Orissa

Cuttak

CC/30/2017

Sri Anil Sharma - Complainant(s)

Versus

ICICI Lombard General Insurance Co Ltd - Opp.Party(s)

S Mohanty

26 Dec 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.30/2017

 

Sri Anil Sharma,

Presently residing at C/o: U.N.Singh,

Near Ganesh Temple,Rajendra Nagar,

P.O/P.S:Madhupatna,City/Dist:Cutack.                                    … Complainant.

 

                Vrs.

 

1.        Branch Manager,ICICI Lombard General Insurance Co. Ltd.,

Local Branch Office at:Kailash Mandap Complex,

Near Nishamani Cinema Hall,

Link Road,PO:Arunodaya Market,

Cuttack.

 

2.           Customer Service Manager,ICICI Lombard General Insurance Co. Ltd.,

At:401 & 402,4^th Floor,Interface-II,New Linking Road,

Malad(West),Mumbai,

PIN-400064,Maharashtra State.

 

3.        S.K.Associates,Surveyors & Loss Assessors,

Plot No.D/57,Sector-7,C.D.A Colony,

Abhinav Bidanasi,City/Dist:Cuttack.                                     … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   08.03.2017

Date of Order: 26.12.2017.

 

For the complainant:    Mr. S.K.Dash,Adv. & Associates.

For O.Ps.1 & 2           :    Mr. Ranjan Pati,Adv. & Assoiciates.

O.P No.3:                               None.

 

Sri Bichitra Nanda Tripathy,Member.

                The case is against deficiency in service on the part of O.Ps.

1. In nutshell the case is that the complainant had purchased a car from M/s. Sky Automobiles,Bhanapur,Cuttack at a price of Rs.3,35,142/-.(Annexure-1).  The said car was registered with RTO,Cuttack.(Annexure-2) vide Regd. No.OD-05A-1069.  The said car was insured with O.P No.1 since purchase of the car.  (Annexure-3) and was also insured for the period from 26.10.2015 to 25.10.2016 vide policy No.3001/MI-03143804 dt.19.10.2015.(Annexure-4). The complainant was a devotee of Sadhu Sri Moini Baba and on 03.08.2016, the complainant had left the car inside the Matha compound situated at Garibdas Matha Lane,Tulsipur,Cuttack. On 04.08.2016 the complainant was informed regarding theft of his car.  He rushed to the Matha and searched the vehicle at various places.  It was observed that the thief was able to steal the car by taking the key from the  Matha’s Office rack.  The complainant intimated the police regarding theft of the car at Bidanasi police station on 04.08.2016.  The complainant informed to O.P No.1 regarding theft of the car and wanted to lodge the claim as required for the purpose but O.P No.1 intimated him to lodge the claim along with the copy of the FIR.   On 11.08.2016, the complainant approached the DCP and intimated him regarding the non-registration of the FIR by police on 04.08.2016(Annexure-5).  The said FIR was lodged on 13.08.2016 vide FIR No.79 at Bidanasi police station (Annexure-6).  The copy of the FIR was made available to the complainant on 26.08.2016.  The insurance claim lodged by the complainant was duly acknowledged by the O.P,Insurance Company vide claim No.MOT 05861544 & O.P No.3 was appointed as  surveyor to assess the loss caused due to theft of the car.(Annexure-7).  O.P No.3 collected several documents from the complainant vide their letter dt.03.08.2016 and dt.03.09.2016.(Annexuie-8 series).  The complainant also explained the O.P No.3 the reasons for late lodging of FIR and late submission of claim application as per his letter dt.10.09.2016.(Annexure-9).  The O.P insurance company again wanted to know vide their letter dt.04.10.2016, the cause for late lodging of FIR and as well as for the late lodging of the claim (Annexure-10).  It was duly replied by the complainant on 19.10.2016(Annexure-11).  The O.P., Insurance Company vide their letter dt.07.02.2017 intimated the complainant that since the complainant has lodged the FIR after 9 days of the incident and the claim was also lodged with insurance company after 22 days of the incident, the O.P Insurance Company has closed the file as “No claim” due to violation of insurance terms and conditions.(Annexure-12).

Finding no other way, the complainant has filed this case with this Hon’ble Forum.  He has prayed to direct the O.Ps to pay a sum of Rs.2,40,000/- towards cost of car due to theft along with interest @ 18% till its actual payment w.e.f 04.08.2016 a sum of Rs.50,000/- as compensation towards mental agony and harassment and a sum of  Rs.20,000/- towards cost of litigation.

2. O.P No.1 & 2 vide their written version dt.26.06.,2017 have stated that the claim of the complainant was repudiated by declaring the claim as no claim vide letter dt.07.02.2018 due to violation of term 1 & 5 of the policy.  The vehicle of the complainant was duly insured with the O.P, Isurance Company(policy and policy conditions vide Annexure-A & B respectively).  The said vehicle was stolen on 03.08.2016 night when it was parked in the open place at Mohini Baba Matha,Garib Das Matha Lane,Tulsipur,Cuttack.  The claim was lodged with the insurance company on 26.08.2016 i.e. after 22 days of the incident and FIR was lodged with police on 13.08.2016 i.e. after 9 days of the incident.  Condition No.1 of the policy says that “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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 writ summons and/or process or 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 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.”

After lodging the claim O.P No.1 & 2 had deputed  Mr. S.K.Associates the investigating agency for detail investigation of the case.  During the course of investigation the said investigating company had contacted the complainant and had obtained his statement wherein the complainant has admitted that one of the ignition keys of the insured car was kept in a room of the Matha and the culprit had stolen the vehicle with help of the said key.  It is also ascertained by the said investigating agency that the room in which the key was kept was open without any attendant.  The complainant has also admitted that the vehicle was kept in a open space of the Matha and nobody was there to take care of the vehicle.  It proves that the complainant has not taken reasonable care of the car which has became the direct and proximate cause of the loss as per condition no.5 of the policy which says that:-

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured.  In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

Copy of the Investigation report pertaining the statement of the insured are annexed herewith and marked as Annexure-C series.

The complainant had lodged FIR after 9 days of the incident and has lodged the claim with the O.P., Insurance Company after 22 days of the incident.  It is not at all mandatory to supply the copy of FIR at the time of lodging the claim with the O.P, Insurance Company but as per condition No.1 the complainant is supposed to lodge the claim with the police immediately after the theft of the vehicle.  The complainant has also not taken reasonable care of the vehicle as per the condition no.5 of the policy condition.  The claim was repudiated due to violation of the policy conditions vide letter dt.07.02.2017. (Annexure-D).

3. We have gone through the case records in details and heard the advocates from both the sides at length.  The car of the complainant bearing Regd. No.OD-05A-1069 was duly insured with O.P,Insuance Company.  On 03.08.2016 the car was parked unattended at the Matha Campus of Sadhu Sri Moini Baba Matha,Garibdas Matha Lane,Tulspur,Cuttack. The culprit(s) managed to take the key which was kept on the wall of the Matha and the vehicle was theft in the night of 03.08.2016.  The complainant came to know the matter on 04.08.2016.  He lodged the FIR on 13.08.2016 and lodged Insurance claim on 26.08.2016.  The O.P Insurance Company appointed M/s. S.K.Associates,Surveyor on 01.09.2016 and conducted the survey.  The O.P Insurance Company repudiated the claim on 07.02.2017 due to violation of policy conditions.  Vide his letter dt. Nil. addressed to O.P,Insuance Company the complainant has admitted that the car was parked in the Matha and the key was kept on the wall of the Matha.  The thief had taken both the car and the key.  Vide letter dt.01.09.2016 addressed to O.P,Insurance Company the complainant had also admitted that he has intimated the insurance company on 29.08.2016.  Since he was away for some personal work, he was not able to lodge the claim with the Insurance Company on the same date on which the FIR was lodged.

Thus it is clear that the complainant has failed to take adequate care for the vehicle kept at Garibdas Matha Campus.  He has also failed to lodge the FIR in time and also failed to lodge the insurance claim in time.

Hon’ble Supreme Court of India in the matter of Oriental Insurance Company Ltd. Vrs. Parvesh Chandra Chadha in Civil Appeal No.6739 of 2010 arising out of SLP© No.12741 of 2010 has held as follows:-

“In terms of 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 enquiry conducted in to the alleged theft of vehicle and makes an endeavor to recover the same.  Unfortunately, the Consumer Foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle the 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 policy.”

 

In view of the facts and circumstances of the present case, the judgment dt.04.10.2017 of the Hon’ble Apex Court vide Civil Appeal No.15611 of 2017 as relied upon by the learned advocate of the complainant  is not applicable to the facts and circumstances of the present case.

ORDER

Basing on the facts and circumstances as stated above, the complainant failed to prove deficiency in service on the part of the O.P,Insurance Company.  Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 26^th day of December,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                        Member.

 

                                                                                                                                                                                                                (  Sri                                                                                                          (Sri D.C.Barik )

                                                                                                      President

                                                                                                   (Smt. Sarmistha Nath) 

                                                                                             Member(W).