Date of Filling :15.09.2014
Date of Disposal:03.11.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.58/2014
Tuesday, the 3rd day of November 2015
J.Venkatesan
S/o Jayaraman,
No.190, P.H.Road,
Avadi, Chennai – 600 054. …Complainant
/Vs/
- The Branch Manager,
United India Insurance Co.Ltd.,
No.235, N.M.Road,
Avadi, Chennai – 600 054.
- The Branch Manager,
United India Insurance Co.Ltrd.,
No.173, J.N.Road, 1st Floor,
Near Aircel Office, Thiruvallur.…Opposite Parties
….
This Complaint is coming upon before us finally on 15.10.2015 in the
Presence of Thiru.S.Muthukumaravel, Advocate on the side of the complainant and M/S Nageswaran, Advocate for the opposite parties and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party seeking direction that the opposite party has to pay a sum of Rs.45,000/-, being the value of insured for the Pulsar bike, and to pay a sum of Rs.25,000/- towards compensation for mental agony and torture for act of deficiency in service committed by the opposite party and to pay a sum of Rs.25,000/- towards unjustified repudiation of the claim with cost.
The Brief averments of the complaint as follows:
1. The complainant is the owner of the two wheeler bearing registration no.TN.20.BL.4460 Bajaj Pulsar (Black & Red) and for the said vehicle a policy was issued by the 1st opposite party vide policy no.012004/31/12/01/00017208. The insured policy value is a sum of Rs.45,000/- . On 04.04.2013 the complainant had left the bike in his house after side-locking the vehicle, the next day on 05.04.2013 morning the complainant found that the above bike was missing from his house. After a whole day search, the bike was not traceable to the complainant. Immediately to the next day, on 06.04.2013 complainant has given a complaint before the T6 Avadi Police Station, after a searches made by the police, a FIR was registered in Cr.No.755/2013 dated 20.04.2014. The lost of bike was also duly intimated to first opposite party on 09.04.2014.
2. After thorough investigation, the said crime no.755/2013 was closed by the police as Non-traceable and accepted the same by the Hon’ble Judicial Magistrate –No.II, Poonamallee and Recorded in R.C.S.No.1/2013, in the month of April 2013. That on 24.03.2014 the complainant has received a letter from the 1st opposite party doc no.(8) repudiating the claim by stating that there is a breach of policy condition no.1. But subsequently the first opposite party instructed the complainant to get the court order, the said court order (RCS No.1/2013) was also produced by the complainant. Once again by a letter dated 03.07.2014 doc no(9) the first opposite party again reiterated the same and repudiated the claim made by the complainant stating the very same reason that the complainant has violated condition no.1 of the policy by not intimating the theft to the police immediately after theft.
3. The complainant has given a complaint before the police immediately on the next day and after 5 days the complainant had also intimated to the first opposite party. So, the complainant has never violated the condition no.1 of the policy. Hence the notice issued by the first opposite party is false. The act of the opposite party amounts to deficiency in service. Hence the complainant issued a notice dated 11.08.2014 to both the opposite parties to withdraw the claim repudiation notice, dated 03.07.2014, but the opposite parties after the receipt of the said notice has given a reply notice with the false allegations and thereby the complainant is put mental agony and hardship for the past six months. Hence this complaint is filed.
The contention of the written version of the opposite parties as brief as follows:
4. All the averments made by the complainant are denied excepting those that are specifically admitted hereunder. It is true that the complainant had insured Bajaj Motor Cycle Model Pulsar 150 DTSI Vide registration No.TN 20 BL 4460 under package policy No.012004/31/12/01/00017208 and the coverage period was from 15.11.2012 to 14.11.2013 for a value of Rs.45,000/- as declared. The complainant is called upon to produce the original policy with all the terms and conditions attached thereto. Specimen copy of policy is filed herewith. It was reported that the complainant’s motor cycle was stolen from the parking place in front of his house during night on 04.04.2013 and came to know of the same on 05.04.2013 morning.
5. But, the complainant registered a complaint with the Police on 20.04.2013 only and received a FIR also and as per the FIR the date of occurrence of the theft is noted as 06.04.2013 in Crime no.755/2013 with T6-Avadi Police Station. The above theft, is referred under the proceedings of the Hon’ble Judicial Magistrate II, Poonamalle U/s 173 CPC with ref RCS 1/2013 dt.24.12.2013 with remarks “Non Traceable”. The policy of the same is furnished by the complainant. The complainant informed the opposite party about the theft of the Insured Vehicle only on 09.04.2013, after a delay of 5 days. The Insured/Complainant is bound by the terms and conditions.
6. The above delayed intimation by the complainant/Insured to the
Insurer/Opposite party is in contravention to the agreed terms and conditions applicable to the above referred policy. The complainant/Insured has not adduced or made out sufficient cause which are reasonable for the delay in the event of any considerations to fulfill the terms and conditions otherwise which are binding on both the parties as agreed by them.
7. In addition to the above, the complainant has suppressed the material fact that the referred vehicle/Two wheeler is under Hypothecation with the Financier ABU Agencies during the period of theft but it is declared only in the complainant’s submission to this Hon’ble Forum. There was no deficiency in service on the part of the opposite parties at any point of time and that the denial of claim on the basis of violations of terms and conditions by the complainant/Insured, which are binding on both parties, can not be construed unjustified repudiation. The claim was repudiated only after due application of mind and after proper appreciation of the documents and the facts and circumstances surrounding the claim. Hence this complaint is liable to be dismissed.
8. In order to prove the case of the complaint, the complainant filed his
proof affidavit as his evidence and Exhibit A1 to A12 are marked on the side of the complainant. Similarly the proof affidavit filed by the opposite party for his defence and Exhibit B1 is marked on his side.
9. At this juncture, the point for the consideration before this Forum is:
- Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
- To what other reliefs, the complainant entitled to?
10. Written Arguments submitted on both sides and the copy of the same is
furnished to either side. In addition to that Oral Arguments adduced on both sides.
11. Point 1: On careful perusal of rival submissions put forth by either parties, it
is crystal clear that the theft of the two wheeler bearing the registration no.TN 20 BL 4460 Bajaj Pulsar, the R.C.Book marked as Exhibit A4, on 04.04.2013 and the said vehicle insured with the opposite parties for the policy value of Rs.45,000/- is marked as Exhibit A1, which was enforced at the time of occurrence. It is further seen that the proof affidavit of the complainant that he has preferred the complaint before the concerned Police Station on 06.04.2013 which is marked as Exhibit A2 and immediately the complainant has intimated the fact to the 1st opposite party on 09.04.2013 is marked as Exhibit A3 and FIR registered on 20.04.2013 which is marked as Exhibit A7 and the proceedings of the Hon’ble JM-II and ref. in RCS no. 01/2013 is marked as Exhibit A5. Then, it is stated by the complainant in is proof affidavit that the opposite party 1 & 2 has sent a letter for repudiating the claim, for the reasons stated in that letters which are marked as Exhibit A8 and A9 respectively. Then, the complainant immediately sent a legal notice which is marked as Exhibit A10 to the opposite parties and the same was acknowledged by both the parties marked as Exhibit A11 and the reply notice is marked as Exhibit A12.
12. In such circumstances, the opposite party contended and stated in the proof affidavit that as per the terms and condition of the Insurance policy which is marked as Exhibit B1, the opposite parties have rightly repudiated the claim and therefore there is no deficiency in service on the part of the opposite parties and further collected that intimation sent to the opposite parties and registering the FIR are all much delayed, which violates the terms and conditions of the policy Exhibit B1.
13. At the outset, except the delay in intimating the fact of the theft occurrence to the opposite party and registering of the FIR, other facts are all admitted by the opposite party, which is crystal clear. So, this Forum has to consider whether the delay is reasonable or unreasonable. According to the version of the opposite parties the Insured/complainant is bound by the terms and conditions of the policy and as per the terms and condition, notice shall be given in writing to the company immediately upon the occurrence of any accidental loss of damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. In case of theft or criminal act which may be the subject of a claim under this policy the insured has to give immediate notice to the opposite party and co-operate with the company in securing the conviction of the offender. While so, in this case the complainant registered a complaint with the police on 20.04.2013 only where as the theft occurred on 04.04.2013 and thereby the delay of 16 days and similarly the said fact intimated to the ABU Agencies, who is the hire purchase financier on 05.04.2013 and the opposite party only on 09.04.2013, and thereby the delay is willfully and wantonly. For that the complainant has not adduced or made out any sufficient cause which are reasonable for the delay. In order to substantiate the version of the opposite party regarding the delay in preferring the complaint as well as the intimation to the opposite party, the learned counsel for the opposite party has relied upon the following decisions:
II (2015) CPJ 262 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ramesh Chandra Meghwanshi …Petitioner
/Vs/
Oriental Ins. Co.Ltd., …Respondent
Consumer Protection Act, 1986 – Sections 2(1)(g),21(b) – Insurance – Theft – Delay in intimation – Surveyor appointed – claim repudiated – Alleged deficiency in service – District Forum allowed complaint – State Commission allowed appeal – Hence revision – Complainant intimated OP about theft of vehicle after almost 2 months – Complainant has not placed copy of FIR on record – Violation of conditions of policy – Repudiation justified.
II (2015) CPJ 750 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Shriram General Insurance Co.Ltd & Another … Petitioners/Opp.parites
/Vs/
Girshinder Singh & Anr. … Respondents/Complainants
held that, Consumer Protection Act, 1986 – Sections 2(1)(g),21(b) – Insurance – Theft of motor vehicles – Delayed intimation to insurer– Violation of policy conditions – claim repudiated – Deficiency in service alleged – District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Complainant was duty bound to inform about theft of vehicle to Insurance company immediately – Failure to inform insurer amounts to breach of policy condition – Repudiation justified.
It is further submitted by the learned counsel for the opposite party that as per the above decision the opposite party has rightly repudiated the claim of the complainant and hence there is no deficiency in service on the part of the opposite party.
14. At the outset, the learned counsel for the complainant would submit that the decisions relied upon by the opposite parties are not applicable to the facts of the case in hand, since the delay noted in the above said decisions are 2 months in the first case and 52 days in the other case respectively. Whereas, the case on hand, there is no such to inordinate delay. In order to, establish his view, the learned counsel, relied upon the following decisions:
2007 (I) 264 CPJ
HIMACHAL PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA
Oriental Insurance Company Ltd., …Appellant
/Vs/
Rakesh Kumar … Respondent
Held that, 7 days delay in sending intimation to Insurance Company regarding insured vehicle stolen would not constitute breach of term of policy of fundamental nature so as to entitle Insurance Company to reject the claim of insured.
2008 (2) CPR 305 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
National Insurance co.Ltd., …petitioner
/Vs/
Shrawan Bhati …Respondent
held that, Denying indemnification on mere assumption and presumption cannot be sustained in law.
15. At the outset, on going through the evidence of the complainant it is seen that the occurrence of theft of his vehicle No.TN 20 BL 4460 on 04.04.2013 and after search the vehicle on the whole day and same was not traceable. Then the complainant preferred the complaint (Exhibit A2) before the Avadi Police Station on 06.04.2013 in which the act of complainant on searching a day is quit natural. Further, it is seen from Exhibit A2 that the Sub-Inspector of Police, Avadi Police Station, has made an endorsement in the back of the Exhibit A2, the complaint received on 06.04.2013 itself. So, that the complaint has been lodged immediately by the complainant to the concerned police station and the registering of FIR (Exhibit A7) on 24.04.2013 is not a fault of the complainant. It is purely committed by the concerned Investigation officer of the Avadi Police Station, which is no way affected the complainant’s case. So, the plea taken by the opposite party that the inordinate delay of 16 days, occurred in registering the FIR is hereby rejected and not taken in to account. Then the delay in intimating the fact of theft occurrence to the opposite party on 09.04.2013 which caused delay as per the opposite party is also cannot be accepted, since the delay is not an inordinate delay. In this regard, the decision relied upon by the complainant in 2007 (I) 264 CPJ is squarely applicable to the facts of this case, since in that case 7 days delay in sending intimation to Insurance Company regarding insured vehicle stolen would not constitute breach of term of policy of fundamental nature so as to entitle Insurance Company to reject the claim of insured.
16. In the light of the above facts and circumstances and the observations made by both the parties, this Forum has no hesitation to hold that the complainant has proved his case with all acceptable and reliable evidence and therefore the repudiation of the claim by the opposite parties is unreasonable one and therefore there is deficiency in service on the part of the opposite parties and thus the point No.1 is answered accordingly.
17.Point 2: As per the decision to hold in point no.1, the complainant is entitled for the cost of the theft vehicle as mentioned in the complaint with reasonable compensation and cost. Thus this point no.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite
parties are jointly and severally directed to pay the cost of the theft vehicle bearing the registration No.TN 20 BL 4460 for a sum of Rs.45,000/-(Rupees Forty Five Thousand only) being the Insured Declared Value mentioned in the respective Insurance policy No.012004/31/12/01/00017208, Dt.05.11.2012 and a sum of Rs.5,000/-(Rupees Five Thousand only) towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite parties and with a cost of Rs.2,000/- (Rupees two thousand only). Total Rs.52,000/-(Rupees Fifty Two Thousand only)
The above said amount of Rs.52,000/- shall be paid to the complainant within a month from the date of the receipt of the copy of the order, failing which it will carry 9% interest per annum.
Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 03rd November 2015.
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MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt. : Xerox copy of the Certificate of Insurance of the complainant.
Ex.A2/Dt.06.04.2013: Xerox copy of the complaint given by the complaint to the Avadi
Police Station.
Ex.A3/Dt.09.04.2013: Xerox copy of the letter sent by the complainant to the 1st
opposite party.
Ex.A4/Dt. : Xerox copy of the R.C. book of the complainant’s theft vehicle.
Ex.A5/Dt.24.12.2013: The Xerox copy of the proceedings of the Judicial Magistrate
No.II, Ponnamalle
Ex.A6/Dt.10.04.2013: Xerox copy of the complaint sent by the said ABU Finance to the
Avadi police Station.
Ex.A7/Dt.20.04.2013: Xerox copy of the FIR before the Avadi police station.
Ex.A8/Dt.24.03.2014: Xerox copy of the letter sent by the opposite party to the
complainant.
Ex.A9/Dt.03.07.2014: Xerox copy of the letter sent by the opposite party to the
complainant.
Ex.A10/Dt.24.12.2013: The Xerox copy of the legal notice sent by the complainant’s
counsel to the opposite parties.
Ex.A11/Dt. : Xerox copy of the postal acknowledgement of the opposite parties
Ex.A12/Dt.20.08.2014: The Xerox copy of the reply sent by the opposite party’s
counsel to the complainant’s counsel.
List of documents of the opposite parties:
Ex.B1 /Dt. : The terms and conditions of the said Insurance Policy.
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MEMBER I PRESIDENT
