Andhra Pradesh

Chittoor-II at triputi

CC/8/2018

S.Giridhar, S/o S.Subbaramaiah - Complainant(s)

Versus

M/S The Oriental Insurance Co. Ltd., Tirupati, Represented by its Divisional Manager - Opp.Party(s)

A.Sudarsana Babu

14 Sep 2018

ORDER

                                                                                                                                                                             Filing Date:- 05-02-2018                                                                                                                                                                                     Order Date:- 14-09-2018

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI.

Present: - Sri. T.Anand  President (FAC)

                                                        Smt.T.Anitha, Member

 

FRIDAY, THE FOURTEENTH DAY OF SEPTEMBER, TWO THOUSAND AND EIGHTEEN

C.C.No.08/2018

Between

S. Giridhar, Son of S. Subbaramaiah,

Hindu, aged about 48 years, residing at D.No.2-1-82,

Kola Street, Tirupati town & Urban Mandal,

Chittoor Distsrict.                                                                      …. Complainant

 

And

M/s. The Oriental Insurance Co. Ltd., Tirupati

Represented by its Divisional Manager having its

Office at D.No. 18-36-M16-147, 1^st Floor,

Balaiah Complex, besides Karur Vysya Bank,

Near Annarao Circle, Tirupati – 517507,

Chittoor District.                                                                       …. Opposite party

                         

        This complaint coming on before us for final hearing on 29.08.2018 and upon perusing the complaint, chief affidavit, written version, written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of Sri. A. Sudarsana Babu, counsel for the complainant and Sri. K.S.Vasu, counsel for the opposite party having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed by the complainant under Section 12(1) of the Consumer Protection Act 1986, complaining the deficiency in service on part of the opposite party and prayed this Forum to direct the opposite party to settle the claim of the complainant for Rs.18,000/-, to pay damages for causing mental agony and deficiency in service on part of the opposite party and to pay costs of the complaint.

        2. The brief facts of the case are: the complainant had a Hero Honda Splendor Plus motor bike bearing No. AP03-R-2203 and same was insured with the opposite party under vide policy No. 432794/31/2014/482 and the period of insurance starts from 28.01.2014 to the midnight of 27.01.2015.

            The complainant further submits that the said motor bike was stolen by  an un known offender on 26.09.2014 at about 8.00 PM when it was parked in front of the temple in Konka street ,Tirupati. Hence he made an enquiry in and around and also searched to trace the bike, but he has not found the vehicle. The complainant further submits that as 26.09.2014 happens to be Friday and theft had happened at 8.00 PM, and by that time the office of the opposite party was closed and the next two days being Saturday and Sunday and happened to be the holidays for the opposite party office,  he approached the opposite party in the first hours of Monday i.e. on 29.09.2014 and informed about the missing of his motor bike. The concerned persons of the opposite party asked him to submit the FIR and other relevant papers in proof of theft and also non traceable certificate to process the claim. Immediately on 29.09.2014 he went to the local police station to lodge the complaint but the police refused to receive the complaint immediately stating that the complaint shall be lodged the same in the crime police station. But the crime police station, Tirupati refused to register the complaint asking to make some efforts to trace out his bike. Finally the CCS, of Tirupati registered FIR            dt: 15.10.2014 vide FIR No. 390 of 2014. After the repeated requests made by the complainant, at last on 15.07.2015 the final report was given by the CCS stating the case is undetectable one.      

         3. The Complainant further submits that he approached opposite party several times to process the claim. After several reminders, the opposite party issued letter                  dt: 19.05.2017 stating that, since the claim intimation was given after lapse of 34 days and also abnormal delay occurred in intimation of theft and hence the claim is untenable and gave one more opportunity to substantiate the claim in view of the grounds of repudiation mentioned above before a final decision is taken.

        The complainant further submits that after procuring all the relevant documents submitted to the opposite party.  But the opposite party vide its letter dt: 07.09.2017 returned the original copies and orally stated that the claim is not maintainable as the theft intimation was given at a belated stage. Hence the complainant caused a legal notice dt: 28.11.2017 and having received the same on 04.12.2017, the opposite party gave reply notice on 06.12.2017 stating that, there is a delay of 19 days even in giving an FIR and also delay of 35days in giving intimation to the opposite party company and hence the claim was repudiated, as the complainant violated the terms and conditions of the policy by non intimating the alleged theft immediately after the incident.

         The complainant further submits that the theft occurred on 26.09.2014 in between 8.00PM and 9.00PM, by that time the opposite party’s office will be closed, the next two days are happened to be holidays and on next working day morning  he orally informed to opposite party and with their instructions only the complainant made efforts to get the authenticated  documents through court of law and it has taken much time in the court for obtaining documents and hence there is no willful or intentional delay on his part and his claim is a bonafide and legitimate one and opposite party cannot evade its responsibility by merely showing the technical reasons i.e. delay in intimation though the claim is substantiated by the authenticated documents which is nothing but deficiency in service on part of the opposite party towards the complainant. Hence he filed the present complaint.

        4. The opposite party came made appearance and filed the written version by admitting the policy of the complainant with their insurance company and rest of the allegations were denied by them and further  stated that, the complainant has informed about  the theft of the vehicle bearing No. AP03-R-2203 only on 31.10.2014 along with the vehicle papers and FIR and further contended that the FIR was lodged before the police by the complainant only on 15.10.2015 i.e. 19 days after the alleged theft of the vehicle. So there is abnormal delay in alleging the FIR and there was further delay in intimating the opposite party which speaks volumes about the negligence of the complainant.

        The opposite party further submits that the complainant has submitted the claim on 05.11.2014 and on receipt of the same the company officials have processed the same and appointed the surveyor to investigate in to the matter. The opposite party further submitted that after thorough scrutiny of the documents furnished by the complainant , they have repudiated the claim as there was an abnormal delay by the complaint to intimate to the police as well as insurance company about the alleged theft and same was communicated to the complainant by way of letter dt: 19.05.2017 giving the reasons  for repudiation and also they provided one opportunity to the complainant for providing clarification on the aspect of delay in intimating the theft to the opposite party.

        But the complainant did not furnish any clarification though opportunity was given to him. Moreover the complainant has not provided the keys of the bike, which shows that the engine was on, when it was parked on the alleged day of theft. Hence the complainant was negligent and did not take proper care while parking the same on the alleged day of theft. Hence there is gross negligence and violation of policy condition by the complainant and as such he cannot claim any amount much less the amount claimed in the complaint. Hence there is no negligence and deficiency in service on part of them and prayed for dismissal of  the complaint with exemplary costs.

         5. The complainant filed his evidence on affidavit and Ex: A1 to A10 were marked on behalf of him and one B. Sunder, S/o. B. Krishnan, working in opposite party’s insurance company filed his evidence on affidavit and Ex:B1 to B5 were marked on behalf of opposite party . Both the complainant and opposite party filed their written arguments and oral arguments were heard.

        6. The point for consideration is:-   Whether there is any deficiency in service on part of the opposite party? If so, to what extent relief can be granted?

        7.Point :-  There is no dispute regarding the insurance policy of the two wheeler of the complainant and same was admitted by the opposite party. The main case of the complainant is, his bike was stolen on 26.09.2014 on Friday at about 8.00PM  when it was parked near the temple and after searching in and around the locality the bike was not traced out.  As the following two days happened to be holidays, he intimated the theft to the opposite party on Monday i.e. 29.09.2014 orally and he was directed to come up with the authenticated documents like FIR etc. to process his claim. The counsel for the complainant further argued that he approached the local police station to register the complaint, but the local police directed him to file a case in the crime police station, Tirupati. Hence he approached CCS and the concern police asked him to make efforts on his own and finally FIR was registered on 15.10.2014. Hence the delay of 19 days in registering the FIR is neither willful nor wanton.

         The counsel for the complainant further argued that though the complainant approached the opposite party two days after theft i.e. 29.09.2014, the opposite party insisted him to come up with the authenticated documents to process the claim. Hence finally after getting the documents he gave written claim on 31.10.2014.   Hence there was no delay as alleged by the opposite party as he intimated about the theft on 29.09.2014 itself.  But the opposite party repudiated the claim by stating that there is a delay of 19 days in intimation to police and 35 days delay in intimating to them. But the insurance company has given a letter of repudiation dt: 19.05.2017 under Ex:A2 and final letter of repudiation dt: 03.10.2017 under Ex:B5. As the opposite party nearly took three years to repudiate the claim hence the delay on 19 days in FIR and delay of 35 days officially by the complainant is negligible in comparison to the delay of three years in repudiation by the opposite party.

         8.  The counsel for the opposite party argued that the complainant has delayed for 19 days in lodging the complaint before police, hence the bike could not be untraced and no cogent reason or explanation was given for the abnormal delay. Further the complainant has violated the policy condition No.1 as he failed to give report immediately to police and also they have informed to the complainant about the repudiation of the claim on 19.05.2017 itself and also argued that they have given one more opportunity to explain the reasons for delay, but the complainant failed to give  valid reasons. Hence finally the claim was repudiated on 03.10.2017. The counsel for the opposite party further argued that the reason given by the complainant for the delay in the complaint are not at all reasonable and believable and hence they have repudiated the claim of the complainant and  prayed  that the complaint to be dismissed.

        9. The counsel for the opposite party relied upon a decision 1. Buddha Ganesh Vs New India Insurance Co. Ltd., & Another, in the instant case the opposite party admitted that they have appointed surveyor as investigator with regard to the claim of the complainant.  But for the reasons best known to opposite party why they have not filed the report of the surveyor. Thus the best evidence is held back by the opposite party which would have thrown better light on the facts of the case.  In the absence of surveyor report we are not in a position to accept the contention of the opposite party, that there is deliberate attempt on the part of the complainant in intimating the incident to the opposite party and lodging FIR.

         Hence the decision is not applicable to the facts of the present case. Hence we are inclined to believe the version of the complainant basing on the facts of the case.

         2. The opposite party relied upon one more decision of national commission in MD. Shamsur Alam Vs Reliance General Insurance Co.Ltd & Another. The facts of the above case and case on hand are entirely different. In the case which was relied by the opposite party the driver left the keys in ignition and violated the condition No.5 of the insurance act. But in the present case on hand, the counsel for opposite party alleged that the complainant lodged the complaint with 19 days delay before the police station. Hence the facts reveal that the repudiation of claim was done by insurance company purely on the technical grounds on delay, as there is no  evidence that the complainant left the vehicle in ignition leaving his keys with the vehicle and the report of the  surveyor was also not filed  to support opposite party version  and as such adverse inference can be drawn against opposite party for non production of survey report.

        10. The counsel for the complainant rely on the decision of Supreme Court in Civil.Appeal No. 15611 in OMPRAKASH vs. RELIANCE GENERAL Insurance And Another. Their lordships held that “The decision of the insurer to reject the claim has to be based on valid grounds.  Rejection of the claims on purely technical grounds in a Mechanical manner will result in loss of confidence of policy - holders  in the insurance industry.  If the reason for delay in making claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.  It is also necessary to state here 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.  The conditions regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine”.

        In the present case also the complainant clearly stated that, he informed to the opposite party on 30.09.2014 and also to police authorities and with their instructions only he made some efforts to trace out the bike but in vain. Hence the police registered the case on 15.10.2014 and also stated that delay happened for submission of the documents to opposite party due to unavoidable circumstances. Hence it is not out of case to say that the opposite party nearly took two years to dispose off the claim and it amounts to deficiency in service on part of opposite party.  It is their duty to settle the claim and duly communicate to the complainant as early as possible when they receive claims.  But in the present case the Opposite party nearly took three years to repudiate the claim, which clearly shows the attitude of the insurance companies. The interest the insurance companies show at the time of receiving premium, they will not show the same at the time of settling the claims which is nothing but deficiency in service and unfair trade practice on part of opposite party .Hence we are of the opinion that there is deficiency in service on part of opposite party towards the complainant.

          In the result, the complaint is allowed in part, directing the opposite party to pay Rs.18,000/- (Rupees eighteen  thousand only) which is the  insured declared value of the bike by the date of the theft and to pay Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony and deficiency in service on part of the opposite party and to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite party is further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order failing which, the above said insured declared value of Rs.18,000/- (Rupees eighteen thousand only) and compensation amount of Rs.10,000/-(Rupees ten thousand only)  shall carry interest @ 9% per annum from the date of this order till realization.

        Typed by the Stenographer, corrected by me and pronounced in the open forum this the 14^th day of September, 2018. 

            Sd/-                                                                                                                  Sd/-

 Lady Member                                                                                                  President (FAC)

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: S. Giridhar (Evidence Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: B. Sunder (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original copy of Motor Insurance Certificate cum Policy Schedule Motorised-Two Wheelers Package Policy-Zone B issued by the Authorized Signatory, The Oriental Insurance Company Limited,  Akkarampalle, Tirupati. Dt: 27.01.2014.
	Original copy of Letter of repudiation issued by the Divisional Manager, The Oriental Insurance Company Limited,  Tirupati. Dt: 19.05.2017.
	Original copy of Letter issued by the Divisional Manager, The Oriental Insurance Company Limited,  Tirupati. Dt: 07.09.2017.
	True copy of First Information Report (FIR). FIR No.: 390/2014. Dt: 15.10.2014.
	True copy of Form No.20, Proceedings issued by Hon’ble V Additional Judicial Magistrate of I Class, Tirupati. Dis. No. 1072, Dt: 07.09.2016.
	True copy of Charge Sheet/Case Disposal Report issued by Hon’ble V Additional Judicial Magistrate of I Class, Tirupati. Final Report / Charge Sheet Dt: 15.07.2015.
	True copy of Final Report issued by Sub-Inspector of Police, CCS Tirupati. Dt: 15.07.2015.
	Office copy of Legal Notice. Dt: 28.11.2017.
	Acknowledgement Card. Dt: 04.12.2017.
	Reply Notice for the Registered Legal Notice. Dt: 28.11.2017 received on 04.12.2017. Dt: 06.12.2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Letter of the complainant to the Opposite Party in Original. Dt: 05.11.2014.
	Two wheeler package policy (Terms & Conditions) in Original.
	True copy of E-Mail from Complainant to the Opposite Party. Dt: 31.10.2014.
	Motor Claim Intimation Form. Dt: 05.11.2014 in Original.
	Final letter of Repudiation (Office copy ) in Original. Dt: 03.10.2017.

 

 

 

                                                               Sd/-

                                                                                                       President (FAC)

 

                                                  // TRUE COPY //

                                                  // BY ORDER //

 

 

                                              Head Clerk/Sheristadar,

                                    Dist. Consumer Forum-II, Tirupati.

 

Copies to: 1) The Complainant,

                  2) The opposite party.