Date of Filling      :  05.01.2015.

                                                                                            Date of Disposal  :  21.04.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                     TMT.  S.  SUJATHA, B.Sc.,                          …    MEMBER - I

Consumer Complaint No.05/2015

(Dated this Thursday the 21^th day of April 2016)

Mr. R. Vijaya Kumar,

S/o. Mr. A. Ramachandran,

No.68, P.H. Road,

Srinivasa Nagar,

Govarthanagiri,

Avadi,

Chennai – 600 071.                                                                      … Complainant.

/ Versus /

The Manager,

M/s. United India Insurance Company Limited,

Branch Office :012004,

No.235, N.M. Road,

Avadi,

Chennai – 600 054.                                                                  … Opposite party.

This complaint is coming upon before us finally on 22.03.2016 in the presence of Thiru. S. Kannan, Counsel for the complainant and M/s. Nageswaran & Narichania, Counsel for the opposite party and  having perused the documents and evidences of both sides, written & oral arguments on the side of the opposite party 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 1^st & 2^nd opposite parties to seek the insured declared value of the vehicle of Rs.1,80,000/- and to pay Rs.75,000/- towards compensation for mental agony and stress suffered by the complainant with cost Rs.15,000/-.

The brief averments of the amended complaint is as follows:-

          The complainant has taken insurance policy from the opposite party concern for his vehicle Tata Sumo registration number TN 20 AB 1982 bearing policy number 0120043113P104758656.  The said vehicle has been stolen on 16.11.2013 and for the same he has claimed insurance from the opposite party concern.  The police does not register an FIR immediately because they have to verify the occurrence and after due investigation they registered an FIR on 24.01.2014 after proper verification that the vehicle was stolen and not repossessed by the financier.  The claim of the complainant has been repudiated for reason that per policy condition no.1, the claim is not admissible due to delay in information of the theft of the vehicle of the police by two months through your letter dated 17.02.2014.

2.       Even after due intimation by the complainant the opposite party simply repudiated the claim through letter dated 17.02.2014.  Therefore, the complainant caused a legal notice through his counsel on 25.03.2014 to the opposite party and that was duly received by the opposite party and replied for the same with the same contentions of repudiating the claim.  The occurrence of the theft happened within the insurance cover period.  Hence, this complaint.

3.       The contention of written version of the opposite party is  briefly as follows:-

All the averments made by the complainant are denied excepting those that are specifically admitted hereunder.  The complainant is not a consumer as defined under section 2 (d) (ii) of the Consumer Protection Act, 1986. The complainant has admitted the fact in the First Information Report that the complainant was engaged in rendering services to electricity board by supplying vehicles on contract basis and on one occasion a vehicle insured with this opposite party was stolen.  During the course of such commercial transaction for their benefit, the complainant has availed the services of this opposite party for commercial purpose.  The definition of a ‘Consumer’ under the Act clearly excludes a person from being a ‘Consumer’ when such a person avails any service for commercial purpose.  Therefore, the complainant is not a consumer as they were established to do a commercial activity and not as explained in the enactment regarding purchase of goods bought and used and services availed by a person exclusively for the purpose of earning ones livelihood by means of self employment. 

4.       The complainant is not at liberty to avail the alternate remedy available under section 3 of Consumer Protection Act, 1986.  It is therefore prayed that the complainant be directed to avail a remedy if any under any other law governing the contracts in a civil court.  Section 2(d) (ii) is very clear that the consumer court does not have jurisdiction to hear such complainants and the civil courts alone has jurisdiction to hear the issue regarding commercial purpose.  It is true that the complainant had insured Tata Motors / Sumo Spacio 6/10 Str Bs.II, bearing registration no.TN 20 AB 1982 under package policy no.0120043113P104758656 and the coverage period was from 30.10.2013 to 29.10.2014.  The insured declared value of the vehicle was Rs.1,80,000/-.  The complainant is called upon to produce the original policy with all the terms and conditions attached thereto.  It was reported that the complainant’s motor vehicle was stolen from the parking area of Electricity Board, Head Office, Chennai – 2 on 14.11.2013 and came to know of the theft on 16.11.2013. 

5.       The complainant had intimated the loss of vehicle to the policy after a lapse of three months i.e. on 24.01.2014.  The insured /  complainant is bound by the terms and conditions thereof of the above cited applicable policy and accordingly the  relevant clause is as follows:

The above policy is subject to under conditions as mentioned and applicable, specific to clause 1:

“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 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 notice to the police and co-operate with the company in securing the conviction of the offender”.

6.       In view of the serious breach of the above condition by belated complaint and intimation, the claim is not admissible and the claim was repudiated vide letter dated 17.02.2014.  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.       It is submitted that there is no scope for mental agony as there is no deficiency in service on the part of the opposite party at any point of time and that the denial of claim on the basis of violations of the terms and conditions by the complainant / insured, which are binding on both parties cannot be construed as unjustified repudiation.  The act of repudiation of a claim on account of breach of policy conditions can never be considered as deficiency in service.  Hence, this complaint is liable to be dismissed.

8.       In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Exhibit A1 to A7 were marked.  While so, on the side of the  opposite party, the proof affidavit is filed  and Ex.B1 & Ex.B2 were marked on his side.

9.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10.     Inspite of sufficient time given for filing of written arguments and for adducing oral arguments the complainant has not come forward neither to file the written arguments nor for oral arguments.  Hence written arguments and oral arguments on the side of the complainant is closed.   Written arguments has been filed and oral arguments adduced on the side of the opposite party.

11.     Point no.1:-

According to the case of the complainant is that his vehicle namely TATA Sumo bearing registration No.TN 20 AB 1982 has been stolen on 16.11.2013 and to that effect the FIR was registered on 24.01.2014 after proper verification and then the same has been duly informed to the opposite party to whom the vehicle was insured vide policy no.0120043113P104758656 but the claim has been repudiated for the reason of delayed information and therefore, the opposite party has committed gross deficiency in service.  At the outset, the opposite party vehemently contented that the complainant is not at all a ‘Consumer’ under section 2(d) (ii) of the Consumer Protection Act, 1986 since the said vehicle was used for the commercial purpose and thereby, it is very clear the Civil Court alone have jurisdiction to deal with this matter.   Further, it is contended in the written version that  as per the terms and conditions of the policy issued by the opposite party that in the case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police  or otherwise if any breach of the above condition the claim is not admissible and thereby the claim of the complainant was rightly repudiated and therefore, there is no deficiency in service on the part of the opposite party as alleged in the complaint.

12.     At this juncture, on careful perusal of the rival submissions put forth on either side, it is  an admitted fact that the complainant owned the TATA Sumo Vehicle bearing registration no.TN AB 1982 and the due permit in respect of particular contract carriage was issued by the concern RTO.  The registration certificate of the vehicle is  marked as Ex.A1 and the permit is marked as Ex.A2.  It is further noticed that Ex.A3 is the insurance policy taken from the opposite party which is also not a disputed one.  Ex.B3 is one and the same of Ex.A2.

13.     At this point of time, first of all this Forum has to consider about the first contention raised by the opposite party as to whether the complainant is a ‘Consumer’ as defined under section 2 (d) (ii) of the Consumer Protection Act, 1986.   In this regard, on going through the averments of the complaint, there is no mentioning about the contract carriage to the said vehicle bearing registration no. TN 20 AB 1982 and it has simply stated that as if the complainant has used the  said vehicle for his own purpose and kept silent with other matters.  Whereas, in Ex.A4 the FIR, registered in crime no.81/2014 on the file of F1 Sinthathripet P.S. dated 24.01.2014. It is clearly noticed as follows:

“ehd; M.H. Ml;Nlh fhk;Nghdd;l;];” vd;w epWtdj;jpy; Ntiy nra;J tUfpNwd;.  vdf;F nrhe;;jkhd TN 29 AB 1982 vd;w TATA Sumo tz;bia nrd;id jkpo;ehL kpd;rhu thupaj;jpy; nraw;nghwpahsu; tsu;r;rp tl;lk; II-y; xg;ge;jj;jpd; mbg;gilapy; ,aq;fp te;jJ.  mjd; biutuhf jpU. uh[p> S/o. rpthgpufhrk;> vz;.11> 2-tJ njU> jpyf; efu;> vz;Zu;> nrd;id - 57 vd;gtu; gzpGupe;J te;jhu;.  fle;j 14.11.2013 md;W gzpKbj;Jtpl;L khiy Rkhu; 6:00 kzpastpy; kd;rhu thupatshfj;jpy; ghu;fpq; nra;Jtpl;L tPl;bw;F nrd;W te;jhu;…… kPz;Lk; 16.11.2013 md;W fhiy Rkhu; 9:00 kzpf;F tz;bia vLf;f vdJ biutu; te;j ghu;j;jNghJ mq;F vdJ tz;bia fhztpy;iy vd;W vdf;F njhiyNgrp %yk; jfty; njuptpj;jhu;”.

     14.   From the above averments made in Ex.A4 by the complainant, it is very clear that the complainant engaged the said vehicle in the business in fully for commercial purpose.  Not only that, on further perusal of Ex.A4 it is clearly mentioned by the complainant himself that he is working in some other concern namely MH Auto components which clearly reveals the fact that the alleged vehicle no.TN 20 AB 1982 was not utilized for the purpose of his livelihood only but for commercial.   From the foregoing among other facts, it is crystal clear that the complainant is not a consumer as defined under section 2 (d) (ii) of the  Consumer Protection Act, 1986 as rightly pointed out by the opposite party.  Not only that, the complainant knowingly suppressing the above all facts in the complaint which clearly shown that the complainant has moved this Forum without clean hands. 

In this regard, the decision held in I (2015) CPJ 760 (NC) United India Insurance Co. Ltd. VS Kishore Sharma relied upon by the opposite party is squarly applicable to the fact of this case.

          “Held that the respondent had purchased the vehicle for his transport business and driver has been employed for driving the said vehicle.  Hence, the purpose of purchasing of vehicle was to use the vehicle for commercial purpose hence the respondent do not fall under the category of consumer hence, complaint of the respondent deserves to be dismissed”.

15.     The next point to be decided  is as to whether the opposite party has repudiated the claim of the complainant is proper or not? In this aspect, it is seen from Ex.A3 the insurance policy was taken for the vehicle TN AB 1982 from the opposite party which is named as packaged policy.   In this connection, there is no dispute at all.   As per the version of the opposite party is that it is admitted that the said vehicle had insured but at the same time the insurer / complainant is bound by the terms and condition thereof the above cited applicable policy.  At this point of time, clause (1) of the terms and conditions as mentioned as “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 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 notice to the police and co-operate with the company in securing the conviction of the offender.”

16.     As per the above terms and conditions, it is needless to say that any case of theft of any vehicle the same should be immediately informed to the concerned insurance company on registering the FIR before the concerned police.  Such information has been conveyed to the opposite party in time or not to the opposite party has to be taken into consideration.  At the outset, as per the averment of the complaint it is clearly stated that the theft of the vehicle occurred on 16.11.2013 but in Ex.A4 FIR, it has been given as in between 14.11.2013 and 16.11.2013.  Moreover, though the vehicle was stolen and the same was brought to the knowledge of the complainant even on 16.11.2013 the Ex.A4, FIR was registered only on 24.01.2014 at 21 hours.   From which, it is clearly noticed that the FIR was registered after a long delay of nearly two months. 

17.     At this juncture, though the complainant has categorically stated in his complaint that though the complainant has informed the theft of his vehicle to the policy immediate but the police did not registered the FIR immediately and only after the due investigation they have registered the FIR on 24.01.2014. For arguments sake, if it is taken as true, no documents filed to that effect before this Forum on the side on the complainant.  Moreover, the complainant has not even informed the opposite party immediately or on the date of theft that on 16.11.2013.   In this aspect also no evidence adduced on the side of the complainant.  Instead, after issue of Ex.A5 only, Ex.A6 the notice was issued sent to the opposite party, and for which Ex.A7, the reply notice sent by the opposite party by stating that the repudiation of the claim is not proper and reasonable as per the terms and condition of the policy Ex.A3.

18.     In the light of the above facts and circumstances, it is crystal clear that the intimation of theft of the insured vehicle to the police as well as to the opposite party after a long delay of nearly two months.   It is pertinent to note that the delayed intimation is in contravention to the terms of the policy.  In this connection the learned counsel for the opposite party has relied upon the following decision:

 Kailash Chandrakant Bhalerao & another VS I.C.I.C.I. Lombard General Insurance Company Limited III (2015) CPJ 128 (NC) in para nos.8 & 9

 “It is held that, it was the bounden duty of the petitioner to inform the insurance company immediately for which for his vehicle had been stolen for. The FIR was lodged 4 days after the theft.   He has made a vain attempt to pull the wool in the eyes of the law and the other person concerned therein.  The delay explained by the petitioner does not just stack up.  There is no evidence that the vehicle was properly parked.  The same was parked on the open road.  The State Commission noted that on the day of the theft, the driver parked the car on the road – side without adequate safety itself, which shows negligence on his part which is squarely applicable to the facts of the case”.

19.     In this case, as already pointed out by the opposite party is that the delay of more than two months in intimating the theft of the vehicle of the complainant to the policy as well as the opposite party and the explanation for the delay is not at all satisfactory.  Hence, this Forum has come to conclusion without any hesitation that the repudiation of the claim of the complainant through Ex.A5 by the opposite party is fully justifiable.  From the foregoing among other facts and observations, this Forum has concluded that there is no deficiency in service on the part of the opposite party.  Moreover, as rightly pointed out the complainant is not a consumer under Consumer Protection Act, 1986.  Thus this point is answered accordingly.

20.     Point no.2:-

As per the conclusion arrived in point no.1, the complainant is not entitled for any relief as prayed in the complaint and answered this point accordingly.    21.     In the result, this complaint is dismissed.  No cost.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 21^st  April 2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT