BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

 F.A.No.1208/2013 against C.C.No.62/2012, Dist. Forum,Vizianagaram.

Between:

1.Bajaj Allianz General Insurance Company Ltd.,

   GE Plaza, Airport Road, Yerwada, Pune-411 006,

   Represented  by its Manager &

   Authorized Signatory.

2. The Manager,

    Bajaj Allianz General Insurance Company Ltd.,

    Peejay Plaza, 3rd Floor, Dr.No.10-1-44/9,

    VIP Road,  CBM Compound,

    Visakhapatnam.

3. The Manager,

    Bajaj Allianz  General Insurance Company Ltd.,

    Customer Service Centre, Shop. No.6, Ratnam Plaza,

    Beside Syndicate Bank, MG Road,

    Vizianagaram.                                                                                                          .. Appellants/

                                                                                    Opp.parties

        And

Sri Battula Sekhar, S/o.Krishna Rao,

Hindu, aged 40 years, Business,

Dr.No. 14-5-30, Kamma Veedhi,

Vizianagaram.                                                                Respondent/

                                                                                   Complainant 

Counsel for the Appellants          :   Mr.N.Mohan Krishna  

Counsel for the respondent         :   Notice served.         

QUORUM: HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA, PRESIDENT,  

                                                 AND

                     SRI S.BHUJANGA  RAO, HON’BLE MEMBER.

               THURSDAY, THE    THIRTEENTH   DAY OF  FEBRUARY,

                           TWO THOUSAND  FOURTEEN.

Oral Order: (Per  Sri S.Bhujanga Rao, Hon’ble Member).          

                                                                      ****

                 This appeal is directed  against the order of the District Forum, Vizianagaram made in C.C.No.62/2012,  which is filed  by the complainant, to direct the opp.parties, to pay  the assured amount of Rs.47,000/- with interest @ 24%   p.a.  from 31.08.2010  till the date of realisation to the complainant  and also to direct the opp.parties to  pay Rs.50,000/-  for deficiency  in service  and towards compensation  for loss and injury, mental agony and physical hardship sustained by the complainant and to award costs.  

The appellants are the opposite parties and the respondent   herein is the complainant in C.C.No.62/2012. For the sake of convenience, the parties  are described as arrayed in the complaint. 

 The case of the complainant as set out in the complaint is as follows: 

 The complainant purchased a motor cycle manufactured  by Honda Company with Chasis no.ME 4KC093H9808831  and Engine no. KC09E1089767 in Honda Show Room (Jupiter  Show Room at Visakhapatnam) on 29.8.2009 and got it registered  in the office of Regional  Transport Authority, Vizianagaram under registration no.A.P. 35 K 0089.   At  the first instance, the complainant insured the vehicle with New India Assurance Company Ltd. and  thereafter  insured the vehicle with the opposite parties and obtained  certificate of insurance (Comprehensive Insurance Policy)  and  paid premium of Rs.1,255/-.  The said  certificate of insurance issued by the opposite parties 2 and 3 was effective from 25.09.2010 to 24.09.2011 covering own damages, which includes coverage for  loss of vehicle  due to the thefts etc. or destruction of the vehicle and 3rd party  liability and P.A. cover for owner  and driver.

On  31.07.2011  at about 11 a.m.  the complainant parked his  above said  motorcycle duly locked  in the premises of his godown  in K.L.Puram area, Vizianagaram, went into the  godown and returned  and found that his  motorcycle was stolen. Immediately, the complainant lodged a   complaint with  S.H.O., I Town P.S., Vizianagaram  and also intimated the theft of motor cycle to the  opp.parties.   S.H.O did not register the  case of the complainant immediately stating that it is an offence concerning the property and finally  on 17.09.2011 registered the case  in Crime No.211/2011,  u/s.379 of I.P.C. and issued a  refer notice  stating   that the  case is  undetectable.      In the meanwhile,   the investigator of  the opposite party no.3 approached the complainant  and took his signatures on  the written papers and assured  to pay the amount covered under the policy.  Thereafter, the complainant received a notice  dt.14.02.2012   from the opposite parties whereunder  the policy was repudiated stating that the complainant failed to take reasonable steps, to safeguard the vehicle, which allegation is totally false and baseless.  Opp.parties  served a notice dt.30.1.2012  on the complainant seeking   to repudiate the policy  for which the complainant sent his reply dt.16.2.2012 stating that the allegation was false  and baseless  and it was made only to avoid  the liability and to cause loss to him.  There is deficiency in service on the part of the opp.parties in repudiating the claim  of the complainant.  Hence the complaint.

Resisting the  complaint, the opposite party no.2 filed counter     admitting issuance of the  insurance policy  for the vehicle of the complainant  and denied  the other material allegations made in the complaint.   The opposite party  contended  that in response to the claim of the complainant, they have appointed an investigator  to  know the cause for the loss of the vehicle  and  Sri G.J.R.Ajay Kumar, investigator    made investigation  and  recorded the statement of the complainant  and according to the said statement,  he found that  the complainant did not take due care in  locking his vehicle  and due to his  negligence,  the  theft of the vehicle  was committed.  The  opposite party intimated the same to the complainant through their letter dt.30.1.2012 and sought clarification of the complainant  within seven days, for which there was no response from the complainant.  Hence, the opposite party no.2 repudiated the claim of the complainant on 14.02.2012. Opposite party submits that   the repudiation of the claim of the complainant  was strictly  in accordance with the provisions of the Insurance  Act and IRDA Guidelines  and also terms and conditions of the policy.   The loss of the vehicle  by the complainant  was entirely and purely due to his negligence only  and it amounts to  violation of terms and conditions of the policy.    

 In order to prove  his case, the complainant  filed his evidence affidavit and got marked Exs.A1 to A9. The opposite party no.2  filed  affidavit evidence and  Exs.B1 to B4 documents  were  marked on   behalf of opp.parties. 

The District Forum, based on the evidence  adduced and pleadings put forward,  partly allowed the complaint  directing the opp.party  to pay the assured amount of Rs.47,000/-  with interest  @ 9%  p.a. from 31.08.2010  till the date of  realisation  and also to pay a sum of Rs.2000/-  as compensation for the injury and mental agony  caused to the complainant and  to pay Rs.2000/- towards costs,  which includes  advocate fee of Rs.1000/-.

 Aggrieved by the  said order,  the opp.parties preferred this  appeal  contending that the order of the District Forum is contrary to law and facts of the case and the Dist. Forum failed to  appreciate the question of fact and law in its true perspective and erroneously allowed the case.     The appellants/opp.parties contended that the Dist. Forum failed to see that the complainant himself admitted  before the investigator  that he did not take due care in locking his vehicle and he left the vehicle in unlock condition  and the said negligence caused loss of  the vehicle due to theft.  The appellants/opp.parties further contended  that the Dist. Forum failed to see that the claim of the complainant was rightly repudiated for the reasons that  as per Condition no.4 of the  terms and conditions of the policy, “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 there of or any driver or employee of the insured”,   but the same was not done by the complainant,   thus  the conditions of the policy  were violated. It is further contended that   the complainant gave a complaint before the concerned police station 57 days after the date of theft of the insured vehicle, if the  theft would have actually occurred, immediate information  to the police might have been issued.  The appellants/opp.parties prayed to set aside the order of the District Forum  after allowing  the appeal. 

 We heard  counsel for the appellants and perused the  entire material placed  on record.

Now the point for consideration is whether  the impugned order of the  District Forum  is vitiated  for misappreciation of fact or law?

    It is not in dispute that the complainant was the owner of the motorcycle bearing registration no.   AP35K 0089 and  he got the same insured with the 2nd opposite party and the policy was in force from 25.9.2010 to 24.9.2011  and the said vehicle was committed theft  of  on 31.7.2011, when he parked the same in the premises of his godown in K.L. Puram area of Vizianagaram.   These facts are also established  by Ex.A1  the invoice issued by Jupiter Automobiles, Visakhapatnam evidencing the  purchase of the motor cycle by the complainant for a sum of Rs.58,532/-,  Ex.A2   the Certificate cum Policy Schedule  issued by the opposite parties,   Ex.A4 the copy of the letter addressed by the complainant to the Inspector of Police, I Town Police Station, Vizianagaram with  a request to pass intimation to the insurer in case of recovery of the vehicle,  Ex.A5 the refer notice issued by I Town P.S., Vizianagaram referring the case as undetectable and Ex.A3 the copy of the F.I.R.   lodged with SHO, I Town P.S., Vizianagaram. 

The learned counsel for the appellants/opp.parties  submitted that the complainant himself admitted and gave a statement before the investigator appointed by the opposite parties stating that he did not take due care in locking his vehicle and he left the vehicle in unlock condition and the said negligence caused loss of vehicle due to theft. The   learned counsel further submitted that as per Condition no.4 of the terms and conditions of the policy, 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,   but the same was not done by the complainant.  The learned counsel for the  appellants/opp.parties further submitted that the complainant  gave complaint before the concerned police station 57 days  after the date of theft of the insured vehicle. If the theft would have actually occurred immediate information  to the police might have been issued, but it was done only after a thought and for wrongful gains. Thus, the respondent/complainant has violated the  conditions  of the policy. Therefore, he is not entitled to claim any amount under the policy. As such, the impugned order of the District Forum is liable to be set aside.   

Ex.A6 is the show cause notice dt.30.01.2012  issued by the opposite party insurance company to the complainant, to clarify within 7 days from the date of this letter as to why the claim cannot be repudiated as per Condition no.4 of the policy (which is referred to by the learned counsel for the appellants as mentioned above). From Ex.A6 (= Ex.A8), it is clear that the opposite party insurance company   has issued Ex.A6  show cause notice on  two observations as under: 

“(a). The vehicle was parked in unlocking condition and they’re    

       of contributed theft  due to purely  your negligence.

 (b).Failure to take reasonable steps   to safeguard the vehicle

       has resulted  in the loss of  vehicle.” 

        From the above, it is obvious  that the opposite party insurance company   repudiated the claim of the complainant,  for violation of condition No.4 of terms and conditions of the policy and not for the  delay in giving report to the police by the complainant  about the theft of the vehicle.  Therefore, we are not inclined to accept the  submission of the learned counsel for the appellants, that   if the theft would have actually occurred, immediate  information to the police might have been issued, but it was only done after a   thought and  for wrongful gains.    If really  the opposite party insurance company  lost its legitimate right   to secure firsthand information  about the theft of the vehicle, due to  lapse of time, in giving  report to the police by the complainant, they would have mentioned the same in Ex.A6  letter.   As mentioned above, the  officials of opposite parties did not rely on  the delay in giving  report to the police, about theft of the motor cycle by the complainant,  to repudiate the claim.    However, the complainant  explained the delay in giving  report to the police about the theft of the motorcycle.   The complainant has stated in his complaint as well as in  his evidence affidavit  that immediately  after his motorcycle was stolen  by some  unknown  person, he lodged a report with the  SHO., I Town police station,  Vizianagaram and intimated the same  to the opp.parties.   In his  evidence affidavit the complainant has stated that  he searched  for  the vehicle within a radius of 20 kl.mts. from the place of theft and as it was not traced,  then he reported   theft of his vehicle to the I Town  Police Station, Vizianagaram.  On their advise he searched for the vehicle   for  some more days, but  could not trace it  and finally  the police registered FIR  on  17.09.2011. The contents of Ex.B4 the report of the investigator,  made it clear that  all the efforts were made by the complainant  to trace the vehicle and as it was not found, he immediately rushed to the police  and told them about the theft of his vehicle and on the advise of the poice, he  again searched  for the same and when it was not traced, the police registered a crime basing on the complaint given by the complainant.  Under these circumstances, no motives can be attributed to the complainant  for the delay in registering the complaint by the police.   It is not the case of the opposite parties that in order to  lay a claim    for the assured amount, the complainant has deliberately parked his vehicle on the road, so as to get the  same committed theft of. 

Now coming to the ground, on which,  the claim of the complainant  was repudiated  i.e. the negligence on the part of the  complainant  in keeping the vehicle in open place in front of his godown, as a reply to Ex.A6  show cause notice, the complainant sent Ex.A7 to the opp.parties denying the allegation that the complainant failed  to take reasonable steps to safeguard the vehicle by parking it  unlocked.  In Ex.A7 the complainant has categorically stated that on 31.08.2011 at about 11.00 hours,   he parked his motor cycle  in front of his godown in K.L.Puram area, Vizianagaram duly locked . That the vehicle was parked within the premises of his godown more particularly within the boundary   wall of his godown and that  he  narrated the said fact to the investigator.   

In order to prove  that the complainant has negligently kept  the key  to the ignition of his motorcycle and  that  due  to his negligence, the vehicle was committed theft of, the opp.parties filed  Ex.B3 statement alleged to have given by the complainant,  to the investigator, during the course of investigation made by him.  The complainant denied to have stated before the investigator that he  kept the vehicle in unlocked condition  and that he  kept  the  key with the motorcycle.    The complainant contended that the investigator  took advantage of his deafness and illiteracy and  prepared  the so called statement to cause loss and injury to him. 

The opp.parties have not denied the fact that the complainant has been suffering from deafness.  Therefore, it cannot be said that the contents of Ex.B3 statement   were read over and explained to the complainant before the signature was obtained thereon.  As seen from Ex.B3, the alleged statement of the complainant  was recorded in the presence of one G.Suresh.  In view of the contention of the complainant, the opposite parties ought to have examined  the said G.Suresh, to prove that the contents of Ex.B3 statement were read over and explained to the complainant and  that the complainant  admitted the same and thereafter, the signature of the complainant was obtained thereon.  The date of recording   of Ex.B3 by the investigator does not find place in Ex.B3.  The specific   contention of the complainant is that he did not   state to the investigator about leaving the key to the ignition of the motor cycle.  It is an admitted fact that the complainant  gave Ex.B2 complaint to the opposite party no.2 after the vehicle  was committed theft of.  Ex.B2 is dt.25.11.2011. In Ex.B2, the complainant  has categorically  stated that he went to his godown on his motor cycle on 31.8.2011 and he kept the motorcycle outside the godown under lock  and went inside the godown  and after attending to his work, he came back and found that his motor cycle missing. Ex.B2 complaint was given to the opposite party no.2 at the earliest point of time and several days thereafter, the investigator alleged to have recorded Ex.B3  statement of the complainant.  The investigator  was appointed by the opposite party no.2 to investigate into the matter.   Therefore, he is interested in the case of opposite parties.  Since Suresh  is an independent witness, the opposite parties ought to have examined him to prove their case. 

In view of the above facts and circumstances, we are of the view that the complainant locked the motorcycle and kept the same in front of the godown in the premises  and went inside the godown and as such, he was not negligent in keeping the vehicle in front of the godown, within the premises.  Therefore,  he cannot be held to be responsible for the theft of the vehicle.  As seen from the contents  of Ex. B1, the copy of the policy, the opposite party no.2 agreed to indemnify  the insured against the loss or damage of the vehicle, in case the same is committed theft of.  Under these circumstances,   we are of the considered opinion that the opposite party no.2 is not justified in repudiating the claim of the complainant, on the ground that the complainant has failed to take reasonable  steps to safeguard   his vehicle.  As such there is deficiency in service on the part of the opp.parties.

 Ex.B1 policy was issued on 29.9.2010. As seen from Ex.B1, the complainant declared  the value of the motor cycle as Rs.47,000/-,  as on 29.9.2010, the date of issue of the policy and the vehicle was stolen on 31.8.2011  i.e. nearly after one year  after  his declaration  of the value of the vehicle.    Therefore, the complainant’s claim for Rs.47,000/-  is not  at all fair. It appears, the District Forum did not consider the depreciation and salvage of the vehicle, while directing the opposite parties to pay the assured sum of Rs.47,000/-.  We are of the  opinion that a sum of Rs.7,000/-   is to be deducted towards  depreciation and salvage,  from the insured declared value of Rs.47,000/- and the balance  amount is to be paid to the complainant.  Therefore,  the opposite parties are directed to pay a sum of Rs.40,000/- instead of Rs.47,000/-,  as ordered by the District Forum.

In the result, the appeal is allowed in part,  directing the  appellants/opposite parties   jointly and  severally to pay  a sum of Rs.40,000/- instead of Rs.47,000/-  as ordered by the  District Forum to the complainant.  The impugned order of the District Forum is accordingly modified, retaining the remaining portion of the order as it is.  In view of the facts and circumstances of the case, there shall be no order as to costs. The opposite parties are directed to comply with   this  order within four weeks. 

                                                                        PRESIDENT

                                                                        MEMBER

Pm*                                                                        Dt.13.02.2014