Per:  Akatha.H.D.  

               JUDGMENT

            This is the complaint filed by the complainant u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not settling the Insurance claim of the theft vehicle of Rs.22,500/-. Hence, prays for relief to settle the insurance claim of the theft vehicle to the tune of Rs.22,500/- along with compensation of Rs.10,000/- towards mental agony and inconvenience and Rs.5,000/- towards deficiency in service and Rs.5,000/- towards cost of these proceedings.

             Brief averments of the Complaint are as under;

            2.  That the complainant is the owner of the Motor cycle No.KA-37/V-7995 (Old No.KA-25/D-5704). He had insured his said vehicle with OP No.1 and 2. The OP NO.1 had issued the policy under policy No.472490/31/2014418 w.e.f. 08.06.2013 to 07.06.2014. The said policy was also covered the risk of theft.

3.         The complainant further alleged that after issuing the said policy on 29.09.2013 at about 8.30 PM the complainant came to his house and had parked the said vehicle in front of his house i.e. within the compound limit of his house, by putting hand lock. On 30.09.2013 he woke up by 6.00 AM and he was shocked to know that his said motor cycle was stolen by thieves. Thus in between the period from 08.30 PM of 29.09.2013 to 6.00 AM of 30.09.2013 i.e. evening the night hours, motor cycle of the petitioner was stolen. Immediately he made some enquiry with the neighbours, but all his efforts went-in-vain. Then he approached the police and informed them about the said theft of his motor cycle. The complainant further alleged that the police advised him to make still more enquiry with his friends and relatives instead of lodging the complaint as lodging of any complainant may strain the relationship with his friends or his relatives, if the said vehicle was taken by them for any reasons. They have also advised the complainant that if the motor cycle is found with his friends or relatives, filing complaint will become unnecessary. They further assured that they will register the case if the said vehicle is not found, inspite of his enquiry with his friends and relatives.

4.         The complainant further alleged that as per the advice of the police, the petitioner came back without lodging complaint and made all his sincere efforts with his friends and relatives in tracing out the said motor cycle but again his sincere efforts went in vain. Again the complainant approached the Town Police, Koppal and informed about his efforts in tracing out his motor cycle. Thereafter the police satisfied about the theft and registered the case by taking complaint from the complainant on 14.11.2013 in their Crime Register No.163/2013. The complainant further alleged that thereafter they have also sent a report to the Hon’ble CJM Court, Koppal and case was registered in FIR No.268/2013. However, the thieves were not traced-out and as such the police have filed “C” report to the Hon’ble C.J.M. Court, Koppal.

5.         The complainant further alleged that thus there was some delay in lodging the complaint with the police. However, after filing the complaint, the complainant had approached the OP No.1 and 2 to claim the Insurance amount on 07.12.2013. Surprisingly the OP No.1 and 2 have refused to pay the insurance amount on the ground of delay of 72 days. The complainant alleged that he had explained them about the cause of delay in informing about the theft. He also explained the delay was due to the bonafide advice of the police in tracing out the said vehicle. Inspite of this, the OP No.1 and 2 have refused to entertain the claim and have illegally repudiated the claim of the petitioner.

6.          The complainant further alleged that the complainant has got issued notice through his counsel on 13.10.2014 by R.P.A.D. The said notice is served on OP No.1 and 2 and have not cared to reply it. Hence, filed this complaint praying for direction the OP No.1 and 2 to pay the sum of Rs.22,500/- cost of the vehicle as per IDV along with Rs.10,000/- towards mental agony, inconvenience and Rs.5,000/- towards deficiency in service and Rs.5,000/- towards cost of the proceedings.

7.         The Forum after admitting the complaint a notice was issued to OPs and the notice is served upon the OPs. The OPs appeared before the Forum through their counsel and filed Vakalath and main Objection/Written Version to the main petition.

8.         The objections of the OP No.1 and 2 are as under;

The OP submits that all the material allegations made in the above petition are false and the petition is not maintainable either on facts or in law against this respondent. Hence, the petition is liable to be dismissed in limini with cost against this respondent.

9.         The OP further submits that it is true to say that the Motor Cycle bearing its Registration No.KA-37/V-7995 Old KA-25/D5704 involved in the theft is covered under the insurance from this respondent No.1. The Oriental Insurance Company, Micro Office, Koppal vides its Policy No.472490/31/2014/418 and the period of the policy is valid from 08.06.2013 to 07.06.2014. But the same is covered subject to various terms and conditions stated in the policy.

10.       The OP further submits that this OP does not admit the vehicle involved due to theft on 29.09.2013 at about 8.30 PM the complainant came to his house and had parked the said vehicle in front of the house i.e. within the compound limit of his house by putting hand lock. It is further alleged to mention in the petition that on 30.09.2013 he woke up by 6 AM and saw his Motor cycle. He was shocked to know that his said motorcycle was stolen by thieves. This incident occurred during mid-night in between 8.30 PM to 6 AM. Further alleged to mention that immediately he made some enquiry with the neighbours, but all his efforts went in vain and thereafter he approached the Police and informed them about the said Theft of his motorcycle are all false, frivolous bad in law and not admitted by this respondent. The complainant is put to strict proof of the same.

11.       The OP further submits that this respondent is aware that the complainant has filed CC Claim before the District Consumer Forum at Koppal against the insurance authorities for Rs.22,000/- towards the cost the vehicle and Rs.10,000/- towards mental agony, Rs.5,000/- towards deficiency in service and Rs.5,000/- towards cost of these proceedings are all false, frivolous, bad in law and it is not maintainable as per law. Further, there is no deficiency in service from the Insurance Company and since the insured has wasted the precious time of this Hon’ble court and Insurance Company. Hence, the Hon’ble court has to impose heavy cost and dismissing this complaint filed by the complaint with exemplary cost.

12.       The OP further submits that it is most respectfully submits that the Hon’ble Court that the said motorcycle bearing its Registration No.KA-25/D-5704 stolen by the thieves on 29.09.2013 and the insured owner of the motorcycle failed to inform the same to the Police Station and Insurance Company authorities within 48 hours. But the insured has intimated to the company only on 09.12.2013 i.e. after lapse of 72 days. Hence, the owner of the Motorcycle has violated the conditions of the policy. The Respondent No.1 and 2 directly repudiated the claim as “Theft intimation given to company delayed by 72 days and claim is not admissible as per policy conditions”. Hence, our insurance company is not liable to settle the claims.

13.       The OP further submits that the owner of the Motorcycle has failed to intimate the nearest police authorities within time. There is no such endorsement from the Town Police authorities of Koppal. The owner of the Motorcycle has lodged a complaint about the theft of his motorcycle on 29.09.2013 and the said Town Police Station authorities of Koppal have registered the case in Crime No.163/2014 under section 379 of IPC on 14.11.2013 and the insured has informed the same to the Insurance Company on 09.12.2013. Hence, there is a delay of 72 days. The Insurance policy conditions are very clearly mentioned in the policy as “claim for theft of vehicle not payable if theft not reported to the company within 48 hours of its occurrence”.

14.       The OP further submits that the Hon’ble Court that the said complainant has filed complaint CC 59/2015 before the District Consumer Redressal Forum at Koppal under Section 12 of Consumer Protection Act. Since CC itself filed by the complainant is barred by limitation and he must have to file the same within 2 years from the date of occurrence. The date of theft occurred on 29.09.2013 and he must file the CC on or before 29.09.2015. He filed the said CC 59/2015 in the month of December 2015. On this count alone the petition is liable to be dismissed the complaint against this respondents with exemplary cost.     

15.       On the basis of the above pleadings, the following points have been framed:

POINTS

1.  Whether the complainant proves that there is deficiency of service in not settling the Insurance Policy of the theft vehicle?

2. Whether the OP proves that the complaint is barred by limitation?

3. Whether the complainant further proves that he is entitled for the relief sought in the complaint?

4. What order?

16.       To prove the case of the complainant, the complainant himself examined as PW1 and he has got marked documents as per Ex.A.1 to Ex.A.13 and closed their side of evidence. The OP No.1 himself examined as RW1 and no documents were marked on their side and closed their side of evidence.   

17.    Heard the Arguments.  

18.   Our findings on the above points are as under;

Point No. 1 :   In the Negative,

Point No. 2 :   In the Negative,

Point No.3  :   In the Negative,

                  Point No.4  :  As per final Order for the following

REASONS

19.  POINT No. 1 and 3:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

20.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, it is the case of the complainant alleging deficiency in service in not settling the claim of the policy amount of Rs.22,500/- towards the theft of his vehicle. There is no dispute regarding that the policy was not inforce. There is also no dispute that the complainant had insured his vehicle under the Policy No.472490/31/2014418 w.e.f. 08.06.2013 to 07.06.2014 and the said policy was also covered the risk of theft as produced by the complainant with respect to EX A8 as per the policy. On perusal of EX A9 and EX A10, it is the R.C. of the said vehicle and Driving licence. There is also no dispute on the point that the vehicle was stolen away on 29.09.2013 at about 8.30 PM when the complainant parked the said vehicle infront of his house i.e. within the compound limit of his house by putting hand lock.

21.       It is also admitted that the complainant had explained the cause of delay of 72 days in informing the same to the OPs. To prove the case of the complainant, the PW1 has reiterated the complainant averments in his examination in Chief and in support of his case, he has produced the documents pertains to the complaint. He has further alleged that when he approached the police and informed about the theft of his motor cycle, the police advised him to make still more enquiry with his friends and relatives instead of lodging the complaint and as per advice of the police he came back without lodging complaint and only after tracing out with all friends and relatives, he came and lodge FIR and complaint on 14.11.2013 in their Crime Register No.163/2013 i.e. EX A1 to EX A2. EX A1 and EX A2 clearly reveals that FIR is registered on 14.11.2013 and the complaint given by the complainant ultimately the complainant submitted the claim form with the Insurance Company on 07.12.2013 i.e. after 72 days when the vehicle was stolen.

22.       Admittedly the complainant had not informed the OPs about the alleged theft of the insured vehicle till he submitted the claim intimation report dated: 07.12.2013 to the Branch Manager, the complainant did not give any specific explanation for this unusual delay in informing the delay in claiming compensation. The complainant stated that on the advice of the police to trace-out the said motor cycle with friends and relatives there was delay in lodging FIR and complaint, but his explanation was worthless because in terms of the policy the OP was required to inform the OPs about the theft of the insured vehicle. The complainant did not give any explanation for this unusual delay in informing the OP about the incident which gave rise to cause for claiming compensation. It is difficult but not impossible to tell any reason why the complainant did not inform the Insurance Company about the incident. In terms of the policy issued by the OP, the complainant was duty bound to inform it about the theft of the vehicle immediately after the incident on account of delayed information the complainant is deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an endeavour to recover the same and to substantiate the same the complainant has not produced any other cogent and corroborative evidence. This itself clearly goes to show that the said complainant did not intimate the theft of the vehicle to the OPs in like.

23.       The respondents has relied the citation reported in 2014 (4) CPR 45 (NC). Kulwant Singh V/s The Managing Director, United India Insurance Company Ltd., & Another, it reads as under:

“Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Insurance – Theft of vehicle – complaint dismissed by State Commission in appeal – Complainant was required to give immediate notice of theft to police and was to cooperate with Company in securing conviction of offender – On account of non-giving of notice immediately about theft to police and to opposite parties complainant violated fundamental condition of insurance policy which disentitles him to claim made in complaint – District Forum committed illegality while holding to the contrary – Violation of condition is fundamental to loss caused which justifies repudiation of claim by respondent insurance company – Revision Petition dismissed”.

The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all same.

The counsel for the respondent has also relied upon another citation reported in 2014 (1) CPR 224 (NC). Ramesh Chandra V/s ICICI Lombard General Insurance Company. It reads as under:

“Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Insurance – Theft of Truck – Insurance claim repudiated on two counts i.e. delay in reporting theft and also failure on part of assured driver to take reasonable care to protect interest of insured opposite party – Claim dismissed by State Commission reversing order of District Forum allowing claim on non-standard basis – Theft was reported by petitioner to authorities after a delay of 11 days which prevented insurance company  as also police to start timely investigation with a view to locate and recover truck – No fault with order of State Commission that by failing to promptly inform theft of truck to police as well as insurance company, petitioner has failed to take proper care to protect interest of respondent insurance company – Respondent insurance company was justified in repudiating claim – Revision Petition dismissed.”

 However, in the instant case, the violation committed by the complainant is grave because by failing to intimate the theft to the police and the Insurance Company the complainant has presented those authorities from taking prompt action to locate and recover the vehicle. Therefore, the complainant has failed to prove the deficiency in service by the OPs.

24.       Further during the course of arguments, advocate by the counsel for the complainant they have much argued to settle the claim on non-standard basis and the breach of condition is not germane.

25.       The counsel for the complainant has relied upon the citation reported in Yaseen V/s National Insurance Company and others and another citation is reported in 2008 SAR (Civil) 484 (SC). National Insurance Company Ltd., V/s Nitin Khandelwal. It reads as under:

“(A) Consumer Protection Act, 1986 – Terms of Insurance policy –Theft of vehicle – Breach of conditions is not germane – Respondent, owner of the vehicle sent his vehicle to bring his children – On the way, some unknown people stopped the vehicle, tied the driver and snatched away the vehicle – Report was lodged by driver – Insurance claim – Rejected by Insurance Company – Appellant’s version was that vehicle was being used as a taxi – The vehicle was insured for personal use – Complaint – Dismissed by District Forum – Appeal – State Commission observed that claim ought to be settled on non-standard basis and allowed the appeal – Revision Dismissed by National Commission upholding the order of the State Commission – Legality of – Theft of the car – Vehicle has not been recovered – Nature of use of the vehicle cannot be looked into – Whether Insurance Company was justified in rejecting the claim –
Held : No.”  

The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different. Because with respect to the violation of the condition is that the vehicle was being used as a taxi and the vehicle was insured for personal use and the Hon’ble State Commission observed that claim ought to be settled on non-standard basis and allowed the Appeal.

But, in this case there is a delay in intimation the Insurance Company upto 72 days and FIR is lodge only after 45 days of the theft and the sufficient reasons is not mentioned by the complainant for causing the delay in informing. Hence, the said citation is not applicable to the case in hand.

The citation reported in 11 (2015) CPJ 727 NC in National Consumer Disputes Redressal Commission, New Delhi in Jaspal Kaur and Anr. V/s New India Insurance Company Ltd., it reads as under:

“Consumer Protection Act, 1986 – Sec 2 (1) (9) 21 (b) – Insurance – theft of vehicle – Delay in intimation – Violation of conditions of policy – Claim repudiated – Delayed deficiency in service – Word immediately is stronger than expression within reasonable time – compensation non-standard basis cannot be granted – Repudiation justified.”

Held that

The word immediately is stronger than the expression within a reasonable time. It was held that compensation on non-standard basis cannot be granted. The case of National Insurance Company Limited V/s Nitin Khandelwal, reported in 14 (2008) CPJ (SC) 2008 11 SCC 256 was also discussed.   

The counsel for the complainant has also relied upon another citation in IFFICO TOKIO General Insurance V/s Vedpal and Another.

The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different. Because in this case, FIR is registered immediately on 03.02.2010 u/s 380 of IPC at Police Station. The fact that FIR had been registered on 03.02.2010 i.e. the very next day of the theft clearly shows that there was no delay on part of respondent No.1. Whereas in the present case, the vehicle was stolen on 29.09.2013 after 8.30 PM and it was known to the complainant on 30.09.2013 morning at 6.00 PM and the FIR was registered on14.11.2013 so here there is also delay of 45 days in filing FIR and the Insurance Company was intimated only on 07.12.2013 with a delay of 72 days. Hence, the said citation is not applicable to the said case.

26.       On the contrary, as per the oral evidence coupled with the documentary evidence, the complainant failed to prove the deficiency in service by the OPs and the said fact has been clearly discloses in EX A1 to EX A11 which are the FIR, complaint and Claim Intimation Report which have already been discussed supra.

27.       In view of discussion herein above, the documents have furnished EX A5 to A7 and EX A12 to EX A13 will no way help the complainant to prove that deficiency in service by the OPs. After considering these documents, we are unable to change view which we have taken earlier. Hence, in the light of above observation, the complainant failed to prove the deficiency of service by the OPs in not settling the Insurance Policy of the insured vehicle. Hence, in the light of above observations, we constrained to hold Point No.1 and 3 in the Negative.

28.  POINT No.2 :-  As per the defence taken by the OPs in their Written Statement contending that the present complaint is barred by limitation and to substantiate their defence RW-1 he has averred and deposed that the complainant is barred by limitation and he must have to file the same within two years from the date of occurrence i.e. on 29.09.2013. On perusal of EX A11 i.e. the Claim Intimation Form. EX A11 clearly reveals that the claim has been repudiated on 09.12.2013 by the Company and the cause of action begins from the date of claim repudiation and the complaint is filed by the complainant on 04.12.2015 i.e. it is within 2 years of the claim repudiation. Therefore, the question of considering that the present suit is barred by limitation does not arises because the complaint if filed within 02 years of the claim repudiation and accordingly the OPs fails to prove the Point No.2 and accordingly we constrained to hold Point No.2 in the Negative.

 29. POINT NO.4: Hence, in the result, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby dismissed.

2. No orders as to the costs.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 13^th day of June, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.