BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.                              

DATED THIS THE 7^th DAY OF OCTOBER, 2021

CONSUMER COMPLAINT NO.1920/2017

PRESENT:                                                          

Sri.C.V.Maragoor, B.com, LL.M.               ….      PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.            ….         MEMBER

Manjunath .H.B.

S/o. Rudregowda,

Aged about 41 years,

Helagalli Village,

Uyamballi Hobli,

Kanakapura Taluk,

Ramanagara District.

(By Sri. Sridhara D.R, Advocate)

V/s

OPPOSITE PARTY:

TATA AIG General Insurance Co.Ltd.,

2^nd Floor, J.P & Devi Jambakeshawara Arcade,

No. 69, Millers Road,

Bengaluru-560 052.

(By Sri.Prashant T.Pandit, Advocate)

SRI.C.V.MARGOOR, PRESIDENT

*****

//ORDER//

1.This complaint is filed under Section 12 of the CP Act, 1986 with a prayer to direct the OP TATA AIG General Insurance Co. Ltd., to pay Rs.8,50,000.00 to the complainant and cost of the litigation.

2. It is the case of complainant that he being the owner of tractor Mahindra Bhoomiputhra 475 bearing Reg. No. KA-42-T-4549 and the said vehicle had insured with the OP during the year 2016. The complainant had parked the said tractor on 2-5-2016 at 5.00 p.m. at school ground near Channabasappa circle, Kanakapur Town. On the next day morning the complainant has sent his driver to bring the tractor but the tractor engine was stolen in the night hours of 2-5-2016 from the spot.  

3. It is further case of complainant that his brother-in-law Prasad has lodged the complaint with Kanakapur Police on 5-5-2016. The OP has repudiated the claim of complainant for theft of tractor engine as such he has got issued legal notice dated 19-12-2016. The OP insurer not agreed to pay the value of the tractor despite the Kanakapur police has submitted C-report hence, this complaint.

4. The OP in response to notice appeared through its learned counsel and filed version admitting that the complainant vehicle has insured and policy was in force on the said date of theft of the tractor that is on 2-5-2016. The OP has rejected the claim of the complainant on two fold as there is delay in reporting the theft of vehicle and secondly it was being used for commercial purpose contrary to the terms and conditions of the policy. 

5. The complainant filed his affidavit evidence and produced 12 documents. On behalf of OP 1 Krishna Sheemali, Chief Manager filed affidavit evidence and produced two documents.

6. We have heard the oral arguments of learned counsel for the complainant and OP in addition to their written brief and the points that would arise for determination are as under.

1. Whether the complainant proves that repudiation of claim made by the OP is not justifiable and improper.
2. Is complaint is entitled to the relief sought for?

7. Our findings on the aforesaid points are as follows:

Point No.1: In the negative  

Point No.2: In the negative for the below

REASONS

8. POINT NO.1 to 2: The learned counsel for the complainant have vehemently argued that the OP insurer has repudiated the claim despites the  police have filed “C” report as vehicle is not traceable. The OP has rejected the claim of complainant on false allegation as the tractor being used for commercial purpose contrary to the terms and conditions of policy. As against this the learned counsel for the OP vehemently argued that the complainant was using the vehicle for commercial purpose as such the complainant is not consumer under the Act. The complainant has not explained the delay properly to report the incident to the police and OP.

9. The OP has not disputed that the tractor bearing Reg. No. KA-42-T-4549 had insured with it on 6-4-2016. The learned counsel for the complainant have submitted that the OP has not produced any documents to show that the complainant was using the tractor for commercial purpose. The complainant has not gone through the first information report submitted by his brother-in-law D.L.Prasad and on the basis of complaint filed by D.L.Prasad, Kanakapur Police, Ramanagar District have registered the case in crime No.34 of 2016 on 5-5-2016 for the offence under section 380. The OP has produced the copy of complaint given by D.L.Prasad before Kanakapur Police on 5-5-2016 and copy of FIR No.34 of 2016. It is stated in the complaint that the complainant Manjunath being his brother-in-law and he is owner of tractor No. KA-42-T-4549. The complainant D.L.Prasad stated in the complaint that he is doing PWD work on contract. He has been using the tractor belonging to the complainant Manjunath for road work and also giving tractor to others on rent by appointing one Girish as driver. After work was over everyday, the complainant D.L.Prasad used to park the tractor belonging to the complainant Manjunath adjoining to municipal building which under construction i.e., nearby school premises C.V. Circle, Kanakapur Town. After work was over on 2-5-2016 at 5:30 pm driver Girish parked the tractor in the same place and went to his village. On the next day morning at 7:30 am D.L.Prasad brother-in-law of complainant went to the spot and found missing of the tractor and  after search he reported to police on 5-5-2016. The averments of complaint/report filed by D.L.Prasad brother-in-law of complainant clearly indicates that the complainant had handed over the tractor to his brother-in-law D.L.Prasad for doing PWD contract work. Further D.L.Prasad was giving the tractor to others on hire basis for transportation of tiles etc. The complainant has not disputed the report submitted by his brother-in-law D.L.Prasad to Kanakapur Police on 5-5-2016. Further complainant has not given explanation to the report filed by his brother-in-law D.L.Prasad.   

10. The complainant and OP have produced copy of insurance policy and according to the policy limitation as to use only for agriculture and forestry purposes. The policy does not cover the averments of report filed by D.L.Prasad brother-in-law of complainant that the complainant was permitted to use the tractor for commercial purpose. It further indicates that the tractor belonging to the complainant Manjunath being used for commercial purpose i.e., for road contract work etc. The complainant was not using the vehicle for agriculture and forestry purpose but he had given the tractor to his brother-in-law for contract work and to hire to other persons on rent. It proves that the vehicle was being used for commercial purpose contrary to the terms and conditions of policy issued by OP as such the complainant is not a consumer under CP Act, 1986.

11. The averments of complaint are contrary to the report filed before Kanakapur Police on 5-5-2016 by his own brother-in-law D.L.Prasad. It is stated in the complaint that the complainant has left the tractor for service at Sri.Basaveshwara Enterprises, Kanakapur and after completion of service the tractor has been delivered from service centre on 2-5-2016 at 5.00 pm and due to non availability of driver, the complainant requested his brother-in-law Sri.Prasad to take delivery of the tractor. As such Sri.Prasad took the delivery of the tractor and got parked the same at school ground near channabasappa circle, Kanakapur Town. On the next day morning the complainant sent his driver to bring the tractor then came to know that tractor was stolen in the night hours of 2-5-2016. The complainant to support his case he has produced retail bill (cash bill) dated 19-4-2016 issued by Sri.Basaveshwara Enterprises, Kanakapur for Rs.4,306.00. According to this invoice the tractor was got repaired on 19-4-2016 and paid repaired amount on the same day a sum Rs.4,306.00. This is computerized printed invoice but later on the complainant got endorsement in handwriting that tractor delivered on 2-5-2016 at evening. This handwritten endorsement has got by the complainant after thought to support his complaint averments. On the contrary his own brother-in-law D.L.Prasad who clearly narrated in the report filed before police that he used the tractor on 2-5-2016 and  evening at 5.00 O’clock his driver Girish after the work was over parked near school premises, C.V. Circle, Kanakapur Town. The endorsement said have been made by owner of Basaveshwara Enterprises is only after thought and it is against the report submitted by the brother-in-law of complainant,  as such the endorsement is not belivable.

12. The brother-in-law of complainant D.L.Prasad in the report submitted to police on 5-5-2016 stated that on coming to know the theft of tractor on 3-5-2016 morning he made efforts to trace the vehicle and thereafter he reported to police on 5-5-2016. The learned counsel for the complainant for delay in reporting the incident to insurer/OP and police brought to the commission notice the case of O.M.Prakash V/s Reliance General Insurance and another civil Appeal No.15611 of 2017 dated 4-10-2017 wherein the Hon’ble Supreme Court held that if the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. On the contrary the learned counsel for the OP have brought to the commission notice the case of Oriental Insurance Co. Ltd V/s Parvesh Chander Chadha 2018 STPL 12322 (SC) = (2018) 9 SCC 798 wherein the Hon’ble Supreme Court under Sections 2(d), (g), 12, 15 and 21 of CP Act, 1986 and Section 45 of Insurance Act, 1938 where in it is held repudiation of claim on ground of delay. Duty to inform insurer of loss forthwith so that insurer make a meaningful investigation into cause of damage and nature of loss. Crucial importance of, insurance claims as per terms of insurance policy insured duty to inform insurer about the loss immediately after the incident. On account of delayed intimation, insurer deprived of its legitimate right to get an inquiry conducted into cause and nature of the loss. Held repudiation of claim on ground of delay was proper – complaint of respondent insured dismissed. In the instant case the complainant has not reported to police and OP insurer immediately after the theft of vehicle. The brother-in-law of complainant has reported to police more than two days after the alleged incident. On perusal of the averments of report given to Kanakapur Police it can be gathered that the complainant has not parked the vehicle in safe place and on the contrary he parked the vehicle nearby school ground. The terms and conditions of the policy under heading general exceptions para No.5 says that the insured shall take all the reasonable steps to safeguard the vehicle insured from loss or damage and maintain it in efficient condition. As already observed that the complainant has not taken reasonable care while parking the vehicle as he parked the vehicle nearby undergoing construction of municipality building,  Kanakapur Town. The OP has rightly repudiated claim on the ground that the complainant has used the vehicle for commercial purpose contrary to the terms and conditions of policy. Secondly the complainant has not reported the incident with the police and insurer immediately after theft and thirdly the complainant has not taken reasonable steps to safeguard the vehicle insured from loss. Therefore, we do not find any illegality in repudiation of claim made by OP. In the result, we proceed to pass the following.

ORDER

The complaint is dismissed without cost.

Furnish the copy of order to the complainant and opposite party at free of cost.

      (Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on 7^th day of October, 2021)

• M.B. SEENA )         (L.MAMATHA)          (C.V.MARAGOOR)    
•  

//ANNEXURE//

Witness examined for the complainant’s side:

Sri.Manjunath H.B the complainant filed  affidavit.

Documents marked for the complainant side:

1. The Photo Copy of RC.
2. The Photo Copy of the cover letter of insurance.
3. The Photo Copy of the Delivery Retail Invoice.
4. The Copy of the complaint and FIR.
5. The Photo Copy of the acknowledgment issued by the RTO.
6. The Photo Copy of the letter given by the opposite party dated 03.11.2016.
7. The Photo Copy of the letter given by the opposite party dated 12.12.2016.
8. The Photo Copy of the legal notice dated 19.12.2016 issued by the complainant to the opposite party.
9. The Photo Copy of the letter issued by the opposite party.
10. The Photo Copy of the reply issued by the opposite party.
11. The Photo Copy of the further reply issued by the complainant.
12. The Photo Copy of the ‘C’ report.

Witness examined for the opposite party side:                  

Sri.Krishna Sheernali Chief Manager Claims filed his affidavit.

Documents marked for the Opposite Parties side:

1. Copy of the complaint and FIR.
2. Copy of the terms and Conditions of Policy.

• M.B.SEENA)         (L.MAMATHA)          (C.V.MARAGOOR)    
•