BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 16th JUNE 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C. No. 125/2014
(Admitted on 09.04.2014)
Mr. A.K. Zainuddin,
S/o Mr. A.K. Hussain,
Residing at door No.25/15/989,
Aysha Villa, Seminary 3rd Cross,
Near Kings Garden, Jeppu,
Velancia, Mangalore 575002.
….......COMPLAINANT
(Advocate for the Complainant: Sri KPAS)
VERSUS
M/s National Insurance Co. Ltd,
Represented by its Manager,
Inland Ornate, Opposite Ocean Pearl,
Kodialbail, Mangalore 575 003.
….........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri PJR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he had insured his motorcycle No. KA.19.EF.9280 with opposite party for the period form 10.09.2012 to 09.09.2013. On 18.10.2012 at about 4 pm the vehicle parked in front of Cochin Baker, Kankanady bye pass road, Mangalore and he went inside the bakery when he came out to the parking area within a few minutes to his surprise the vehicle was found missing and unable to trace inspite of strenuous search ultimately on 22.10.2012 he lodged a police complaint of the theft of the vehicle registered a case in crim No. 138/2012. The police after investigation have filed a ‘C’ final report before the JMFC II Court Mangalore on 26.07.2013. The claim made by complainant under the policy for the value of the vehicle of Rs.48,944 as it was brand new vehicle was not paid by opposite party the service provider. Despite legal notice and opposite party repudiated the claim. Hence seeks the relief claimed in the complaint.
2. Opposite party in the version admits coverage issued to complainant vehicle has claimed and it was as Motor cycle/scooter Policy B Package and IDV was Rs.40,670/. The complainant deliberately has not produce the original copy of policy issued to him by opposite party. While processing the claim it was noticed that there was more than 3 days delay in lodging the complaint with police even after coming to know about the alleged theft. The claim papers show the complainant has parked the vehicle by leaving the key in the vehicle itself which amounts to failing to take reasonable care to protect the vehicle which amount to violation of the condition No.1 of the policy. There is also violation of the condition No.4 of the policy by complainant. Complainant failed to collect the RC and the key of the vehicle in question but did not show response any response instead filed this complaint. Hence seeks dismissal of the complaint.
3. In support of the above complaint Mr. A. K. Zainuddin filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C11 as detailed in the annexure here below. On behalf of the opposite party Mrs. Pushpalatha K.P (RW1) Senior Branch Manager, National Insurance Company Ltd, also filed affidavit evidence and answered to the interrogatories served on her and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
4. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for opposite party filed notes of argument. Complainant not filed notes of argument. We have considered entire case file on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii) : As per the final order.
REASONS
5. POINTS No. (i): In this case the complainant’s vehicle in question insured under policy issued by opposite party covering the risk of the period of the accident in question is undisputed. Hence there is relationship of consumer and service provider between the parties. The claim made by complainant of payment of IDV value of the vehicle alleging theft of the vehicle insured with opposite party was repudiated by opposite party on the ground of delay in lodging the complaint and also complaint of that period and delay in intimating the opposite party about the theft beyond 3 days and failure to take reasonable care of the vehicle by living the key in the vehicle unattended. Thus there is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
6. POINT NO. (ii): Ex.C2 is the CC of the complaint lodged by the complainant about the incident of theft it is dated 22.10.2012 mentioning the theft of the vehicle was stolen on 18.10.2012 when he parked the vehicle in front of Cochin bakery at about 4 pm by leaving the key in the vehicle and he found at 4:10 the vehicle is missing.
7. Admittedly the police filed ‘C’ final report before the jurisdictional Magistrate as per Ex.C3. Ex.C8 is the intimation given by opposite party to complainant of repudiating the claim of complainant. As seen from the Ex.R1 in the two wheeler package policy in the column pertaining to the conditions at Sl.No.1 on page No.3 about the involvement of the vehicle in theft the relevant portion in conditions Sl.No.1notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal injury 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.
8. As seen from Ex.C1 the theft occurred on 18.10.12 at 4.10 pm and the complaint to the police was lodged on 22.10.12 at 19 hrs thus there is delay of 4 days in lodging the complaint before the police and the intimation given to opposite party about the theft is as per Ex.C7 the claim intimation form. Unfortunately as we find from Ex.C7 there is no date indicated on which date he intimated to opposite party. Suffice to mention that it was done only after the complaint to the police lodged on 22.10.2012. At Ex.C7 mentioned above the FIR number of Kadhri police station at 0138/2012 which is of Ex.C1 dated 22.10.2012.
9. Learned counsel for opposite party referred to various reported cases in Abdul Rehman vs Oriental Insurance Co. Ltd., II (2014) CPJ 538 (NC) referring to sections 2(1)(g) 21(a)(ii) of C P Act 1986 in respect of delaying in lodging FIR and non-intimation to the insurance company about theft of vehicle. Wherein on facts the FIR registered after a period of five months of the alleged accident and then written intimation not given to insurance company by violation of conditions of insurance policy hence repudiation is justified.
10. Similar is the view expressed by National Commission in Surender vs National Insurance Co. Ltd I (2013) CPJ 741 (NC). Thus considering these aspects we are of the view the repudiation of the claim by opposite party in the circumstance is justified and there is no deficiency in service on the part of the opposite party. Hence we answer point No.2 in the negative.
POINT NO. (iii): Wherefore the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 16th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. A. K. Zainuddin
Documents marked on behalf of the Complainant:
Ex.C1: Certified copy of the FIR in Crime No.138/2012 of Mangalore East Police Station
Ex.C2: Certified copy of the complaint
Ex.C3: Certified copy of the ‘C’ Report
Ex.C4: Copy of the Invoice
Ex.C5: Copy of the Registration certificate of the motor bike Bearing registration No KA.19.EF.9280
Ex.C6: Original Insurance policy
Ex.C7: Copy of the claim intimation form
Ex.C8: Copy of the Repudiation letter
Ex.C9: Office copy of the legal notice dated 03.12.2013
Ex.C10: Acknowledgment card
Ex.C11: Reply notice
Witnesses examined on behalf of the Opposite Party:
RW1 Mrs. Pushpalatha K.P, Senior Branch Manager, National Insurance Company Ltd.,
Documents marked on behalf of the Opposite Party:
Ex.R1: 10.09.2012: True copy of the policy bearing No. 604301/31/12/6260001494 in respect of Unnumbered vehicle for the period
10.09.2012 to 09.09.2013
Ex.R2: : Original RC (Card)
Ex.R3: : Original duplicate key
Dated: 16.06.2017: PRESIDENT
