Tamil Nadu

South Chennai

CC/222/2013

D.I.Manikandan - Complainant(s)

Versus

Royal Sundaram Alliance - Opp.Party(s)

R.P.Prathap Singh

26 Nov 2015

ORDER

                                                                          Date of Complaint  : 08.07.2013

                                                                Date of Order        : 26.11.2015

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT :    THIRU. B. RAMALINGAM, M.A.M.L.,                  : PRESIDENT                     

                     TMT.K. AMALA, M.A. L.L.B.,                                : MEMBER – I

                     DR.T.PAUL RAJASEKARAN, M.A D.Min HRDI, AIII,BCS : MEMBER - II

                                                     

C.C.No. 222 / 2013

THIS  THURSDAY  26   DAY OF  NOVEMBER 2015

 

D. I. Manikanadan,

S/o. Durairaj,

No.146/49, Othavadai Street,

Kodambakkam,

Chennai 600 024.                                               .. Complainant.

                                                         - Vs-

1. M/s. Royal Sundaram Alliance, Insurance Company Limited, Rep. by its Managing Director, Corporate Claims Department, Sundaram Towers, No.45 & 46, Whites Road, Chennai 600 014.   2. The Regional Manager, M/s. Royal Sundaram Alliance, Insurance Company Limited, Registered Office, NO.21, Putullos Road, Chennai 600 002.                                                   .. Opposite parties.    For the complainant                     :  M/s. R.P.Prathap Singh & other		.. Opposite party.
For the opposite parties                    :  M/s. M.B.Gopalan & other

         Complaint under section 12  of the Consumer Protection Act, 1986 for a direction to the opposite parties  to pay value of vehicle of Rs.4,70,000/- with interest and also to pay a sum of Rs.2,00,000/- as compensation for mental agony and deficiency of service and also to pay a sum of Rs.50,000/- as costs of the complaint to the complainant.    

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II

1.The case of the complainant is briefly as follows:-

 The complainant submit that he had purchased a Tata Indica car No.TN 09 BL 7790 in December 2011 and the same was insured with the opposite party by taking a cover note on 12.12.2011.   While he had parked his car on 30.7.2012 night, his vehicle was missing when on the next day morning he had gone to take it and he had given a complaint about the theft of the vehicle to the Inspector of Police R3 Police Station, Ashok Nagar on 31.12.2012 and FIR was registered on 31.7.12.     The complainant further stated that after the FIR was registered he had informed the opposite parties company about loss of the said insured vehicle and the opposite party company had letter dated 1.11.2012.   Subsequently the police had given not traceable certificate for the vehicle and the same along with, copy of invoice, delivery challan, two keys, letter for vehicle usage as sought by opposite party company from the complainant was given to the  opposite party company on 19.11.2012 and they had received the same.   Accordingly by order dated 31.12.2012 the XVII Metropolitan Magistrate at Saidapet had closed the vehicle missing FIR filing by the complainant.   The same was also forwarded to opposite party company and he was eagerly awaiting the claim amount for loss of his vehicle as the vehicle was only 7 months old when it was lost.   When he had received letter dated 21.12.2012 from opposite party company rejecting his claim.     The complainant has issued legal notice through his counsel dated 8.4.2013 to the opposite party company which was received by them but they did not even bother to reply to the same.  As such the act of the opposite parties are amounts to deficiency of service and which caused mental agony and hardship to the complainant.   Hence the complaint.

Written version of   opposite parties are   as follows:-

2.     It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The complainant had insured  the complaint mentioned vehicle with opposite party for the period  13.12.2011 to 12.12.2012.    The opposite party had provided the insurance cover subject to terms and conditions stipulated in the policy which are required to be observed and fulfilled by the complainant as a condition precedent for enforcing the same.   In particular, the opposite party draws attention to condition No.5 of the policy which reads as under:

“5. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured.   In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

Therefore the complainant has committed violation of condition No.5 of the policy.   Hence there is no deficiency of service on the part of the opposite parties and  the compliant is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A9 were marked on the side of the complainant.   Opposite parties have filed their proof affidavit and Ex.B1 & Ex.B2 marked on the side of the opposite parties. 

4.      The points that arise for consideration are as follows:-

1. Whether there is any deficiency in service on the part of the opposite parties ?

 

2. To what relief the complainant is entitled to?  

5.   POINTS 1 & 2 :

   Perused the complaint  filed by the complainant, written version filed by the  opposite parties, proof affidavit filed by the complainant and the  opposite parties and  Ex.A1 to Ex.A9  filed on the side of the complainant and considered both side arguments.

6.     The complainant purchased a TATA Indica car No.TN 09 BL 7790 in December 2011 and the same was insured with the opposite party by taking a cover note on 12.12.2011 in Form -52 Rule 142 (I) of Central Motor Vehicle Act 1989 with the description of engine no. chassis no. by giving insured declared value as (invoice value Rs.4,70,714) Rs.4,46,988/-, though cover note which is valid for sixty days.  The opposite party had issued stamped policy document vide policy No. VPV0084820000100 for the same period for the said cover note under comprehensive insurance by collecting the premium of Rs.23,943/- as consideration in Ex.A6.    Having agreed as a contract between the insured and the insurer the policy has become an evidence of the contract.   Subsequently on 30.7.2012 the captioned vehicle, when it has been parked by the complainant on the night, by locking the said car on the next day on 31.7.2012  morning, he found the car was missing and the same was reported to the police (Ex.A2) on 31.7.2012 and the FIR (Ex.A3) was lodged on the same day confirms the theft of the car on 30.7.2012 mid night.    

7.     The opposite party sought certain documents from the complainant vide a letter dated 1.11.2012, whereby the complainant had submitted the documents, sought by the opposite party.    The complainant had submitted the non traceable certificate issued by the inspector of police Ashok Nagar, Chennai under IPC 379 of the complaint under serial No.0226363, dated 17.11.2012 (Ex.A5).  In the same Exhibit the opposite party endorsed having received the non traceable certificate, copy of the tax invoice, copy of the delivery challan, copy of the vehicle service bill, two keys and letter for vehicle usage on 19.11.2012.   Further to this the complainant had submitted an order issued by the Court of XVII Metropolitan Magistrate, Saidapet, Chennai Under BFLR NO.888 /2012 in RC Cr.No.1628/2012 stating “undetected” the FIR is closed (Ex.A7).  The RTO, Chennai West, also confirmed above the theft under R.No. XNAX dated 8.4.2013 (Ex.A8).   

8.     On perusal of various judgments and affidavits, written version filed by the complainant and the opposite parties, we found the learned counsel of the opposite party in his written version under para-4 ‘the complainant submitted claim form and other document with one original key’ which is contradictory, wherein the opposite party / insurer acknowledged they have received two keys under Ex.A5 on 19.11.2012.   The opposite party had repudiated the claim on 21.12.2012 stating that the complainant had breached the condition No.5 of the within mentioned policy issued to the complainant.   The investigation made by the opposite party’s representative / investigator,  the complainant had kept one key inside the closed cover in a secret place of the closed car.   This cannot be accepted, since the complainant had not kept the key in the ignition of the car or he willfully neglected the key but he has surrendered to the opposite party the two keys.   When we refer the decision of the National Consumer Disputes Redressal Commission New Delhi in III 2014 CPJ 663 (NC) it clearly states that :

“Leaving of key in ignition of the car on all occasion cannot be turned as so serious breach so as to dis entitled insured from seeking claim under insurance policy.  Lapse on part of the driver not willful breach repudiation, not justified. “

Considering this judgment, every movement to take the caution to safeguard the vehicle / car cannot be expected for non violation by the insured / driver.   Hence we are of the considered view that the complainant has not willfully breached by following the condition No.5 of the within mention policy and he had taken precaution in locking the said car while parking and not left the key in the ignition hole, unattended.   With full judicial justification we are of the considered view, the repudiation made by the opposite parties are  not justifiable.   In considering the facts of the case, we hereby direct the opposite parties jointly and severally  to pay the complainant the insured declared value mentioned in the policy Rs.4,46,988/-  less applicable policy excess Rs.500/- as per IMT-22 of the policy (Rs.4,46,988/ - Rs.500= Rs.4,46,488)  along with interest at the rate of 9% p.a. from the date of filing this compliant i.e. 8.7.2013 to till the date of payment and also to pay a sum of Rs.10,000/- as just and reasonable compensation and also to pay a sum of Rs.5,000/- as litigation expenses to the complainant.  As such the points 1 & 2 are answered in favor of the complainant. 

       In the result, the complaint is partly allowed.  The opposite parties are jointly and severally directed to pay a sum of Rs.4,46,488/- (Rupees four lakhs forty six thousand four hundred and eighty eight only) along with interest at the rate of 9% p.a. from 8.7.2013 to till the date of payment and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) as compensation and also to pay a sum of Rs.5,000/- (Rupees five thousand only)  as litigation expenses to the complainant within six weeks from the date of this order failing which the compensation amount (Rs.10,000/-)  shall carry  interest at the rate of 9% p.a. from the date of this order to till the date of payment.

        Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the  26^th    day of  November   2015.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1-          -       - Copy of R.C. Book.

Ex.A2- 31.7.2012      - Copy of complaint to police.

Ex.A3- 31.7.2012     - Copy of FIR.

Ex.A4- 21.12.2012    - Copy of letter from the complainant to the opposite party.

Ex.A5-          -       - Copy of notice from police.

Ex.A6-                    - Copy of Insurance policy.

Ex.A7- 31.12.2012    - Copy of court order.

Ex.A8- 8.4.2013       - Copy of RTO reply.

Ex.A9- 8.4.2013       - Copy of legal notice with Ack. Card.

 

Opposite parties’ documents :  

 

Ex.B1-         -       - Copy of Insurance policy.

Ex.B2-         -       - Copy of complaint by the complainant to the Police Station.      

 

MEMBER-I                        MEMBER-II                             PRESIDENT.