BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 29th June 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.122/2014
(Admitted on 9.4.2014)
Haathim S.K.
S/o Adbul Khadar,
Aged about 46 years,
R/at H.No.1.275.4, Mukve House,
Narimogru Post and village,
Puttur, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
Manager,
ICICI Lombard,
General Insurance,
Maximus Complex,
Light House Hill Road,
Hampanakatte, Mangalore.
….OPPOSITE PARTY
(Advocate for the Opposite Party Smt. HM)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to pay Rs.42,472/ to the complainant with 12% interest from 8.11.2011 till payment, to pay Rs.20,000/ towards compensation, to pay Rs.20,000/ towards expenses and such other reliefs.
2. In support of the above complaint Sri. Haathim S.K, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C8 as detailed in the annexure here below. On behalf of the opposite parties Mr. Chetankumar, (RW1) Legal Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 as detailed in the annexure here below.
The brief facts of the case are as under:
We perused the complaint and the version of the parties. This dispute is with regard the repudiation of the insurance claim on theft of the vehicle insured. The complainant alleges that, the insured bike was stolen when it was parked within the house premises and the key was left in the bike. On claiming the insurance the opposite party rejected the claim. Hence there is deficiency in service on the part of the opposite party. The opposite party contended that the complainant has not taken due care of the insured vehicle to avoid the damage or loss as per policy condition and hence there is breach of policy condition. The repudiation is legal and no deficiency in service on their part. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
On considering the facts of the case and the evidence on record the material admitted and denied facts are, the insurance policy coverage of the bike, the theft of the bike, the key was left inserted to the bike at the time of theft, and the repudiation of the claim. It is denied that there is breach of policy condition, and the complainant had taken proper care of the bike, and the deficiency in service on the part of the opposite party. The complainant also denied that the policy condition was given to him. It is not disputed the complainant as consumer. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the deficiency in service on the part of the opposite party is proved on repudiation of the claim, by the complainant?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On considering all facts on record and the evidence and documents produced, the notes of arguments filed are considered and heard the party counsels. The above points answered as under:
- In the negative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1: The complainant’s case as per complaint averment is, he has gone to his friend’s house near railway station and parked his vehicle within the house premises of his friend and went for lunch. In his words At that time the complainant parked the motor bike within the house premises of Mr. Sabjan and left the key in the motor bike itself. Since the bike was within the house premises of Mr Sabjan, the key was left in the bike itself. From this averment it is proved that the complainant left the key in the bike not with inadvertence but knowing that the key should not be left in the bike but because the bike was within the premises of his friends house he left the key in the bike. So it is complainant who has to prove the deficiency in service on the part of the opposite party by showing the policy condition is not breached.
2. As per complaint averment and legal notice, the bike was parked within the premises of his friends house. EX.C 4 and EX.C 5 are the documents the police complaint and the FIR produced by the complainant. These documents are at the undisputed point of time when the bike was stolen. The complainant given this complaint to the police station and stated that the bike was parked near the gate of the house of the Sabjan which was near the railway station. So we presume near the gate means in all probability it is outside the gate of the house unless it is otherwise proved. Also in the interrogatories Question No 2, suggested by the complainant he himself suggested that is it correct to say that the bike was parked near the gate? So the complainant allegation that the bike was parked within the house premises is not acceptable. The complainant admits that the key was left in the bike and it is proved that the bike was parked outside the gate of his friend’s house unsecured.
3. The other contention of the complainant is the policy condition was not provided to him. The complainant had produced an authority to show the claim cannot be repudiated if the policy condition was not provided. We have referred meticulously the policy copy in original produced by the complainant. It is written in the policy after total premium row as for coverage and exclusions of policy, please refer to the policy wordings attached with schedule, in case of you have not received your kindly write to us at the below mentioned mailing address (the address is given below). It was to the policy holder to approach if the conditions were not reached him with the policy cover note. But no attempt seen from the part of the complainant. Also on plain looking of the EX C 1 the policy produced, it was seen at the right hand top Page 1 of 3 denoting the policy page contains another two pages. The complainant is an educated as it is not the case of the complainant that he is illiterate, could have realized the full set of documents not received and would have attempted to get it. The vehement argument of the complainant that the terms and conditions was not provided, cannot be sold.
4. The opposite party had produced the EX R 1 as the policy schedule with two pages conditions. The condition No 4 specifically provides as a policy condition that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage....... In our considered opinion the locking of the vehicle and taking off the key from the vehicle which was parked near railway station near the gate of the friend’s house is reasonable care. While the insured is away from the vehicle inside the house and taking food and keeping the vehicle unlocked and leaving the key in the vehicle is negligence and no prudent man will do. Hence we see the negligence on the part of the insured in taking proper care of the insured vehicle and there by breach of policy condition.
5. The complainant produced the authority. NATIONAL INSURANCE COMPANY LTD V. D.P.JAIN III(2007)CPJ 34 (NC). On two grounds the authority is not applicable for the present case. Firstly, the Honorable National Commission referred about the exclusion clause. There is difference between the gravity with the terms of conditions and the exclusions. The decision impetus is with regard to exclusion clause which shall be brought to the insured notice with special notice and in clear terms. In the instant case it is not the exclusion clause but it is the condition to be fulfilled in making the insurer liable. The stress is on the exclusion clause and the duty was imposed on the insurer to reveal specifically the exclusions. Secondly the facts in the cited case is the mobile was stolen from the bag and in another case the mobile was taken out from the car by breaking open the door of the car. Also the repudiation was on the ground that absence of actual or threatened force, where as in the instant case the ground was not proper care is taken in safeguarding the vehicle. The rulings in 2015 IV CPJ 376 (NC) and 2009 III CPJ 246(NC)(EPABX spoiled due to short circuit) also with regard to exclusion clause which is not applicable for the present case. In 2015 IV CPJ 718 (NC), it held the technical grounds should not be considered. But in the instant case the repudiation is not on the technical ground. Another citation is in relation to mediclaim policy in which the exclusion clause is being the point of dispute. Hence we are of the opinion none of the authorities are applicable for the present case on hand. The complainant not proved his case and there by the deficiency in service on the part of the opposite party. Hence we answered the point no 1 in the negative and as such the point no 2 also in the negative.
POINT NO 3: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 8 directly typed by Member, revised and pronounced in the open court on this the 29th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Sri.Haathim S.K
Documents marked on behalf of the Complainant:
Ex C1: 22.6.2011: Original policy.
Ex.C2: 30.6.2011: Original Tax invoice
Ex.C3: 18.7.2011: Copy of the R.C.
Ex.C4: 9.11.2011: O/c of complaint given to Puttur town P.S.
Ex.C5: 9.11.2011: Copy of the F.I.R.
Ex.C6: 18.1.2012: Repudiation letter of the Opposite Party.
Ex.C7: 25.4.2012: O/c of the regd lawyer’s notice.
Ex.C8: 27.4.2012: Postal acknowledgment.
Witnesses examined on behalf of the Opposite Party:
RW1: Mr. Chetankumar, Legal Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: Copy of policy.
Dated: 29.06.2017 MEMBER
