Tamil Nadu

StateCommission

CC/127/2016

Devi Ramakrishnan - Complainant(s)

Versus

M/s. Vishwakarma Real Estates & Constructions (I) Pvt. Ltd., Rep by their Managing Director - Opp.Party(s)

P.Anbarasan

04 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 3.

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                      ::     PRESIDENT                       

                  Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

F.A. No.246/2017

  (Against the order in C.C. No.37/2014 on the file of the D.C.D.R.C, Krishnagiri)

                         DATED THE 04^TH DAY OF JANUARY 2022

 

1. The Branch Manager,

Shriram General Insurance Co. Ltd.,

No.122/2B, 2^nd Floor, B.R. Towers,

Denkanikottai Road,

Shanthi Nagar,

Hosur – 635 109.

 

2. The Manager,

Head Office,

Shriram General Insurance Co. Ltd.,

E-8, EPIP, RIICO, Sitapura,

Jaipur – 302 022.                                                  .. Appellants/1^st & 2^nd Opposite parties.

 

- Versus -

Mrs. Anuradha,

W/o. Mr. Sreenivasan,

Previously resided at:

No.49/1, Old Masjith Road,

Attibele,

Anekal Taluk,

Bangalore District.

 

Presently residing at:

No.MIG 185, Avalapalli HUDCO,

Hosur Town – 635 109,

Krishnagiri District.                                                            ..Respondent /Complainant.

 

Counsel for Appellant /1^st & 2^nd Opposite parties       : M/s. S. Dhakshnamoorthy

Counsel for Respondent /Complainant                      : M/s. Sayeedain Mohammed Asif

 

This appeal was heard on various dates and finally on 21.12.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission pronounced the following order today:-

 

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

          This Appeal was preferred by the opposite parties under section 15  of the Consumer Protection Act 1986 aggrieved against the order of the District Commission Krishnagiri made in C.C.No. 37/2014, allowing the complaint.

1.         The factual background culminating  in to  appeal is as follows:-

          The complaint was filed alleging deficiency in service on the part of the Insurance Company/ Opposite parties, in repudiating the claim of the complainant for Rs.  4,40,000/- for the theft of the vehicle insured with the opposite parties.

2.       The complainant who is the owner of the vehicle Mahindra and Mahindra Bollero had insured the vehicle with the opposite parties in its Hosur Branch under Private Car Package Policy Zone A, which was an insurance coverage for all kinds of damages and losses of the vehicle. The Insurance policy covered the period 21.5.2013 to 20.5.2014. On 25.5.2013, when the complainant had parked her vehicle in front of her house, the same was missing and was stolen by some unknown persons. When the complainant reported the missing of the vehicle on the same day to the police, the police asked the complainant to search thoroughly and then to lodge a complaint. Thereafter on 22.6.2013, the complainant lodged the police complaint at HUDCO police station u/s 379 IPC and the police registered the FIR in crime No. 1076/2013. However, after investigation non-traceable certificate was issued by Judicial Magistrate No.2 to the complainant on 23.1.2014. In the meantime the complainant had presented the claim form with the opposite parties on 27.05.2014. On 23.4.2014, the opposite parties refused to honour the claim on the ground that the FIR was registered belatedly which was a serious breach of conditions of the Insurance policy.  Thus the complaint was filed for deficiency in service on the part of opposite parties and to direct them to pay compensation of Rs.4,40,000/- with 18% interest and Rs.5000/- as cost of the proceedings.

3.       The opposite party No.1 filed written version admitting the insurance policy taken by the complainant. However it was contended that the claim could not be honoured because there was violation of policy conditions as the complainant had given police complaint only after 27 days from the date of theft. Thus they sought for dismissal of the complaint.

4        The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A7 and on the side of opposite parties Proof Affidavit and documents Ex.B1 was filed. The learned District Commission after appraising the pleadings and documents filed by both parties allowed the complaint in part and directed the opposite parties to pay 75% of the Insured Declared Value to the complainant towards the claim along with the compensation of Rs.10,000/- and Rs.2,000/- towards cost of the complaint. Aggrieved by the said order the opposite parties had preferred the present appeal.

5.       The points for consideration is:-

1. Whether there is any deficiency in service on the part of the opposite parties in not honouring the insurance claim of the complainant?
2. If so, to what relief the complainant is entitled?

6.         Point Nos.1 & 2:-

          Both sides Counsels submitted their oral and written arguments.

          The learned Counsel for the appellant submitted that the complainant had violated the condition NO.1 of the policy terms in not intimating the theft within 10 days of date of occurrence. He also cited various authorities to distinguish that, when mere delay in intimating the insurance company about the occurrence of the theft cannot be the ground to repudiate the claim of insurance.  Thus he submitted that when there is clear violation of the policy condition, the claim of the complainant could not be processed and hence there is no deficiency on their part.  The learned counsel for the respondent on the other hand submitted that the stand taken by the opposite parties could not be entertained for the reasons that the term “ Immediately” has not been stipulated or explained anywhere in the policy as to “how many days” within which the complaint has to be preferred. Thus he argued that when the non-traceable certificate issued by the police after thorough investigation has been produced, the insurance company cannot repudiate the claim on the ground that there was delay in filing the FIR and there was breach of policy conditions.

7.       We perused the documents submitted by both parties and after appreciating the findings of the learned District Commission, we found that in the terms and conditions of the Insurance Policy, the condition No.1 is as follows:-

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice 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 other 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.       Thus, as per the said policy condition, the insured is expected to intimate the theft to the police immediately after the theft occurred due to certain reasons that the further damage to the vehicle could be thwarted if immediate intimation is given.  The principle behind this Policy condition is on complaint.   The police may take steps to prevent the vehicle from taking it to a longer distance or dismantling it.  Only for these reasons, the condition has been framed and given in the Insurance Policy.

In a decision given by the Apex court reported in AIR 2020 SC 1395  and made in Bursheendar singh Vs Shriram Insurance Co. Ltd.,  it has been held as “ theft or criminal act other than the accident “, the insured shall give immediate notice to the police and to co-operate to the company which reads as follows:-

     “ It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co-operative with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle”.

9.         Further, the said view is supported in a decision reported in  2012 SCC online NCDRC 143, in the matter of Rajesh Kumar, S/o. Shri Jaswant Singh, R/o. Village Mandothi Tehsil Bahadurgarh District Jhajjar –Versus- New India Assurance Co. Ltd., Branch Office 323401-122-123 Model Basti, Behind Filmstan Cinema, New Delhi – 110 005, wherein, it has been held as follows,

“Lodging of an FIR in the case of a theft should be an immediate concern for any owner of a vehicle and under the terms of the policy he is required to inform the insurance company and file the claim at the earliest”.

Also in the decision rendered in First Appeal No.321/2005 by NCDRC dt.19.06.2010 it was held that the delay in informing the insurance company and to the police could be fatal as the vehicleunder theft might have been dismantled or taken to a longer distance.The same view was taken by NCDRC in R.P No.2683/2012 dt. 16.04.2013. Thus, we are in complete agreement with the submissions made by the Counsel for appellant and we are of the view that the District Commission had erred in allowing the complaint and directing the opposite parties to pay the 75% of the insured declared Value.Hence, we are of the considered opinion that the findings rendered by the District Commission is erroneous and liable to be set aside.
The complainant is not entitled to any relief as she had not intimate the theft immediately to the Policy and had violated the Policy condition. The point Nos.1 & 2 answered in favour of the opposite parties that no deficiency in service was committed by them in repudiating the claim of the complainant.

In the result, this appeal is allowed.No order as to costs.

 

S.M. LATHA MAHESWARI                                                                         R. SUBBIAH             

               MEMBER                                                                                       PRESIDENT