PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party who repudiated the insurance claim of the Complainant on frivolous grounds.
2) The Complainant is the owner of the Car Alto having Registered No.MH43-N-5403 which was insured under Policy No.30007778 for the period from 21/04/06 to 20/04/07 issued by the Opposite Party. It is the contention of the Complainant that the dealer of the Opposite Party handed over only single page certificate of the insurance policy at the time of delivery of the vehicle. No terms and conditions of the insurance policy were given to the Complainant till date. The Complainant has attached the xerox copy of that insurance certificate provided by the Opposite Party (page 14 to the complaint).
3) The Complainant further stated that on 18/09/06, from 6.00 p.m. to 19/09/06 at 3.00 a.m. the Complainant was at Ayappa Temple and the above said car was parked near that temple. After 3.00 a.m. he tried to start the car but it could not be started as the fuel was exhausted. The Complainant then parked the car on road opposite Punit Park, Sector 15 at Nerul and went home. Thereafter, on the same day at about 10.00 a.m. again he went to the place where he had parked the car but he could not find the said car. He tried his best to trace the car but he could not trace it. On the same day he approached Nerul Police Station of Navi Mumbai and narrated the above facts to the Police Officials of the Nerul Police Station. Nerul Police Station flashed the wireless message about the missing of the above said car. The Complainant has annexed a copy of the certificate about wireless message dtd.19/09/2006 flashed by Nerul Police Station.
4) The Complainant stated that Nerul Police registered an offence U/s.379 IPC vide FIR/CR No.392/06 on 22/10/06. The Complainant vehemently averred that the car was stolen on 19/09/6 and he informed about the theft on the same day to Nerul Police but they mentioned the date of receipt of information as 22/10/06 and this is incorrect on the part of Nerul Police.
5) The Complainant submitted that during the intermediate period he immediately approached the office of the Opposite Party and informed about the missing of the vehicle. However, it was informed by the Opposite Party that unless there is F.I.R., no claim form could be accepted and he was asked to complete the police formalities. Then he, time and again he went to police station but the police registered the FIR only on 22/10/2006. After registering the FIR the Complainant then filed the insurance claim with the Opposite Party against the theft of the above said vehicle for reimbursement of the cost of the vehicle.
6) The Complainant categorically stated that the claim form or intimation about the theft of the car was not accepted by the Opposite Party without F.I.R. Therefore he had to wait till the police registered F.I.R. in this respect. No sooner did the police registered the F.I.R., he filed the claim form on 26/10/06 for reimbursement, with the Opposite Party alongwith necessary documents. Thus, the Complainant averred that there was no intentional delay on his part to inform the Police and the Opposite Party regarding the theft of the car. The Complainant thereafter, was in constant touch with the Opposite Party for reimbursement, but the Opposite Party vide its letter dtd.25/03/07 i.e. after 5 months informed the Complainant about the discrepancies regarding statements given by family members and others in respect of the time of theft and also mentioned that there was a breach of condition 1 of the policy which may result in repudiation of the claim.
7) Thereafter the Complainant clarified those queries raised by the Opposite Party but the Opposite Party repudiated the Complainant’s claim vide its letter dtd.16/07/07 on the ground that the Complainant had violated the policy conditions i.e. on the ground that the Complainant lodged his F.I.R. 34 days after the actual theft was committed and there was a discrepancy in the statements of the Complainant and family members regarding the time as to when the car was stolen. The last para of the repudiation letter stated as follows –
“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damages in the event of any claim. Also in case of theft, or criminal act which may be subject of the claim under this policy, the Insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. There is a breach of condition no.1 in this case”
8) The Complainant again reiterated that intimation about the theft of the car, was given to police on 19/09/06, police flashed wireless message on the same day. The Complainant submitted that he approached Nerul Police Station and obtained a copy of wireless message dtd.19/09/2006 to substantiate his claim that he had given the information of theft to police immediately. In this connection the Complainant has attached a letter from Nerul Police Station.
9) The Complainant also alleged that the Opposite Party had a doubt about the genuineness of the wireless message dtd.19/09/06 but Opposite Party has not made any enquiry with the Nerul Police Station and without any enquiry, Opposite Party doubted the wireless message.
10) The Complainant further stated that Police registered the F.I.R. in respect of the theft of the car of the Complainant and then submitted a final report to the Hon’ble Court of 1st Class Magistrate at Vashi who finally sanctioned the ‘A’ summary in this case.
11) The Complainant also submitted that the Opposite Party has repudiated the claim for breach of condition 1 of the policy. However, the Opposite Party has not supplied the Insurance Policy document containing the terms and conditions to the complaint. Therefore, the Complainant is not aware of such condition.
12) It was also alleged by the Complainant that the repudiating his genuine claim by the Opposite Party is a clear deficiency in service on the part of Opposite Party. He was put in to mental torture, agony and inconvenience. Therefore, the Complainant prayed for the whole cost of the car i.e. Rs.2,76,691/- alongwith interest @ 12 % p.a. till realization and Rs.50,000/- towards the harassment etc. and cost of the complaint.
13) The Complainant has attached the copies of the following documents to his complaint, to support his allegations -
a) Insurance Policy No.30007778.
b) Wireless message.
c) F.I.R. dtd.22/10/2006.
d) Claim Form dtd.26/10/2006.
e) Letter from Complainant to Opposite Party, dtd.02/04/2007.
f) Letter from Opposite Party to Complainant dtd.25/03/2007.
g) Letter of repudiation dtd.16/07/2007.
h) Letter of Complainant to Grievance Cell dtd.07/08/2007.
i) Letter of Complainant to Insurance Ombudsman dtd.18/03/2008.
j) Minutes before Insurance Ombudsman, dtd.15/04/2008.
k) Award passed by Insurance Ombudsman, dtd.30/04/2008.
l) Letter to Opposite Party, dtd.30/04/2008.
m) Certificate issued by Nerul Police Station.
n) Final report in C.R.No. F.I.R. 392/2006.
14) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared through its Ld.Advocate and submitted its written statement wherein it was stated that, the Opposite Party has thoroughly investigated the Complainant’s claim, applied its mind and after scrutinizing the claim, found that the Complainant had committed breach of policy condition and therefore, the claim was rightly rejected.
15) The Opposite Party has admitted that the car of the Complainant was insured with it. As per the Complainant the car was stolen on 19/09/2006 but the F.I.R. could not be lodged as police authorities refused to lodge the complaint. As per police report delay in intimation to the police is mentioned as “Complainant independently searched and could not locate”. The Opposite Party has commented that this was not a plausible excuse for delay in lodging the complaint with Police. The Complainant had stated that the wireless message was flashed on 19/09/06 but, the Opposite Party has obtained an information about the wireless message from the office of the A.C.P., Navi Mumbai stating that the message was transmitted on 26/10/2006. The Opposite Party further alleged that the F.I.R. was lodged after 34 days of the occurrence of the theft of the said car. The Opposite Party clearly averred that claim was rejected on the ground of breach of policy condition no.1. The investigation of the claim, by the Opposite Party revealed that there were discrepancies in the statements of the family members of the Complainant. Even the neighbours of the Complainant were not aware of the theft of the car. The main points raised by the Opposite Party are that, there was a delay in intimation of theft to the police and contradictions created by the Complainant in giving 1st hand information as to the circumstance under which the car was stolen.
16) The Opposite Party again reiterated that Complainant had failed to inform the Opposite Party, in writing, about the theft and thereby committed breach of policy condition. Even the family members of the Complainant gave different versions of the theft. The Opposite Party also reproduced the policy condition no.1 stipulating that “Notice shall be given in writing to Company immediately upon the occurrence of any accidental loss or damage 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 of 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 by the insured having knowledge of any impending prosecution, inquest, or fatal inquiry, 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 cooperate with the Company in securing the conviction of the offender.”
17) The Opposite Party further submitted that it appointed investigator, checked the record and found that the Complainant had failed to inform the Opposite Party in writing about the alleged theft which violated the policy conditions.
18) It was alleged by the Opposite Party that one Mr.Suraj Bhandari himself deals in sale and purchase of cars. Opposite Party has also opined that there has been no theft of the vehicle, but the said vehicle has either been disposed off by the Complainant and has approached the Company for compensation. The Opposite Party has further submitted that the matter was taken up before the Insurance Ombudsman which also rejected the claim.
19) The Opposite Party has clarified that when an insurance policy is issued, the insured is always provided with the terms and conditions of the insurance contract. The Complainant is required to produce the same before this Hon’ble Forum.
20) The Opposite Party further specifically avers that the wireless message regarding the theft of the car in this case was never transmitted on 19/09/2006 but it was transmitted on 22/10/2006 and further clarified that the Complainant who produced the copy of the letter issued on 19/09/2006 was managed one. Opposite Party also denied that the Complainant approached the office of the Opposite Party immediately after 19/09/2006 and informed the missing of the vehicle.
21) The Opposite Party also strongly challenged the documents produced by the Complainant regarding the wireless message flashed on 19/09/2006 and vehemently averred that the loss of the vehicle was never reported on 19/09/2006 and contended that the Complainant had miserably failed to submit cognate proof in this respect. It is also submitted that, the F.I.R. & Hon’ble Magistrates final order also show that the theft was reported on 22/10/2006 and not on 19/09/2006.
22) Lastly the Opposite Party submitted that there is no deficiency in service, whatsoever, on their part and requested to dismiss the complaint with exemplary cost. The Opposite Party has attached the xerox copies of the following documents to his written statement –
a) Report of the Surveyor to the Opposite Party dtd.06/01/2007.
b) Statements of V.T.Pillai (Complainant) dtd.20/11/2006. Bhagat V.Pillai, V.Gomathi and Suraj Bhandari (Colly.).
c) Award of Insurance Ombudsman, dtd.05/04/2008.
d) Letter dtd.22/06/2007 from ACP(Admn.), Navi Mumbai to Opposite Party.
e) F.I.R., dtd.22/10/2006.
f) Letter from the Complainant to Opposite Party, dtd.02/04/2007.
g) Letter from the Complainant to Opposite Party - Nil –.
i) Letter from Branch Manager to Complainant, dtd.25/03/2007.
j) Claim form submitted by Complainant to Opposite Party, dtd.23/10/2006.
23) The Complainant thereafter submitted affidavit-in-rejoinder and written argument wherein the facts mentioned in the complaint are reiterated. The Opposite Party on the other hand submitted it’s affidavit of evidence and written argument wherein the facts and averments mentioned in the written statement are reiterated.
24) We heard the Ld.Avocates for both the parties. Perused the above said documents and our findings are as follows –
25) The car, Maruti Alto bearing Registered No.MH43-N-5403 was purchased by the Complainant on or before 21/04/2006 and was insured with the Opposite Party against accidental damage (loss) and against theft for the sum of Rs.2,76,691/- for the period from 21/04/2006 to 20/04/2007. During the validity of this policy the said car was stolen as alleged by the Complainant on 19/09/2006. The main contention of the Opposite Party and the point on which the claim of the Complainant was repudiated are as follows –
The vehicle was stolen on 19/09/2006 and F.I.R. was lodged with the police on 22/10/2006 i.e. the information about the theft of the vehicle was given to police approximately after one month i.e. the delay was of one month (exactly 33 days).
The second point raised by the Opposite Party is that, the Complainant and his family members as well as a family friend have given different version about the timing and circumstances under which the vehicle was stolen. The Opposite Party considered these points and came to the conclusion that these points contravene policy condition no.1 and therefore, the Opposite Party rejected the claim.
26) In this connection the Complainant submitted two documents i.e. the F.I.R dtd.22/10/2006 and a wireless message/letter dtd.19/09/2006. In the F.I.R., point no.8 specifically gives the reason for delay. The point no.8 reads as “Reason for delay in reporting by the Complainant”. The reason was entered as “फिर्यादीने सर्वत्र शोध्ा घेऊन न मिळून आल्याने” meaning, the Complainant had searched but he could not get the vehicle therefore, there was a delay. This cannot be the reason for delay. The F.I.R. is recorded by a Head Constable in Marathi language. He should have recorded the correct exact/accurate reason as to why the Complainant could not lodge the complaint immediately i.e. on 19/09/2006. According to the contents of F.I.R the offence was committed on 19/09/2006. The Complainant knew that the theft was committed on the same day, then why he lodged the complaint on 22/10/2006. The station house officer has not recorded the correct and plausible reason for this delay. He should have asked to the Complainant as to what prevented him from lodging the complaint on 19/09/2006. Perhaps, the reason for this lies in issuance of a certificate by the Nerul Police Station on 10/06/2007 and 30/04/2008. These tow documents indicate that the information regarding the theft of the vehicle, (Car No.MH43-N-5403) was given to Nerul Police Station on 19/09/2006 but Nerul Police Station did not register F.I.R. under Sec.154 of Cr. P.C. but, only flashed (transmitted) the wireless message. No police authority will issue a certificate stating that a wireless message had been transmitted on 19/09/2006 from the Police Station unless an information about the complaint is received by the authority on 19/09/2006. Nerul Police Station specifically mentions in its letter the above text that as per the complaint lodged by Mr.Vishwanathan T. Pillai on 19/09/2006, a wireless message had been transmitted on 19/09/2006. However, the Copy of this wireless message has not been found in the papers as mentioned in this letter.
27) The letter stating the date of wireless message dtd.19/09/06, was issued by the station house officer on 10/06/07 which states that the Complainant came to the police station and informed that his car No.MH43-N-5403, was stolen by some unknown culprit (thief). The car was parked on road at Punit Park, Sector 15, Nerul between 3.00 a.m. to 10.00 a.m. These facts corroborate the facts in F.I.R.
These two documents confirm that the Complainant had been to Nerul Police Station on 19/09/06 and informed the said police station about the theft of his car but Nerul Police Station did not register the F.I.R. but only took down the detail information about the theft of his car and transmitted the information to the police stations in the Navi Mumbai Commissionerate only. Nerul Police failed to record F.I.R. U/s.154 of Cr.P.C. on 19/09/2006.
28) The Opposite Party had appointed a surveyor/investigator to make enquiry about the claim of the Complainant. His main contention is that the Complainant and his family members made contradictory statements regarding the occurrence of the theft. In this respect it is germane to see that the incident had happened on 19/09/06 and statements were recorded by the surveyor of the Opposite Party on 20/11/06 i.e. after two months from the incidence of theft. We have perused these statements, particularly the statement of a Complainant recorded by the surveyor on 20/11/06 and the F.I.R. of the Complainant recorded by the Police Havaldar (Station House Officer) Pawar on 22/10/06. There is a contradiction of certain facts in the F.I.R. The Complainant states in F.I.R. that he, himself had gone to Ayappa Temple on 18/09/06 at 6.00 p.m. He attended Bhajan till 3.00 a.m. on 19/09/06. After attending Bhajan he came out of the temple and found that there was no petrol in the car so he parked the car at Punit Park and came at his residence while in the statement given to the surveyor he asserts that the car was taken by his wife & son for going to Ayappa temple on 18/09/06 at 6.00 p.m. His son again came at 9.00 p.m. to pickup his wife who was in Ayappa temple attending Bhajan. At this time he could not locate his mother. So he thought that she might have left the place earlier for their residence. Therefore, he started the car but car was not started. So he left the car and came to home. Next day at 9.00 a.m. (on 19/09/06) when he came to take the car he found that the car was not there (It was stolen). Then he has stated in the statement that, “Next day around 9.00 a.m. when he went to see the car, it was not found. Hence, we lodged a police complaint immediately at 10.00 a.m. on 19/09/06. The main contradiction is regarding the fact about, who took the car to Ayappa temple, whether the Complainant himself or, his wife and son. There is also the discrepancy regarding timings as 9.00 p.m. on 18/09/06 and 3.00 a.m. on 19/09/06. As stated earlier, these statements were before the surveyor, but he has not put his name on these statement clarifying, as to before whom the witness had stated these facts. So far as the statement of Suraj Rajkumar Bhandari is concerned, it is a heresay evidence. Therefore, these statements bear little evidentiary value.
29) The Complainant has raised the point that the Opposite Party had not provided the terms and conditions of the policy and hence he had not produced these terms and conditions. The Opposite Party in its written statement stated that it had provided these terms and conditions alongwith the policy documents and it is the Complainant who should produce these terms and conditions. The Opposite Party in it’s written statement and the Insurance Ombudsman in it’s award has mentioned the relevant portion of the condition 1, which reads as “In case of theft or criminals act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.”
30) Infact the Opposite Party is the source, originator of these terms and conditions of the policy. The main insurance policy is the product of the Opposite Party. So it was its obligation to produce the original condition no.1 of the policy at least during the argument. However, we have to gather the relevant condition from the written statement and the award of the Ombudsman.
31) Basically the insurance policy is taken to indemnify the losses/damages caused to the vehicle/house, life, etc. and against theft or any criminal act by which there is a loss to the insured and the terms and conditions of the policy should be such, that they can promote/advance the above said objective of indemnifying the loss to the insured.
32) In the instant case, the F.I.R. in respect of the stolen car was registered on 22/10/06 at Nerul Police Station irrespective of the fact whether the matter was reported on 19/09/06. The offence was registered by S.H.O. Shri.Pawar, Station House Officer and was investigated by a PSI, Shri.Kaldate. After the investigation the I.O. had come to the conclusion that the offence U/s.379 was committed in respect of the Car MH43-N-5403 but it was undetected. Therefore he submitted a Final Report U/s.173 of Cr. P.C. and sought ‘A’ summary which has been granted by the Competent Court of the jurisdiction. The ‘A’ summary is commonly interpreted as “True but indetected”. Therefore, the competent Court has closed the case as true but indetected. As the case was disposed off as true but indetected, it can be construed that the complaint is true and the Complainant has sustained the loss by the theft of his said car and to indemnity the loss, he should be compensated by allowing his claim.
33) The car was purchased on or about 21/04/06. It was stolen on 19/09/06 i.e. within 1st year of the insurance policy. The sum assured was Rs.2,76,691/-. Therefore, there is a deficiency in service of the Opposite Party as it repudiated the claim of the complainant on the ground of breach of condition no.1. As discussed above there is no breach of condition no.1 of the policy as the Complainant has informed the Nerul Police Station about the theft of his vehicle on 19/09/2006. Therefore, we pass the following order –
O R D E R
i.Complaint No.102/2008 is partly allowed.
ii. Opposite Party is directed to pay Rs.2,76,691/- (Rs.Two Lakh Seventy Six Thousand Six Hundred Ninety One
Only) to the Complainant alongwith interest @ 6 % p.a. on this amount from 23/12/2006 till the realization of the
entire amount.
iii.Opposite Party is directed to pay Rs.10,000/-(Rs.Ten Thousand Only) to the Complainant towards the
harassment, mental agony and inconvenience caused to the Complainant.
iv.Opposite Party is directed to pay Rs.5,000/-(Rs.Five Thousand Only) to the Complainant towards the cost of this
complaint.
v.Opposite Party is also directed to comply with the above said order within 15 days from the date of receipt of
this order.
vi.Certified copies of this order be furnished to the parties.
