Andhra Pradesh

Chittoor-II at triputi

CC/44/2019

E.Prasad, S/o E.Alluraiah - Complainant(s)

Versus

M/S Tata AIG General Insurance Co. Ltd., rep. by its Associate Vice President - Opp.Party(s)

A.Sudarsana Babu

05 Feb 2020

ORDER

Filing Date: 20.04.2019

                                                                                                                                                                                      Order Date:05.02.2020

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE FIFTH DAY OF FEBRUARY, TWO THOUSAND AND TWENTY

 

 

 

 

C.C.No.44/2019

 

 

Between

 

 

E.Prasad,

S/o. E. Alluraiah,

Hindu, aged about 28 years,

Presently residing at:

D.No.23-8-80/3, Royal Nagar,

Tirupati,

Chittoor District.                                                                                … Complainant.

 

And

 

 

1. M/s. Tata AIG General Insurance Co. Limited,  

Rep. by its Associate Vice President,

P.L.Claims,

Having its office at:

House No.7-1-6-617/A, GHMC No.615, 616, 5^th and 6^th Floor,

Imperial Towers,

Ameerpet,

Hyderabad – 500 016,

Telangana State.

 

 

2.         M/s.Tata AIG General Insurance Co. Limited,

            Rep. by its Authorised Signatory,

            Having its office at:

            Shop No.402, 4^th Floor, Central Park,

            D.No.1-14-575, Reddy & Reddy Colony,

            Tirupati – 517 501.                                                             …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 18.12.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.A.Sudarsan Babu, counsel for complainant, and Sri.S.M.Jhan, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            Complaint filed under Section-12(1) of C.P.Act 1986, praying for a direction to the opposite parties to pay IDV value of Rs.1,39,094/- to the complainant with interest at 24% p.a. from the date of theft i.e. 21.04.2018 till the date of realization, to pay Rs.50,000/- towards compensation for undergoing mental agony due to deficiency of service on the part of opposite parties and to pay costs of the complaint.

2. The complaint averments are as follows:- The complainant purchased Royal Enfield Classic – 350 Gun Metal Grey BS-IV from Dheeru Motors, Nandyal, for a sum of Rs.1,40,914.08ps., vide invoice No.INV6441171800587, dt:05.03.2018, when he was working at Nandyal, and the registration number of the vehicle is        AP-21/CE-1629. The complainant is having valid driving license. The vehicle was duly insured with 1^st opposite party on 05.03.2018, vide policy No.0146542129 valid from 05.03.2018 to 04.03.2021. The IDV value of the vehicle is Rs.1,39,094/-. The policy was in force as on the date of filing of the complaint. The complainant is an employee in Railway Department. He was transferred to CRS, Renigunta, and has been residing in the address given in the complaint since 1^1/2 year at Tirupati. On 20.04.2018 after completion of his duty, he returned to his house in the said vehicle and parked the same at his house. On 21.04.2018, when he was ready to go to the office, his vehicle was not there and some other Royal Enfield vehicle was kept in front of his house. Immediately, he informed to Dheeru Motors, Nandyal, about missing of his vehicle, and on their advise he contacted one Nageswara Rao who is working in opposite party office, on the same day over mobile No.9966030285 and on his advise, he approached opposite party No.2 and intimated orally about missing of his Enfield Motorcycle, and the 2^nd opposite party asked him to submit documents including FIR and final report from the police. On 21.04.2018 he approached SHO of S.V.U. campus, and the police advised him to wait for few days, since the vehicle might have been taken by some other person by mistake, by keeping his Enfield vehicle in front of complainant house. The complainant therefore waited for 3 to 4 days. On 26.04.2018 he found that the other Enfield vehicle, which was kept in front of his house was also missing. Then the complainant rushed to the police station and informed about the same. The police personnel dodged the matter and finally issued FIR No.68/2018, dt:26.04.2018, and thereafter the SHO, SVU P.S., submitted final report to IV Additional Junior Civil Court, Tirupati, stating that the vehicle is ‘undetectable’. The 1^st opposite party through their letter dt:12.06.2018 stated that the vehicle theft occurred on 21.04.2018, the claim was reported to them on 09.05.2018 after a gap of 18 days and no legitimate explanation was given for the delay and as such claim is repudiated. When the complainant approached opposite party No.2, they stated that the vehicle theft  happened on 21.04.2018, intimation was given to them on 09.05.2018 and to the police on 01.05.2018, as such there is delay in intimating theft intimation either to the Insurance Company or to the Police and as such claim is not maintainable. But, there is no negligence on the part of the complainant, as he reported the matter to the police immediately, but the police dodged the matter and as such it is stated that repudiation is not justified. Hence, it is prayed to allow the complaint.

3.  Opposite party No.1 filed the written version and the same was adopted by opposite party No.2 contending as follows:- There is delay of 18 days in informing about the theft of the vehicle to the opposite parties, and 9 days delay occurred in informing to the police, and thus the complainant violated the terms and conditions of the policy. As per condition No.1 of the policy, notice shall be given to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and that any claim thereafter insured shall give all such information and assistance as required by the company. The alleged theft took place on 21.04.2018, whereas the complainant informed the police on 01.05.2018 with a delay of 9 days. Based on the complaint SVU Campus Police registered the FIR No.68/2018 dt:01.05.2018. The complainant being well educated man and working in Railway Department, having ample knowledge about the terms and conditions of the policy, we did not take immediate steps to inform to the police as well as to the opposite parties about the theft of the vehicle. In case of theft or criminal act, which may be subject of a claim under the policy, the insured shall give immediate notice to police and cooperate with company in securing the conviction of the offender.                   Mr. Nageswara Rao, employee of this opposite party never received any information about the theft of the vehicle, as alleged by the complainant in para.6 of the complaint. The complainant reported the claim to opposite party on 09.05.2018 after lapse of 18 days. When the opposite party sought explanation for the delay in reporting the claim to police as well as the opposite party vide letter dt:12.06.2018, the complainant has not given any reply to the said letter. Therefore, the opposite party has rightly repudiated the claim of the complainant on the ground that the complainant has delayed in informing the alleged theft to the opposite party and to the police, thereby violating condition No.1 of the policy. It is a clear case of complainant that the vehicle was stolen on 21.04.2018 and claim intimation was made to opposite party on 09.05.2018 after a gap of 18 days, and police intimation on 01.05.2018 after lapse of 9 days. The complainant approached the police and lodged complaint on 01.05.2018 on the advise of his family members and he never approached the police authorities for filing of complaint prior to 01.05.2018 as alleged in the complaint. The complaint is not maintainable either in law or on facts. The complainant approached the Forum with unclean hands by suppressing material facts. Since the insurer undertakes to compensate the loss suffered by the insured on account of the risk covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. Any violation of the insurance contract by the parties to the contract of insurance, the contract becomes void and in such an event the insurance company won’t be liable to answer the claim of the other party. The complainant is called upon to prove that he purchased the said vehicle while he was working at Nandyal on 05.03.2018 and that he insured the vehicle vide policy No.0146542129, and the IDV value is Rs.1,39,094/- and that the policy was in force as on the date of filing of the complaint. The other facts mentioned in the complaint about the theft of his Enfield Motorcycle and approaching the police for giving complaint and that the police dodged the matter and therefore delay occurred in intimating the same to insurance company and police about the theft of the vehicle are to be proved by the complainant. There is no deficiency in service on the part of opposite parties as alleged in the complaint. Hence, it is prayed to dismiss the complaint.

4.  Complainant filed the chief affidavit and marked Exs.A1 to A8. On behalf of opposite parties RW.1 filed the chief affidavit and no documents are marked. Written arguments were filed by both parties. 

5.  The point for consideration is whether there is deficiency in service on the part of opposite parties in repudiating the claim of the complainant? If so, to what extent the complainant is entitled for the reliefs sought in the complaint?

6. Point:-  Ex.A1 is photocopy of tax invoice showing that the complainant purchased the subject vehicle on 05.03.2018 by paying Rs.1,40,914/-. Ex.A2 is photocopy of Form-23 i.e. Certificate of Registration of the subject vehicle i.e. Royal Enfield Classic-350 bearing registration No.AP-21-CE-1629 and the same stands in the name of complainant. Ex.A3 is photocopy of Certificate of Registration of the subject vehicle. Ex.A4 is photocopy of insurance policy of the subject vehicle and it shows that the insurance is valid from 05.03.2018 to 04.03.2019. Ex.A5 is photocopy of FIR issued by SVU Campus PS and it shows that FIR is dt:26.04.2018, but the date of information received at police station is mentioned as 01.05.2018. The FIR must have been registered on the same day, but it is seen from Ex.A5 that the FIR is dt:26.04.2018 which is earlier to 01.05.2018. Ex.A6 is final report submitted by SI of Police, SVU Campus PS, to the Sub Divisional Police Officer, West Sub Division, Tirupati, referring the case as un-detectable for want of clues. The final report is submitted to the Hon’ble IV Additional Junior Civil Court stating that the case is referred as un-detectable. Ex.A7 is letter dt:12.06.2018 addressed by opposite party No.1 to the complainant with regard to the claim relating to policy No.0146542129. As per Ex.A7 it is stated that if no representation is received from the complainant within 7 days of receipt of the letter, the claim will be finally treated as repudiated on the ground mentioned in the letter. In Ex.A7 opposite party No.1 quoted Condition No.1 of the policy, which reads as follows:-

“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage 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 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 criminal act which may be the subject of a claim under this policy the insured shall give immediate noticed to the police and cooperate with the company in securing the conviction of the offender”

 

Ex.A8 is repudiation letter stating that they are unable to entertain the claim, since no reply was received from the complainant with regard to delay caused in communicating about the theft of the vehicle to them as well as to the police.

7.  In the written arguments submitted by the opposite party, the counsel has vehemently argued that the complainant has not given valid explanation for the delay caused in communicating about theft of the vehicle to both the opposite party and to the police, and as such Condition No.1 of the terms and condition of the policy has been violated by the complainant and as such claim of the complainant was repudiated by the opposite parties.

8.  The complainant counsel argued that no doubt delay occurred in intimating about theft of the vehicle to the opposite parties, but the complainant infact intimated about missing of the vehicle to the police immediately, but the police dodged the matter and only after few days of theft, FIR was issued for which complainant cannot be blamed.

9.  Recently, the Hon’ble Supreme Court in Civil Appeal No.653/2020 held as follows:-

“We concur with the view taken in the case of Om Prakash (supra) that in such a situation if the claimant is denied the claim merely on ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.        We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.        We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors / investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured”.

        

            10.  In the instant case on hand, the complainant stated that on 21.04.2018 itself he approached the police to inform about the theft of the vehicle, but the police asked him to wait for few days, since somebody has kept another Enfield vehicle in front of complainant’s house by taking away the Enfield vehicle of the complainant. As already pointed out there is discrepancy in the FIR with regard to date of registration of FIR. According to opposite parties, complainant informed the police about the theft of the vehicle on 01.05.2018, but copy of FIR shows that the FIR was registered on 26.04.2018 much earlier to 01.05.2018. Thus, as seen from copy of FIR, there is delay of 4 days in reporting the matter to police by the complainant, which cannot be said to be inordinate delay in the given circumstances of the case. From the facts and circumstances of the case and applying the Hon’ble Apex Court Judgment as referred above, we come to conclusion that repudiation of claim of the complainant by the opposite parties is not justified. We, therefore, hold that there is deficiency in service on the part of opposite parties in not entertaining the claim of the complainant. Accordingly, we allow this complaint.

            11.  In the result, complaint is partly allowed directing the opposite parties to pay IDV value of Rs.1,39,094/- (Rupees one lakh thirty nine thousand and ninety four only)  to the complainant with interest at 9% p.a. from the date of theft i.e. 21.04.2018 till realization,  and to pay compensation of Rs.5,000/- (Rupees five thousand only) for undergoing mental agony due to deficiency in service, and also to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. The opposite parties are directed to comply the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.5,000/- shall also carry interest at 9% p.a. from the date of this order, till realization.     

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 5^th day of February, 2020.

 

      Sd/-                                                                                                                       Sd/-                                         

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

 

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sri E. Prasad (Evidence affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Sri B. Anjayaneyulu (Chief affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Self attested photo copy of TAX INVOICE issued by Authorized Signatory, Dheeru Motors, Nandyal. Dt: 05.03.2018.
	Self attested photo copy of FORM -23 CERTIFICATE OF REGISTRATION, Transport Department, and Government of Andhra Pradesh. Date of Registration from 06.03.2018 to 10.03.2033. Dt: 13.03.2018.
	Self attested photo copy of CERTIFICATE OF REGISTRATION RTA NANDYAL, Transport Department, and Government of Andhra Pradesh. Date of Registration: 11.03.2018.
	Self attested photo copy of POLICY CERTIFICATE (Bearing No. 0146542129) Policy issued on 05.03.2018.
	Self attested photo copy of F.I.R. (Bearing F.I.R. No.68/2018) Dt:26.04.2018.
	True copy of Letter of Communication regarding “Referring the case as Un-detectable for want of clues- & proposals with reference of Cr.No.68/2018 U/Sec. 379 I.P.C. of S.V.U. Campus Police Station, Tirupati.”
	Original copy of Letter of Intimation regarding “Theft of your vehicle No. AP21CE1629 Vehicle Model-Royal Enfield Classic-350, Claim No.0820787232A under policy No.0146542129”. Dt: 12.06.2018.
	Original copy of Letter of Repudiation regarding “Accident Claim of your vehicle No. AP21CE1629 Vehicle Model-Royal Enfield Classic-350, Claim No.0820787232A under policy No.0146542129”. Dt: 06.07.2018.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

NIL

 

 

                                                                                                                                  Sd/-

                                                                                                                           President (FAC)

     

                                     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

  Copies to:-   1.  The complainant.

                        2.  The opposite parties.