Date of filing : 05-06-2010
Date of order : 20-04-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
C.C.136/2010
Dated this, the 20th day of April 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
Siddiq Koya,
S/o.Koya.S.A,
H.No.14/535, Kizhur, Chandragiri, } Complainant
Kalanad, Kasaragod Taluk & Dist
(Adv.K.Abdul Nasir, Kasaragod)
The Branch Manager, } Opposite party
Oriental Insurance Company Limited,
Branch Office, City Point Building,
Press Club Junction, M.G Road, Kasaragod
(Adv.AKV Balakrishnan, Hosdurg)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
In nutshell the grievance of the complainant is that opposite party repudiated his claim for compensation on account of the theft of his Hundai Santro Car bearing Reg.No. KL-13-H/3706 stating that there is delay in intimating the police and opposite party about the theft. According to the complainant the vehicle was stolen while it was with one Kunhiraman who is the driver of his brother. Immediately on receiving the information regarding theft occurred on 13-11-2007 4 PM complainant and said Kunhiraman made enquiries about the vehicle and filed a complaint before the Hosdurg Police and the police registered the FIR on 18-11-2007. Thereafter Hosdurg Police filed their final report referring the case as undetectable before the JFCM Hosdurg on 19-09-2008. Later on 14-10-2008 complainant submitted the claim petition along with relevant documents. But opposite party repudiated the claim. As a result complainant had sustained a loss of `1,10,000/- that is the Insured Estimated Value (IEV) of the vehicle.
2. According to opposite party they received the intimation about the theft from the complainant on 21-11-2007, but theft of the vehicle was on 13-11-2007 and the FIR was registered on 18-11-2007. So there is a delay in lodging the FIR. Further after receiving the intimation opposite party sent a letter to the complainant for furnishing the claim form duly filled together with documents required to settle the claim. But the complainant did not respond to the letter. Again on 18-02-2008 a registered letter has been sent to the complainant. Though complainant received the said letter he did not turn up to produce the documents and claim forms. Since there was no response from the complainant opposite party compelled to repudiate the claim and this was intimated to the complainant by a registered letter dated 5-6-2008. So there is no deficiency in service on the part of opposite party. Opposite party also raised a contention that the complaint is barred by limitation. According to them as per condition No.7 of the policy the period of limitation is only 12 months. But this complaint is filed after a period of 24 months.
3. Complainant filed proof affidavit in support of his case and Exts A1 to A4 marked on his side. He faced cross-examination by the learned counsel for opposite party. On behalf of opposite party Sri. Lakshmanan.T.P. the Branch Manager of Oriental Insurance Company filed affidavit. Exts B1 to B5 is marked through him. Both sides heard. Documents perused.
4. The issues to be settled in this complaint are.
1) Whether the complaint is barred by limitation as per condition 7 contained in the
policy ?
2) Whether there is any deficiency in service on the part of opposite party?
3) What order as to relief & costs?
5. Point No.1
The learned counsel for opposite party Shri. A.K.V. Balakrishnan referring to condition No.7 mentioned in the policy urged that the claim of the complainant is barred by limitation.
Condition No.7 of the policy says
“It is hereby expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 months from the date of such disclaimer have been made the subject matter of suit in a Court of law, then the claim shall for all purposes he deemed to have been abandoned and shall thereafter be recoverable hereunder”
We are unable to accept this contention of opposite party mainly on two grounds. The condition No.7 mentioned in the policy is applicable only to ‘ suits’ and not to the proceedings before the FORUMS constituted under the Consumer Protection Act. Now a doubt may arise whether the proceedings before a Consumer FORA (FORUMS) is a ‘suit’ or not?
The Hon’ble Apex Court in the case of EICM Exports Limited vs. South Indian Corpn (Agencies) Ltd and another reported in 2009 CTJ 945(Supreme Court) (CP) has held as follows:
“ 7. Article III, clause 6 of the schedule of the Indian Carriage of Goods by Sea Act , 1925, provides:
“ …….In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. This period may , however, the extent if the parties so agree after the cause of action has arisen.
Provided that a suit may be brought after the expiry of the period of one year referred to in this sub- paragraph within a further period of not more than 3 months as allowed by the court.”
8. On a plain reading of the aforesaid provision, it is clear that the aforesaid provision will be applicable in the cases where a suit is filed. In the present case, the appellant did not file any suit but filed a complaint before the Consumer Forum.
9 The word ‘suit’ has a technical meaning which denotes proceedings instituted under Sec.9 of the Civil Procedure Code, 1908. All legal proceedings in the country are not suits. There are petitions/ complaints/applications before various tribunals or authorities. But they are not suits as per Sec9 of the CPC. In our opinion, a complaint before consumer Forum is not a suit , and hence, the Indian carriage of goods by Sea Act 1925 is not applicable to the facts of the present case and the Consumer Protection Act 1986 will only be applicable. “
6. In view of the legal position explained in the above referred decision there is no escape from the conclusion that the complaint filed by the complainant beyond the period of 12 calendar months after repudiation of the claim is maintainable before the Forum.
7. The second ground to reject the plea of limitation is the amendment brought to Sec.28 of the Indian contract Act in the year 1996. The said amendment brought as per the Indian Contract (Amendment) Act 1996 as under.
Amendment of Sec 28: In Sec 28 of the Indian Contract Act 1872 ( 9 of 1872 for the portion beginning with the words”
“Every agreement” and ending with the words is void to that extent” the following shall be substituted namely
“ Every agreement
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights or
(b) which extinguished the rights of any party thereto, or discharges any party therefore from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent”.
8. The said amendment is came into force on 8-1-1997 and therefore the said Section is very much applicable to the policy issued by opposite party. Hence it is clear that the condition No.7 mentioned in the policy is repugnant to law and therefore it is not enforceable.
For the foregoing discussions the issue regarding limitation is found against the opposite party and we hold that the complaint is not barred by limitation.
9. Issue No.2.
It is the case of opposite party that the theft is occurred on 13-11-2007 but the FIR is lodged on 18-11-2007 i.e. on 5th day of occurrence and the theft is informed the opposite party only on 21-11-2007. But during cross-examination complainant PW1 has deposed that he informed the theft to the police in writing on the same day of theft. But the Sub Inspector of police asked him to come after 2 days. He further deposed that Sub Inspector of Police questioned Kunhiraman from whose custody the vehicle is stolen and told that they will enquire in to the matter and sent them back. Subsequently after few days from the office of Sub Inspector of Police he was asked to approach Circle Inspector of Police and he approached Circle Inspector of Police on 18-11-2007 and only on that day the FIR was registered and that was the reason for the delay in registering the FIR. PW1 also deposed that he obtained Motor Claim Form on 14-11-2007 i.e. the next day of theft of the vehicle.
We do not find anything to disbelieve the statement of PW1.
There is a practice in vogue among the Police in delaying the registration of FIR whenever a complaint is received regarding the theft of motor vehicle. This may be to ascertain whether it is a genuine case of theft or a case of repossession of the vehicle by the financier if there is any finance instalments pending payment. But it is against law. So whenever a complaint is received it is the bounden duty of the police to register the FIR immediately as envisaged under the Code of Criminal Procedure. In this case the lethargy of the police is palpable. That caused much loss and mental agony to the complainant leading to the repudiation of his claim for compensation by the insurer on account of delay in lodging the FIR.
“ A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but it is abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage may arise even when the officer discharges his duty honestly and bona fide. But when it arises. Due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but also helps in curing social evil.
Public administration, no doubt, involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved, then it has a statutory obligation to award the same. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers’ money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission, when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding, of course, should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.”
The above quotation is from the land mark judgment of the Hon’ble Supreme Court in the case Lucknow Development Authority V M.K. Gupta reported in 1994 AIR 787 (SC), 1993 CCJ 1100, III (1993) CPJ (1) (SC).
10. On earlier occasion also we come across similar situation where the police declined to register the FIR immediately when they received the information even in writing about theft of vehicle that resulted in repudiation of claim. In some cases the non-registration of FIR immediately results injury or loss to the insured. Such acts or omission on the part of police is deprecated and in future such loss shall be recovered from the concerned police officers after conducting a through enquiry if any such complaints are received.
We think it is appropriate to give a direction to the Secretary, Home Department of Kerala to issue necessary direction to the State Police to register FIR’s immediately on receipt of information about such crimes without sending the informant stating lame excuses since it is against law and procedure.
11. Now coming to the merits of the case another defense set up by the opposite party is that complainant did not turn up when letters by registered post is issued to him on 18-2-2008. In order to prove this opposite party produced Ext.B2 copy of the registered letter dated 18-02-2008. But on the margin of Ext.B2 it is noted as below.
“ informed insured to bring
all documents on his
Visit to office on 11-03-2008”
This would make it abundantly clear that in response to the letter dated 18-02-2008 complainant promptly responded and he visited office of opposite party on 11-03-2008 and on that day he was directed to bring all the documents. Hence the contention that the complainant did not turn up and produce documents and claim Form in response to the letter dated 18-02-2008 is false.
12. Further it is seen that the police has filed their final report regarding the Un Detection of the vehicle before the Magistrate Court only on 19-09-2008. Normally no insurer will settle a claim of theft of a motor vehicle unless and until they obtain a report from the investigating agency regarding the Non-Detection of the vehicle. Hence the contention of opposite party that even for the letter dated 5-6-2008 complainant did not produce the necessary documents is of no force and it is evident that there was no laches on the part of complainant in pursuing his claim.
Therefore the non-settlement of the legitimate of claim of the complainant amounts to deficiency in service on the part of opposite party. Hence this issue answered accordingly.
13. Issue No.3 Relief & Costs.
In Ext. A1 copy of the policy it is seen that the IEV of the vehicle is `1,10,000/- (` One lakh ten thousand only) on the day commencement of policy i.e. 1-12-2006. The vehicle was stolen on 13-11-2007 i.e. after 11 months from issuing the policy. Therefore a sum of `20,000/- can be deducted for the depreciation in market value of the vehicle at the time of theft.
14. The complainant is therefore entitled for `90,000/- as compensation for the loss of his vehicle bearing Reg.No.KL.13/H 3706.
The complaint is therefore allowed with a cost of `3000/- and opposite party is directed to pay `90,000/- with interest @ 9% from the date of complaint till payment together with the cost aforementioned.
Sent a copy of this order to the Secretary, Home Department, Kerala State Thiruvananthapuram for necessary action.
MEMBER MEMBER PRESIDENT
Exts.
A1. Photocopy of Certificate-Cum-Policy Schedule.
A2.Photocopy of FIR.A3.
A3. Photo copy of Final Report ( Kerala Police)
A4.Photocopy of RC
B1. Private Car Package Policy. Sl. No. 251421.
B2. 18-2-2008 copy of letter sent to the complainant
B3. Postal acknowledgement card.
B4. 05-06-2008 letter sent to the complainant.
B5. Acknowledgement card.
PW1. Siddiq Koyya
MEMBER MEMBER PRESIDENT
Pj/
