BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Tuesday the 10th day of January, 2006.
C.C.No.144/2005
R.Sreenivasa Rao,
Aged 58 years,
Tula Complex, Bellary Road,
Kurnool. . . . Complainant
-Vs-
1.M/s National Insurance Company Ltd.,
Rep. by its Divisional Manager,
Division No.XVII, 12, Community Centre,
1st and 2nd Floor, Estate of Kailash,
New Delhi-110 065.
2.M/s National Insurance Company Ltd.,
Rep. by its Branch Manager,
Tula Complex, Gandhi Nagar,
Kurnool. . . . Opposite parties
This complaint coming on 9.1.2006 for arguments in the presence of Sri M.Sivaji Rao, Advocate, Kurnool for complainant and Sri L.Hariharanatha Reddy, Advocate, Kurnool for opposite parties No.1 & 2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Smt.C.Preethi, Member)
1. This Consumer Complaint of the complainant is filed under Section 12 of C.P.Act, 1986 seeking payment of Rs.17,000/- from opposite parties as insured amount with 24% interest from the date of lost of mobile set, Rs.10,000/- towards compensation, cost of the complaint and any such other relief or reliefs which the complainant is entitled in the circumstances of this case.
2. The brief facts of the complainant’s case is that the complainant on 5-9-2004 purchased a Nokia Company made handset of model – 6600 from Anwar Times, Kurnool for Rs.17,000/-. The said handset was covered under policy bearing No.351700/46039500324. As per the terms and conditions of the policy if any mobile handset is lost the cost of the handset shall be paid by opposite party No.1.
3. On 28-1-2005 at 1 p.m the complainant boarded a APSRTC bus of Allagadda depot to go to his native place Chagalamarri and sat in the first seat. There after, the complainant got down the said bus to purchase a water bottle and kept his handset in his bag and the bag was clearly visible from the shop. After coming back, the complainant noticed that the bag was missing and searched for the bag in the whole bus and enquired passengers also. On 29-1-2005 the complainant gave a complaint to IV town police station and informed the same to the opposite party No.1 who in turn asked complainant the sent required documents and claim form, accordingly on 23-2-2005 the complainant sent claim form along with the required documents to opposite party No.1. But to the dismay of the complainant the opposite party No.1 did neither replied not sent any amount, hence, the above said lapsive conduct of opposite parties constrained the complainant to file this complaint before this Forum for redressal.
4. In substantiation of his case the complainant relied on the following documents, viz (1) Attested copy of cash bill issued by the Anwar Times to the complainant dated 5-9-2004 (2) Attested copy of Certificate of Insurance S/A 3601973 (3) Letter dated 17-02-2005 addressed to the complainant by opposite parties along with theft claim form of the complainant dated 23-2-2005 and (4) Repudiation letter dated 1-3-2005 addressed to the complainant by the opposite parties, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 to A4 for its appreciation in this case and the complainant caused interrogatories to opposite party No.2.
5. In pursuance to the notice of this Forum as to this case of the complainant the opposite parties appeared through their standing counsel and contested the case by filing written version by opposite party No.2 and opposite party No.1 adopted the written version of opposite party No.2.
6. The written version of the opposite parties questions the maintainability of the complainant’s case either in law or on facts but admits the complainant purchased a Nokia handset model – 6600 under a special contingency policy of HCL Infinet Ltd., distributors for Nokia cell phones in India and the period of policy was for 12 months from the date of purchase. It further submits that after receiving a letter dated 11-2-2005 from the complainant along with enclosures regarding the theft of cell phone, the opposite parties on17-2-2005 requested to send translation of vernacular documents and claim form in order to proceed further. It submits that the handset of the complainant was covered under above said policy which was in force but the company is not liable to pay any amount to the complainant because due to the complainants own negligent and careless attitude he lost his Nokia handset by keeping the said cell unattended on the seat of APSRTC bus in the bus stand. The risk under the said policy covers only actual or threatened force of theft, in the absence any evidence of actual or threatened force the complainant cannot claim against the opposite parties and the opposite parties cannot be made liable for the said theft, when there is no actual or threatened force as per clause 1 B(d) of the certificate of insurance issued to the complainant. As per clause 1 B(d) of policy terms and conditions when the handset is left in any public place/public convenience and when there is no actual or threatened force the policy does not cover and lastly submits that the theft of handset of the complainant’s is false story created for the purpose of claiming insured amount from the opposite parties and seeks for the dismissal of the complaint as there is no deficiency of service on their part and the repudiation of claim is as per terms and conditions of the policy.
7. In support of its case the opposite parties relied on the following document viz. (1) Certificate of insurance S/A No.3601973 issued by opposite parties to the complainant, besides to the sworn affidavit of the opposite party No.2 in reiteration of its written version and the above documents is marked as Ex.B1 its appreciation in this case and suitabely replied to the interrogatories caused by the complainant.
8. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties :?
9. It is the simple case of the complainant that he purchased a Nokia mobile handset 6600 from Anwar Times and the said handset was covered under HCL safeguard of insurance vide Ex.B1/A2. According to the complainant he kept his handset in his bag while traveling in a APSRTC bus. The said bag was kept on the seat of the said bus and he did not find the bag on the seat on his return. But the opposite parties in their written version alleges that they repudiated the claim of the complainant vide Ex.A.4 as they are not liable to pay the insured amount to the complainant as per clause 1 B(d) of the certificate of insurance issued to the complainant, clause 1 B(d) says that theft of handset from any public place/public convenience except wherein the handset is taken by actual or threatened force. It is not in dispute that the Certificate of Insurance is issued to the complainant which is purely a contract between the insurer and insured and both the parties are bound by the terms and conditions of the policy and as per clause I (B) (d) it is clear that theft should be by actual or threatened force and the reason averred by the complainant is not covered under the said policy vide Ex. B1/A2.
10. The complainant in support of his case relied on the following judgments. (1) Sarkar Iron Industries and another V/s Branch Manager, New India Assurance Company reported in III (1994) CPJ page 485 where in it was held that whether the property was lost by theft following upon actual forcible and violent entry in premises by persons committing theft.(2) National Insurance Company Ltd., V/s Suresh Gupta reported in I (2005) CPJ page 436 wherein it was held that theft is genesis of every other crime namely robbery, dacoity, hijacking or burglary. (3)National Insurance Company Ltd., V/s Mrs. Premalata Agarwal reported in I (2004) CPJ page 5 NC wherein it was held that Robbery is an aggravated form of theft, necessarily includes theft hence, covered under policy, insurance company was liable. The above citations referred by the complainant has little relevancy to this case of the complainant as per the terms and conditions of the policy issued to the complainant. As per the decision of Apex Court in United India Insurance Co. Ltd Vs M/S Harchand Rai Chandan Lal reported in IV 2004 CPJ page 15 (S.C) it was specifically held that theft should have preceded with force or violence as per terms and conditions of Insurance policy. In order to substantiate a claim an insured has to establish that theft took place preceding with force or violence and if it is not, then the Insurance company will be well within their right to repudiate the claim of the insured. In the case on hand it is an admitted fact that there was no actual or threaned force as was necessary under the terms and conditions of the policy. Hence, the complainant cannot claim indemnification against the opposite parties, hence, following the aforementioned citation of Supreme Court, the citations referred by the complainant has no application in this case. Therefore, the complainant is not remaining entitled to the insured amount under the said policy issued by the opposite parties. Hence, the complainant is not entitled to any of the reliefs claimed in the complaint and the same is dismissed for want of merit and force.
12. In the result the complaint is dismissed for want of merit and force.
Dictation to Stenographer, transcriber by him, corrected and pronounced by us in the open court this the 10th day of January, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
Exhibits Marked for the complainant:
Ex.A1 Attested copy of Cash bill of Anwar Times, Dt.5-9-2004.
Ex.A2 Attested copy of certificate of Insurance S/A No.3601973.
Ex.A3 Letter, Dt.17-2-2005 along with Theft Claim Form.
Ex.A4 Repudiation letter, Dt.1-3-2005.
Exhibits Marked for the opposite parties:
Ex.B1 Original certificate of Insurance S/A 3601973 along with Terms and
Conditions.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri. M.Sivaji Rao, Advocate, Kurnool
2. Sri. L.Hariharanatha Reddy, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on:
