BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.12/2013

Dated this the 8^th  day of April 2016

1. Samsudeen (died) rep. by his Legal Heirs

2. Rabiyathul Basheriya

3. Haj Mohamed                  

4. Meharuban      

5. Jaffar Ali.           

…      Complainants

Vs.

1. Shriram General Insurance Company Ltd., rep. by its

    Manager / Authorised Signatory  

    E-8, EPIP, RIICO, Sitapura, Jaipur

   Rajasthar – 302 022.

2. Shriram General Insurance Company Ltd., rep. by its

    Manager / Authorised Signatory

    No.66, 2^nd Floor City Centre Complex

    Thirumalai Pillai Road, Chennai – 600 017.

3. C. Sathish, Marketing Executive

    Agent of OPs 1 and 2                    

    No.96, Villupuram Main Road

    Reddiarpalayam (Oviya Super Market Opposite)

    Pondicherry – 10.

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

THIRU V.V. STEEPHEN, B.A., LL.B.,          

MEMBER

FOR THE COMPLAINANT :TVL. P. Segar, S. Sentamil Nambi, A. Ellappanne and A. Arul Khosh, Advocates

FOR THE OPPOSITE PARTIES:

OP.1 and OP2 : Thiru K. Ravikumar, Advocate,

                                                OP.3: Exparte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 (1) r/w Section 11 Rule (1) and (2) of the Consumer Protection Act, 1986 praying to direct the Opposite parties :

1. To pay a sum of Rs.28,600/- towards the insured value of the motor cycle Bajaj Pulsar bearing Regn. No. PY 01 AK 1395 with interest at12% per annum on Rs.28,600/- from 2.0.09.2010 till realisation;
2. To pay a sum of Rs.2.00 lakh towards compensation for deficiency and negligence in service.
3. To pay a sum of Rs.1.00 lakh for the mental agony caused by the opposite parties;
4. To pay a sum of Rs.10,000/- towards cost of this complaint.

2.  The case of the complainant is as follows:

          The deceased first complainant is the owner of Bajaj Pulsar 180 motor cycle bearing Regn. No. PY 01 AK 1395 and the same was insured with first Opposite Party through third Opposite Party under Policy No. 421010/31/11/008291 covering the period from 20.09.2010 to 19.09.2011.  That on 22.09.2010 at about 19.30 hrs. he parked the said motor cycle in the junction of Needarajapayer Street and Bharathi Street and went to buy vegetables and while he returned back at 20.00 hrs, the said vehicle was found missing.  Hence, he lodged complaint before Station House Officer, Grand Bazaar Police Station, Puducherry who could not trace out and hence issued a certificate regarding undetection of the motor cycle.  The complainant informed the theft of the motor cycle to the Opposite parties on 24.03.2011.  Since no reply came from opposite parties, he issued legal notice on 23.04.2011 to the opposite parties, thereafter the complainant was informed by the opposite parties that the claim is time barred vide letter dated 07.06.2011.  The complainant stated that there is no time limit prescribed in the Insurance policy dated 20.09.2010 and therefore, his claim is not time barred.  On 10.11.2011 the complainant issued Advocate Notice to the Opposite Parties that their act amounts to insufficiency of service and he is to be compensated for the loss of his vehicle, even then the opposite parties have not paid the compensation amount.  Hence, this complaint. 

3.       The third opposite party remained ex parte.

4.       The reply version of the first and second opposite parties is as follows:

          The nature of the claim made by the complainant is purely a money claim and does not come within the purview of the Consumer Protection Act.  This Hon'ble Forum has no jurisdiction to entertain the present complaint, the present complaint is to be filed before appropriate civil court.  The opposite parties submitted that the vehicle Bajaj Pulsar bearing Regn. No. PY 01 AK 1395 belonging to the complainant for the period from 20.09.2010 to 19.09.2011.  As per Insurance Policy wordings at page 5 under the heading Conditions at Sl. No. 1, it is clearly mentioned that "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…".  The alleged loss had occurred on 22.09.2010 between 19.30 hrs. and 20.00 hrs. but the police complaint was given on 06.10.2010 after a delay of 14 days.  This would nullify any chance of recovery of the vehicle.  As per the above condition, the complainant is required to give intimation to the opposite parties immediately, but the intimation to these opposite parties was given only 03.06.2011 i.e. after eight months and 12 days of the alleged theft.  This is violation of the condition No.1 and hence, the opposite parties are not liable to compensate the complainant.  The opposite parties further stated that as soon as they received the intimation from the complainant, they have registered a claim under claim No. 1000/31/12/C/011801 and they have processed the claim.  Since inordinate delay in intimation to the opposite parties about the alleged theft, they have repudiated the claim vide letter dated 7.6.2011.  Hence, there is no deficiency of service on the part of opposite parties.  Hence, prayed for dismissal of the complaint.

5.       To substantiate the case, on the side of the complainant, the 5^th complainant was examined as CW.1 and marked Exs.C1 to C12.  On the side of opposite parties, one V.K.S. Sruthy, Legal Officer was examined as RW1  and Ex.R1 was marked. 

6.  Points for determination are:

1. Whether the complainant is a Consumer as defined in Consumer Protection Act?
2. Whether any deficiency service attributed by the opposite parties?
3. To what relief the complainant is entitled for?

7. Point No.1:

          The complainant has taken a Motorised-Two Wheelers Package policy from the opposite parties for his Motor Cycle Bajaj Pulsar 180 bearing Regn. No. PY 01 AK 1395 covering the period from 20.09.2010 to 19.09.2011.    Hence the complainant is the consumer for the opposite parties 1 and 2.

8. Point No.2:

          We have perused the complaint and reply version of the opposite parties 1 and 2 and exhibits filed by the complainant and the opposite parties.  The third opposite party served but called absent and was set exparte. CW.1 and RW.1 examined.  The Opposite parties, in their reply version also admitted that the deceased Samsudeen took an insurance policy for his motor cycle.  Hence, there is no dispute in respect of taking insurance policy.  The dispute is only with regard to repudiation of the claim made by the first and second opposite parties vide their letter Ex.C8, dated 07.06.2011.

9.       The case of the complainant is that on 22.09.2010 between 19.30 hrs. and 20.00 hrs. his motor cycle bearing Regn. No. PY 01 AK 1395 was stolen away by somebody else while he parked the same at the junction of Bharathi Street and Needarajapaiyar Street, Pondicherry.  In this regard, he lodged complaint before the Station House Office, Grand Bazaar Police Station.  Ex.C3 is the copy of FIR dated 06.10.2010.  Since the vehicle was not traced out by the police, they have issued undetectable certificate vide Ex.C4.   On 24.03.2011 the complainant gave intimation to the second Opposite Party regarding theft of his motor cycle vide Ex.C5.  The same was acknowledged by them vide Ex.C6.  The first opposite party gave reply for the said letter dated 24.3.2011 vide Ex.C8 dated 7.6.2011 stating that as per terms and conditions of policy condition No.1, notice shall be given in writing to the company immediately upon occurrence of any claim.  Since the claim intimation has been given belatedly i.e. after 8 months and 12 days from the date of theft, the claim was repudiated by them.  Aggrieved by the same, the complainant issued a legal notice Ex.C9 dated 10.11.2011 to the second Opposite Party which was acknowledged by them vide Exs.C10 and C11. 

10.     The case of the opposite parties is that the alleged occurrence took place on 22.09.2010 but, the complainant lodged complaint before the Police on 06.10.2010 i.e. after a delay of 14 days and the intimation was given to these opposite parties on 3.6.2011 i.e. after a delay of 8 months and 12 days.  As per condition No.1 of the policy terms and conditions, the intimation of accident or loss has to be given in writing to the company immediately after the occurrence.  But, in this case, the complainant lodged complaint before the Police after 14 days of occurrence and to the company after 8 months.  Hence, the complainant violated the conditions of the policy.  Further alleged that if the complainant lodged complaint before the Police immediately after the occurrence, there would be a chance for recovery of the vehicle.  But, the complainant lodged complaint belatedly.  Hence, they have repudiated the claim of the complainant. 

11. It is very clear from the records submitted by the complainant that his vehicle was stolen away by somebody.  But the complainant failed to intimate the same immediately to the police as well as the insurance company.  The Opposite Parties relied upon the Ex.R1 the terms and conditions of the Two Wheeler Package policy.  On perusal of the conditions of the policy, it is very clearly mentioned  that

Notice shall be given in writing to the company immediately upon the occurrence of any accidental or loss of 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 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. 

To refute the contention of the opposite parties, the complainant stated that there is no specific time bar for lodging the claim form.  In this regard, he relied upon a judgment reported in 2013 (4) MLJ page 411 to 414 [A. NATARAJAN vs SENIOR DIVISIONAL MANAGER, NATIONAN INSURANCE COMPANY LTD., AND ANOTHER] wherein, it was held that

"Condition for lodging claim within one calendar month of event not mandatory – Open to respondents to waive delay to entertain claim – Petitioner gave good reasons for delay in lodging claim – Corresponding obligation is cast upon respondents to process claim on coming to know about death of policy holder – Reason for rejection cannot be accepted – Impugned order arbitrary and hit by Article 14 – Impugned order set aside – Writ petition allowed."

In the above case,  the complainant has given reasons for delay in lodging the claim.  Whereas, in the present case, the complainant has not adduced any reason for inordinate delay in lodging the claim form before the insurance company.  Moreover, the complainant even failed to intimate to the company about the theft of his motor cycle.  Hence, the above citation would not be applicable to the present case.

          12. The complainant taken a plea that the opposite parties repudiated his claim on the ground of inordinate delay and thereby committed deficiency in service.  In this regard, the complainant cited a ruling reported in 1998 (10 CPJ page 362 and 363 [TEEM METALS PVT. LTD., vs NATIONAL INSURANCE COMPANY LIMITED] wherein, it was held that

"It is settled law that failure of the Insurance Company to settle the claim within a reasonable time of the occurrence of loss constitutes deficiency in service."

In the case on hand, the occurrence took place on 22.09.2010, intimation to the opposite parties were given only on 3.6.2011.  Soon after receipt of intimation, they have registered a claim under No. 1000/31/12/C/011801 and processed.  Then only, they have repudiated the claim.  Hence, there is no deficiency in service on the part of opposite parties. 

13. In the present case, the complainant lodged complaint even to the Police only on 06.10.2010.  But, the occurrence took place on 22.09.2010.  Hence the complainant was negligent in lodging the complaint in time before the police and intimating the same to the opposite parties.    The policy is based on contract with utmost good faith.    Both parties are bound by the conditions of contract.  The complainant has failed to establish that he has intimated the theft of his vehicle immediately to the insurance company as per policy condition.   

          14. In order to fortify the contentions of the Opposite Party, they have cited the following judgments;

          2015 STPL (CL) 1285 NC [ SAFRARJUDEEN vs NEW INDIA ASSURANCE CO. LTD., AND OTHERS]

          2015 STPL (CL) 736 NC [SHRIRAM GENERAL INSRUANCE CO., LTD., vs MAHENDER JAT]

          2015 STPL (CL) 2146 NC [JATINDER SINGH AND ANOTHER vs ORIENTAL INSURANCE CO., & ANR]

          2015 STPL (CL) 1344 NC [RAMESH CHANDRA MEGHWANSHI vs ORIENTAL INS. CO. LTD.]

          2015 STPL (CL) 1890 NC [JASPAL KAUR AND ANOTHER vs NEW INDIA ASSURANCE COMPANY LTD]

          Wherein, the Hon'ble National Commission has categorically decided in all the above judgments that

        "….the insured was duty bound to inform about the theft of the vehicle immediately after the accident.  Delay in intimation deprives the insurance company of its legitimate right to get enquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same.  It was further held that the insurance company could not be saddled with the liability to pay the compensation to the insured despite the fact that he has not complied with the terms of the policy."

Hence, from the above decision, this Forum has found that the insured has to intimate the alleged theft  immediately after the incident to the opposite parties.  In this case, the complainant has informed about the theft of his vehicle only after eight months of theft.  Therefore the repudiation made as per the condition of policy by the opposite parties under Ex.C8 dated 07.06.2011 is reasonable and justifiable one.

15.  In view of the above discussion, there is no deficiency in service rendered by the opposite parties.  Therefore the complainant is not entitled for any relief as prayed.  Hence this point is answered accordingly.

16.  Point No.3:

          In view of the decision taken in point No.2, the complainant is not entitled to any relief as prayed and this complaint is hereby dismissed as no cost.

Dated at Pondicherry on this the 8^th day of April 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANT’S WITNESS:  

CW.1          31.03.2015           Jaffar Ali

OPPOSITE PARTIES’ WITNESS: 

RW.1          04.09.2015           V.K.S. Sruthy, Law Officer

 COMPLAINANT’S EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:    

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

MEMBER