Tamil Nadu

North Chennai

CC/43/2016

M.R .Naveekieetha Krishnan - Complainant(s)

Versus

ICICI Lombard General Insurance co LTD (Mumbai) - Opp.Party(s)

P.Ulaganathan

21 Mar 2018

ORDER

 

                                                            Complaint presented on:  04.03.2016

                                                                Order pronounced on:  21.03.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

WEDNESDAY THE 21^st DAY OF MARCH 2018

 

C.C.NO.43/2016

 

 

M.R.Navaneetha Krishnan, M/47,

S/o M.Ramaiah,

No.7, B Block, Panduranga Enclave,

Partha Sarathy Nagar,

8^th Street, Adambakkam,

Chennai, Tamil Nadu – 600 088.

                                                                                    ….. Complainant

 

..Vs..

1.The Manager,

ICICI Lombard General Insurance Co.Ltd.,(Mumbai)

Ground & 4^th Floor, Interface – 11,

Office No.401 & 402,

New Linking Road,

Malad (W) Mumbai – 400 064.

 

2. The Manager,

ICICI Lombard General Insurance Co.Ltd.,(Mumbai)

Chottabhai Centre,

2^nd and 3^rd Floor,

140, Uthamar Gandhi Road,

Chennai – 600 034.

.....Opposite Parties

Date of complaint                                 : 31.03.2016

Counsel for Complainant                      : M/s.P.Ulaganathan

Counsel for Opposite Parties                   : M/s. Elveera Ravindran & K.Vinod

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties to pay the claim amount of Rs.49,464/- with a interest and  also compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased a Honda Activa Motor Cycle on payment of Rs.63,450/- on 30.04.2015. The said vehicle bearing registration No.TN 22 CS 7953 dated 27.04.2015 insured with the opposite party.  On 13.05.2015, less than two weeks of purchase of the vehicle, the complainant parked his vehicle at 7.00 P.M. inside the premises of residential apartment. After some time at about 7.30 P.M. he found the vehicle was missing. Then he searched all the places and unable to found his vehicle.

          2.  On the very next day on 14.05.2015, the complainant lodged a complaint with the Adambakkam police station about the theft of his motor cycle. The complainant went to inform the theft of the vehicle to the insured/opposite party, they asked him to come along with FIR copy. It took a few days to obtain copy of the FIR. After obtaining the copy of the FIR, the complainant went to the 2^nd opposite party on 22.05.2015 gave complaint and FIR copy. The 2^nd opposite party declined to accept the same and advised him to send intimation through online to the customer support which he did on 25.05.2015 by making his claim.

          3. On 29.05.2015 the customer support informed the complainant that they have appointed a surveyor. The complainant also handed over all the documents to the surveyor. However, the opposite parties treated the complainant’s claim as “No Claim” that the complainant had left key of the vehicle in the ignition and thereby violated the terms and conditions of the policy. The complainant would state that he never left the key in the vehicle and he kept the key safely in the usual place and thereby the opposite parties have committed deficiency in service and rejecting the claim. Hence the complainant filed this complaint to direct the opposite parties to pay the claim amount of Rs.49,464/- with interest and  also compensation for mental agony with cost of the complaint.  

4. WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

          The complainant has approached this Forum without clean hands. Even according to the complainant on 13.05.2015 at about the 7.00 p.m he had left the key in the vehicle and thereafter at about 7.30 p.m he had found his vehicle was missing. The complainant ought to have behaved as a prudent person and not left the keys in the vehicle and then claims to have lost one key. Hence the vehicle of the complainant was unattended.

          5. The complainant is bound by the terms and conditions of the policy. However, by leaving the key in the vehicle, he had violated the terms and conditions of the policy. However, there was a delay of one day in filing the FIR and an inordinate delay of more than 13 days in intimating to this opposite parties and thereby violated the policy conditions. On receipt of information regarding claim, a surveyor was appointed and after application of mind the opposite parties have duly repudiated the claim. Hence the opposite parties have not committed any deficiency in service in repudiating the claim and prays to dismiss the complaint with costs.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1 

          It is an admitted fact that the complainant purchased a TN 22 CS 7953 Honda Activa  Motor Cycle  on payment of consideration of Rs.63,450/- under Ex.A1 receipt and he took delivery of the vehicle on 30.04.2015 and Ex.A2 is the Registration Certificate of the vehicle and Ex.A3 is the policy to the vehicle for insuring with them and on 13.05.2015 the complainant after returning of his work at 7.P.M. parked his vehicle in his residential apartment and however, after few minutes at about the 7.30 P.M. he found that the vehicle was  missing and stolen by somebody else  and the complainant preferred complaint to the Adambakkam police on the next day on 14.05.2015 and Ex.A4  FIR was registered and thereafter as advised by the opposite parties, the complainant made claim in Ex.A6 to the opposite parties and the said claim was repudiated by the them in Ex.A7 & Ex.B3 dated 12.08.2015 that the complainant left the key in the ignition and that is  gross negligent Act of the complainant leaving the vehicle unattended with the key in the ignition and therefore treated as ‘No Claim’.

          8. The complainant would contend that after  searching the vehicle and unable to trace the vehicle very next day, he had preferred complaint to the police and they registered FIR and thereafter when he approached the opposite parties they informed him that the claim shall be made with FIR copy and he took  few days to get the FIR copy and after receiving  when he approached on 22.05.2015 they advised him to send the intimation claim online to the customer support and he did the same on 25.05.2015 and he had also co-operated and gave all documents to the surveyor and even after that the claim was repudiated by the opposite parties is deficiency on their part.

          9. The opposite parties would contend that the complainant made complaint to the police with one day delay and also intimated to the insurer with 13 days delay in intimating the theft to them and thereby preferring intimation to them belatedly violated the terms and conditions of the policy and further the complainant also left the key ignition and the vehicle was unattended and therefore the repudiation made by the opposite parties is sustainable and not committed any deficiency in service.

          10. Admittedly the occurrence took  place on 13.05.2015 at 7.30 P.M. in the residential premises of the complainant and he made search of his vehicle in an around his residence and next day evening at about 9.30 p.m he preferred complaint to the police and based on that Ex.A4 FIR was registered. As such, within 24 hours the complainant intimated the police and FIR was registered and therefore we hold that there is no delay in preferring complaint to the police.

          11. According to the complainant after preferring the complaint to the police he went to the office of the  2^nd opposite party/ insurer to inform the theft of the vehicle. They advised him to come with FIR and the complainant took few days to get the FIR copy from the police and after obtaining the copy he went to the 2^nd opposite party on 22.05.2015 with a letter and copy of FIR and other documents. The 2^nd opposite party declined to accept the intimation and documents and advised him to send the intimation online to the customer support and thereafter he sent the same on 25.05.2015. The above statement made in the complaint was not denied by the opposite parties in their written version. Therefore, we accept the explanation given by the complainant in giving intimation to the opposite party with delay and   such a delay will no way prejudice the case of the complainant.

          12. The surveyor was appointed by the opposite party. The complainant also pleaded that he had handed over all the documents to the opposite party. The stand of the opposite party is that the complainant left the key in the ignition as unattended the vehicle by him.  There is no evidence on behalf of the opposite parties that how they have collected Ex.B4 and Ex.B5 letters from the complainant. However, the complainant would state that he had handed over documents to the surveyor; hence the Ex.B4 and Ex.B5 letter should have been collected by the surveyor from the complainant during his investigation. The Ex.B4 letter is in tamil and in the said letter it has been clearly stated that the complainant locked the vehicle in the portico of his premises and in Ex.B5 letter he had stated that he left the key in the ignition. Whereas, Ex.B5 letter is in English and in which it has been stated that the vehicle was parked with key at portico in the complainant Apartment. No prudent man will give letter in English as well as in Tamil for a similar fact.

          13. The opposite parties have filed these two letters they have to explain why such a difference arose in both the letters. The suspicious circumstances that, whether the complainant should have given Ex.B5 letter with his knowledge or not. Therefore, we reject Ex.B5 letter which is not supported by any evidence on behalf of the opposite parties establish through the surveyor. On the other hand, we accept the case of the complainant that he had not left key in the ignition of the vehicle at the time of theft. In view of such conclusion we hold that the repudiation made by the opposite parties is not sustainable.

          14. The opposite party relied on judgment reported in CDJ (2009) (Cons) Case No.059 (THE HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT & THE HON’BLE MR.B.K. TAIMNI, MEMBER NEW INDIA ASSURANCE COMPANY LIMITED  VERSUS TRILOCHAN JANE) and Reliance General insurers Vs. Vinod Kumar dated 20.07.2016 pronounced by the Hon’able National Commission that delay in 9 days intimating the Insurance Company about the theft is fatal. No doubt the Hon’ble National Commission held that the delay of 9 days in intimation is fatal. But in the case in hand we have already held about that the delay in intimation to the opposite parties have been explained by the complainant and accepted by us. Therefore, in such circumstances the above referred order of the Nation Commission is not applicable to the facts of the case in hand.

          15. Therefore, from the forgoing discussions we hold that the opposite parties have committed deficiency in service in rejecting the claim of the complainant and according this point is answered.

16. POINT NO:2

          The opposite parties issued Ex.A3 policy to the vehicle of the complainant. In the said policy the IDV (Insurer Declared Value) of the vehicle given as Rs.49,464/-. Hence the complainant is entitled to the insured value of Rs.49,464/- towards the claim amount of the vehicle from the opposite parties. Due to rejection of the claim, the complainant  suffered with mental agony is accepted and for the same, it would be appropriate to direct the opposite parties to pay a sum of Rs.50,000/- towards deficiency in service and mental agony, besides a sum of Rs.5,000/- litigation expenses. The complaint  in respect of other relief is liable to be dismissed.

          In the result the Complaint is partly allowed. The Opposite Parties 1 & 2  jointly or severally  are  ordered to pay a sum of Rs.49,464/- (Rupees forty nine thousand four hundred and sixty four only) towards  the vehicle claim amount  to the Complainant and also to pay  a sum of Rs. 50,000/- (Rupees fifty  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses. The complaint  in respect of other relief is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said claim and compensation amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 21^st  day of March 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 15.04.2015                   Receipt

Ex.A2 dated 27.04.2015                   Certificate of Registration

Ex.A3 dated NIL                     Certificate cum policy Schedule

Ex.A4 dated 14.05.2015                   First Information Report

Ex.A5 dated 22.05.2015                   Intimation of the complaint to the 2^nd opposite

                                                     party

 

Ex.A6 dated 29.05.2015                   Letter of appointment of Surveyor

Ex.A7 dated 12.08.2015                   Letter of repudiation and further e-mail

                                                   Correspondence

 

Ex.A8 dated 22.08.2015                   Email correspondence

08.09.15,22.10.15,15.10.15

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated NIL                     Policy of insurance

 

Ex.B2 dated NIL                     Terms and Conditions

 

Ex.B3 dated 12.08.2015                   Letter sent by the opposite parties to the

                                                   complainant

 

Ex.B4 dated 01.06.2015                   Letter given by the complainant to the opposite

                                                    parties

 

Ex.B5 dated 02.06.2015                   Letter given by the complainant to the opposite

                                                    parties

 

 

 

 

MEMBER – I                                                               PRESIDENT