.2013.  There is no deficiency in service on the part of the 3^rd opposite party and the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A14 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 is marked on the side of the opposite parties 1 & 2.   Proof affidavit of the 3^rd opposite party is filed and no document is marked on the side of the 3^rd opposite party.

5.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.65,045/- the insured amount for the vehicle bearing registration No.TN 06 J 3792 with interest at the rate of 24% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation for mental agony and financial hardship with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard the complainant’s Counsel also. Perused the records namely the complaint, written version, proof affidavits and documents. Admittedly, the complainant purchased a Bajaj Pulsar bearing Registration No.TN 06 J 3792 bearing Engine No.DHZ CDL 27597 and Chassis No.MDZA11CA4DCL35987 on 15.03.2013.  Ex.A2 is the proforma invoice dated:11.03.2013 and Ex.A3 is the copy of ORDER BOOKING FORM dated:15.03.2013.  Ex.A4 is the invoice dated:15.03.2013 and Ex.A5 is the copy of cash receipt.  Further the complainant contended that the said vehicle was insured with the opposite parties 1 & 2 on 16.03.2013 vide policy No.3005/2010696206/0000005159 as per Ex.A6 for the period from 16.03.2013 to 15.03.2014 is also admitted.   Further the contention of the complainant is that he used to park and kept locked the motor cycle in front of his house during night times. On 25.04.2014 at about 11.30 pm in the night, the complainant parked the motor cycle infront of his house and locked. On 26.04.2013 in the morning at around 6’00 clock when the complainant came out of the house and saw that the motor cycle was found missing.  Immediately, the complainant informed the fact of missing / theft to the opposite parties 1 to 3 through SMS as per Ex.A8  and written complaint to the 3^rd opposite party.  But the 3^rd opposite party has  refused to entertain the complaint.  The opposite parties 1 & 2 duly responded.  Even after repeated requests and demands and persuasions, the 3^rd opposite party registered a case on 06.05.2013.  Ex.A9 is the copy of FIR.  The opposite parties 1 & 2 registered the claim and requested to keep ready with RC, DL Insurance policy etc for inspection.  The 3^rd opposite party after registering the case in Crime No.254/2013 on 06.05.2013 mentioning the date of occurrence as 25.04.2013 night 11.30 pm.  After due investigation, the 3^rd opposite party has issued certificate non-traceable on 21.08.2013 as per Ex.A12.  Hence the complainant sent claim form along with documents to the mailing address on 26.09.2013 as per Ex.A14.  The opposite parties 1 & 2 has not taken any steps for settling the claim.   Hence, the complainant issued legal notice dated:12.03.2014 to the 1^st opposite party as per Ex.A13 which was received on 14.03.2014.  On 26.04.2013, the opposite parties 1 & 2 repudiated the claim which amounts to deficiency in service.  The complainant is claiming a sum of Rs.65,045/- towards the insurance amount with interest.   

7.     As per the decision cited in: 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Revision Petition No.1207 of 2008

Between

CEO, Cholamandam MS General Insurance Company Ltd. & another

-Versus-

Mr.  Abhijat Saini & another

Held that

          “In our view the provisions of delay in informing the Insurance Company or lodging the report with the police are of little significance as these are of directory nature and not of the mandatory nature.  What is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or given wrong information to take undue benefit against the insurance policy.  Once the report is lodged with the police may be in any form, the Insurance Company is barred from  appointing any Investigator to investigate into the fact whether the theft or accident has taken place or not.  Under the Code of Criminal Procedure only the police has the authority to investigate into the offence registered under the IPC and nobody else.  If the Insurance Companies are allowed to appoint Investigator for going into the truthfulness of the occurrence then there will be two parallel investigations, one by the statutory authority and another by an authority which is in competent to investigate into a criminal offence.  We have also held that Insurance Companies have no option than to accept the report of the police with regard to accident or theft of a vehicle or loss of vehicle by way of any other incident or event”.

8.     The contention of the opposite parties 1 & 2 is that admittedly, the complainant purchased the motor cycle bearing Registration No.TN 06 J 3792 which was insured with the opposite parties 1 & 2 for the period from 16.03.2013 to 15.03.2014 and the policy is subsisting.  It is also admitted that the complainant has duly informed the opposite parties 1 & 2 with regard to the alleged theft.   But failed to lodge a complaint before local police station namely D-4 Zambazaar Police Station immediately.  The insurance policy terms and conditions of the opposite parties 1 & 2 are marked as Ex.B1.  According to 3^rd opposite party, the FIR was registered only on 06.05.2013 after an inordinate delay of 7 days.  But on a careful perusal Ex.A9, FIR it is very clear that the alleged occurrence took place on 25.04.2013 midnight.   The allegation of the complainant is that immediately after the occurrence after due intimation was given to the insurance company and lodged police complaint on 26.04.2013 as per Ex.A8 is not denied totally.   The 3^rd opposite party also, has not produced any GD entry with regard to the people going to the police station.  Further the contention of the opposite parties 1 & 2 is that the letter dated:04.06.2013 as per Ex.A10 sent to the complainant for production of GD entry and other records for which, there is no response.  But it is not denied that due intimation related to theft was given immediately and all the vehicle records were furnished except FIR which is not registered by the 3^rd opposite party even after repeated requests. Since, the complainant has not produced GD entry or FIR letter dated:27.07.2013 as per Ex.A11 was issued by repudiating the claim.  But the opposite parties 1 to 3 has not denied the fact of theft and intimation of theft of the vehicle and furnishing the records amounts to deficiency in service.

9.     The contention of the 3^rd opposite party that he is an unnecessary party in this case.   But he is a Station House Officer who is responsible for registering complaints has not registered the complaint in time is necessitated to implead as a party.  Further the contention of the 3^rd opposite party is that the complainant has come to the 3^rd opposite party police station only on 06.05.2013 and gave a written complaint.  Due FIR No.254/2013 was registered under Section No.379 IPC.   But the 3^rd opposite party has not denied  the occurrence date is 25.04.2013 midnight.   The 3^rd opposite party also has not filed CCTV camera footage to prove the presence of the complaint before the police station.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 3 are jointly and severally shall pay a sum of Rs.65,045/- with interest at the rate of 9% from the date of complaint to till the date of this order with a compensation of Rs.15,000/- and cost of Rs.5,000/-.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.65,045/- (Rupees Sixty five thousand and forty five only) being insured amount with interest at the rate of 9% p.a. from the date of complaint (i.e.) 04.06.2014 to till the date of this order (i.e.) 13.03.2019 and to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 13^th day of March 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	24.08.2012	Copy of driving license
Ex.A2	11.03.2013	Copy of Proforma Invoice
Ex.A3	15.03.2013	Copy of order booking form
Ex.A4	15.03.2013	Copy of Invoice
Ex.A5	15.03.2013	Copy of cash received bill
Ex.A6	16.03.2013	Copy of ICICI Lombard Motor Insurance
Ex.A7	16.03.2013	Copy of Certificate of Registration
Ex.A8	26.04.2013	Copy of LM- ICICI (SMS)
Ex.A9	06.05.2013	Copy of FIR
Ex.A10	04.06.2013	Copy of ICICI Lombard letter
Ex.A11	27.07.2013	Copy of ICICI Lombard letter
Ex.A12	21.08.2013	Copy of final report of the 3rd opposite party in FR RC No.05/2013
Ex.A13	12.03.2014	Copy of legal notice with acknowledgement card
Ex.A14	26.09.2013	Copy of the claim letter of the 1st opposite party with acknowledgement

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-

Ex.B1

Copy of Insurance Policy with terms and conditions

 

3^RD OPPOSITE PARTY SIDE DOCUMENTS:- NIL

 

MEMBER                                                                  PRESIDENT