The Branch Manager, The Oriental Insurance Company Ltd., Raichur V/S Mohammed Shaik @ Mohammed Shaikshavali S/o. Khaja Husain @ Mohammed Khaja Miya, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/82

Mohammed Shaik @ Mohammed Shaikshavali S/o. Khaja Husain @ Mohammed Khaja Miya, Raichur - Complainant(s)

Versus

The Branch Manager, The Oriental Insurance Company Ltd., Raichur - Opp.Party(s)

Sri. N. Waheed Patel

07 Jan 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/82

Mohammed Shaik @ Mohammed Shaikshavali S/o. Khaja Husain @ Mohammed Khaja Miya, Raichur						...........Appellant(s)
Vs.
The Branch Manager, The Oriental Insurance Company Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by complainant Mohd. Shaik @ Mohd. Shakshawali against the Branch Manager, Oriental Insurance Company Ltd., under section 12 of Consumer Protection Act for directing the opposites to pay an amount of Rs. 47,052/- with interest and cost. 2. The brief facts of the complainants case are that, he is the absolute owner and possessor Hero Honda Shine Solo Type Motor Cycle bearing Registration No. KA-36/R 8744 of black color having frame No. ME4JC366E88108729 and Engine No. JC 36E9194487. The said vehicle was purchased on 18-05-2008 for an amount of Rs. 47.052/- from Tirumala Motors Honda exclusive authorized dealer Raichur. Further it is the case of the complainant that, on 03-01-10 he was kept the above said vehicle at his house. Upto night 1.30 the said vehicle was at same place it was witnessed by his brother one who has came from Hyderabad but at 5.30 am when he came out of the house, in order to go Namaz then, the vehicle was not there immediately he has made efforts to search the same but he could not able to trace out. Further it is the case of the complainant that, on 04-01-10 he went to police station to lodge the complaint about the theft of the vehicle, but the police have told to him wait for some days and further suggested that him that, to make enquiry with the friends, relatives etc., accordingly he has not filed complaint on that day and he came back to trace out the vehicle. 3. It is the case of the complainant that, even inspite of his best efforts he could not able to trace out the vehicle, then on 14-01-10 once again he approached the police of Sadar Bazar, Police Station and lodged the complaint about the theft of the vehicle, the police have registered the case under Crime No. 14/2010 for the offence U/sec. 379 IPC. Further it is contended that, after filing the complaint before the police he has approached the Respondent Insurance Company on 16-01-10 and informed about the theft of the case for which the Respondent Company sought police records for to confirm about the theft. Further they have also assured that, the police will have trace out the vehicle if, it is not traced out then they will compensate by making payment of value of the vehicle. Believing their words he has waited for some days. The Respondent Insurance Company has requested the complainant through letter dt. 24-02-10 to submit the all original documents pertaining to the vehicle accordingly the complainant has submitted all the original documents, on the same day the Respondent Insurance Company assured for settling his claim of the complainant. In the mean time the police filed the charge sheet on 18-05-10 by filing the C Report in view of non-tracing the vehicle, after their best efforts. Immediately after receipt of the C Report he has approached the Respondent Insurance Company to settle the claim but instead of settling it, issued a letter dt. 22-09-10 contending the claim of the complainant closed as No claim. For the reasons that, he has not informed immediately to police and Respondent Insurance Company. The act of the Respondent is contrary and totally deficiency in service, hence he has sought direction against the Respondent to settle and make payment of value of the vehicle for a sum of Rs. 47,052/- or to reimburse the same model, value of the vehicle along with damages, expenses to the tune of Rs. 20,000/- and cost of the present complaint. 4. After service of the notice, the Respondent Insurance Company has appeared in this case through its Advocate and filed written version by denying all the allegations made against it and contended that, the policy condition stipulates that, the theft of the vehicle has to be informed to the insurer by the insured within 48 hours of its occurrence. The alleged theft of the vehicle according to the complainant has occurred on 03-01-10 and the matter was reported to the opposite after 54 days from the date of occurrence which is breach of police condition. The complainant has not approached the opposite company branch office at Raichur on 05-01-10. Further it is contended that, there was a delay of 10 days in lodging the complaint of theft to the concerned police which creates doubt and genuineness of the complainant the complainant has colluded with police these are all facts discloses that, the complaint of the complainant is just to make illegal monetary gains and the complaint of the complainant is devoid of any material substances. There is no any deficiency/unfair trade practice on the part of the Respondent Insurance Company. It is also contended that, as per the complaint, the value of the vehicle is Rs. 25,000/- only, if Forum comes to the conclusion that, the complainant is entitled for any compensation the same may be at Rs. 25,000/- as declared by the complainant in his complaint before the police, accordingly it prayed for to dismiss the complaint among other grounds with cost. 5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that there is deficiency in service on the part of the Respondent Insurance Company as alleged.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 6. Our findings on the above points are as under:- (1) In the negative. (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-11 are marked. On the other hand the affidavit-evidence of Branch Manager of opposite Insurance Company was filed, he was noted as RW-1. No documents on behalf of Respondent Insurance Company. 8. On going through the pleadings of the parties and their respective evidences and documents it discloses that parties are not in dispute on the following point:- The complainant is the absolute owner of the vehicle bearing Registration No. KA-36/R8744 and coverage of insurance policy to the said vehicle. 9. The complainant has produced in all 11 documents at Ex.P-1 to Ex.P-11 they are as follows;- (1) Invoice Bill No. 3743 dt. 18-05-08 marked at Ex.P-1, (2) Copy of FIR in Crime No. 14/2010 marked at Ex.P-2, (3) Copy of complaint before the police dt. 14-01-10 is marked at Ex.P-3, (4) Copy of Charge sheet marked at Ex.P-4, (5) Copy of Crime details marked at Ex.P-5, (6) Spot Sketch marked at Ex.P-6, (7) Office copy of the letter dt. 24-02-10 is marked at Ex.P-7, (8) Office copy of the letter dt. 04-03-10 is marked at Ex.P-8, (9) R.C. of vehicle marked at Ex.P-9, (10) Insurance Policy marked at Ex.P-10, (11) Letter dt. 22-02-09 written by opposite to the complainant is marked at Ex.P-11. 10. The Respondent Insurance Company in their written version mainly contended that, within 48 hours complainant has to be informed to the insurer about the occurrence of the theft, whereas in the present case there was a 54 days delay in informing about the theft which is breach of policy condition. In this regard, the Respondent Insurance Company is mainly depending upon the judgment of Honble National Commission in First Appeal No. 321 of 2005 in New India Assurance Company Ltd, V/s. Trilochan Jane Case. The Honble National Commission in the said judgment categorically observed about the delay in informing about the occurrence of the theft and what is its consequences, if it is not informed in time or immediately. Further the Honble National Commission was also held that, when there is no bodily injury to the complainant or to the insured it is incumbent upon the insured to inform the police about the theft immediately say within 24 hours otherwise valuable time would be lost in tracing the vehicle. Similarly the insurer should also be informed within a day or two, so that the insurer can verify has to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the vehicle. Delay in reporting to the insurer about the theft of the vehicle would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. The Honble National Commission in the said judgment was also referred the Honble Supreme Court judgment cited in JT 2004 (8) SC 8 in United India Insurance Company Ltd., V/s. M/s. Harchand Rai Chandan Lal wherein it has held that, the terms of the police have to be construed as it is and nothing can be added or subtracted from the same. In the present case the theft was occurred on 03-01-10 and same was informed through letter dt. 24-02-10 i.e, Ex.P-7 it means that if, we are come to the conclusion that, on the same day the letter was reached to the opposite there was a delay of 52 days in informing about the occurrence of the theft of the vehicle. Similarly another one letter was also sent on 04-03-10 i.e, Ex.P-8 and same was received by the opposite along with other original documents. Apart form these two letters there is no other documents or evidence to show that, immediately the complainant has informed the opposite about the occurrence of the theft immediately day or two. This fact would clearly goes to show that, there is a delay in informing the theft of the vehicle to the opposite. Under such circumstances, the say of the Respondent regarding violation of the policy condition cannot be ruled out. The ruling submitted by the Respondent in this regard abruptly applicable to the present case on hand, similarly it is not the case of the complainant that, he was injured and for that, he was not informed about the theft of the vehicle to the opposite. Under such circumstances, his delay cannot be accepted similarly his case also. Hence we do not find any reasons to believe that, there is any lapse on the part of the Respondent. 11. The Respondent Insurance Company further contended that, there was a delay 10 days in filing the complaint before the concerned police about the occurrence of the theft. On perusal of the Ex.P-2 First Information Report it is very clear that, the date of occurrence of theft is on 03-01-10, the date of information/complaint is on 14-01-10 it means there was a delay of 10 days as contended by the Respondent. There were no any documents to show that, the complainant has approached the police immediately after the theft of the vehicle as contended in his complaint at Para-5. Under such circumstances, the version the complainant about his approach to the police station on 04-01-10 and the police have informed to wait for some days and make enquiry with friends and relatives as contended in his Para-5 of his complaint cannot be accepted. Nothing was prevented him to file any complaint before the police or before the insurer. Under these circumstances, he cannot blame the insurance company for his own wrong. Hence we have not accepted his pleadings in this regard. This act of the complainant would clearly goes to show that, there is a negligence on his part only, for that insurance company cannot be made responsible the insurance company rightly refused his claim through letter dt. 22-09-10 under Ex.P-11 as No claim. The ruling submitted by the complainant cited in CPJ IV (2009) 96 of Honble Orissa State Commission in Oriental Insurance Company V/s. Khand Naik Case in respect of repudiation of the claim only on hyper technical grounds is holds no good. In the light of the Honble National Commission judgment & Supreme Court Ruling referred in the said judgment. Hence with great respect we have rejected the same as not applicable to the present case. Under such circumstances, allegations made against opposite is not the ground to consider this claim of the complainant, accordingly we have not noticed any kind of deficiency in service on the part of opposites. Hence we answered Point No-1 in negative. 12. The complainant failed to prove the fact involved in Point No-1 and thereby he is not entitled for to get any one of the reliefs as prayed in this complaint, accordingly we answered Point Nos.1 & 2 in Negative. POINT NO.3:- 13. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant against opposite is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 07-01-2011) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by complainant Mohd. Shaik @ Mohd. Shakshawali against the Branch Manager, Oriental Insurance Company Ltd., under section 12 of Consumer Protection Act for directing the opposites to pay an amount of Rs. 47,052/- with interest and cost. 2. The brief facts of the complainants case are that, he is the absolute owner and possessor Hero Honda Shine Solo Type Motor Cycle bearing Registration No. KA-36/R 8744 of black color having frame No. ME4JC366E88108729 and Engine No. JC 36E9194487. The said vehicle was purchased on 18-05-2008 for an amount of Rs. 47.052/- from Tirumala Motors Honda exclusive authorized dealer Raichur. Further it is the case of the complainant that, on 03-01-10 he was kept the above said vehicle at his house. Upto night 1.30 the said vehicle was at same place it was witnessed by his brother one who has came from Hyderabad but at 5.30 am when he came out of the house, in order to go Namaz then, the vehicle was not there immediately he has made efforts to search the same but he could not able to trace out. Further it is the case of the complainant that, on 04-01-10 he went to police station to lodge the complaint about the theft of the vehicle, but the police have told to him wait for some days and further suggested that him that, to make enquiry with the friends, relatives etc., accordingly he has not filed complaint on that day and he came back to trace out the vehicle. 3. It is the case of the complainant that, even inspite of his best efforts he could not able to trace out the vehicle, then on 14-01-10 once again he approached the police of Sadar Bazar, Police Station and lodged the complaint about the theft of the vehicle, the police have registered the case under Crime No. 14/2010 for the offence U/sec. 379 IPC. Further it is contended that, after filing the complaint before the police he has approached the Respondent Insurance Company on 16-01-10 and informed about the theft of the case for which the Respondent Company sought police records for to confirm about the theft. Further they have also assured that, the police will have trace out the vehicle if, it is not traced out then they will compensate by making payment of value of the vehicle. Believing their words he has waited for some days. The Respondent Insurance Company has requested the complainant through letter dt. 24-02-10 to submit the all original documents pertaining to the vehicle accordingly the complainant has submitted all the original documents, on the same day the Respondent Insurance Company assured for settling his claim of the complainant. In the mean time the police filed the charge sheet on 18-05-10 by filing the C Report in view of non-tracing the vehicle, after their best efforts. Immediately after receipt of the C Report he has approached the Respondent Insurance Company to settle the claim but instead of settling it, issued a letter dt. 22-09-10 contending the claim of the complainant closed as No claim. For the reasons that, he has not informed immediately to police and Respondent Insurance Company. The act of the Respondent is contrary and totally deficiency in service, hence he has sought direction against the Respondent to settle and make payment of value of the vehicle for a sum of Rs. 47,052/- or to reimburse the same model, value of the vehicle along with damages, expenses to the tune of Rs. 20,000/- and cost of the present complaint. 4. After service of the notice, the Respondent Insurance Company has appeared in this case through its Advocate and filed written version by denying all the allegations made against it and contended that, the policy condition stipulates that, the theft of the vehicle has to be informed to the insurer by the insured within 48 hours of its occurrence. The alleged theft of the vehicle according to the complainant has occurred on 03-01-10 and the matter was reported to the opposite after 54 days from the date of occurrence which is breach of police condition. The complainant has not approached the opposite company branch office at Raichur on 05-01-10. Further it is contended that, there was a delay of 10 days in lodging the complaint of theft to the concerned police which creates doubt and genuineness of the complainant the complainant has colluded with police these are all facts discloses that, the complaint of the complainant is just to make illegal monetary gains and the complaint of the complainant is devoid of any material substances. There is no any deficiency/unfair trade practice on the part of the Respondent Insurance Company. It is also contended that, as per the complaint, the value of the vehicle is Rs. 25,000/- only, if Forum comes to the conclusion that, the complainant is entitled for any compensation the same may be at Rs. 25,000/- as declared by the complainant in his complaint before the police, accordingly it prayed for to dismiss the complaint among other grounds with cost. 5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that there is deficiency in service on the part of the Respondent Insurance Company as alleged.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 6. Our findings on the above points are as under:- (1) In the negative. (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-11 are marked. On the other hand the affidavit-evidence of Branch Manager of opposite Insurance Company was filed, he was noted as RW-1. No documents on behalf of Respondent Insurance Company. 8. On going through the pleadings of the parties and their respective evidences and documents it discloses that parties are not in dispute on the following point:- The complainant is the absolute owner of the vehicle bearing Registration No. KA-36/R8744 and coverage of insurance policy to the said vehicle. 9. The complainant has produced in all 11 documents at Ex.P-1 to Ex.P-11 they are as follows;- (1) Invoice Bill No. 3743 dt. 18-05-08 marked at Ex.P-1, (2) Copy of FIR in Crime No. 14/2010 marked at Ex.P-2, (3) Copy of complaint before the police dt. 14-01-10 is marked at Ex.P-3, (4) Copy of Charge sheet marked at Ex.P-4, (5) Copy of Crime details marked at Ex.P-5, (6) Spot Sketch marked at Ex.P-6, (7) Office copy of the letter dt. 24-02-10 is marked at Ex.P-7, (8) Office copy of the letter dt. 04-03-10 is marked at Ex.P-8, (9) R.C. of vehicle marked at Ex.P-9, (10) Insurance Policy marked at Ex.P-10, (11) Letter dt. 22-02-09 written by opposite to the complainant is marked at Ex.P-11. 10. The Respondent Insurance Company in their written version mainly contended that, within 48 hours complainant has to be informed to the insurer about the occurrence of the theft, whereas in the present case there was a 54 days delay in informing about the theft which is breach of policy condition. In this regard, the Respondent Insurance Company is mainly depending upon the judgment of Honble National Commission in First Appeal No. 321 of 2005 in New India Assurance Company Ltd, V/s. Trilochan Jane Case. The Honble National Commission in the said judgment categorically observed about the delay in informing about the occurrence of the theft and what is its consequences, if it is not informed in time or immediately. Further the Honble National Commission was also held that, when there is no bodily injury to the complainant or to the insured it is incumbent upon the insured to inform the police about the theft immediately say within 24 hours otherwise valuable time would be lost in tracing the vehicle. Similarly the insurer should also be informed within a day or two, so that the insurer can verify has to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the vehicle. Delay in reporting to the insurer about the theft of the vehicle would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. The Honble National Commission in the said judgment was also referred the Honble Supreme Court judgment cited in JT 2004 (8) SC 8 in United India Insurance Company Ltd., V/s. M/s. Harchand Rai Chandan Lal wherein it has held that, the terms of the police have to be construed as it is and nothing can be added or subtracted from the same. In the present case the theft was occurred on 03-01-10 and same was informed through letter dt. 24-02-10 i.e, Ex.P-7 it means that if, we are come to the conclusion that, on the same day the letter was reached to the opposite there was a delay of 52 days in informing about the occurrence of the theft of the vehicle. Similarly another one letter was also sent on 04-03-10 i.e, Ex.P-8 and same was received by the opposite along with other original documents. Apart form these two letters there is no other documents or evidence to show that, immediately the complainant has informed the opposite about the occurrence of the theft immediately day or two. This fact would clearly goes to show that, there is a delay in informing the theft of the vehicle to the opposite. Under such circumstances, the say of the Respondent regarding violation of the policy condition cannot be ruled out. The ruling submitted by the Respondent in this regard abruptly applicable to the present case on hand, similarly it is not the case of the complainant that, he was injured and for that, he was not informed about the theft of the vehicle to the opposite. Under such circumstances, his delay cannot be accepted similarly his case also. Hence we do not find any reasons to believe that, there is any lapse on the part of the Respondent. 11. The Respondent Insurance Company further contended that, there was a delay 10 days in filing the complaint before the concerned police about the occurrence of the theft. On perusal of the Ex.P-2 First Information Report it is very clear that, the date of occurrence of theft is on 03-01-10, the date of information/complaint is on 14-01-10 it means there was a delay of 10 days as contended by the Respondent. There were no any documents to show that, the complainant has approached the police immediately after the theft of the vehicle as contended in his complaint at Para-5. Under such circumstances, the version the complainant about his approach to the police station on 04-01-10 and the police have informed to wait for some days and make enquiry with friends and relatives as contended in his Para-5 of his complaint cannot be accepted. Nothing was prevented him to file any complaint before the police or before the insurer. Under these circumstances, he cannot blame the insurance company for his own wrong. Hence we have not accepted his pleadings in this regard. This act of the complainant would clearly goes to show that, there is a negligence on his part only, for that insurance company cannot be made responsible the insurance company rightly refused his claim through letter dt. 22-09-10 under Ex.P-11 as No claim. The ruling submitted by the complainant cited in CPJ IV (2009) 96 of Honble Orissa State Commission in Oriental Insurance Company V/s. Khand Naik Case in respect of repudiation of the claim only on hyper technical grounds is holds no good. In the light of the Honble National Commission judgment & Supreme Court Ruling referred in the said judgment. Hence with great respect we have rejected the same as not applicable to the present case. Under such circumstances, allegations made against opposite is not the ground to consider this claim of the complainant, accordingly we have not noticed any kind of deficiency in service on the part of opposites. Hence we answered Point No-1 in negative. 12. The complainant failed to prove the fact involved in Point No-1 and thereby he is not entitled for to get any one of the reliefs as prayed in this complaint, accordingly we answered Point Nos.1 & 2 in Negative. POINT NO.3:- 13. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant against opposite is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 07-01-2011) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.