Tamil Nadu

South Chennai

CC/50/2022

Mrs. Lakshmi Bhaskaran - Complainant(s)

Versus

M/s. ICICI Lombard General Insurance - Opp.Party(s)

M/s. A. Thirumaran

10 Jan 2023

ORDER

                                                           Date of Complaint Filed :12.01.2022

                                                           Date of Reservation      : 27.12.2022

                                                           Date of Order               : 10.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                              : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,              :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,        : MEMBER II

 

CONSUMER COMPLAINT No. 50/2022

TUESDAY, THE 10^thDAY OF JANUARY 2023

Mrs. Lakshmi Bhaskaran, F/A-56 years,

W/o.VPR Bhaskaran,

No.1, Thadi Rathinam Street,

West Saidapet,

Chennai 600 015.                                                                                                                         ...  Complainant              

..Vs..

 

M/s.ICICI Lombard General Insurance,

Represented by its Manager,

684-690, Anna Salai,

Seethakathi Business Centre,

II Floor, [3A/3B],

Thousand Lights,

Chennai 600 006.                                                                                                                         ...  Opposite Party

******

Counsel for the Complainant          : M/s. A. Thirumaran

Counsel for the Opposite Party       : Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to pay a sum of Rs.5,00,000/- for the deficiency of service , mental agony, torture, and the subsequent wastage of time and moneys in this regard and to pay a sum of Rs.41,607/- towards the claim of the Complainant in respect of the vehicle theft along with cost of the proceedings.

2.     The averments of Complaint in brief are as follows:-

The Complainant had purchased a two wheeler [HERO MOTO IS MART BS III] bearing Registration No.TN09CD8989 with engine No.HA12EMGHD12613, Chassis No.MBLHA12ACGHD12418 of HGR color and manufactured by Hero Moto Corp of the year April2016. The said vehicle was insured with the Opposite Party in Policy No.3005/36779254/10132/000-Two Wheeler Package Policy valid from 25.05.2017 till 24.05.2019 for a sum of Rs.41,607/-. The said two wheeler was used by her sons as well as her husband. On 22.09.2018 her younger son had parked the vehicle in question in front of his friend's house at Balaji Street, Saidapet, Chennai and stayed there in the night. On the next day the vehicle wasfound and in the afternoon when her son had looked for the two wheeler, the same was not there. Her son and his friends had searched for the two wheeler in the nearby surrounding areas and could not find the vehicle. Upon perusal of the CCTV footage, it was found that the vehicle was taken by a person not known to them.Her son and his friends had put all their efforts to trace the vehicle in question but all their efforts in this regard proved futile. Thereafter her husband had preferred a complaint on 23.09.2018 at about 4.00 PM to J-1 Police Station at Saidapet and the Police issued a CSR on 24.09.2018 and thereafter registered a FIR in Cr.No.1003 dated15.10.2018.Despite valiant efforts by her son and his friends as well as the Police, till date the vehicle is yet to be traced and the accused is yet to be apprehended and the Police had thereafter issued a not traceable certificate on 27.02.2020. Since the vehicle was insured with the respondent and considering the fact that the Policy was in force they had also intimated the factum of the vehicle being stolen to the officials of the respondent. Thereafter, the respondent herein had deputed one M/s. Third Eye Consultancy to survey the claim made by the Complainant. The said M/s.Third Eye Consultancy had deputed their official in order to find out the veracity of the claim made by the Complainant and the said official had visited the Complainant on 02.10.2018 in order to collect the information. The official of the M/s. Third Eye had met the Complainant her son and his friends in order to collect information and finally collected one Key of the Vehicle from the Complainant. However, the Complainant states that even the surveyor even at the threshold stage was determined to reject her claim. The surveyor was not interested in making a proper and correct survey as the claim was very small, only to the tune of Rs.41,607/-. Thereafter she had come to understand that the surveyor M/s.Third Eye Consultancy appointed to survey her claim had filed a report before the Opposite Party. Thereafter upon receipt of the report filed by the said M/s.Third Eye Consultancy the Opposite Party had repudiated her claim on 22.01.2019 on the ground that she had failed to safeguard the vehicle from loss or damage. Having come to a conclusion that the Opposite Party will not settle their claim which was just and legal had approached the Office of the Insurance Ombudsman for the TamilNadu and Puducherry with their office at Chennai and had preferred a complaint on 30.08.2019 narrated all the facts and events and prayed to them to redress their grievances. Thereafter the Insurance Ombudsman for the TamilNadu and Puducherry had passed an award in Complaint Ref No: CHN-G-020-1920-0122 in Award No.IO/CHN/A/G1/0168/2019-2020 on 30.12.2019 observing that the repudiation of the claim was in order and does not warrant any intervention and finally dismissed the complaint. In the meanwhile the Jurisdictional Police had also issued a Non Traceable Certificate to the Complainant on 27.02.2020, to the effect that that the vehicle could not be traced. The reason for the Opposite Party dismissing her claim was on the basis of their notion that she had left his vehicle key in the vehicle itself which had led to the vehicle being stolen and that the surveyor of the Opposite Party had collected one key from her, which was the inference the Opposite Party had made from the statement of her son that he had misplaced the keys. But, even after one of the keys were handed over to the surveyor another key is still in her possession. In said circumstances, the key was not left in the vehicle by her son as alleged and misinterpreted by the Opposite Party and hence she had not contravened with condition no.4 of the insurance policy which she had taken with the Opposite Party for the vehicle in question. In any case, the said clause is not at all applicable to him either under law or under the facts of the case and that her claim has been rejected on false pretenses and on the basis of surmises, conjunctions, assumptions and presumptions. The CSR mentions that the key was kept in the vehicle by mistake which was relied upon by the Opposite Party as well as the Ombudsman. But, CSR is a receipt for the complaint given by the Complainant and the said receipt is issued by the Police. However, the complaint of the Complainant to the Police as well as the FIR in Cr.No.1003/2018 dated 15.10.2018 of Saidapet Police Station do not speak about the keys being left in the vehicle in question by the Complainant. As far as the statements allegedly recorded by the surveyor is concerned, she is given to understand that the said surveyor did not allow her son to go through the statement written by the surveyor on the basis of the CSR and therefore such statement is not binding on her or her son. The claim was rejected by the Opposite Party on false and frivolous grounds and even her efforts to get her grievances redressed by the Insurance Ombudsman had failed as a result of which she had issued a legal notice dated 16.07.2020 to the Opposite Party. She has been put to severe agony, mental pressure and harassment and unwanted expenditure on account of the improper, incorrect act of the Opposite Party repudiating the Complainant's claim in a haphazard manner on the basis of assumptions and presumptions and conjunctures and surmises. Hence the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as  Ex.A-1 to Ex.A-20 . The Opposite Party did not appear before this Commission even after sufficient notice served and remained absent and set exparte.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:

On reading of the Complaint and the Exhibits marked in support of the Complaint, from Exs.A-1, A-3 and A-4 , Proforma Invoice, Registration Certificate and Insurance Policy, respectively, it is clear that the Complainant had purchased a two wheeler [HERO MOTO IS MART BS III] bearing registration no.TN09CD8989 with engine no.HA12EMGHD12613, Chassis No.MBLHA12ACGHD12418 of HGR color and manufactured by Hero Moto Corp of the year April 2016 and the said vehicle was insured with the Opposite Party in Policy No.3005/36779254/10132/000-Two Wheeler Package Policy valid from 25.05.2017 till 24.05.2019 for a sum of Rs.41,607/-. Ex.A-5 is the Complaint dated 23.09.2018 given by the husband of the Complainant to J-I Saidapet Police station, wherein it has been informed that the subject vehicle parked in front of his son’s friend’s house on 22.09.2018 night and the same was found missing on 23.09.2018 and on seeing CCTV camera fixed in his son’s friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle, whereas on receiving Ex.A-5 a CSR issued by the said Police Authority on 24.09.2018, wherein it was mentioned as the keys of the subject vehicle was forgotten and left in the subject vehicle and further it was mentioned that the subject vehicle was found missing on 23.09.2018. Further Ex.A-8 FIR dated 15.10.2018 it is clear that the vehicle which was left in front of his son’s friend’s house was found missing on 23.09.2018 and on seeing the CCTV camera fixed in his son’s friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle. From Ex.A-7 Reminder dated 01.11.2018 the Opposite Party had sought for all keys of the subject vehicle apart from other documents and had also admitted that the claim was lodged on 23.09.2018 with them. From Ex.A-9 the letter dated 17.10.2018 sent by the Surveyor of the Opposite Party to the Complainant, wherein it was mentioned that the date of loss was informed on 23.09.2018 and notice/intimation to the company was given on 25.09.2018 as such the notice was given with a delay of 2 days and requested to respond within 7 days from the date of receipt of the said letter. Under Ex.A-10 Mail dated 28.02.2019 sent by the Complainant to the Opposite Party wherein she had requested to arrange for re-survey and to review the claim enquiry. Under Ex.A-11 Mail dated 01.03.2019 sent by the Complainant to the Opposite Party wherein she had requested to arrange for re-hearing, re-examining the incident, re-consider the genuine facts  and to proceed the claim process as soon as possible by attaching the relevant documents. The Opposite Party under Ex.A-12 Mail dated 02.03.2019 replied that the above said request was under process. By Ex.A-13 Renewal Notice sent by the Opposite Party to the Complainant, for renewal of the insurance policy in respect of the subject vehicle. From Ex.A-14 Complaint dated 30.08.2019 preferred to Insurance Ombudsman by the Complainant, for which the Insurance Ombudsman vide letter dated 18.09.2019 addressed to the Complainant had sought for documents to be submitted within 10 days from the receipt of the said letter. Under Ex.A-16 Letter dated 19.11.2019 the insurance ombudsman had fixed hearing on 05.12.2019 and the same was addressed to the Complainant. From Ex.A-18 the Order of Insurance Ombudsman dated 30.12.2019 the repudiation made by the Insurance Company/Opposite Party was justified based on the CSR and the statements given by the Complainant and her son and also observed that the FIR is silent in respect of the keys left in the vehicle by mistake by the Complainant’s son. Ex.A-19 Non Traceable Report dated 27.02.2020 issued by J-I Saidapet Police Station. Ex.A-20 is the Legal Notice dated 16.07.2020 issued to the Opposite Party.

On discussions made above and on considering the facts and circumstances of the case, it is clear from Ex.A-5 Photocopy of the Complaint dated 23.09.2018 given by the husband of the Complainant to J-I Saidapet Police station, produced before this Commission, wherein it has been informed that the subject vehicle parked in front of his son’s friend’s house on 22.09.2018 night, was found missing on 23.09.2018 and on seeing CCTV camera fixed in his son’s friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle, whereas in Ex.A-5 a CSR issued by the said Police Authority on 24.09.2018 it was mentioned that as if the keys of the subject vehicle was forgotten and left in the subject vehicle, which is in contra to the complaint given by the Complainant’s husband to the Police Authority. As per Ex.A-8 FIR dated 15.10.2018 it is clear that the vehicle which was left in front of his son’s friend’s house on 22.09.2018 night, was found missing on 23.09.2018 and on seeing the CCTV camera fixed in his son’s friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle. From Ex.A-7 Reminder dated 01.11.2018 the Opposite Party had sought for all keys of the subject vehicle apart from other documents and had also admitted that the claim was lodged on 23.09.2018 with them. From Ex.A-9 the letter dated 17.10.2018 sent by the Surveyor of the Opposite Party to the Complainant, wherein it was mentioned that the date of loss was informed on 23.09.2018 and notice/intimation to the company was given on 25.09.2018 as such the notice was given with a delay of 2 days and no FIR was registered and requested to respond within 7 days from the date of receipt of the said letter. Except Ex.A-9 the reasons for rejecting the claim of the Complainant was not submitted before this Commission, further in EX.A-18 the Order of Insurance Ombudsman dated 30.12.2019 it was observed based on the self contained note dated 10.10.2019 in the column of Insurer’s submission, wherein Condition No.4 of the Insurance Policy was quoted by the Opposite Party, as the Insured shall take all reasonable steps to safeguard the vehicle from loss of damage, and as the Complainant had left the keys in the subject vehicle mistakenly which resulted in theft of the subject vehicle, hence as per the said condition the Complainant is not entitled for the claim, but no communication regarding rejection of claim sent to the Complainant was filed even before the Insurance Ombudsman. The Contentions of the Complainant is that the CSR is only a receipt issued by the Police Authorities and only the Complaint and FIR could speak about the manner of occurrence of theft in respect of the subject vehicle, is not acceptable and sustainable, as Ex.A-5 Photocopy of the Complaint dated 23.09.2018 given by the husband of the Complainant to J-I Saidapet Police station, produced before this Commission, wherein it has been clearly informed that the subject vehicle parked in front of his son’s friend’s house on 22.09.2018 night and the same was found missing on 23.09.2018 and on seeing CCTV camera fixed in his friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle. And in Ex.A-8 FIR dated 15.10.2018 it has been clearly mentioned that the vehicle which was left in front of his son’s friend’s house was found missing on 23.09.2018 and on seeing the CCTV camera fixed in his son’s friend’s house around 2.30 pm on 23.09.2018 an unknown person had stolen the subject vehicle. Further as per Exs.A-7 and A-9, the claim has been found to be lodged by the Complainant on 23.09.2018 and intimation was given to the Opposite Party on 25.09.2018. Hence there is no delay in either lodging the Complaint about loss of the subject vehicle to the Police Authorities or in intimating the Opposite Party. Therefore, we are of the considered view that the Opposite Party had failed to take note of the complaint, Ex.A-5 and the FIR Ex.A-8 registered by the Police Authorities about the occurrence of the theft of the subject vehicle, instead had taken the contents of the CSR, EX.A-6 and had refused to process the genuine Claim of the Complainant, clearly amounts to deficiency in service on the part of the Opposite Party and thereby had caused serious mental agony to the Complainant. Accordingly Point No.1 is answered.

Point Nos.2 and 3:

As discussed and decided in Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.41,607/- towards claim amount covered under Insurance Policy No.3005/36779254/10132/000 for the vehicle bearing Registration No.TN09CD8989 and also to pay a sum of Rs.25,000/- towards deficiency of service and mental agony  caused to the Complainant along with cost of Rs.5,000/-. Accordingly, Point Nos.2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party  is directed to pay Rs.41,607/- (Rupees Forty One Thousand Six Hundred and Seven Only) towards claim amount covered under Insurance Policy No.3005/36779254/10132/000 for the vehicle bearing Registration No.TN09CD8989 and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards deficiency of service and mental agony  caused to the Complainant along with cost of Rs.5,000/- (Rupees Five Thousand Only) within 8 weeks from the date of receipt of this order failing which the above claim amount of Rs.41,607/- shall carry interest @ 9% p.a from the date of receipt of the order till the date of realization.

          In the result this complaint is allowed.          

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 10^th of January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	12.05.2016	Southern Auto Centre’s proforma invoice
Ex.A2	-	Insurance Policy of respondent in Policy No.3005/32461031/10132/000 for the tenure from25.05.16 till 24.05.2017
Ex.A3	-	RC Book of Vehicle
Ex.A4	-	Insurance Policy of Respondent in Policy No.3005/36779254132/000 for the tenure from 25.05.2017 till 24.05.2019
Ex.A5	23.09.2018	Complaint of the Complainant to Juridictional police
Ex.A6	24.09.2018	CSR No.280/18 issued by Jurisdictional Police
Ex.A7	01.11.2018	Letter from Respondent to submit documents
Ex.A8	15.10.2018	FIR in CR.No.1003/2018 of Jurisdictional Police
Ex.A9	17.10.2018	Letter of Third Eye Consultancy to Complainant
Ex.A10	28.02.2019	Email from Complainant to Respondent
Ex.A11	01.03.2019	Email from Complainant to Respondent
Ex.A12	02.03.2019	Reply by mail from Respondent
Ex.A13	06.04.2019	Letter from Respondent asking Complainant to renew the policy
Ex.A14	30.08.2019	Complaint to Insurance Ombudsman
Ex.A15	18.09.2019	Letter from Insurance Ombudsman to Complainant
Ex.A16	19.11.2019	Notice of hearing from Insurance Ombudsman
Ex.A17	13.12.2019	Written submission of Complainant before Ombudsman
Ex.A18	30.12.2019	Dismissal award of Insurance Ombudsman
Ex.A19	27.02.2020	Not traceable certificate issued by Police
Ex.A20	16.07.2020	Legal notice issued by Complainant

 

List of documents filed on the side of the Opposite Party:-

NIL

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT