BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 4th DAY OF SEPTEMBER, 2023
APPEAL No.550/2015
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
Ravi Agarwal
Vaishnav Enterprises,
No.1581/C, Bellary Road, ….Complainant/s
Respondents to standard
Brick and Tiles,
Yelahanka Bangalore-64
(By Shri.Sri.B.Manjunath, Advocate)
-Versus-
1. M/s. National Insurance
Company Ltd,
Srinivasa Market Complex,
1974, Cinema Road,
Doddaballapur,
Bangalore Rural District-03
Reptd by its Branch Manager,
… Opposite party/s
2. The General Manager,
M/s National Insurance Co. Ltd,
Bangalore Regional office,
No.144, Shubhram Complex,
MG Road, Bangalore-01
3. The Chairman
M/s National Insurance
Co. Ltd., Regd. Office No.3,
Middleton Street, … Opposite party/s Post Box No.9229,
Kolkata-7
(OP Nos.1 to 3- Notice served- absent)
O R D E R
BY SMT. SUNITA C.BAGEWADI, MEMBER
This appeal is filed by the appellant/complainant being aggrieved by the order dated 23.4.2015 passed by the District Consumer Commission, Bengaluru (Urban) in CC.No.2558/2012 and prays to set-aside the order and grant such other relief as deemed fit.
2. The brief facts of the complaint is that, the complainant had validly insured his vehicle with the Opposite Parties during the period from 9-4-2009 to 8-4-2010 with an IDV value of Rs.5,13,350/- for his Hyundai Elantra Vehicle bearing No.KA-04-MB-4809 of the year 2005 model. On 31-12-2009 the appellant had gone to attend New Year Party at Chairman’s club, Sahakara Nagar, parking his car near Sterling Apartments Kodigehalli Main Road were the parking was arranged by the traffic police. The complainant further submitted that on return from the New Year Party at around 12.30 a.m. the complainant came to know that his car was missing from the parked place on 1-1-2010, immediately he went and informed the jurisdictional police and lodged a complaint, for which the police refused to receive the complaint on the pretext that some of the notorious person in drunken brawl might have taken his car and they would enquire and find the same and asked the complainant to come later. The complainant further submitted that in view of the precautionary measure, the complainant had lodged a police complaint through e-mail to the Police Commissioner on 1-1-2010. The complainant had again contacted the jurisdictional police on 2-1-2010 and the police gave lame excuse of tracing the vehicle for which the complainant had sent a complaint to the jurisdictional police through phonogram on 3-1-2010.
The complainant further submitted that the complainant later on 2-1-2010 had contacted the branch manager of the Opposite Party one Mr.Manjunath who had issued claim form and also intimated him about the said theft of the complainant’s car for which he had directed the complainant that unless and until the police complaint is not lodged and FIR is not registered claim cannot be registered. On 18-2-2010, the jurisdictional police had called the complainant and took written complaint and lodged an FIR and later after investigating the said case had filed a “C” report to the court.
The complainant further submitted that 1st Opposite Party had written a letter to the complainant on 10-5-2010 calling the complainant to explain the delay in lodging the complaint which was explained by the complainant by his letter dated 27-5-2010. Further submitted that though many reminders were sent and many mails were sent to the 2nd Opposite Party and 3rd Opposite Party for which the Opposite Party Nos.1 to 3 were pleased to reject the claim of the complainant by their letter dated 7-1-2011.
The complainant further submitted that the complainant had valid insurance covered to his vehicle as on the date of the theft of the vehicle and it is also not in dispute according to the Opposite Party Nos.1 to 3 that the complainant’s vehicle is lost, but only on the ground that the FIR is lodged belatedly the claim of the complainant is rejected for the inordinate delay caused by the jurisdictional police in lodging the complainant and registering the FIR which is not the fault of the complainant for which he has been penalized and hence the complaint.
3. After service of the notice, the 2nd Opposite Party has appeared through its counsel, the Opposite Party Nos.1 and 3 did not appear and they have been placed exparte. The 2nd Opposite Party filed version and contended that the complainant having failed to adhere to the mandatory terms and conditions of the policy is barred and precluded from alleging deficiency in service as against the Opposite Parties. The complaint is barred by limitation so the complaint is liable to be dismissed. Further the complainant as per the terms and conditions of the policy is required to intimate in writing to the insurance company immediately upon the occurrence of any accident or loss or damage. But the complainant lodged a police complaint on 18-2-2010 i.e. after the lapse of one month and 18 days and the theft was intimated to the company on 10-5-2010, after the lapse of 4 months and 10 days in view of inordinate delay in claim intimation which is fatal and would be in violation of condition of the policy. Hence prays to dismiss the complaint.
4. After trial, District Consumer Commission has dismissed the complaint.
5. Being aggrieved by the said order, the appellant/complainant has preferred this appeal on various grounds.
6. Heard.
7. Perused the appeal memo, order passed by the District Consumer Commission and materials on record, we noticed that, it is not in dispute that the appellant had insured his vehicle with the respondents during the period from 9-4-2009 to 8-4-2010 with an IDV value of the Rs.5,13,350/- for his Hyundai Elantra vehicle bearing Reg.No.KA-04-MB-4809 of the year 2005 model. It is also not in dispute that, the vehicle of the appellant was missing from parking place on 1-1-2010. It is also not in dispute that on 18-2-2010, the jurisdictional police taken written complaint of the appellant and lodged FIR and after investigation filed C-report to the court. It is also in not dispute that, the appellant has submitted the claim form and respondent no.2 has rejected the claim of the appellant through letter dated 7.1.2011.
8. The allegation of the appellant is that, on 31-12-2009 he had gone to attend the New Year Party at Chairman’s club, Sahakara Nagar and parked the vehicle near Sterling Apartments, where the parking was arranged by the traffic police and return from the New Year Party at around 12.30 a.m. it was found the car was missing from the parked place and immediately the appellant informed to the jurisdictional police and lodged a complaint, for which the police refused to receive the police complaint and FIR is not registered and he was made to run from pillar to post to register a complaint and at last on 18-2-2010 the jurisdictional police had called the appellant and taken a written complaint and lodged FIR and after investigation C-report came to be filed and due to the delay in intimation, the respondents company has repudiated the claim of the appellant.
9. Per-contra, the respondents have contended that as per the terms and conditions of the policy is required to be intimate in writing to the insurance company immediately upon the occurrence of the any accident or loss or damage, but the appellant lodged a police complaint on 18-2-2010 i.e. after the lapse of one month 18 days and the theft was intimated to the insurance company on 10-5-2010 after the lapse of 4 months and 10 days. In view of the inordinate delay in claim intimation would be in violation of the conditions of the policy.
10. Perused the order passed by the District Commission, we noticed that the District Commission had dismissed the complaint holding that insurance policy taken by the appellant is a contract based on the terms and conditions of the policy and both parties shall act in accordance with the terms and conditions of the policy, since the appellant has failed to act in terms and conditions of the policy, the respondents are justify in making the rejection of the claim. We do not agree with the order passed by the District Commission as because it is evident that the document No.2, the copy of complaint sent through email dated 1-1-2010 to the Commissioner of Police stating that “on 31-12-2009 at 9.30 p.m. the appellant had parked his vehicle bearing No.KA-04-MB-4809 near exit gate of Chairman’s Club. When he came out of the party at 12.30 a.m. he found his car was missing from the parked place. At around 1.30 a.m. he went to Kodegehalli police station informed about the incident. So kindly note this complaint and do the needful”. It is also evident that the document No.3 the copy of complaint sent to the Kodegehalli Police Station dated 3-1-2010. It is also evident that the document No.4 the copy of claim form filed and signed by the appellant and submitted to the respondent company informing about the theft of the car along with copies of email and phonogram. It is also evident that the document No.10 the copy of reply letter given by the appellant giving reason stating that he has been going continuously to Kodegehalli Police Station but they kept on delay in filing the FIR and they kept on saying they are searching the vehicle and kept on dodging the troubling for 1 ½ months. Such being the case, it is true that the appellant has approached the Kodegehalli Police Station and also sent email and complaint about the missing of the car. It is known to all that it is the routine practice in every police station that they did not register the case of theft of the vehicle immediately on intimation of the sufferer. They always try to put off the matter on one or the other reasons. They advised to sufferer should trace the vehicle at his own level and in case, it is not found then the case will be registered. In present case also the same might have been done. The appellant has approached immediately to the police station to file a complaint of missing of the car, but jurisdictional police station has delayed to take the FIR. The appellant lodged a complaint through email on 1-1-2010 and also sent a complaint through phonogram to get the complaint; the appellant was made to run pillar to post and finally on 18.2.2010 the jurisdictional police station, Kodegehalli have taken the complaint and filed FIR. Hence delay in intimating to the respondents was not intentional. Of course, it is true that there was delay of about 4 months 10 days on the part of the appellant informing and lodging his claim before the respondent company. However, the insurance company has not repudiated the claim on the ground that it was not genuine. In the case of theft of the vehicle, breach of condition is not applicable. Even assumed that there was breach of condition of private car parking policy page no.2, the insurance company ought to have settled the claim on nonstandard basis. The insurance company cannot be repudiated the claim in toto, in case of theft or loss of the vehicle. However once IDV of the vehicle is fixed mutually and it endorsed on the policy, the insurance company shall be binding to settle the claim as it is.
11. Hence, considering the facts and discussion made here, we are of the opinion that, the order passed by the Hon’ble District Commission is not just and proper, interference is required. Accordingly, we proceed to pass the following:-
O R D E R
The appeal is allowed. Consequently the complaint No.2558/2012 is allowed.
The Opposite Parties are directed to pay an amount of Rs.5,13,250/- to the appellant/complainant along with interest @ 6% per annum from the date of repudiation of the claim till the date of realization.
Further the Opposite Parties are directed to pay compensation of Rs.50,000/- and Rs.25,000/- towards litigation expenses to the appellant/complainant.
Further the Opposite Parties are directed to comply the above order within 30 days from the date of receipt of this order. Failing which, the Opposite Parties shall pay interest @ 8% per annum on the above said amount from the date of default, till realization.
Send a copy of this order to both parties as well as concerned District Commission.
Lady Member Judicial Member
Jrk
