IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 23rd day of November, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C.No.101/2010 (Filed on 21.07.2010)
Between:
Gopalakrishnan.B,
Kottarathil House,
Mundappuzha, Ranni,
Pathanamthitta Dist.,
Pin – 689 672.
(By Adv. Alex P. Chacko) ….. Complainant
And:
1. Royal Sundaram Alliance
Insurance Co. Ltd.,
Sundaram Towers, 45 & 46,
Whites Road, Chennai – 600 014,
rep. by its Manager.
2. Royal Sundaram Alliance
Insurance Co. Ltd.,
Cochin Branch, KPCC Junction,
M.G. Road, Ernakulam,
rep. by its Manager.
(By Adv. Sailesh Kumar)
3. Sundaram Finance Ltd.,
21 Patulos Road, Chennai – 600 002,
rep. by its Director.
4. Sundaram Finance Ltd., 1st Floor,
Anil Bhavan, YMCA Boat Jetty Road,
Alapuzha, rep. by its Manager.
5. Sundaram Finance Ltd.,
Jesus Road Junction, Nannuvakkad,
Pathanamthitta, rep. by its Manager.
(By Adv. J. Radhakrishna Pillai) ….. Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that the 1st complainant is the registered owner of a Maruti 800 Car bearing Reg.No.KL.3M/5365 and the said car was purchased from Sarathi Motors, Kuttoor, Thiruvalla during July 2005. For purchasing the car, the 1st complainant availed a loan of ` 1,60,000 from the third opposite party as per an agreement. The 2nd complainant is the wife of the 1st complainant, stood as a guarantor to the aforesaid transaction. As per the loan agreement the complainants are required to repay the loan amount in sixty monthly instalments of ` 3,270 each. The 1st and 2nd opposite parties are engaged in the business of vehicle insurance and the complainant’s vehicle was insured with the 1st and 2nd opposite parties at the time of purchase and that insurance continued by renewal. While availing the financial assistance from the 3rd opposite party, the complainant had entrusted 41 post dated cheques for the payment loan instalments from 17.8.2005 to 17.12.2008 and thereafter the complainant had entrusted another 9 cheques also with the 3rd opposite party towards the payment of the loan instalments.
3. While so, on 4.10.2008, when the insurance policy was in force, the complainant was brutally assaulted and his Maruthi 800 Car and other valuables were robbed by few goons. In that instant the 1st complainant was sustained serious injuries and had undergone treatment at Taluk Hospital, Ranni and Marthoma Medical Mission, Ranni from 4.10.2008 to 6.10.2008. A criminal case was also registered by Pathanamthitta police in this regard on 7.10.2008, u/s.342, 349, 506(1), r/w Sec. 34 of IPC. Subsequently the case was transferred to Aranmula police as the place of occurrence is within the jurisdiction of Aranmula police station. Later the said case was charge sheeted by the police. The said incident was promptly informed by the 1st complainant to the first and third opposite parties on 8.10.2008. As per the terms and conditions of the insurance policy, the 1st and 2nd opposite parties are liable to indemnify the complainant to the tune of ` 1,17,000 for the loss of his car. The complainant also submitted a claim before the 1st opposite party on 14.10.2008. After receiving the complainant’s claim, the 1st opposite party directed the complainant to produce 4 documents vide their letters dated 2.1.2009 and 5.5.2009. On getting the said letters, the complainant submitted 3 documents out of the 4 documents demanded by the opposite parties before the 1st opposite party on 28.5.2009. The remaining document demanded by the 1st opposite party is the final report of the criminal case, which was not prepared and submitted by the police at that time and the said case was charge sheeted by the police only on 04.06.2010.
4. A period of 21 months elapsed after the submission of the insurance claim. But the opposite parties 1 and 2 failed to disburse the claim amount to the complainant so far. At the same time, opposite parties 3 to 5 were compelling and threatening the complainant for the payment of the balance loan amount of the vehicle. Opposite parties 1 and 3 are sister concerns and they have colluded together with oblique motive. The third opposite party is also demanding exorbitant rates of interest and penalty from the complainant for the non-payment of the dues. If in any event, the third opposite party realizes exorbitant rates of interest and penalty from the complainant, the first opposite party is liable for the same. The complainant also caused a legal notice on 14.03.2010 to the first opposite party for an amicable settlement. But even then they have not settled the complainant’s claim. The non-settlement of the complainant’s claim is a clear deficiency in service which caused mental agony and financial loss to the complainant and the opposite parties are liable for the same. Hence this complaint for getting the claim amount of ` 1,17,000 with 12% interest per annum from 14.10.2008 along with compensation of ` 50,000 with 12% interest per annum from the first opposite party and for realizing an amount of ` 25,000 from the third opposite party with 12% interest as compensation and for realizing the liability of higher rates of interest and penalty in connection with the loan transaction from the first opposite party along with cost of this proceedings. The complainant also prays for an order restraining the 3rd and 4th opposite parties from initiating any action against the complainant for recovering the loan amount until the first opposite party pays the insurance claim.
5. In this case, opposite parties 1, 2 and 5 entered appearance and filed their version. Opposite parties 3 and 4 are exparte. Opposite parties 1 and 2 filed a common version and 5th opposite party filed separate version.
6. The main contentions in the version of first and second opposite parties are as follows: The opposite parties admitted the policy in question in the name of the complainant. But the complainant’s claim is belated as he had submitted his claim only on 22.10.2008 whereas the alleged incident was occurred on 04.10.2008. As per the terms and conditions of the policy in question, the notice of loss or damage shall be given to the company immediately upon the happening of the incident. However, in this instant case, the complainant informed about the theft of the vehicle only on 22.10.2008 and it is after 18 days from the date of occurrence. Belated intimation is a violation of policy condition thereby the complainant had violated the policy conditions and in the case of violation of policy conditions, insurer is not liable to pay the claim amount. Apart from this, opposite parties also raised a contention in their version that the complainant failed to produce the final report of the criminal case registered in this regard inspite of intimations given by the opposite parties as the final report is highly necessary for settling the claim. Non-submission of final report is also a violation of policy condition. Further, as per the certificate issued by the Circle Inspector of Police, Kozhencherry, the investigation of the case is still continuing and the police have not concluded that the vehicle is not recoverable. Due to the belated intimation, opposite parties are prevented from their investigating right which also is a violation of the policy condition. Thus, due to the aforesaid violations of the policy conditions, answering opposite parties found that the complainant’s claim is inadmissible thereby the claim was denied and hence there is no deficiency of service from the part of the answering opposite parties. With the above contentions, opposite parties 1 and 2 pray for the dismissal of the complaint.
7. The contentions in the version of the 5th opposite party is as follows: The 5th opposite party admitted the loan transaction with the complaint. After short-while of the execution of the loan agreement, the complainant stopped the remittance to the said loan and an amount of ` 43,916 and its future interest is due from the complainant. The 5th opposite party is not aware of the criminal case. As per the loan agreement, the complainant is liable to pay the entire amount due to them and they are entitled to realize the same. The allegation that the third opposite party is colluding with the first opposite party in deferring the settlement of the claim is false. The answering opposite party has not threatened the complainant or demanded exorbitant rates of interest and penalty. According to them, there is no territorial jurisdiction to this Forum for entertaining this complaint as no part of the cause of action arised within the jurisdiction of this Forum. The complainant is not entitled to get an order restraining the 5th opposite party from initiating any action against the complainant. The complainant had not suffered any damage by any acts of the answering opposite party. With the above contentions, the answering opposite party also prays for dismissing the complaint with their cost.
8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
9. The evidence of this complaint consists of the oral deposition of PW1 and DW1 and Exts. A1 to A19 series and Exts. B1 to B5. After closure of evidence both sides filed their argument notes and they were heard.
10. The Point: The complainant’s allegation is that Maruti 800 car purchased by the complainant with the financial assistance of opposite parties 3 to 5 was insured with opposite parties 1 and 2. The complainant lost his car on 04.10.2008 and on that day, the said car is having a valid insurance policy with the first and second opposite parties. On 04.10.2008, the said car was robbed by few goons after brutally assaulting the complainant. For the said incident, a criminal case was registered and the complainant had undergone treatment. The loss of the car was intimated to the opposite parties 1 and 2 and he had submitted all relevant documents demanded by the said opposite parties except the final report of the criminal case which was not prepared by the concerned police. The said criminal case was charge sheeted by the police only on 04.06.2010. But the opposite parties failed to settle the complainant’s claim. Because of the non-settlement of the claim, the complainant failed to pay the loan instalments to opposite parties 3 to 5. So opposite parties 3 to 5 threatened him for the payment of the loan amount and they demanded exorbitant rate of interest and penalty for the dues. Opposite parties 3 to 5 is the sister concern of the first and second opposite parties. According to the complainant, there is an illegal collusion by all opposite parties for not honouring the complainant’s claim as well as for the illegal demand of exorbitant rate of interest and penalty. Since the complainant had a valid insurance policy and he had complied all formalities, the denial of the complainant’s claim by the first and second opposite parties and the demand of the other opposite parties for the loan amount, interest and penalty are illegal and unfair trade practice and they are liable to the complainant for the loss and sufferings caused to the complainant due to the above said acts of the opposite parties.
11. In order to prove the case of the complainant, the first complainant filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A19 series. Ext. A1 is the photocopy of the Certificate of Registration of the motor car bearing registration No. KL-3M/5365. Ext. A2 is the Insurance Policy Certificate in respect of motor car bearing registration No. KL-3M/5365. Ext. A3 is the copy of letter dated 30.07.2005 issued by the third opposite party to the complainant. Ext. A4 is the copy of letter dated 31.01.2009 sent by the third opposite party to the complainant. Ext. A5 is the Discharge card dated 05.10.2008 issued by the Medical Officer, M.C. Cherian Memorial Govt. Taluk Hospital, Ranni. Ext. A6 is the Discharge summary dated 06.10.2008 issued by the Medical Superintendent, Mar Thomas Medical Mission Hospital, Ranni. Ext. A7 is the photocopy of the First Information Report submitted before the Chief Judicial Magistrate Court, Pathanamthitta by Sri. K.R. Anilkumar, Sub Inspector of Police, Pathanamthitta dated 07.10.2008. Ext. A7(a) is the First Information Statement. Ext. A8 is the First Information Report submitted before the Judicial First Class Magistrate Court, Pathanamthitta by S. Nandakumar, Sub Inspector of Police, Aranmula dated 08.10.2008. Ext. A8(a) is the copy of First Information Statement. Ext. A9 is the Final Report in Crime No.556/2008 of Aranmula Police Station submitted before the Judicial First Class Magistrate Court, Pathanamthitta. Ext. A10 is the copy of letter dated 08.10.2008 issued by the complainant to the second opposite party. Ext. A10(a) is the copy of the letter dated 08.10.2008 sent by the complainant to the third opposite party. Ext. A11 is the copy of letter dated 02.01.2009 from the first opposite party to the complainant. Ext. A12 is the copy of letter dated 05.05.2009 issued by the complainant to the first opposite party. Ext. A13 is the copy of letter dated 28.05.2009 from the complainant to the second opposite party. Ext. A14 is the copy of Certificate dated 27.05.2009 issued by the Circle Inspector of Police, Kozhencherry. Ext. A15 is the copy of registration particulars regarding motor car bearing No. KL-3M/5365 dated 15.05.2009. Ext. A16 is the copy of letter dated 06.03.2010 sent by the third opposite party to the complainant. Ext. A17 is the copy of Lawyer’s notice dated 23.04.2010 issued by the opposite party to the complainants. Ext. A18 is the copy of letter dated 07.06.2010 sent by the third opposite party to the second complainant. Ext. A19 is the copy of letter dated 14.03.2010 sent by the complainant to the first opposite party. Ext. A19(a) is the postal receipt of Ext.A19.
12. On the other hand, the contention of the first and second opposite parties is that the complainant had violated the policy conditions by giving belated intimation regarding the loss of the car and by not producing the required documents. The violation of policy conditions by an insured itself disentitles the claim and hence they argued that they have not committed any deficiency of service or unfair trade practice and the complainant is not entitled to get any of the reliefs as prayed for in the complaint.
13. In order to prove the contentions of the said opposite parties, the Legal Executive of the first and second opposite parties filed a proof affidavit along with certain documents. On the basis of the proof affidavit, he was examined as DW1 and the documents produced were marked as Exts. B1 to B5. Ext. B1 is the copy of insurance policy schedule and certificate of insurance. Ext. B2 is the terms and conditions of insurance policy. Ext. B3 is the photocopy of the First Information Report. Ext. B4, B4(a), B4(b), B4(c), B4(d) and B4(e) are the letters dated 21.11.2008, 02.01.2009, 05.05.2009, 12.06.2009, 19.08.2009 and 05.03.2010 respectively issued by the first opposite party to the complainant. Ext. B5 is the photocopy of the certificate dated 27.05.2009 issued by the Circle Inspector of Police, Kozhencherry.
14. 5th opposite party has not adduced any oral or documentary evidence, but they have cross examined PW1 and DW1.
15. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the complainant and the opposite parties 1 and 2 have no dispute regarding the validity of the policy and the loss of the vehicle. The disputes of the opposite parties 1 and 2 is that the complainant delayed in intimating the loss of the vehicle and the intimation was submitted only on 22.10.2008 whereas the incident was occurred on 04.10.2008 and he failed to submit the final report of the criminal case registered in connection with the loss of the vehicle. According to the opposite parties 1 and 2, the above said acts of the complainant are clear violation of the policy conditions and hence they are not liable to the complainant. But according to the complainant, he had intimated the matter to the first and second opposite parties on 14.10.2008 and he had submitted all relevant documents demanded by them except the final report of the criminal case which was prepared by the policy only on 04.06.2010. Along with the documents submitted by the complainant, he had also submitted a certificate dated 27.05.2009 of the Circle Inspector of Police, Kozhencherry stating that the vehicle involved in the case owned by the complainant is not traced so far and enquiries are being continuing.
16. On the basis of the rival contentions of the parties, we have perused the materials and found that the robbery resulted in the loss of the vehicle was occurred on 04.10.2008 as per Ext. A7 series FIR. As per the version and as per Exts. A11 and A12 letters of opposite parties, they have received the intimation of the incident on 22.10.2008. As per Exts. A5 and A6, the complainant was under treatment upto 06.10.2008. As per Ext. B2 policy conditions, there is no specific stipulation regarding the number of days within which an insured should give the intimation to the company. The only stipulation is that it should be reported immediately. At the same time, the said policy condition also says that the insured shall give immediate notice to the police. In this case, the insured has intimated the matter to the police on 07.10.2008 i.e. immediately after his discharge from the hospital. In view of the above facts, we do not think that the intimation is much belated. Further, opposite parties have no case that the alleged incident is false and is a concocted one. In the circumstances, we find that objection of the opposite parties regarding the delayed intimation is not sustainable.
17. Then comes the question regarding the settlement of the complainant’s claim. According to opposite parties 1 and 2, the complainant had not submitted the required documents. On a perusal of the exhibits and as per the admission of opposite parties 1 and 2, the complainant had not submitted the final report of the criminal case. But it is seen from evidence that the final report of the criminal case was submitted by the police only on 04.06.2010 before the Judicial First Class Magistrate Court No.1, Pathanamthitta. So the non-submission of the final report as per the direction of opposite parties 1 and 2 is not due to the fault of the complainant. At the same time, the complainant had submitted Ext. A14 certificate dated 27.05.2009 of the Circle Inspector of Police, Kozhencherry showing that the lost vehicle is not traced so far. Immediately on receipt of the said certificate, the complainant had submitted it to opposite parties. The said certificate was issued by the police after about 7 months from the date of occurrence. In this juncture, it is to be noted that the first and second opposite parties have no dispute or allegation that the criminal case in question is a false case concocted purposely by the complainant for getting undue advantage from the opposite parties on the strength of the insurance policy. In such a situation, the demand for the final report cannot be justified. The validity of the policy and the loss of the vehicle are admitted facts. So the opposite parties are bound to settle the complainant’s claim. But they have not settled the claim even after getting Ext. A14 certificate. The above said act of the opposite parties is a clear deficiency in service.
18. According to the complainant, he had sent Ext. A14 certificate on 28.05.2009 along with Ext. A13 letter. But opposite parties 1 and 2 have no objection against Ext. A13 letter. So it can be presumed that the complainant had submitted the relevant records for settling the claim by the end of May 2009.
19. The next question is with regard to the reliefs in respect of the loan transaction with opposite parties 3 to 5. According to the complainant, opposite parties 3 to 5 is a sister concern of the opposite parties 1 and 2 and opposite parties 3 to 5 threatened the complainant for the payment of the loan amount and demanded exorbitant interest and penalty for the dues. The complainant also has an allegation that the opposite parties colluded together for denying the complainant’s claim and for demanding exorbitant interest and penalty for the loan dues. But the complainant has not adduced any evidence for substantiating the said allegations. Opposite parties 1 and 2 and 3 to 5 are separate and different entities and the transactions of the complainant with them are not inter related. So we are not inclined to accept the complainant’s demand in this regard as such. The liabilities of the complainant to opposite parties 3 to 5 is based on the loan agreement and not based on the insurance payment. Moreover, complainant had no allegation of deficiency of service against the said opposite parties. So we find no deficiency of service against opposite parties 3 to 5 in connection with the loan agreement executed between them. So the complainant is bound to discharge his liabilities as per the terms and conditions of the loan agreement. However, we find that the complainant had sustained certain loss on account of interest and penalty due to the denial of the complainant’s claim by the opposite parties 1 and 2 at relevant time. Therefore, this complaint can be allowed with modifications.
20. In the result, this complaint is allowed as follows:
(i) Opposite parties 1 and 2 are directed to pay the Insured’s Declared Value (IDV) of ` 1,17,000 less statutory deductions to the complainant within 30 days from the date of receipt of this order along with 9% interest per annum from June 2009 onwards till this date along with cost of ` 2,500 (Rupees Two thousand five hundred only.
(ii) Opposite parties 1 and 2 are further directed to pay the interest and penalty, if any, for the loan instalments outstanding from June 2009 onwards as per the loan agreement executed between the complainant and opposite parties 3 to 5. To be more specific, opposite parties 1 and 2 are not liable for the interest and penalty, if any, for the instalments prior to June 2009.
(iii) The complainant is directed to surrender the Registration Certificate and allied documents to opposite parties 1 and 2 with proper endorsement before getting the claim amount and other amount ordered by this Forum for taking possession of the vehicle in future, if the said vehicle is traced out later.
(iv) Since interest for the IDV and the loan instalments are allowed, no separate compensation is allowed. In the event of non-compliance of this order, the complainant is allowed to realize the whole amount ordered herein above with 10% interest per annum from today till the whole realization.
Declared in the Open Forum on this the 23rd day of November, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : B. Gopalakrishnan.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the Certificate of Registration of the motor car bearing
registration No. KL-3M/5365.
A2 : Insurance Policy Certificate in respect of motor car bearing registration No.
KL-3M/5365.
A3 : Copy of letter dated 30.07.2005 issued by the third opposite party to the
complainant.
A4 : Copy of letter dated 31.01.2009 sent by the third opposite party to the
complainant.
A5 : Discharge card dated 05.10.2008 issued by the Medical Officer, M.C.
Cherian Memorial Govt. Taluk Hospital, Ranni.
A6 : Discharge summary dated 06.10.2008 issued by the Medical
Superintendent, Mar Thomas Medical Mission Hospital, Ranni.
A7 : Photocopy of the First Information Report submitted before the Chief
Judicial Magistrate Court, Pathanamthitta by Sri. K.R. Anilkumar, Sub
Inspector of Police, Pathanamthitta dated 07.10.2008.
A7(a) : First Information Statement.
A8 : First Information Report submitted before the Judicial First Class Magistrate
Court, Pathanamthitta by S. Nandakumar, Sub Inspector of Police,
Aranmula dated 08.10.2008.
A8(a) : Copy of First Information Statement.
A9 : Final Report in Crime No.556/2008 of Aranmula Police Station submitted
before the Judicial First Class Magistrate Court, Pathanamthitta.
A10 : Copy of letter dated 08.10.2008 issued by the complainant to the second
opposite party.
A10(a) : Copy of the letter dated 08.10.2008 sent by the complainant to the third
opposite party.
A11 : Copy of letter dated 02.01.2009 from the first opposite party to
the complainant.
A12 : Copy of letter dated 05.05.2009 issued by the complainant to the first
opposite party.
A13 : Copy of letter dated 28.05.2009 from the complainant to the second
opposite party.
A14 : Copy of Certificate dated 27.05.2009 issued by the Circle Inspector of Police,
Kozhencherry.
A15 : Copy of registration particulars regarding motor car bearing No. KL-
3M/5365 dated 15.05.2009.
A16 : Copy of letter dated 06.03.2010 sent by the third opposite party to the
complainant.
A17 : Copy of Lawyer’s notice dated 23.04.2010 issued by the opposite party to
the complainants.
A18 : Copy of letter dated 07.06.2010 sent by the third opposite party
to the second complainant.
A19 : Copy of letter dated 14.03.2010 sent by the complainant to the first opposite
party.
A19(a) : Postal receipt of Ext.A19.
Witness examined on the side of the opposite parties:
DW1 : G. Vinay Prakash.
Exhibits marked on the side of the opposite parties:
B1 : Copy of insurance policy schedule and certificate of insurance.
B2 : Terms and conditions of insurance policy.
B3 : Photocopy of the First Information Report.
B4, B4(a), B4(b), B4(c), B4(d) & B4(e) : Letters dated 21.11.2008, 02.01.2009, 05.05.2009,
12.06.2009, 19.08.2009 and 05.03.2010 respectively issued by the first
opposite party to the complainant.
B5 : Photocopy of the certificate dated 27.05.2009 issued by the Circle Inspector
of Police, Kozhencherry.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Gopalakrishnan.B, Kottarathil House, Mundappuzha, Ranni,
Pathanamthitta Dist., Pin – 689 672.
(2) Manager, Royal Sundaram Alliance Insurance Co. Ltd., Sundaram Towers, 45 & 46, Whites Road, Chennai – 600 014.
(3) Manager, Royal Sundaram Alliance Insurance Co. Ltd., Cochin Branch, KPCC Junction, M.G. Road, Ernakulam,
(4) Director, Sundaram Finance Ltd., 21 Patulos Road, Chennai – 600 002.
(5) Manager, Sundaram Finance Ltd., 1st Floor, Anil Bhavan, YMCA Boat Jetty Road, Alapuzha.
(6) Manager, Sundaram Finance Ltd., Jesus Road Junction, Nannuvakkad,
Pathanamthitta.
(7) The Stock File.
