Tamil Nadu

North Chennai

CC/168/2016

Mani Kandan - Complainant(s)

Versus

Managing Director cholamadalam M/s General Insurance Company - Opp.Party(s)

M/s.M.Veeranthiran

24 Jan 2019

ORDER

 

                                                            Complaint presented on:  19.09.2016

                                                                Order pronounced on:  24.01.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

THURSDAY  THE 24^th    DAY OF JANUARY 2019

 

C.C.NO.168/2016

 

Manikandan,

5/18, Masoothi Street,

Pattalam,

Chennai – 600 012.

                                                                                        ….. Complainant

 

 ..Vs..

Managing Director,

Cholamandalam MS General Insurance Company,

Dare House, 2^nd Floor,

No.2. N.S.C.Bose Road,

Chennai – 600 001.

 

 

.....Opposite Party

Date of complaint                                 : 10.11.2016

Counsel for Complainant                      : M/s.M.Veeranthiran, Elumalai

 

Counsel for Opposite Party                      : M.B.Gopalan Associates,

                                                                    N.Vijayaraghavan, M.B.Raghavan

 

 

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant  to direct the opposite party to pay a sum of 1,10,000/- as  insurance amount and also a  sum of Rs.3,000/- for Travelling and Transportation charges and a sum of Rs.2,00,000/- as compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased (Auto Rickshaw) BAJAJ 3Wheeler  on  04.08.2013 and  it was registered on 06.08.2013, the registration number of the Autorickshaw is TN 05 AU 1640 and it was registered at Chennai central and insured at Cholamandalam General Insurance Co. Ltd., from the year 2013. From that onwards it was insured every year without any fail. The period of insurance is from 08.08.2015, 00:01 hours to midnight on 07.08.2016. On 09.09.2015 the complainant parked his vehicle opposite to the house. The next day morning his auto was missing. He immediately rushed to Puliyanthoope police station and lodged a police complaint. Complainant visited the opposite party  on 11.09.2015 and given in writing  letter stating that his auto was missing from 10.09.2015 and informed that to this effect he had given a police complaint to Puliyanthope Police Station. Initially they assured that the police complaint is enough and the insured amount would be paid. The complainant enquired all the neighbours residing near his house but he could not find the missing Auto. The only source of income for the complainant is  plying auto in the city but after missing of auto he finds it difficult to meet both the ends. On 11.10.2015 he gave a representation before the

Opposite party and stated that his auto was missing.  After receiving the complaint copy he again approached the opposite party and asked the complainant to send the letter to their head office at Delhi & the letter was  also sent to Delhi. The Complainant sent the legal notice to the opposite party on 10.05.2016. So far the opposite party has not replied to the legal notice therefore this complaint.

2. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The  complainant’s vehicle TN -05 -AU 1640 was admittedly insured  with them under Motor Policy No.3368/00597740/0002 for the period from 08.08.2015 to 07.08.2016. The policy is issued subject to terms and conditions which govern the liability of this opposite party for any claim and in the event of any breach of the said terms, the opposite party is not liable to admit such claim. The complainant is found to have not only suppressed the terms and conditions of the policy and instead filed some irrelevant documents as terms and conditions which is absolutely false. The vehicle is insured on condition that in the event of any theft, complaint must be lodged with police immediately besides intimation to the opposite party. (Condition No.1 of the policy).  The due observation of the terms of the policy is a condition precedent for claiming under the policy as per condition No.8 of the policy. Failure to give immediate complaint to police and/or intimation to this opposite party would amount to fundamental breach of the policy and this opposite party would be entitled to deny liability. On 18.09.2015, the complainant reported to the opposite party claim for theft of the vehicle on 10.09.2015. Subsequently documents were submitted in support of the same. Examination of the claim revealed that the theft allegedly occurred on 10.09.2015. However while intimation was given to the opposite party on 18.09.2015 after more than 7 days, more importantly, complaint to police was found to have been lodged on 10.09.2015 as per FIR No.1081/2015 of  Pulianthope Police Station. The FIR clearly mentioned that the complaint was made only in writing and on 09.10.2015. There delay in lodging complaint was attributed to searching of vehicle. There was no mention in the FIR or any oral complaint given earlier on 11.09.2015 on the part of the complainant. In the above circumstances this opposite party found grave violation of condition No.1 of the policy as there was delay in intimation of claim and in lodging police complaint. The certificate produced now in the complaint in the name of Sub Inspector of Police, Pulianthope Police Station as if the theft was reported on 11.10.2015 itself is liable to be rejected as false and legally untenable. The opposite party vehemently disputes and denies the authenticity of the Certificate as well as its contents. It is not clear who has signed the certificate and on what date it is issued. A police Officer could not have issued such certificate when no mention of any oral complaint on 11.09.2015 is made in the FIR. Hence this opposite party submits that its decision taken in accordance with the terms of the contract cannot be considered as deficiency in service or unfair trade practice. The complaint is wholly misconceived and unsustainable. This opposite party has no Head Office in Delhi. Hence no question of asking the complainant to send letter to Head Office at Delhi would arise. It is imaginary allegation. The claim warranted repudiation and the decision of the opposite party communicated by letter dated 28.03.2016 was in accordance with the policy. There is no cause of action for this complaint. The various reliefs sought are unsustainable.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

 

 

 

4. POINT NO :1 

          The complainant  is the owner of  the  Bajaj 3 wheeler Auto Rickshaw bearing registration no. TN 05 AU 1640 and  insured with the opposite party.  On 09.09.2015 the auto  parked  opposite to his house was found missing and the police report was lodged  before puliyanthoope  police station  and  a letter was also  given to  opposite party  on 11.09.2015 Permit License for auto is ExA1. R.C Book and Insurance copies  from 06.08.2013  to  05.08.2014,  08.08.2014  to 07.08.2015, 08.08.2015 to 07.08.2016  are Ex.A2 to Ex.A5.The complaint given to RTO is Ex.A6. True copy of FIR in 1081/15 is Ex.A7 and the date of complaint as incorporated in FIR is 09.10.2015 with a copy of the certificate from S.I of police is attached. Later it was informed to the complainant by a notice in Ex.A11 as the theft was undetectable.  Proof of notice sent to opposite party is Ex.A8.Reply notice given by opposite party is Ex.A10 series. Opposite party’s plans and reviews are in Ex.A12.

5. On the side of opposite party, Insurance policy of the complainant and the terms and conditions of the policy is marked as Ex.B1. The complainant’s vehicle insured with the opposite party and the period of missing the vehicle within the insured period is not disputed. The claim is denied by the opposite party   for the reasons that the terms and conditions of the policy is not observed by the complainant. Aggrieved by the same the complainant had filed this complaint.

         6. The opposite party  would contend that  condition no.1 and 8 were not  followed by the complainant condition No.1 reads as:

CONDITION No.1

          Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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. Every letter claim writ summons and/or process or copy there of 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 co-operate with the company in securing the conviction of the offender.

Theft occurred on 10.09.2015.The complainant contends that he visited the opposite party and given the complainant in writing on 11.09.2015 but the letter is not submitted by the complainant. Therefore the contention of the opposite party stating the receipt of report on 18.09.2015 is to be accepted. FIR in 1081/15 was lodged on 09.10.2015 as in Ex.A7. There was a delay of 7 days and  a month in lodging FIR. The reason stated by the complainant for delay is attributed in searching of vehicle. Even if there is no mention in FIR as the oral complaint was given on the said date, there is a copy of letter in Ex.7 series by S.I. of police stating   that the information was given on 11.09.2015 itself. The authenticity of it was questioned by the opposite party as the complainant is attempting to overcome  the breach of policy by creating such documents and according to the opposite party  the requirement of immediate police complaint and intimation of claim  to opposite party   is not complied and also the due observation of the terms of policy is a condition precedent for claiming under policy as per condition No:8 of the policy which resulted in denying the claim  and also the opposite party contends   that the decision taken in accordance with the terms of contract cannot be considered as deficiency in service.

             7. The complainant  sent the intimation to opposite party  only with a delay of  7 days and  the reason  stated is due to his search in his neibourhood and  also the delay in registering FIR after immediate intimation  is substantiated by the certificate produced by the complainant from S.I of police from the police station. The certificate is signed by S.I of police (Crime) from the concerned police station, whose signature is found in Ex.A11 and which leads for the closure of FIR. Therefore it cannot be rejected in toto  and it also reveals about the information given  on 11.09.2015. Further, the complainant has also stated in his complaint that he has obtained loan from a bank to purchase the auto and he is under obligation to repay the loan and also his  only source of income  is plying the auto in the city and after missing the same he finds it difficult to meet both the ends. The loss of the vehicle is not on the fault of the complainant, and hence  opposite party  has failed to  consider in such a way.

          8. In a case reported in National  Insurance co., vs NitinKhanselwl, IV (2008) CPJ 1  (SC), the Apex court was pleased to hold  that in case of theft of vehicle , breach of condition is not germane and even assuming there was a breach of condition of insurance policy, the Insurance company ought to have settled the claim on Non Standard basis, and insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

          9. Therefore this forum is of the view as reported in the submitted case, the opposite party  ought not to have rejected the claim and to have permitted the same on non standard basis therefore there is deficiency in service on the part of opposite party.

 

 

10. POINT NO:2

          In view of the discussions held in earlier point, due to the rejection of the claim in toto, the complainant would have suffered mental agony as the plying auto is the only income for his livelihood and therefore the opposite party  is directed to pay 75% of the  ID value of the Vehicle in the Insurance policy at the time  of theft  of the vehicle (i.e. Rs.1,10,000  x 75% = 82,500) and also to pay Rs. 10,000/- as compensation for mental agony  beside a sum of Rs.5,000/- towards litigation. The complainant has claimed Rs.3,000/- for traveling and transportation charges for which he has not submitted any bills as proof before this Forum. Hence the complainant is not eligible for the transportation charges claimed by him.

          In the result, the complaint is partly allowed. The opposite party   is directed to  pay a sum of Rs.82,500/- (Rupees eighty two thousand and five hundred  only) towards  insurance amount to the complainant  and also to pay  a sum  of  Rs.10,000/-(Rupees ten thousand only) as compensation  for mental agony besides a sum of  Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of the payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 24^th   day of January 2019.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 Permit Issued Transport Department, Dated 13.05.2010, Valied Date: 16.08.2013 to 15.08.2018

Ex.A2  Registration Motor Vehicle No.:TN 05 AU 1640

Ex.A3 Cholamandalam Ms General Insurance Company Motor Policy No.3368/00597740/000/00 from 06.08.2013 to 05.08.2014.

Ex.A4 Cholamandalam Ms General Insurance Company Motor Policy No.3368/00597740/000/01 from 08.08.2014 to 07.08.2015.

Ex.A5 Cholamandalam Ms General Insurance Company Motor Policy No.3368/00597740/000/02 from 08.08.2015 to 07.08.2016.

Ex.A6 Bajaj auto missing to complainants given RTO dated at 18.09.2015

Ex.A7  Bajaj auto missing to complainants given police station dated at 10.09.2015, FIR filled dated at 09.10.2015

Ex.A8 Bajaj auto missing to complainants given Cholamandalam Ms General Insurance Company dated at 23.04.2016, 12.05.2016.

Ex.A9 Bajaj auto missing to complainants given central bank of India dated at 11.05.2016

Ex.A10 Cholamandalam Ms General Insurance Company given reply notice dated 28.03.2016

Ex.A11 P1, puliyanthope police station given to undetectable investigations dated at 05.04.02016

Ex.A12 Terms and conditions Cholamandalam

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

Ex.B1 dated 05.08.2015                   Insurance policy with terms and conditions

 

 

                                               

MEMBER – I                                                               PRESIDENT