PER SMT.T.SUNEETHA, LADY MEMBER: 

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant seeking direction on opposite party to pay Rs.67,206/- towards sum assured to the vehicle with interest at 24% p.a. and also towards compensation for mental agony and legal expenses.

2.      The brief facts of complaint are as follows:

                The complainant lost his motor bike Hero Honda Passion bearing No.AP07 AW 6279, which was purchased and duly registered on 13-07-10. The said vehicle was also insured with the opposite party for a sum of Rs.43,938/- by paying Rs.1180/- as premium under policy No.3005/11069048/10590/000 valid from 18-03-10 to 17-03-11. 

                On 17-07-10 at about 11.30am the complainant parked his vehicle at 10ft. distance to Dhanamma Hotel, Tadikonda and went to take tea. Since the vehicle is parked at very near distance, the complainant left the keys attached to the vehicle.  After taking tea he went inside the hotel to pay the bill and when he came out he saw the bike disappeared. Immediately the complainant made sincere and effective efforts to trace the vehicle but invain.  Then the complainant approached Tadikonda police station and lodged written report on         17-07-10 and informed the same to opposite party.

                Initially the police failed to register the case. After making several requests and visits the Station House Officer, Tadikonda PS registered the case on 15-10-10 and wrote FIR with No.115/2010 under section 379 IPC.  So far no offender was arrested and no vehicle was seized. The complainant’s vehicle was not yet recovered. The complainant submitted all the relevant documents to opposite party for processing the claim.  The opposite party on receipt of documents sent a repudiation letter dt.29-10-10 served to complainant on 02-12-10.  The opposite party repudiated on the ground that there was 80 days delay in lodging FIR and parked the vehicle with key in the ignition socket.

                There is no personal lapse or negligence on the part of complainant.  By the time of theft of vehicle, the complainant is very accessible to the bike, any prudent man not expected to take the vehicle when kept in a short distance. Non-tracing of vehicle is purely failure of investigation agency.  The complainant issued a legal notice to opposite party and concerned PS also.  The opposite party committed deficiency of service by not settling the claim.  Hence, the complaint.  

3.      The opposite party filed its version, which is in brief as follows:

                As per the Motor Insurance Policy issued to the complainant, in case of theft or criminal act which may be the subject of claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of offender.  But in this case, the FIR for the stolen vehicle is lodged after 80 days of the theft of vehicle. As such, the complainant has violated terms and conditions of policy issued to him.  The complainant committed gross negligence by leaving the vehicle unlocked to theft and sufficient care was not taken and as such the complainant has violated the terms and conditions of policy.  There is no deficiency of service as this opposite party has rightly acted as per procedure and as per law. Therefore, it is prayed to dismiss the complaint with costs.

4.             Both parties have filed their respective affidavits. Ex.A1 to A13 on behalf of complainant and Ex.B1 and B2 on behalf of opposite party were marked.

5.      Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled to?

6.      POINTS 1 & 2

                The complainant lost his vehicle Hero Honda Passion bearing No.AP07 AW 6279 on 17-07-10 when it was parked in front of Dhanamma Hotel at Tadikonda Village.  The complainant went to the hotel to take tea leaving the keys attached to the vehicle.  After taking tea he went inside the hotel to pay the bill and when he came out he saw the bike disappeared. As per the complainant he made sincere efforts to trace the vehicle in that process approached Tadikonda PS and lodged a complaint (Ex.A6) on the same day. The complainant produced FIR No.115/2010 under section 379 IPC dt.05-10-10 (Ex.A8) to the Forum. 

7.             The opposite party repudiated the claim on the grounds that there is delay of 80 days in reporting to police and no reasonable care taken by the complainant that he left the keys to the vehicle itself, which are contrary to the following terms and conditions of policy (Ex.B1).   

Condition No.1 “Notice shall be given in writing to the company immediately upon the occurrence of any accidental or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require………………………………..  In case of theft or other 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.”

Condition No.4 “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage …………”   

8.             The complainant in his complaint mentioned that he made sincere efforts to trace out the vehicle and in that process approached Tadikonda PS and lodged a complaint on the same day but the case was not registered by the police.

9.             The copy of police complaint (Ex.A6) submitted by complainant is not bearing any signature of Station House Officer of Tadikonda police station.  The theft of vehicle took place on 17-07-10. The FIR was lodged on 05-10-10. There is a gap of two and half months between the incident and lodging of FIR in police station. The complainant ought to have put more efforts in registering the complaint in police station.  The opposite party repudiated the claim on 29-10-10.  The complainant counsel has given a legal notice to the Station House Officer, Tadikonda PS; Superintendent of Police Rural, Guntur and ICICI Lombard Insurance Company Ltd., Hyderabad on  18-12-10 (as per Ex.A12), which is after one and half month of past repudiation. Showing fault with police at this juncture, cannot be good ground to prove the case in complainant’s favour.  The complainant ought to have pressurize the police to work on the issue immediately after the incident.

10.           The complainant filed a letter (Ex.A7) written to opposite party informing the theft of vehicle, which is dt.Nil. The Forum cannot place reliance on the above letter to decide that the complainant informed the opposite party immediately because the letter is dt.Nil.   It appears that the incident was informed to opposite party with delay.  The complainant is required to inform the opposite party about the theft took place immediately after the occurrence of incident.  But the complainant has not done so.  The complainant thereby violated the condition No.1 of the terms and conditions of policy. 

11.           The complainant in his complaint said that he went to take tea keeping the vehicle 10ft. away from the hotel leaving the keys with the vehicle itself.  In the FIR Ex.A6, the distance between the parked vehicle and hotel is noted as 200 yards.  The complainant parked his vehicle keeping the keys attached to it, which he should not have done. It goes to show that the complainant did not take reasonable care in maintaining his vehicle, thereby violated condition No.4 of the policy. 
 

12.           The counsel for opposite party relied on first appeal No.321 of 2005 (National Commission, New Delhi) between New India Assurance Company Limited Vs. Trilochan Jain.  In this case opposite party repudiated the claim on the ground that there was a delay of 9 days in reporting the theft, which deprived the appellant of its right to investigate the matter and that the respondent had not taken adequate steps to safe guard the vehicle in violation of clause 5 of the insurance policy.  Learned counsel for the respondent, relying upon the judgment of “Hon’ble Supreme Court in National Insurance Company Limited Vs. Nitin Khandewal reported in (2008) 11 SCC 256 contended that in the case of theft of vehicle, breach of condition is not germane.  The said judgment was in a totally different context.  In the said case, the plea taken by the insurance company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the policy.  The plea raised by the insurance company was rejected and it was observed that in the case of theft breach of condition is not germane.  In the present case, the respondent did not care to inform the insurance company about the theft for a period of 9 days, which could be fatal to the investigation.  The delay in lodging the FIR after 2 days of the coming to know of the theft and 9 days to the insurance company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that time and sold to Kabaadi (scrap dealer).”  The appeal is dismissed in view of the above holding.       

13.           The counsel for complainant relied on a decision reported in IV (2010) CPJ 297 (NC) between National Insurance Company Ltd. Vs. Kamal Singhal.  

                In this case, the driver on his journey picked up three persons. Those three persons took away the car when he got down keeping the keys with the car itself to answer nature’s call. The driver immediately informed the police and the opposite party (insurance company). The National Commission held that the claim be settled on non-standard basis in terms of guidelines issued by the insurance company with a reason that driver was not expected to carry key while getting down to answer nature’s call.    

14.          In the present case, the complainant informed the opposite parties with much delay and there is no police investigation. The complainant produced copy of police case dairy along with a memo, in which date of report is 05-10-10, which clearly shows that the complainant gave report in the police station on 05-10-10.  The complainant also produced Ex.A7 letter written to opposite party informing the theft of the vehicle in issue dt.Nil.  The complainant alleged that he informed about the theft of vehicle to opposite party immediately.  The above letter which is dt.Nil cannot substantiate the complainant’s allegation.  Therefore the facts of the present case on hand differ from the above referred case.    

15.           In view of the violation of conditions 1 and 4 of the terms and conditions of policy, the Forum opines that the repudiation made by opposite party is justified. Thus, there is no deficiency of service on the part of opposite party. Hence, the opposite parties are not liable to compensate the complainant.

                In the result, the complaint is dismissed without costs.  

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 25^th day of August, 2011.    

MEMBER                         MEMBER                         PRESIDENT

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:        

For  opposite party:

                                                                                            PRESIDENT