Date of Filing:18.03.2009<br /> Date of Order:17.09.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 17TH DAY OF SEPTEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 621 OF 2009<br /> <br /> K. Raju,<br /> S/o K. Adinarayana Setty,<br /> No. 26, I ‘B’ Main Road,<br /> ‘Sri Bhagawan Nilaya’,<br /> Maruthi road, Shakambari nagar,<br /> I Phase, J.P. Nagar,<br /> Bangalore 560 078. Complainant<br /> <br /> V/S<br /> <br /> M/s Bajaj Allianz Gen. Ins. Co. Ltd.,<br /> Represented by its Manager, <br /> No. 31, Ground Floor, TBR Towers,<br /> I Cross, New Mission Road,<br /> next to Bangalore Stock Exchange, <br /> Bangalore-560027. Opposite Party<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 claiming Rs. 36,614/- with interest and costs. <br /> The facts of the case are that, the complainant has insured his Honda Activa bearing Reg. No. KA-05-HC-3241 for the period from 06/03/2007 to 05/03/2008 with the opposite party under comprehensive policy, covering risk of own damage. The declared value is Rs. 36,614/- and model is of 2007. The vehicle in question was stolen on 03/03/2008 and in respect of the same a theft claim has been lodged with the opposite party after the complaint to the concerned police. The opposite party has written a letter on 14/08/2008 seeking for declaration, for which the he has clarified by his letter dated 28/08/2008 stating that, he has taken care as per the conditions of the policy and the act of the leaving the key is not a deliberate act on the part of the complaint. The opposite party having slept over the matter for quite some time and on 18/11/2008 has expressed its inability to entertain the claim on the ground that the condition No.4 of the terms and condition of the policy. The complainant has submitted the necessary documents to the opposite party in order to process the claim. The claim could have been settled by the opposite party instead of expressing its inability to entertain the claim and having not repudiated the claim as on the date and having not settled the claim the opposite party has committed deficiency in service in not settling the claim. Hence the complaint. <br /> 2. Notice was issued to opposite parties through RPAD. Opposite parties put in appearance through Advocate and defence version filed stating that the opposite party has issued a policy of insurance in favour of the complainant in respect of scooter bearing No. KA-05 HC 3241 for a period of one year from 06/03/2007 to 05/03/2008 subject to the contract of insurance and strictly as per the terms, conditions and exclusion of the policy. During the validity the complainant informed the opposite party about the theft of the vehicle and made a claim. After getting the investigation and while processing the claim of the complainant, noticed that on 03/03/2008 the complainant had parked the scooter and had left the key in the scooter and when the complainant came out to take the scooter was stolen. Under condition No.4 of the insurance of contract, the insured shall take all reasonable steps to safeguard the vehicle from the loss of damage and main in efficient condition. In this case it presupposes the carelessness and negligence on the part of the complainant that led to theft of scooter. The repudiation of the claim by this opposite party after thoroughly following the terms, conditions and exclusions of the policy and not done with an intention to deprive or to harass the complainant, and it was done after applying their mind, and it cannot be said to unfair or unjust and there is no deficiency of service rendered by this opposite party to the complainant and requested to dismiss the complaint. <br /> 3. Affidavit evidence of both the parties filed. Arguments are heard. <br /> 4. In the light of the arguments advanced before us following points arise for consideration:<br /> <br /> 1. Whether there was deficiency in service on <br /> the part of opposite party?<br /> <br /> 2. Whether the opposite party can be directed to allow the claim?<br /> <br /> 5. It is an admitted case of the parties that the complainant has insured his scooter with the opposite party. The copy of policy has been produced. Vehicle IDV is for Rs. 36,614/-. The date of manufacture of vehicle is 2007. The complainant submitted that the vehicle was stolen on 03/03/2008 and he has put up the claim with the opposite party. The opposite party repudiated the claim by letter dated 14/08/2008 on the ground that the complainant has left the ignition key in the ignition switch which had directly contributed to the theft of the vehicle and the complainant has failed to take minimum reasonable safeguard for the loss of vehicle. Therefore, on this ground claim was repudiated. The complainant has produced FIR copy, copy of complaint and the correspondence made by himself and the opposite party. He has also produced copy of legal notice. The complainant has produced certified copy of judgment of the Hon’ble Karnataka State Commission rendered in Appeal No.2346/2006 dated 09/08/2007 wherein in a similar facts and circumstances, the Hon’ble State Commission had taken the opinion as follows:-<br /> “not locking the vehicle itself cannot said to be a fundamental breach so as to repudiate the claim .....hence the claim of the complainant is to be treated as non standard claim and.......the complainant is entitled for 75% of the total value of the cost of the vehicle”. <br /> <br /> The Hon’ble State Commission has allowed the appeal and directed the insurance company to pay Rs.30,000/- to the complainant. The judgment of Hon’ble State Commission is directly applicable to the facts of the present case. In this case the vehicle is of the 2007 model and theft had taken place in 2008. Therefore, 10% is liable to be deducted towards depreciation in the IDV. The vehicle IDV was Rs. 36,614/-. As per the policy after deduction of 10% towards depreciation the net value comes to Rs.32,954/-. Since there was minor breach of condition of policy, the Hon’ble State Commission directed the company to treat the claim as non standard claim and directed to pay 75% of the cost of the vehicle. Therefore, 75% of the cost of the vehicle in this case comes to Rs.24,715/-. Therefore, the opposite party company can be directed to pay this much of amount to the complainant. In the result, after considering the facts and circumstances of the case and relying on the judgment of the Hon’ble State Commission referred to above, I proceed to pass the following:- <br /> ORDER<br /> 6. The complaint is allowed. The opposite party is directed to pay Rs. 24,715/- to the complainant within four weeks from the date of this order. In the event of non compliance of the order within four weeks, the above amount carries interest at 6% p.a from the date of this order till payment/realisation.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 17TH DAY OF SEPTEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> Rhr.,