Date of Filing : 18.04.2011
Date of Order : 27.03.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 27th MARCH 2012
PRESENT
Sri. H.V. RAMACHANDRA RAO, B.Sc., BL, ……. PRESIDENT
Sri. T.NAGARAJA, B.Sc., LLB. …….. MEMBER
Smt. K.G.SHANTALA, B.A., LLB. …….. MEMBER
CC No. 125/2011
Sri. Ravi Kumar.K.V.
S/o. Late Venkatarathamaiahsetty,
No. 322, 5th Block,
Bagepalli – 561 207,
Chikkaballapur Dist.
(By Sri. B.N.Dathathreya & others, Adv.) ……. Complainant
V/s.
1. ICICI Lombard General Insurance Co. Ltd.,
Interface, Building No. 11, 401/402, 4th Floor,
Behind Gorgeo Sport Club, Malad (W),
Mumbai – 400 064.
2. ICICI Lombard,
General Insurance Co. Ltd., 2nd Floor,
Near Ayyappa Temple, Madivala, Hosur Road,
Bangalore.
(By Sri. B. Kumar, Adv. for Ops 1 & 2)
3. ICICI Bank Ltd.,
ICICI Towers, No. 1, Commissariat Road,
Bangalore – 560 025.
(By Sri. V.K. Prashanth, Adv. for OP3)
4. Magma Fincorp Ltd.,
40, Foundation House, 4th Floor,
2nd Main Road, CKC Garden, Mission Road,
Bangalore – 560 027.
(By M/s. FX & Co., Adv. for OP4) …… Opposite Parties
ORDER
By Sri. H.V. RAMACHANDRA RAO, PRESIDENT
The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the Ops 1 & 2 to pay Rs.9,02,745/- or any other amount that may become due to Ops 3 & 4 and to direct Ops 3 & 4 to return all the documents in their possession belonging to the Complainant are necessary:
After obtaining loan of Rs.7,15,789/- from OP3, Complainant has purchased a Eicher Motor Vehicle bearing Registration No. KA-40-3458 and insured it with OP2 for a sum of Rs.6,25,930/- on 19.05.2009 and the Policy was valid upto 18.05.2010. Complainant had parked the vehicle by the side of his house near the field of Faruk Masjid on 29.03.2010 for the purpose of some minor repairs. Complainant was visiting the vehicle every day and it was also visible to the house of the Complainant. At 3.00 PM on 28.04.2010 the said vehicle was found missing. Immediately Complainant informed OP1 about missing / theft of the vehicle over telephone and claim was registered by the OP1 giving certain number. It was informed to OP2 over telephone. One Mr. Jagannath of OP2 came for survey and took photographs of the spot and obtained documents. It was forwarded to OP1. Complainant has filed the Complaint with jurisdictional Police on 28.04.2010, but however it was registered on 16.05.2010. Ops 1 & 2 never agreed to settle the claim, but rejected the claim on 10.11.2010. OP3 informed the Complainant that they have assigned the loan to OP4 and all the transactions are to be done with OP4. Hence the Complaint.
2(a). In brief version of the Ops 1 & 2 are:-
Insurance of the vehicle in question with the Ops and its validity between 19.05.2009 to 18.05.2010 are admitted. Complainant violated the terms of the contract of insurance. Alleged theft has been intimated to the Ops on 15.05.2010. FIR is lodged on 16.05.2010 and not on 28.04.2010. This inordinate delay in claiming, disentitles the Complainant in claiming anything. Hence, as per the Policy condition claim has been rightly repudiated. Complainant never says deficiency in service. Hence, this Forum has no jurisdiction to entertain the Complaint. All the allegations to the contrary are denied.
2(b) In brief version of OP3 are:-
In the year 2008 Complainant along with Mr. Keshavamurthy approached this OP for credit facility to purchase commercial vehicle in question. Those 2 persons has executed loan agreement and deed of hypothecation in favour of this OP to repay the amount of Rs.8,64,883/- i.e., Rs.6,63,000/- towards principal and Rs.2,01,883/- towards interest in 48 EMIs of Rs.18,122/- each. Installments commenced on 05.04.2008 and was to end on 05.03.2012. Complainant was irregular in payment. Complainant and Mr. Ajay Dabh executed a credit facility agreement in this regard. By deed of assignment dtd. 23.06.2009 this OP transferred all its rights, title and interest in respect of loan and credit facility account of the Complainant in favour of OP4. Complainant is due for the amount as claimed by OP4. The theft etc. is not within the knowledge of this OP. Complainant informed the theft only on 15.09.2009 and not earlier thereto. All the allegations to the contrary are denied.
2(c) In brief version of OP4 are:-
Complainant is not a consumer and he is a borrower. As an Act itself, there is no deficiency in service. Obtaining loan by the Complainant and his non payment of installments are admitted. The loan has been transferred to this OP. All the allegations to the contrary are denied.
3. To substantiate their respective cases, Complainant has filed affidavit and other OPs have submitted that their version be read as their evidence. OP Nos. 1, 2 & 4 had filed written arguments. Arguments were heard.
4. The points that arise for our consideration are as under:
POINTS
(A) Whether repudiation of the insurance is unfair trade practice / deficiency in service ?
(B) What Order ?
5. Our answers to the above points are as under:
(A) Negative
(B) As per detailed order for the following reasons
REASONS
6. reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that the Complainant had obtained certain loan from OP3 on certain terms & conditions agreeing to repay the same with certain EMIs and he defaulted in payment of EMIs. It is also an undisputed fact that the said loan of the Complainant with OP3 were transferred and assigned in the name of OP4. It is also an admitted fact that Complainant after obtaining the loan had purchased the vehicle in question and insurance was obtained from Ops 1 & 2. It is also an admitted fact that the Complainant had parked the said vehicle near to his house near the field of Faruk Masjid on 29.03.2010 in an open area for certain repairs and it was found missing at 3.30 PM on 28.04.2010.
7. Complainant has stated that he has informed about the theft to Ops 1 & 2 on the very date over phone and one Mr. Jagannath had come and took photographs etc. All these things have been denied by the Ops. There is no material to show that the Complainant had intimated about the theft in question to any of the Ops on 28.04.2010. There is no document in this regard. There is no document to show that Jagannath had come to the spot and took photographs. Keeping the vehicle in an open area is nothing but negligence & negligence of the Complainant himself.
8. Even Ops 1 & 2 have repudiated the insurance claim on 10.11.2010. In the repudiation letter, Ops 1 & 2 have clearly stated that notice / intimation about the theft was given to the Police on 16.05.2010 and to the Insurance on 15.05.2010. This fact is not denied or challenged by the Complainant. There is no per contra material in this regard. The documents produced clearly goes to show that the Complainant had given written police complaint on 16.05.2010 and intimated in writing to the Ops 1 & 2 on 15.05.2010 regarding the theft alleged to have been occurred on 28.04.2010, i.e., 17 days after the alleged incidence. This inordinate delay is unanswerable. Because of this unanswerable delay, Ops 1 & 2 have repudiated the claim.
9. In case between New India Assurance Co. Ltd. v/s. Dharam Singh & another in First Appeal No. 426/2004 dtd. 04.07.2006 of Hon’ble National Commission, in case between New India Assurance Co. Ltd. v/s. Trilochan Jane in First Appeal No. 321/2005 dtd. 09.12.2009 of Hon’ble National Commission, and in case between Bang Lal by LRs v/s. The Manager, United India Insurance Co. Ltd., in Revision Petition 1352/2001 on 01.09.2001 of Hon’ble NCDRC and in case between Royal Sundaram Alliance Insurance Co. Ltd. v/s. Babu Reddy dtd. 15.06.2011 of our Hon’ble State Commission, have clearly stated that if there is delay in lodging the claim or lodging the complaint to the Police of more than 2 days, then such claim of insurance is to be rejected and repudiation in such event cannot be set aside. This principle in all forces applies to the facts & circumstances of this case. There is 18 days delay in lodging the complaint to the police and 17 days delay in intimating about the theft to the Insurance Company. Hence, repudiation of the insurance is justified. There is no deficiency in service in this regard.
10. When there is no deficiency in service, the question of directing the Ops 1 & 2 to pay the amount to Ops 3 & 4 does not arise and without paying the money Ops 3 & 4 cannot return any documents or do anything in this regard. Complainant is bound to discharge the loan to Ops 3 & 4.
11. In view of the foregoing reasons, we hold the points accordingly and pass the following order:
ORDER
1. Complaint is dismissed.
2. Send copy of this Order to the parties free of costs.
3. Return extra sets to the parties concerned under the Regulation 20(3) of the Consumer Protection Regulations 2005.
(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 27th day of March 2012)
T. NAGARAJA K.G.SHANTALA H.V.RAMACHANDRA RAO
Member Member President
SSS
