BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    17^th DAY OF JUNE 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to pay a sum of Rs.1,26,613/- as the assessed value of the vehicle Royal Enfield bike bearing No.AP-21-BQ-2352 for the tenure 17^th December 2016 to 16^th December 2017 with interest from the date of theft of vehicle i.e., from 1/11/2017 till the date of payment/deposit and to pay Rs.15,000/- as compensation towards mental agony, torture and financial loss and such other reliefs.

2. The brief allegations made in the complaint are as under:

OP-1 is the Company, OP-2 is the Managing Director and Chief Executive Officer and OP-3 is the branch office of OP-1.  OPs are personally and solely responsible, liable for the acts and affairs of the OP-1.  Complainant is the owner of vehicle Royal Enfield bike bearing No.AP-21/BQ-2352.  The complainant states that he had taken policy from the OPs Insurance Company bearing policy No.0146185678 and it is valid from 17.12.2016 to 16.12.2019.  Son of the complainant V.S.M KrishnaKanth was also using the above said vehicle.  That on 01.11.2017 took the above said bike to attend marriage of his friend and on that day at about 7.15 p.m the above said bike was parked and locked at parking slot of Kalyani Kalamandira, B.G Road, Bilekahalli, Bangalore.  That after parking the vehicle his son had gone to attend the marriage function and after attending the marriage in the above said Kalyanamantap i.e., around 9 p.m the son of complainant back to parking slot to take vehicle, but the above said bike was missing and in that regard there was thorough search and on that day night, it is further submitted that it was the Kannada Rajyotsava day.  Further submits that inspite of thorough search the said vehicle was not traced out and even next day morning also all efforts are made to search for the vehicle but either the complainant or his son were could not get any clue or its whereabouts.  That immediately his son had registered the claim on the TATA AIG website but the OPs have advised to lodge police complaint and accordingly the complainant’s son had been to police station to lodge police complaint before jurisdictional Puttenahalli police, Subramanyapura Sub Division, Bangalore.  Police have asked to furnish the complete documentary details and copies of documents of missing vehicle i.e., engine number, chassis number, vehicle number, colour, model etc., to register the complaint but the copies of said documents are kept in the bike hence immediately the same could not be furnished to the police and besides to it the complainant was informed that the police people are busy in maintaining law and order due to Kannada Rajyotsava, hence immediately they did not register the complaint, the complainant being the law abiding citizen cannot question the response or reaction of police.  That the original documents of complainants missing vehicle are with him at Andra Pradesh, hence it took time to secure the documents and after securing the said documents the complaint was lodged on i.e., 06.11.2017 before the jurisdictional police Puttenahalli, Bangalore by furnishing the documents and the said complaint was registered in Crime No.396/2017.  That after registering the complaint before the police the son of complainant called the customer care helpdesk people of OP for knowing about the next steps and they informed him that for some reason the previous complaint has not been registered properly and so it has to be registered again, so again the customer care executive of OPs have registered the claim and in that complaint the FIR number has been entered.

That after registering the complaint the police have sent the copy of FIR to jurisdictional 44^th ACMM, Bangalore and also to their higher officers and thereafter the police have taken up the matter for investigation and inspite of their best efforts the police could not trace out the above said stolen vehicle hence they filed ‘C’ report.  That it is brought to the notice of OPs about theft of above said vehicle instantly.  The said vehicle covered with valid and effective insurance policy issued by OPs.  That the OPs have not settled the claim but unfortunately the OP-1 has replied and expressed their lip sympathy instead of complying their contractual obligations.  OP-1 has alleged that there is inordinate delay of 4 days and 14 hours in registering the police FIR and further it is alleged that there is violation of policy conditions and OP-1 has stated the policy condition as …... Condition 1 of auto secure commercial vehicle package policy.

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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.  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 Inquiry 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 be 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”.

The above said reply of OP has no meaning and which would demonstrates that their intention is only to defeat the claim of the complainant with false and unreliable and unenforceable false grounds.  That there is no time limit prescribed under the policy furnished to the complainant.  Besides to it the very alleged conditions mentioned in the reply notice is may apply to commercial vehicle package policy but the vehicle of the complainant is two wheeler i.e., Royal Enfield bike bearing registration No.AP-21/BQ-2352.  That he had lodged complaint to OPs but on that day the OPs have collected the details but did not instructed to lodge police complaint immediately.  On the other hand the complainant had been to lodge police complaint but the police have asked for copies of documents along with complaint hence the complainant was lodged on 06.11.2017.  That the OPs with a malafide intention and to avoid their liability in settling the claim have resorted to take irrelevant, unwanted and false defense with intention to escape from their liability.  That there is a privity of contract between complainant with OP and the OPs have collected premium amount and issued policy to above said vehicle now they are trying to avoid the payment.  That at the time of taking policy the OPs have made him to believe all assurances and promises and further gave rosy picture about the prospects of the policy and its benefits and further contended that no other company can give better benefits and services than OPs Company.  Hence the complainant has totally trusted and believed those promises and assurances and taken the above mentioned policy to his vehicle.  That it is very unfortunate that instead of settling the claim the OPs are trying to take untenable defenses without any justification or legal basis.  OPs are more concerned about earning premium and saving the liability rather than complying the terms and it is in this modus the OPs are trying to raise false and baseless allegations by terming it as policy conditions.  That the OPs are supposed to honour their contractual commitments not to cheat the policy holders.  That the OPs are acting to contrary to the privities of contract between complainant and them.  The complainant has not violated any terms of the policy conditions.  That though the OPs admit the existence of policy and collecting the amounts towards premium but they did not settle the claim.  The act of OP is nothing but harassing, penalizing the policy holders for no fault of them that too collecting the entire premium towards the policies.  The act and conduct of OPs also caused mental agony, tension, torture and financial loss besides a loss of valuable time.  That the facts and corroborative documents discloses the conduct, negligence, deficiency of service of OPs and also discloses the mental tension, torture agony, financial loss including the loss of valuable time.  Complainant got issued a legal notice on 13.07.2018 to the OPs calling upon them to settle the claim amount of Rs.1,26,613/- as the OPs had valued the vehicle for the tenure 17^th December 2016 to 16^th December 2017 for Rs.1,26,613/-.  That inspite of receipt of legal notice neither complied the demand made in the notice nor replied to the notice.  The conduct, act and modus of operandi of the OPs would make clear that their intention is to defraud the complainant.  The conduct of OPs amounts to admitting the demand made in the notice but they did not complied the same.  Though the OPs admit the existence of policy and liability but they did not settle the claim.  Hence this complaint.     

3. After issuance of notice, OPs did appear and filed version.  The sum and substance of the version are as under:

The complaint filed by the complainant is not maintainable either in law or on facts and same is liable to be dismissed in limine.  That the vehicle in issue was insured with this OP as on the date and time of the alleged incident, the liability of this OP is subject to terms and conditions of the policy.  That OP has received intimation about the theft of the vehicle on 06.11.2017.  Immediately on receipt of the information OPs have registered the claim and called for the necessary documents from the complainant to process the claim.  As per the complainant statement and police records the vehicle was stolen on 01.11.2017 and complainant filed the complaint before the police station on 06.11.2017.  There is a delay of 4 days 14 hours on the part of the complainant in filing the complaint to the police station.  Further there is also a delay of 4 days in giving the intimation to the OPs.  It is apparent on the face of the record that the complainant has not taken due care in informing the police as well as to the OP.  That the complainant did not care to inform the police authority about the theft more than 4 days 14 hours which frustrates the investigation and in the meantime the vehicle could have travelled a long distance or may have been dismantled by that time.  Delay in filing the complaint to the police station and giving intimation of theft to insurance company is in violation of the terms and conditions of the policy.  Condition No.1 of the policy reads as under:

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental 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.  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 Inquiry 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 be 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”.

That the complainant has not acted like a reasonable person.  The delay in informing the theft to the police and the Insurance Company does not only impede the process of investigation to trace the vehicle but is also a serious and fundamental breach of policy terms.  Further submits that when OP gave sufficient opportunity to the complainant to explain the reasons with an intention to examine the facts.  However, the OPs were not satisfied with reasons explained by the complainant and rightly repudiated the claim made by the complainant in accordance with the terms and conditions of the policy.  The repudiation of the claim is strictly in accordance with the policy terms and conditions.  That the averments made in the complaint under reply are denied in their entirety.

OPs have also given para wise reply to the contents of the complaint, which appears to be denial in nature.

For the reasons mentioned above, OPs pray for dismissal of the complaint with costs.

  4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Sri.Krishna Sheernali S/o S.P Sathyanarayan Bhat, working as Chief Manager - Legal Claims of OPs submitted evidence by way of affidavit.  Both parties have produced certain documents.  OPs have submitted their written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1  We have briefly stated the contents of the complaint as well as the version filed by OPs.  The undisputed facts which reveals from the pleadings of the parties goes to show that the complainant is the owner of the Royal Enfield bike bearing No.AP-21/BQ-2352 (herein after referred as the said vehicle).  For which he has taken insurance policy from OPs.  The said policy was in force from 17.12.2016 to 16.12.2019.  Further the complainant son name called V.S.M KrishnaKanth, was also using the said vehicle.  It is also not in dispute that the said vehicle was stolen on 01.11.2017 at 9.00 p.m when it was parked in the parking area of Kalyani Kalamandira.  In this context the complainant and his son search the said vehicle which was not found.  Then he lodged a complaint on 06.11.2017 before the jurisdictional Police.  Accordingly the police have registered the case.  It is also the case of the complainant that he forwarded the claim but OP-1 has informed that by invoking the condition No.1 of the policy the claim has been repudiated.

8. According to the case of the complainant there is a delay of 4 days and 14 hours in filing the complaint so also informing the OPs.  Hence submits the claim repudiated by the OPs is not just and proper.

9. In this context placed reliance on the judgment of the Hon’ble Supreme Court reported in IV (2017) CPJ 10 (SC) (in Civil Appeal No.15611 of 2017) between OM PRAKASH Vs. Reliance General Insurance and Anr., wherein it held as under:

Consumer Protection Act, 1986 – Sections 2(1)(g), 14 (1) (d), 23 – Insurance – Theft – Delay in intimation – Violation of policy conditions alleged – Claim repudiated – Deficiency in service – District Forum dismissed complaint – State Commission dismissed appeal – National Commission dismissed revision – Hence appeal – Decision of insurer to reject claim has to be based on valid grounds – Rejection of claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in insurance industry – If reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on ground of delay – It would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct / Investigator – Condition regarding delay shall not be a shelter to repudiate insurance claims which have been otherwise proved to be genuine – Consumer Protection Act aims at providing better protection of interest of consumers – It is a beneficial legislation that deserves liberal construction – This laudable object should not be forgotten while considering claims made under Act – Appellant has given cogent reasons for delay of 8 days in informing respondent about incident – Investigator had verified theft to be genuine and payment of Rs.7,85,000 towards claim was approved by Corporate Claims Manager – National Commission, therefore, is not justified in rejecting claim of appellant without considering explanation for delay – Claimant is entitled for a sum of Rs.50,000 towards compensation – Respondent Nos.1 and 2 are directed to pay a sum of Rs.8,35,000 to appellant with interest @ 8% per annum from date of filing of the claim petition till the date of payment. (paras 11, 12 13) 

10. Per contra the learned counsel for the OPs submits that there is a breach of policy condition No.1 as the complainant and his son were not diligent in guarding the said vehicle.  When such being the fact the claim repudiated by OPs is just and proper.  In support of it, Learned counsel for OPs have placed reliance on the following decisions:

1. National Consumer Disputes Redressal Commission 2018 (3) CPR 852 (NC) Ramniwas Vs Tata AIG General Insurance Co Ltd.,

2. National Consumer Disputes Redressal Commission I (2018) CPJ 98 (NC) Sukhbir Kaur Vs Bajaj Allianz Insurance Company Ltd.,

3. National Consumer Disputes Redressal Commission IV (2018) CPJ 190 (NC) New India Assurance Company Ltd., Vs. Shariff Ahmed.      

11. We have gone-through the available materials on record.  In the decision cited supra by the learned counsel for the OPs at serial number 1, 2 & 3 are in respect of un- explained delay in filing the complaint before the jurisdiction police.  In the instant case the delay is about 4 days and 14 hours before the jurisdictional police so also the OPs.

12. The decision cited by the complainant is of the Hon’ble Supreme Court.  The law laid down by the Hon’ble Supreme Court is binding on all the sub-ordinate courts/tribunals/forums/ commissions and the High Courts under Article 141 of the Constitution.  In the said judgment the Hon’ble Supreme Court has clearly stated that complainant therein has put extra effort in search of the stolen vehicle then he approached the police and filed complaint after 8 days from the occurrence of the theft.  In the instant case also the complainant and his son put extra effort in search of the stolen vehicle but it was not found.  In the mean time the complainant son informed to the OPs and lodged the complaint before the police after 4 days 14 hours.  The ratio laid down in the judgment of the Hon’ble Supreme Court cited supra is applicable to the contention taken by the complainant.  Accordingly, we come to the conclusion that, the claim repudiated by the OPs is not just and proper.  Hence this Forum has no other go except to direct the OPs to process the claim of the complainant for the declared value of Rs.1,26,623/- to be payable to the complainant with litigation cost of Rs.5,000/-.  Any how we do not propose to fix any compensation. 

          13. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is allowed in part.  OPs are directed to process the claim of the complainant for the declared value of the said vehicle for Rs.1,26,613/- to be payable by OPs to the complainant with litigation cost of Rs.5,000/- but any how we negated the compensation. 

 OPs are directed to comply this order within four weeks from the date of receipt of the order failing which the said amount of Rs.1,26,613/- carries interest @ 6 p.a till realization.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 17^th day of June 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 08.02.2019.

Mr.V.Moda Konda.

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite parties dated
  07.03.2019.

                Sri.Krishna Sheernali.

Documents produced by the Opposite parties:

MEMBER                                                               PRESIDENT

Vln*