KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 460/2011
JUDGMENT DATED:31-12-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
M/s Oriental Insurance Company Ltd.,
Branch Office, M.G.Road, Kasaragod,
Repd. by its Divisional Manager, : APPELLANT
Divisional Office-1, TVPM.
(By Adv:Sri.Varkala B Ravikumar)
Vs.
Siddique Koya,
House No.14/535,
Kizhur, Chandragiri, : RESPONDENT
Kalanad, Kasaragod.
(By Adv:Sri.A.Ravindranath)
JUDGMENT
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
Appellants are the opposite parties/Insurance Company in CC.136/10 in the file of CDRF, Kasaragod. The appellants are under orders to pay a sum of Rs.90,000/- as compensation with respect to the loss/theft of the vehicle with interest at 9% from the date of complaint and also cost of Rs.3000/-.
2. It is the case of the complainant that the Santro Car owned by him was stolen on 13.11.2007 and the matter was intimated to the police. The police filed a final report as undetectable on 19.9.2008 and on 14.10.2008 the complainant submitted the claim form along with relevant documents. Claim was repudiated on the ground that there is delay in intimating the police and the opposite party. Complainant has claimed a sum of Rs.1,10,000/- the insured estimated value.
3. In the version filed it is contended that only on 21.11.2007 theft was intimated. The FIR was lodged only on 18.11.2007. The opposite party had sent a letter to the complainant to furnish the required documents to settle the claim. Thereafter on 18.2.2008 also a letter has been sent. The complainant did not turn up. Hence the claim was repudiated vide registered letter dated:5.6.2008. It is also contended that as per condition No.7 of the policy the period of limitation is only 12 months. Complainant has filed a complaint after 24 months.
3. The evidence adduced consisted of the testimony of PW1, the proof affidavit filed by the opposite party, Ext.A1 to A4, B1 to B5.
4. The Forum has held that condition No.7 of the policy with restricts the period of submitting the claim to 12 months is not applicable as the clause is with respect to the subject matter of a suit in a court of law and as the complaint before the Forum is not a suit vide EICM Exports Limited Vs. South Indian Corpn (Agencies) Ltd and Another 2009 CTJ 945 SC. It was also held that the above clause is hit by section 28 of the Indian Contract Act. The date of commencement of the policy is 1.12.2006 and the date of theft is 13.11.2007 and hence a sum of Rs.20,000/- was deducted towards depreciation in the market value and the balance amount of Rs.90,000/- was ordered to be paid.
5. The counsel for the appellant/opposite party has relied on the decision in HP State Forest Co. Ltd Vs. United India Insurance Company Limited, 2009 ACJ 684 wherein the Supreme Court has upheld a similar clause to clause 7 herein and held that such a clause in the agreement would not fall within the mischief of section 28 of the Contract Act 1872. The counsel for the appellant has stressed the fact that the particular clause in the policy conditions envisaged extinction of the right itself and not restriction as to period of filing the complaint only as has been held by the Supreme Court in the above cited decision. The counsel has also contended that there is delay in intimating the police as well as the insurer whereas as per the policy conditions, the complainant was liable to inform the insurer immediately. The counsel has relied on the decision of the National Commission in New India Assurance Company Ltd. Vs. Trilochan Jane (FA.321/05 dated:9.12.2009) wherein with respect to the theft took place on 8.4.2000, the FIR was lodged on 10.4.2000 and the company was informed on 17.4.2000. The National Commission upheld the repudiation.
6. In the instant case we find that it is case of the complainant that on the same day he went and reported the matter to the police but the police has registered the FIR only on 18.11.2007 ie on the 5th day. The complainant has testified that the police directed him to bring the driver and on the next day he went to the police station along with the driver and the statements were recorded and they promised to enquire into the matter. The Forum has also found that there is lapse on the part of the police and has directed in the order to forward a copy of the order to Secretary, Home Department for necessary action and to see that no delay occurs in registering FIR when the theft of vehicles are reported. The evidence of PW1 in this regard as to the fact that he intimated to the police on the same day stands not discredited.
7. It is also his case that he intimate the insurance company at their office at Kasaragod and they asked him to submit the claim form along with the RC and copy of FIR and he approached the Sub Inspector of Police for the copy of FIR on 18.11.2007. He was told that the crime has not been registered and thereafter his statement was again recorded and the crime was registered. On the next day he approached the opposite parties and enquired about the formalities and was told that only on completion of investigation by the police and filing of final report, the claim can be lodged. On 19.9.08 only the police filed the final report. On 14.10.08 he submitted the claim form along with the copy of RC, copy of FIR and final report and he has told the claim will be processed at the earliest. He has denied that he received the letter repudiating the claim dated:5.6.2008. According to him he has gone to the office of the opposite party a number of times enquiring about the claim.
8. Ext.B4 the repudiation letter dated:5.6.2008 mentions that there was undue delay in intimating the claim and that the claim intimation was given on 21.11.2007 and even after that the required documents were not produced and as per letter dated:21.2.08 for non compliance of the Condition No.1 and 8 of the policy, the file is treated as no claim. Although the acknowledgement card produced as Ext.B1 the same was not put to PW1 in cross-examination nor was anybody examined at the instance of the opposite parties to prove Ext.B5. In the circumstances we find that the case of PW1 that he has not received Ext.B4 repudiation letter has to be relied.
9. It has also to be noted that as per Ext.B4, the claim was not repudiated for the reason that the claim was not lodged in time vide clause 7 of the conditions restricting the period of lodging the claim for payments. It is not disputed that the complainant was directed to submit the final report of the police also. The case of the complainant that he submitted the claim along with the required documents on 14.10.08 stands not disproved. Thereafter there was no repudiation. Evidently the opposite parties would not be entertaining the claim without the final report of the police which is dated:19.9.08. According to the opposite parties, the claim was repudiated on 5.6.2008 itself. In fact at that time the complainant had not submitted a claim form properly. The case of the complainant that the opposite parties directed him to submit the claim along with the RC, copy of FIR and the copy of the final report stands not discredited. Opposite parties are not entitled to rely on a contention that has not been mentioned as a ground for repudiation in the alleged repudiation letter. In the circumstances the application of the ratio of HP Forests Co. Ltd’s case (supra) does not arise. As to the delay also the version of the complainant that he intimated the police as well as the opposite parties stands proved. In the circumstances we find that no interference in the order of the Forum is called for.
In the result the appeal is dismissed.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL. S. CHANDRAMOHAN NAIR: MEMBER
