BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the21st day of December 2013
Filed on :24/11/2010
Present :
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC No. 622/2010
Between
1. M/s. N.P.R. Finance Ltd. : Complainants
Central Zone Apartments, ( By Adv. S.Sreekumar,
Ammankovil road, Ernakulam. Chittoor Road, Cochin-18)
2. P.N.Kunjumon,
S/o. Narayanan,
PokkaezhadethHouse,
Kizhakkambalam.P.O, Ernakulam
And
1. M/s. Oriental Insurance Co. Ltd. : Opposite parties
1st Floor, PMA Buildings, (By Adv. M.G.K.Menon,
Bank Junction, Aluva -693 101 CC/39/1521, Ernakulam, South
Railway Station Road, Kochi-
2. M/s.Oriental Insurance Co Ltd., 682016)
Regional Office, Muthoot Towers,
M.G. Road, Ernakulam
3. The Oriental Insurance Co. Ltd.,
Oriental (house) Asat Ali Road,
New Delhi-110 002
O R D E R
A. Rajesh, President.
1. The case of the complainants is as follows:
The 1st complainant is a company engaged in hire purchase/lease of motor vehicles and other accessories. The 2nd complainant executed a hire purchase agreement in favour of the 1st complainant in respect of stage carriage bus bearing Regn. No. KL-7F 4253 . As per the Hire purchase agreement the 1st complainant is the hirer of the vehicle. The vehicle was insured with the 1st opposite party with effect from 04.02.1997 for an amount of 4 lakhs. While so on 08.06.1997 at about 10 p.m. the vehicle was stolen from the possession of the 2nd complainant at a place near to Pukkattupady. The 2nd complainant duly intimated the same to the opposite parties. Moreover the 2nd complainant filed Criminal Complaint before the Hon'ble JFCM Court, Aluva and on that basis Aluva Police registered Crime No. 399/1997 U/s. 379 of IPC. The police filed a final report before the court dated 05.12.1997 stating that the vehicle as well as the culprits are non traceable. Though the 2nd complainant submitted the required documents the opposite parties have not paid the insurance amount. On 20.04.1999 he caused a lawyer notice to the opposite parties, the opposite parties sent a reply raising untenable contentions. So the 1st complainant filed a complaint before this forum as O.P. No. 824/1999. This Forum dismissed the complaint vide order dated 18.01.2000 on the ground that the complaint was premature. The 1st complainant preferred an appeal against the order before the Hon'ble State Consumer Disputes Redressal Commission. The Hon'ble State Consumer Disputes Redressal Commission dismissed the appeal on the ground that the hirer of the vehicle has not been made a party to the complaint. The Hon'ble Consumer Disputes Redressal Commission granted liberty to the 1st complainant to proceed against the opposite parties by filing another complaint along with the 2nd complainant. The complainants are entitled to get the insurance claim of Rs: 4,25,000/- together with a compensation of Rs: 50,000/- and costs of the proceedings. This complaint hence.
2. The version of the opposite parties.
The 1st complainant is a financing and money lending concern not a consumer as defined in the Consumer Protection act. A complaint filed by a non-consumer jointly with a consumer is not maintainable. There is no privity of contract between the 1st complainant and the opposite parties. The complaint filed by the 1st complainant is time barred and is hit by limitation and res-judicata. The 1st opposite party had issued an 'act only' policy for the period from 04.02.1997 to 03.02.1998 in favour of the 2nd complainant covering vehicle bearing Regn No. KL-7/F4253. The policy was later converted to “package policy” at the request of the 2nd complainant dated 02.05.1997. thereafter in the night of 08.06.1997 theft of the vehicle is alleged to have occurred. The theft of the vehicle was not reported to the opposite parties immediately which is a violation of condition No. 1 in the policy. The 2nd complainant did not immediately report the theft of the vehicle to the police, it was reported only on 11.09.1997. The theft was reported to the police only on 20.06.1997. The 2nd complainant did not take all steps to safe guard the vehicle from loss or damage. The vehicle was left unguarded with the ignition key in the bus. There was violation of the conditions No. 5 in the policy . There is no merit in the complaint filed by the complainants and deserves dismissal.
3. The 2nd complainant was examined as PW1 and Exts. A1 to A6 were marked. No oral evidence was adduced by the opposite parties. Exbts B1 to B6 were marked. Heard the learned counsel for the parties.
4. The points that enunciated for consideration are as follows:
Whether the complaint is barred by limitation?
Whether the complainant is barred by res-judicata?
Whether the complainants are entitled to get insurance claim from the opposite parties?
Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainants?
5. Point Nos. i & ii At the threshold the opposite parties challenged the maintainability of this complaint on the following grounds?
a. The 1st complainant is not a consumer as defined in
the Consumer Protection Act.
b. A complaint filed by a non-consumer jointly with a consumer
is not maintainable?
c. The complaint is barred by limitation?
d. the complaint is barred by the principles of res-judicata?
This Forum vide order dated 06.08.2011 found that this complaint is maintainable in this forum. The said order has not been challenged and the same became final and so further discussion in this point is not warranted.
6. Point No. iii. The following facts are undisputed.
The 2nd complainant is the registered owner of the vehicle bearing Regn.No. KL-7F 4253 evidenced by Ext.A1 copy of Certificate of Registration.
On 28.02.1997 the 2nd complainant executed a hire purchase agreement in favour of the 1st complainant in respect of the vehicle evident from Ext.A1 contract of hire.
The vehicle was duly insured with the opposite parties for the period from 02.06.1997 to 03.02.1998 for a sum insured of Rs. 4 lakhs evident from Ext. B2 policy.
During the currency of the policy the vehicle was stolen from the possession of the 2nd complainant on 08.06.1997.
At the instance of the 2nd complainant Crime No. 339/1997 was registered by Aluva Police, under section 379 of Indian Penal Code.
The Police submitted a final report before the Hon'ble Judicial First Class Magistrate Court, Aluva stating that the accused as well as the vehicle are not traceable.
7. According to the complainants the opposite parties neither repudiated the insurance claim nor paid the insurance amount, in spite of repeated reminders and lawyer notice. They maintain that the 1st complainant is entitled to get the insurance amount with compensation and costs of the proceedings. The Learned Counsel for the complainants relied on a decision rendered by the Hon'ble Chhattisgarh State Commission in The National Insurance Co.Ltd. v/s Niraj Singh 2012(1) CPR 30. Per contra the opposite parties vehemently and vigorously contended that as per condition No. 1 in Ext.B1 policy the insured was bound to give notice in writing to the opposite parties as well as the police immediately up on the occurrence of theft. It is stated that the 2nd complainant was bound to safe guard and protect his vehicle as per condition No.5 in the policy. It is also stated that since the complainants violated the terms and conditions in Ext.B1 policy they are not entitled to get insurance claim from the opposite parties.
8. Condition Nos. 1 and 5 are reproduced for the sake of convenience as under.
1. Notice shall be given in writing to the Company immediately up on the occurrence of any accident or 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 a copy thereof 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 other criminal act which may be 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.
x x x x x
5. The Insured shall take all reasonable steps to safeguard the Motor Vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all time free and full access to examine the Motor Vehicle or any party thereof or any driver or employee of the Insured. In the event of any accident or breakdown the Motor vehicles shall not be left un attended without proper precautions being taken to prevent further damage or loss and if Motor Vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the Motor Vehicle shall be entirely at the Insured’s expense.
9. In the instant case theft of the Vehicle was occurred on 08.06.1997 During evidence the 2nd complainant who was examined as PW1 deposed that he had intimated the Police regarding the incident on 20-06-1997 and the 1st opposite party in writing on 11.07.1997 respectively. Indisputably there was 12 days delay in intimating the Police and 33 days delay in intimating the 1st opposite party. Nothing is forthcoming on the part of the PW1 as to the reasons for the delay in informing the incident to the Police as well the opposite parties.
10. Now the question arises whether the non compliance of the terms and conditions in the policy is fatal to the complainant’s contentions.
11. The Hon’ble National Consumer Disputes Redressal Commission in New India Assurance Company Ltd. Vs Trilochan Jane IV(2012) CPJ 441 (NC) has held in para9 as follows:
“9. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the police about the theft immediately, say within 24 house, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and co-operate with the police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of conditions of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.”
12. The Hon’ble National Consumer Disputes Redressal Commission in Virendar Kumar Vs New India Assurance Co.Ltd 1(2013) CPJ 71 (NC) has held in para 5 as follows:
“ in the case in hand, the delay in lodging the FIR and giving intimation to the Insurance Company was about 10 days and 15 days respectively and therefore applying the ratio of the above noted case, the State Commission was fully justified in taking the view it has taken. In our view, the impugned order passed by the State Commission does not suffer from any illegality, material irregularity much less any jurisdictional error which wants interference of this Commission in exercise of its revised jurisdiction”.
13.The Hon’ble Appex Court in the following cases,
a. United India Insurance Com. Ltd Vs Harchandrai Chandanlal IV
(2004) CPJ 15 (SC).
b. Bharathi Knitting Company Vs DHL World Wide Express Courier Division
of Air freight Ltd. II (1996) CPJ 25 (SC).
c. Polymat India Vs. National Insurance Co. IV (2004) CPJ 49 (SC),
held that the terms of the policy are in nature of a contract and the same have to be construed and interpreted as they appear on the policy documents and that they are binding on both the parties and the Courts/Fora have to interpret them as they appear, there is no escape from conclusion that the complaint in case in hand has deviated from the terms and conditions laid down in the policy for reasons stated above. We do not differ on these points and we are not to rely on the decision cited by the Learned Counsel for the complainants.
14. PW1 further deposed that on the date of incident after the trip the vehicle was parked by the side of Pookkattupadi - Aluva Road near to Pookkattupady junction PW1 admitted that out of the two keys of the vehicle one is with the 1st opposite partly and if he is in possession of the other key he is ready to produce the same in this forum. The said key did not see light of the day in this Forum for reasons not stated or explained which goes to show the negligence and callous attitude of PW1 in keeping the vehicle in his possession.
15. the Hon’ble National Consumer Disputes Redressal Commission in Keshav Natu Mhatre Vs new India Assurance Co. Ltd. 4 (2011) CPJ 135 (NC) held that, “mere fact that the same was locked will not make any difference since it was the duty of petitioner to have taken proper care before leaving vehicle on road”.
16. In view of the above discussions and observations it is clear that the complainants have not established or substantiated their case legally. This Forum is only to dismiss the complaint. Ordered accordingly.
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits:
Ext. A1 : Contract of hire
A2 : Copy of detailed description
A3 : Certificate cum-policy schedule
A4 : Final Report in Crime 339/97
A5 : 50 years of dependable insurance dated 31-03-1998
A6 : Copy of letter dt. 18-08-1998
Opposite party’s exhibits :
B1 : Certificate – cum- policy-schedule
B2 : Letter dt.02-05-1997
B3 : Copy of letter dt.16-07-1999
B4 : Copy letter dt.14-05-2009
B5 : Copy of order dt.18-01-2000 of CDRF,EKM
B6 : Copy of appeal order dt.17-02-2010
Depositions
PW1 : P.N.Kunjumon
