BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Friday the 5^th  day of July, 2012

C.C.No.64/2011

Between:

G.Lakshmana Swamy,S/o Aswartham Setty,

H.No.4-58, Kothapeta, Bethamcherla Village -518 599,Kurnool District.               

                             …Complainant

                                                  -Vs-

1. M/s Baja Allianz General Insurance Company Limited,Represented by its Authorized Signatory,

3^rd Floor, Shop No.10,11,12, Alankar Plaza, Park Road, Kurnool-518 001.

2.M/s Baja Allianz General Insurance Company Limited,Represented by its Managing Director,

   No.12, G.E.Plaza, Airport Road, Yerawada,PUNE-411 006.                              

     ...Opposite ParTies

This complaint is coming on this day for orders in the presence of Sri M.Sivaji Rao, Advocate for complainant and Sri.A.V.Subramanyam, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.

    ORDER

(As per Smt. S.Nazeerunnisa, Lady Member)                                                                    C.C. No.64/2011

1.     This complaint is filed under section 12 of C.P. Act, 1986 praying:-

1.   To direct the opposite parties to pay the assured amount of Rs.10,00,000/- with interest @24% per annum;

1.   To pay a sum of Rs.25,000/- towards the compensation for mental agony and hardship

1.   To pay the costs of this complaint;

1.   To  award costs of Rs.2,000/-;

1.   To pass any other order or orders that are deems to be fit and proper in the circumstance of the case.

2.    The case of the complainant in brief is as under:- The complainant is the owner of Tipper Lorry bearing  No.AP21 X 7640 which was insured with opposite party No.1 under the policy bearing No.OG-09-1806-0410-00000009 for the sum of Rs.10,00,000/-.  The insured vehicle was engaged in doing widening of earthen embankment to improve and formation of double lane road on Krishna Left Flood Bank on Krishna Canal Bund near Thotlavallur Police Station, Vuyyuru Circle, Vijayawada.  On 20-08-2009 the vehicle was stolen by unknown persons from the work site.  The complainant informed the same to opposite parties over telephone on the same day and also to the police, but the SHO of Vuyyuru Police Station did not register the case.   The complainant filed a private complaint before the 1^st Metropolitan Magistrate, Vijayadawa.  On the direction of the Honourable Court, the police registered the case U/s 379 IPC in Crime No.99/2009 dated          16-10-2009.  After investigation the police closed the case on the ground that the said vehicle was “Undetectable”.  The complainant submitted claim form to opposite party No.1 after receipt of FIR copy and other relevant documents.  The opposite parties repudiated the claim on flimsy ground amounting to deficiency of service.  Hence the complaint.

3.     Opposite party No.2 filed written version and same is adopted by opposite party No.1.  Opposite party No.2 filed written version stating that the complaint is not maintainable.  It is liable to be dismissed on the ground of non joinder of necessary party i.e., (Financier ICICI Bank).  The opposite parties admitted that the complainant insured his Tipper Lorry bearing No. AP 21 X 7640 with opposite party No.1 under contractors plant and machinery.  The complainant violated the terms and conditions of the policy.   As per the policy conditions that the vehicle being used at the premises mentioned in it at S.V.G. Raghavendra Slabs and Minerals, Kurnool Road, Bethamcheral, Kurnool District, and in case of any change of location of vehicle, there should be prior intimation to the opposite parties company, but the insured vehicle being used at Vijayawada without any intimation to opposite parties.  The complainant informed the alleged theft on         11-11-2009 with an abnormal delay of 84 days.  It is violation of policy terms and condition 6 (a) as well as denial of opportunity to verify the genuinity of the claim.  The opposite parties appointed surveyor.  The said surveyor made enquiries with regard to alleged theft and submitted his report.  In response to the said surveyor’s enquiry the complainant himself stated in his letter dated 16-08-2010 that one original key was with the financier and other was with the vehicle. There was willful negligence on the part of the complainant in safeguarding his vehicle.  The opposite parties repudiated the claim rightly, and there is no deficiency of service on the part of opposite parties.  The complaint is liable to be dismissed. 

4.     On behalf of the complainant Ex.A1 to A13 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties 1 and 2 Ex.B1 to B9 are marked and sworn affidavit of opposite party No.1 is filed.

5.     Both sides filed written arguments.

6.     Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of Opposite Parties?

1. Whether the complainant is entitled for the reliefs as prayed for?

1. To what relief?

7.      POINTS i and ii:-  Admittedly the complainant is the owner of the Tipper bearing No.AP21 X 7640.  The complainant insured his vehicle with the opposite parties under Ex.A6 = Ex.B1.  Ex.A3 is the registration certificate of vehicle stands in the name of the complainant.  The vehicle key is marked as Ex.A2.  The photo copy of Good carriage permit dated 28-04-2007 is marked as Ex A4.  It is the case or the complainant that the insured vehicle was stolen by unknown person from the worksite while the work was in progress near Thotlavallur Police Station, Vuyyance circle, Vijayawada.  The complainant informed the same to opposite parties over telephone and also to the police, but the police did not register the case.  The complaint filed private complainant before 1^st metropolitan magistrate, Vijayawada dated 12-10-2010, it is marked as Ex A8.  On the direction of the Honourable Court the SHO Thotlavallur Police Station registered a case in Crime No.99/2009 dated 16-10-2009, it is marked as Ex.A7.  After investigation the police closed the case on the ground that the said vehicle was “Undetectable”.  The proceeding and order is marked as Ex A9 and A10.  The complainant submitted FIR copy and other relevant documents to opposite parties on 11-11-2009, but opposite parties repudiated the claim on the ground that the complainant has violated the terms and conditions of the policy.  It is the case of opposite parties that the complainant violated the condition 6(a) of policy that in case of any accident it should be immediately informed the company by telephone or telegram as well as in writing, giving an indication as to the nature and extent of loss or damage. The company is not liable for any loss or damage of vehicle as no information was received by the company with in Fourteen days of its occurrence.  There is delay of 84 days in informing the alleged theft.  The insured vehicle being used at Vijayawada without intimation of opposite parties. The opposite parties appointed a surveyor.  The surveyor report is marked as Ex B2.  It is noted in Ex.B2 that the complainant told him that one original key was with financier and other key was with the vehicle.  There is a willful negligence on the part of the complainant in safeguarding his vehicle.  The learned counsel appearing for the opposite parties cited decisions in support his version.  In III (2006) CPJ 240 (NC), the New India Assurance Company Limited -Vs- Shri Dharam Singh S/o Shri Mal Singh on M.G.F India (Limited), the National Commission held that the conduct of complainant in lodging FIR belately, unnatural, raises suspicion regarding manner in which truck lost.  In another decision reported in II (2008) CPJ 182 (NC) United India Insurance Company Limited –Vs- Maya II the National Commission held that there was a gross negligence in leaving the truck unattended by the road side, at an isolated place with the ignition key on the dash board becomes even more serious.  In the present also the complainant negligently left the vehicle unattended at the work site.  The learned counsel appearing for the complainant argued that in case of theft of vehicle, the violation of terms and conditions of the policy is not germane.  In support his contention he cited following decisions reported in

1.      IV (2008) CPJ1 (SC)

2.      I (2012) CPJ 377 (NC)

3.      II (2011) CPJ 132 (NC)

4.      II (2012) CPJ 252

 In the above noted decisions it was held that the nature of use of vehicle cannot looked in to and the Insurance Company cannot repudiate the claim on that basis.  The insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft.  In the present case there is clear breach of conditions on the part of complainant under the policy.  There is delay of 84 days in informing the alleged theft to opposite parties and change of location of vehicle without intimation to opposite parties.  The facts of above case are not applicable to present case. The complainant could not place credible evidence to show that his vehicle was committed theft and he informed the same to the opposite parties without any delay.  The complainant violated the terms and conditions of the policy by not informing the alleged theft to the insurance company immediately through phone and as well as in writing.  The complainant was also negligent in leaving the vehicle unattended at the work spot.  If there was watchman at the time of the committing theft of the alleged vehicle, he would have contact the culprit.  In the present case there is no evidence to show that any one at the work spot saw the person culprits who committed the theft.  The policy Ex.B1 is a special policy named as contractor plant and machinery policy.  There is also mention in the policy about location.  The complainant is not expected to take the vehicle to Vijayawada from the location mentioned in Ex.B1, without the permission of the insurance company.  The complainant violated the terms and conditions of the policy.  It is argued by the learned counsel appearing for the complainant that the breach of policy conditions regarding nature of use of vehicle is not germane and it cannot be looked into.  In the present case the violation of the conditions of the policy is not regarding nature of use of vehicle.  The complainant violated other terms and conditions of the policy.  The opposite parties rightly repudiated the claim of the complainant on the ground that he violated the terms and conditions of the policy.   Therefore we are of opinion that the complainant is not entitled for any relief as prayed for.  There is no deficiency of service on the part of the opposite parties.

8.     In the result, the complaint is dismissed without costs.   

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 5^th day of July, 2012.

Sd/-                                   Sd/-                                   Sd/-        

MALE MEMBER                      PRESIDENT                 LADY MEMBER

                                 APPENDIX OF EVIDENCE

                                    Witnesses Examined

For the complainant : Nil                 For the opposite parties : Nill

List of exhibits marked for the complainant:-

Ex.A1                Sale invoice of Rs.14,80,070/- No.KNL/1091/06-07

dated 27-12-2006.

Ex.A2.       Vehicle key.

Ex.A3                Photo copy of Registration Certificate Vehicle  

No.AP21 X 7640 dated 23-04-2007.

Ex.A4                Photo copy of Goods Carriage Permit dated 28-04-2007.

Ex.A5                Photo copy of complaint copy to S.H.O. of Thotlavalluru

                P.S. dated 21-08-2009.

Ex.A6                Photo copy of Policy No.OG-09-1806-0410-00000009.

Ex.A7                Photo copy of F.I.R. in Crime No.99/2009 Thotlavalluru

                P.S. dated 16-10-2009.

Ex.A8                Photo copy of complaint filed before the First Metropolitan

Magistrate, Vijayawada dated 12-10-2009.

Ex.A9                Photo copy of Letter of S.H.O. to Assistant Commissioner

                of police, East Zone, Vijayawada City dated 16-05-2010.

Ex.A10       Photo copy of Proceedings of the Assistant Commissioner

                of Police, East Zone, Vijayawada City, dated 23-05-2010.

Ex.A11       Photo copy of Repudiation Letter dated 24-12-2010.

Ex.A12       Photocopy of Notice to the complainant dated 24-05-2010.

Ex.A13       Photo copy of Letter by complainant to opposite party No.1

                dated 05-11-2009.

List of exhibits marked for the opposite parties:-

Ex.B1                Photo copy of Policy No.OG-09-1806-0410-00000009

                along with terms and conditions.

Ex.B2                Photo copy of Survey Report dated 22-11-2010.

Ex.B3                Office copy of Letter issued by Surveyor to complainant

                dated 05-02-2010.

Ex.B4                Office copy of Letter issued by Surveyor to complainant

                dated 02-03-2010.

Ex.B5                Office copy of Letter issued by Surveyor to complainant

                dated 12-04-2010.

Ex.B6                Office copy of Reply Letter by complainant to Surveyor

                dated 16-08-2010.

Ex.B7                Photo copy of Repudiation Letter dated 09-07-2010 along

                with postal receipt and Ack.

Ex.B8                Photo copy of Repudiation Letter dated 16-07-2010 along

with Acknowledgement.

Ex.B9                Photo copy of Repudiation Letter dated 24-12-2010 along

                with postal receipt.

Sd/-                                   Sd/-                                   Sd/-        

MALE MEMBER                 PRESIDENT                   LADY MEMBER

    // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties  :

Copy was made ready on             :

Copy was dispatched on               :