Complaint filed on: 08-11-2010
Disposed on: 31-03-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2555/2010
DATED THIS THE 31st MARCH 2011
PRESENT
SRI.D.KRISHNAPPA., PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT. ANITA SHIVAKUMAR. K, MEMBER
Complainant: -
Sri.H.S.Shiva Raju S/o. Sri.Somappa, aged about 48 years,
No.439, 2nd Cross, 6th Main,
HAL III stage, Bangalore-75
V/s
Opposite party: -
M/s. Future Generali India
Insurance company limited,
Branch office, Pasadena,
No.18/1, (old no.125/A),
3rd Floor, above E-Zone,
Ashoka Pillar Road,
Jayanagar I block,
Bangalore -11
Reptd.by its Senior Manager-Claims.
O R D E R
SRI. D.KRISHNAPPA., PRESIDENT.,
Brief facts of the complaint filed by the complainant against the OP are, that he is the registered owner of Mahindra Scorpio vehicle as described in the complaint worth Rs.7,07,428/-. That insurance of that vehicle was got renewed with OP from 8-5-2009 to 7-5-2010 by paying premium of Rs.15,771/-. On 9-5-2009 at about 10 PM he had parked his vehicle in front of his house and on 10-5-2009 at about 6 AM he saw his vehicle was missing. That he made necessary arrangements to trace the vehicle and he on same day had reported the theft to the OP. On 11-5-2009 he filed a complaint to the concerned police where a case has been registered and also reported the same to the RTO. That thereafter he has sent all necessary documents to the OP claiming insurance amount and on 12-8-2009 he approached the OP who promised to release the compensation amount. Then he again after continues approach, again approached on 22-7-2010 on which date the OP informed him that there is 18 days delay in reporting of the claim to them and they did not have an opportunity to check the veracity of loss and thereby refused to pay the insurance amount and the complainant then referring to legal notice got issued dated 11-8-2010 has prayed for a direction to the OP to pay him the declared value of Rs.4,50,000/-, to award compensation of Rs.4,00,000/- and Rs.2,00,000/- towards damages and to award cost.
2. OP has appeared through his advocate and filed version contending that the vehicle in question had been subjected to insurance policy and a policy was obtained by not producing it for inspection. Based on the photographs, that vehicle had been insured. The complainant prior to approaching them had got it insured from 5-10-2007 to 4-10-2008 which had expired on 5-10-2008. That there was break in the insurance policy, based on the documents and material information given by the complainant, the vehicle was insured without inspection. The OP referring to the good faith one should repose while applying for policy and issue of policy has stated that the complainant obtained policy without producing it inspection. The OP without disputing the ownership of the vehicle of the complainant has stated that an agent had issued cover note covering the vehicle for the period from 8-5-2009 to 7-5-2010 and stated that the policy was issued only on 19-5-2009 after the receipt of cheque amount of Rs.15,771/- toward the premium and stated that cheque was realised only on 18-5-2009. Stating that the policy has been issued subject to various terms and conditions of the policy has contended that report of theft had not been given to them on 10-5-2009 as contended by the complainant and stated that report in the form of submission of claim application was given only 28-5-2009 after delay of nearly 18 days. The OP further referring to the appointment of their loss assessor has reiterated that cover note was issued subject to realization of the cheque and cheque since realized on 18-5-2009 and the vehicle though missing on 10-5-2009, the complainant had failed to intimate them until 28-5-2009 and therefore contending that the complainant has violated the terms of the policy and denying any deficiency in his service has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and the OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced a copy of RC, copy of insurance policy, copy of the complaint he had given to the police, copy of FIR, copy of letter said to had been sent to the manager of the OP with a copy of legal notice and repudiation letter. OP has produced photocopy of the vehicle, proposal form copy, few copies of letters addressed by the complainant with a copy of conditions of the policy. We have heard the counsel for both parties and pursued the written arguments filed by the counsel for the complainant and perused the records.
4. On the above contentions following points for determination arise.
1) Whether the complainant proves that the OP has caused deficiency in his service by repudiating his claim for reimbursement of the insurance amount?
2) To what relief, the complainant is entitled to?
5. Our findings are as under:
Point no.1: In the Negative
Point no.2: See the final Order
REASONS
6. Answer on Point No.1: On considering the contentions of both parties, we find no controversy between the parties with regard to the ownership of the complainant over the stolen vehicle and validity of the insurance period from 8-5-2009 to 7-5-2010. The OP though admitted to had received the proposal form for insuring the complainant’s vehicle for the above period has contended that the previous policy of the vehicle had expired on 5-10-2008 and they have issued a policy with effect from 8-5-2009 and has further contended that the complainant had not produced the vehicle for inspection, the agent had issued cover note and policy issued on the basis of photocopy, but the OP cannot deny issue of policy with effect from 8-5-2009 till 7-5-2010 and that policy had covered the risk during that period.
7. The OP has also not denied the alleged theft of the complainant’s vehicle on the night of 9-5-2009. However has contended the complainant did not immediately or within the reasonable time inform them about the theft of the vehicle and reported the theft of the vehicle through a claim form only on 28-5-2009 that is after delay of nearly 18 days and thereby through their letter of repudiation dated 22-7-2010, repudiated the claim of the complainant on the ground of delay and violation of condition No1 of the conditions of the policy. Having regard to these facts and the contentions of the OP that the complainant did not produce the vehicle for inspection and they by acting upon the photograph of the vehicle issued the policy is not available to them as defence to deny the policy benefits. However, the delay in intimating the OP with regard to the theft of the vehicle is the crux of the issue which we shall examine separately here in after.
8. The complainant reporting theft of his vehicle on the night of 9-5-2009 stated to had filed a compliant to jurisdictional police on 11-5-2009. Even there, there is more than 24 hours delay in filing the complaint to the concerned police. The complainant in the complaint and also in the affidavit evidence, though alleged to had reported theft of vehicle to the OP and OP office had assured necessary arrangements, but has not placed any material or proof in having had informed about the theft to the OP. The OP not only in the version filed but also in the affidavit evidence denying receipt of any report of theft from the complainant has categorically stated that the complainant submitted claim form with report of theft of the vehicle only on 28-5-2009 after nearly 18 days after the theft. The complainant has not controverted this statement of the OP nor made any attempt to substantiate in, he having had informed the OP on any date earlier to 28-5-2009. Thus the contentions of the OP that the complainant never informed about theft of the vehicle till 28-5-2009 remained un-rebutted. Therefore, we find that there has been undue delay in reporting theft of the vehicle to OP by the complainant.
9. Learned counsel appearing for the OP in the course of arguments submitting about the delay in report of theft, argued that non-reporting of theft immediately has resulted in violation on terms of the policy and by placing reliance on a decision of the Hon’ble National Commission rendered in first appeal No.321/2005 dated 9-1-2009 argued that the delay in reporting the theft of the complainant is fatal therefore the complainant is not entitled for the relief and also relied on a decision of the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore delivered in appeal No.1220/2010 dated 2-6-2010. The learned counsel for the complainant in the written argument has not controverted, the argument of the counsel for the OP and disputed the principle lai down by the Hon’ble National Commission and the Hon’ble State Commission in the decision referred to above the Hon’ble National Commission considering the 9 days delay in the complainant reporting theft of the vehicle to the insurance company has held it was fatal and observed that in the mean time the car could have travelled a long distance or may have been dismantled by that time and sold to scrap dealer and held that the delay has resulted in violation of condition of the policy. In the case on hand, the policy conditions contemplate issue of notice immediately to the insurance company, in the event of loss of the vehicle in any manner and that delay disentitle the insured to get compensation. The facts are being similar to the facts of the case before the Hon’ble National Commission and also to the facts of the decision in the appeal of the Hon’ble State Commission, Bangalore, we hold that the omission to pay the insurance amount by the OP, on the ground of delay do not amounts to deficiency, therefore the complaint is devoid of merits and is liable to be dismissed. As the result, we answer point no.1 in the negative and pass the following order:
ORDER
Complaint is dismissed. Parties to bear their own cost.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 31st March 2011.
Member Member President
