Andhra Pradesh

Chittoor-II at triputi

CC/89/2016

Katari Tulasi, W/o K.Giri babu - Complainant(s)

Versus

ICICI Lombard General Insurance Co. Ltd., By its Authorised Signatory - Opp.Party(s)

G.Guruprasad

29 Jul 2017

ORDER

        

 

                                                                                                                                                           Filing Date: 19-09-2016                                                                                                                                                                                      Order Date:  29-07-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. Ramakrishnaiah, President

                                                                                              Smt. T.Anitha, Member

SATURDAY, THE TWENTY NINETH DAY OF JULY, TWO THOUSAND AND SEVENTEEN

 

C.C.No.89/2016

Between

 

1. Smt. Katari Thulasi, W/o. K.Giri Babu,

Housewife, Hindu, aged about 38 years

2. K.Giri Babu, S/o. Late Doraswamy Naidu,

           Both are residing at 4-1-204, Patnool Street,

Tirupati.                                                                                      … Complainants

 

And

ICICI Lombard General Insurance Co., Ltd.,

By its Authorized Signatory, 414,

Veer Savarkar Marg, near Siddi Vinayaka Temple,

Prabhadevi, Mumbai – 400 025.                                                     … Opposite party 

 

         This complaint coming on before us for final hearing on 14.07.2017 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.G.Guruprasad, counsel for the complainant and Sri.K.Premkumar, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed under Sections - 12 of the Consumer Protection Act, 1986, by the complainant complaining the deficiency of service on part of the opposite party and prayed this Forum to direct the opposite party to pay Rs.47,085/- towards liability of insurer under the policy and to pay Rs. 40,000/- towards compensation for causing mental agony and for deficiency in service and to pay Rs.2,000/- towards litigation expenses.

       2. The brief facts of the case are:   The complainants who are wife and husband    purchased hero motor cycle on 25.04.2014 from the dealer of hero motors for Rs.49,668/- and taken delivery of the vehicle for his own use and the said bike has got temporary registration with RTA of Tirupati bearing no. AP03DH6005and on 25.04.2014 and also the complainant took insurance policy for the said vehicle from the opposite party and the policy period is covered from 25.04.2014 to 24.04.2015 for ID value of Rs.47,185/- by paying premium of Rs.1377/- by the dealer. The complainant further submits that on 17.09.2014 the said bike was parked in front of his shop at D.No.4-1-204, Chinna bazaar street, Tirupati under lock and key and the complainant no.2 found that, the byke was stolen between 3.30 to 9.00a.m by unknown offenders. Hence, he reported the theft of the vehicle to the CCS police on the same day but he was instructed to lodge the complaint after searching in or around the Tirupati Town.  As he could not trace out the bike, on 26.09.2014 he registered the complaint in CCS police station, Tirupati under Cr.No.371/2014 u/s  379 of IPC and the said case was referred as undetectable and notice was served on 31.05.2015 to the complainant by CCS police and a final report on 12.06.2015 was also sent to the Honourable Additional Junior Civil Judge, Tirupati by CCS police and with reference to  the claim No: MOTO 4102597 lodged on 17-09-2014 under policy cover note 3005/89734476/00/000 the opposite party informed the complainant No:1 that there is delay in filing the FIR of 33 days and required her to submit the GD entry copy to provide the valid reasons  for the same by their letter          dt: 11-03-2015 and again the opposite party sent another letter dt: 26-05-2015 to the  complainant No:1 stating that the vehicle was stolen on 17-09-2014 and the FIR lodged on 26-09-2014 i.e. 9 days after the theft of the vehicle and in the above said circumstances the claim stands as no claim and there after the complainant No:1 sent a letter to the opposite party (claims manager) explaining the reasons for the delay of 9 days in lodging the FIR was due to search of the stolen vehicle and requested the opposite party to consider her claim. But nothing was replied for her representation by the opposite party. The fact remains that the investigation of the police reveals that it is not a false case. Hence the opposite party cannot escape the liability covered under the insurance policy of the bike.                     

       The complainant No:1 submitted a rejoinder on 30-06-2016 to the opposite party stating that in case of theft of the vehicle, the breach of policy conditions if any, does not arise and therefore requested the opposite party to reconsider her claim within 7 days. But the opposite party remains silent and did not choose to consider her claim which is nothing but deficiency in service on part of opposite party towards the complainant. Hence, she filed the present complaint.                                                                                

        3.The opposite party came into appearance and filed the written version by admitting the insurance policy of the bike and same was valid from 25-04-2014 to         24-09-2015 to cover all the risks subjected to terms and conditions of the policy. The opposite party further contended that the complainant approached the opposite party on 08-10-2014 by stating that her motorcycle was stolen on 17-09-2014 while she parked in front of her house and also she intimated that she lodged a complaint on 26-09-2014 before the police authorities i.e. after the lapse of 9 days of alleged offence and she intimated to them on 08-10-2014 i.e. of lapse of 21 days of the theft. Immediately after receiving the claim by the complainant, the opposite party deputed a surveyor to investigate the matter and after investigation, the surveyor submitted a report confirming the theft of the vehicle.                                            

        The opposite party further submits that after receiving the investigation report and after thorough scrutinization of the papers submitted by the complainant, came to conclusion that there was a delay of 9 days in intimating and registering the FIR with regarding the theft of the vehicle to the police authorities and delay of 21 days in intimating the loss of vehicle to the insurer i.e. the opposite party which clearly shows  that the complainant violated the terms and conditions of the policy and the claim submitted by the complainant was repudiated and same was intimated to the complainant by way of letter dt: 26-05-2015.                                                                         

        4. The opposite party further submits that the complainant has not handed over the second key to the opposite party and also, she has not given proper reason for not submitting the second key to the opposite party which clearly shows that the complainant left the key with the bike when she parked the vehicle which leads to the theft of the bike. The opposite party further submits that as per the conditions of the policy issued to the complainant that “In case of theft or criminal act which may be the subject of the claim under the policy the insured shall give immediate notice to the police and co-operate with them in securing the conviction of the offender and further as per the terms and conditions of the policy”. “Notice shall be given in writing to the insurer immediately upon the occurrence of any accidental loss or damage or in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall requires.” Hence the complainant clearly violated the terms and conditions of the policy by non-registering the loss of the vehicle with the police authorities and also non-written information immediately to the opposite party after the occurrence of the theft. Hence the opposite party is not liable to pay any damages as there is no deficiency in service on part of them and the complaint is liable to be dismissed.                    

       5. The complainant filed her evidence on affidavit and Ex: A1 to A11 were marked on

behalf of her and on behalf of the opposite party B. Srinivasa Rao,                                 S/o. B.A.Venkataselvan,  Manager of opposite party’s insurance company filed his evidence on affidavit and got marked Ex:B1 to B8. Both parties filed their written arguments and oral arguments were heard.

       6. Now the points for consideration are:-

              (i)  Whether there is any deficiency in service on part of the opposite party    

                     towards the complainant?           

             (ii)  Whether the complainant is entitled to the reliefs as prayed for? If so?         

             (iii)  To what Relief?

        7.Point No (i):-    There is no dispute regarding the policy  taken by the complainant No:1 from the opposite party because same was admitted by them and also there is no dispute regarding the theft of the vehicle on 17-09-2014 when the second complainant parked the bike near his shop. The main contention of the complainant is immediately after the theft they approached the police authorities and reported the matter to them but with their due instructions to make a complete search of the vehicle in and around Tirupati. As they could not trace the vehicle and registered the complaint before the CCS police Tirupati on 26-09-2014 after the lapse of 9 days of the alleged offence in crime No:371/2014 under Ex.A4 i.e. FIR and the above said case was referred as the case was un-detectable and same was intimated to the complainant on 31-05-2015 under EX.A5 and the complainant intimated the opposite party on 08-10-2014 which  is after lapse of 21 days of loss of the vehicle and she made a claim to the opposite party and her claim was repudiated by way of letter on 26-05-2015 which is nothing but deficiency in service on part of the opposite parties.

       The main contention of the opposite party is after receiving the intimation from the complainant on 08-10-2014 they deputed the surveyor to investigate the case and file his report. The surveyor filed his report i.e. Ex: B1 clearly reveals that theft was happened on 17-09-2014 date of FIR is 26-09-2014 and the complainant intimated about the theft to the opposite party on 08-10-2014. Basing upon the surveyor report and also scrutinizing the paper submitted by the complainant they repudiated the claim as there is delay of 9 days of lodging complaint before police authorities and also there is delay of 21 days about the theft intimation to the opposite party. The counsel for the opposite party states that the complainant violated the terms and conditions of the policy as there is delay of 9 days for lodging complaint in this connection, the counsel for the opposite party relied upon a decision of National Commission in Sriram General Insurance Co. Ltd., Vs Mahender Jaat (RP No:4749 0f 2013 decided on 16.12.2014) and in the decision  our lordship referred the case “Oriental Insurance Co.Ltd., Vs. Parvesh Chander Chadha, Civil Appeal No.6739 of 2010 decided on 17.08.2010 in this decision, it is observed in terms of the policy issued by the appellant, the respondent was duty bound to inform the theft of the vehicle immediately after the incident. On account of the delayed intimation, the appellant was deprived of its legitimate right to get an enquiry conducted in to the alleged theft of the vehicle and make an endeavor to recover the same. Unfortunately, all the Consumer Foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite theh fact that he had not complied with the terms of the policy.

       8. In the present case also the complainant stated that immediately after the theft on    17-09-2014 they approached the police authorities but in order to prove the contention they have not filed any single scrap of paper to prove the same and also in the FIR that is Ex:B5 clearly mentioned the date of the intimation of the theft is 26-09-2014  and also in the  FIR nowhere it was mentioned that they reported the theft to the police on 17.09.2014 by orally. Hence in the absence of any documentary proof we cannot consider the contention of the complainant that they approached the police on 17-09-2014 about the intimation of the theft. And also as per Ex:B7, claim form submitted by the complainant to the opposite party it was clearly mentioned the date is 13.12.2014 hence it was clearly shows that there was a delay in intimation about the theft to the police and also to the insurer. 

        The opposite party further contended that the complainant failed to handover the 2 keys of the stolen bike as they have handed over only one key to the opposite party and also to prove that Ex:B3 the statement given by the complainant that they lost 1 key regarding the bike which creates doubt that the keys was in ignition at the time of the theft which gave a scope for the theft of the vehicle and also shows the irresponsibility of the complainant and also creates doubt. In this connection, the counsel for the opposite party relied upon a decision of National Commission in Cholamandalam M/S. General Insurance Co. Ltd., Vs. Ashish Kumar Walecha in RP No:1893/2016 decided on 28.04.2017 where in it was observed that the driver leaves the key in the ignition, he would be negligent and the theft taking place on account of his negligence, the insurer cannot be made liable to reimburse the insured. In the present case also the complainant handed over one key to the opposite party and failed to hand over the second key and stated that the said key was lost, hence  the adverse inference can be drawn against the complainant, as she has not approached the forum with clean hands.

       Hence in the absence of any documentary proof we cannot hold any deficiency in service on part of the opposite party as there are latches on part of the complainant as the complainant failed to prove her case with any corroborative evidence to prove her case. Hence this point is answered accordingly.

       9.Point No(ii):-  As already the point No:1 is discussed as there is no deficiency in service on part of the opposite party. The question of entitlement would not arise.       

       10.Point (iii):-   In view of our discussion on points 1 an 2, we are of the opinion that there is no deficiency in service on part of the opposite party, hence the complaint is dismissed.

          In the result, the complaint is dismissed. No Costs.        

         Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 29^th day of July, 2017.

       Sd/-                                                                                                                         Sd/-                                                                                                                                                                                               

  Lady Member                                                                                                           President

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1:  Smt. Katari Tulasi (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: B. Srinivasa Rao (Chief Affidavit filed)

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of Sale Certificate (Form-21) of the vehicle Passion Pro(Drum-Self Cast Wheels) BS III, along with Retail Invoice for Rs.49,668/- in favour of the complainant by the local dealer Sri Gopal Auto Mobiles. Dt: 25.04.2014.
	Photo copy of Temporary Certificate of Registration as AP03UMTR3111 in favour of 1st complainant through the local dealer. Dt: 25.04.2014.
	Photo copy of Two Wheeler Certificate-cum-Policy Schedule to the insured Mrs. Katari Thulasi i.e., complainant No.1 through the dealer for ID value of Rs.47,185/-. Dt: 25.04.2014.
	Certified true copy of the FIR in Cr.No.371/2014 u/s 379-IPC for theft of the vehicle on 17.09.2014 registered by CCS Police on the report of the Complainant No.2. Dt: 26.09.2014.
	Photo copy of letter from the opposite party to complainant No.1 regarding reference Claim No.MOT04102597 lodged on 17.09.2014 under the Policy/Cover note No.3005/89734476/00/000.
	Photo copy of letter addressed to the complainant No.1 by the opposite party.  Dt: 26.05.2015.
	Photo copy of the notice to the complainant No.2 by the CCS police, Tirupati stating that the case is undetectable. Dt: 31.05.2015.
	Photo copy of representation of the complainant No.1 after repudiating the claim by the opposite party. Dt: 06.06.2015.
	Certified true copy of Final Report to the Hon’ble V Addl. Junior Civil Judge, Tirupati. Dt: 12.06.2015.
	Office copy of rejoinder to the opposite party and others with two postal and one courier acknowledgements. Dt: 30.06.2016.
	Certificate of Registration in original, belongs to the theft vehicle of the Complainant No.1 filed on behalf of the Complainant.  Regn. No. AP03BH6005.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	True copy of Investigation report pertaining to the vehicle filed by the opposite party.
	Photo copy of Letter addressed to the complainant by opposite party. Dt: 11.03.2015.
	Non Judicial Stamp Paper addressed to the opposite party by the complainant with regard to the loss of one key filed by the opposite party. Dt: 11.12.2014.
	Non Judicial Stamp Paper addressed to the opposite party by the complainant. Dt: 19.09.2014.
	Attested copy of the FIR in Crime No.371/2014 of SHO, CCS, Tirupati pertaining to the two wheeler of the complainant vehicle filed by the opposite party. Dt: 26.09.2014.
	True copy of Two Wheeler Certificate cum Policy Schedule pertaining to the complainant vehicle issued by the opposite party. Dt: 25.04.2014.
	Motor theft claim form submitted by the complainant to the opposite party   Date of Theft : 17.09.2014.
	Letter addressed to the complainant by the opposite party. Dt: 26.05.2015.

                                                                                                                                                                 Sd/-

                                                                                                            President

  

 

// TRUE COPY //

                                                                                                 // BY ORDER //

 

                                          Head Clerk/Sheristadar, 

                                              Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:  1) The Complainants, 

                  2) The Opposite party.