BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 24th February 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 278/2015
Complainant/s: Jalaluddin s/o. Shahussain Londewale, Age: about 27 years, Occ: Business, R/o.Ammannavar Plot, Tipu Nagar, Nekar Nagar, Old Hubli, Hubballi 580024.
(By Sri.M.A.Shivalli, Adv.)
v/s
Respondent/s: The Branch Manager, The Oriental Insurance Co. Ltd., Post Box No.57, Vikas Complex, Station Road, Hubballi.
(By Sri.M.G.Gadgoli, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.24,956/- towards the insured amount, Rs.30,000/- as compensation and to cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is the owner of the motorcycle Hero Honda/Hero Moto Corp Splendor plus bearing registration no.KA 25 EB 3205 and the same was insured with the respondent under the policy bearing no.471101/31/2014/7144 covering the risk for the period 07.09.2013 to 06.09.2014 and the complainant had paid a sum of Rs.263/- premium for IDV value of Rs.24,956/-. The said policy was also covered with risk of theft. On 16.08.2014 the complainant parked the said motorcycle in front of Dwaraka Hotel Goods Shed Road, Hubli. While returning on 20.08.2014 the said motorcycle was not found and was missing. The complainant enquired with all the friends available and were residing nearby the lodge. Lastly on 20.08.2014 the complainant lodged complaint before Town Police Hubli under PS Crime No.206/14. Immediately after receiving the FIR copy same was submitted to the respondent intimating the loss. Inspite of repeated requests the respondent did not settled the claim. Hence, on 23.07.2015 the complainant got issued legal notice calling upon to comply within 7 days. Despite service of notice to respondent on 27.07.2015 failed to comply. Again on 26.08.2015 complainant submits claim application with all required documents towards the theft vehicle personally & the same was acknowledged by the respondent on 27.08.2015. Inspite of it no response from the respondent. Non settlement of the claim amounts to deficiency in service. Hence, the complainant has filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the very complaint is false, frivolous, vexatious in all its material particulars and the same is not maintainable either in law or on facts and prays for dismissal of the complaint. Further the respondent by taking contention with regard to the definition of complaint, deficiency in service, jurisdiction of the Forum to adjudicate the same, cause of action prays for dismissal of the complaint. While the respondent admits issuance of the policy and coverage of the risk to the date of incident. While the respondent taken contention that the claim of complainant is not maintainable as the complainant violates the terms and conditions of the policy and not intimated the respondent within the period of 24 hours of occurrence of theft though it was lost in between 16.08.2014 to 20.08.2014 and police complaint was lodged on 20.08.2014 the respondent was intimated only on 27.08.2015 after lapse of one year from the alleged date of theft & also till 27.08.2015 not intimated nor no claim was made. Claim is made only on 25.08.2015. Legal notice was sent on 23.07.2015 and the same was replied suitably by the respondent on 01.09.2015. Hence, there is no deficiency in service on the part of the respondent as alleged. Hence, respondent prays for dismissal of the complaint.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit, relied on documents. Both have argued. Complainant apart from argument filed notes of argument and relied on citations. Heard. Perused the records.
Finding on points is as under.
- Negative
- Negative
- As per order
R E A S O N S
P O I N T S 1 & 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the impugned vehicle in question is insured with the respondent and to the date of incident the same was covered with valid risk coverage.
6. Now the question to be determined is, whether non settlement of the claim amounts to deficiency in service, if so, for what relief the complainant is entitled.
7. Since the facts have been revealed in detail which requires no repetition.
8. Though the complainant both in pleadings and evidence states that immediately after lodging of the complaint the respondent was made known of theft by sending copy of the FIR. In support of this contention the complainant did not produced any documents to establish his contentions. The main defence of the respondent is that though the vehicle was theft in between the period 16.08.2014 to 20.08.2014 for the first time the respondent was intimated only through legal notice Ex.R1 dtd.23.07.2015 and the claim for the first time made on 25.08.2015 i.e. after issuance of the legal notice that too after lapse of more than one year from the date of theft. Taking this facts in defence the respondent relied on policy Ex.R4 at 2nd page clause the claim for theft of vehicle not payable if theft not reported to company within 48 hours of its occurrence. In support of this invite the attention to policy Ex R-4 Schedule conditions (1) at page 3 of policy schedule.
9. In reply to the above defence of the respondent and in support of the contention of the complainant the complainant relied on 2012 (I) CPR 30 – Chattisgarh SCDRC Raipur – National insurance co. vs. Niraj singh, wherein it is held insurance claim cannot be reject in entirety for minor violation of terms and conditions of insurance policy; 2007 (1) CPR 264 Himachal SCDRC Shimla- Oriental insurance co. Vs. Rakesh Kumar, held:- 7 days delay in sending intimation to insurance company regarding insured vehicle stolen would not constitute breach of term of policy of fundamental nature so as to entitled insurance company to reject claim of the insured; 2013 (2) CPR 171 NC – United India insurance co. vs. Bhupender Singh -held: claim cannot be rejected in toto for minor latches and prays for allow the complaint. Whereas the respondent in reply to this, argued, there were no impediments left to the complainant to inform the insurer immediately after the incident, but complainant after lapse of one year from the date of incident issued legal notice Ex.R1 on 23.07.2015 claiming the relief for the incident took place on 16.08.2014 without making any claim & the claim was made as per Ex.R3 on 25.08.2015 i.e. after issuance of legal notice Ex.R1 after lapse of 1 year and submits none of the relied citations will not rescue the claim of the complainant and prays for dismissal of the complaint.
10. Apart from these assertions and denials of both the parties complainant even not produced original key of the insured vehicle in question either to the insurer or before the forum to establish that he has taken precautionary safe measures in protecting the insured vehicle. Hence, taking into consideration of negligence on the part of the complainant and not intimating the respondent immediately and being violated the terms and conditions and non submission of the claim till expiry of more than 1 year and failure to establish the fact of immediate intimation to the respondent as defence taken with cogent and appulsive evidence complainant failed to establish his case of deficiency in service against the respondent. Interalia the respondent with cogent and appulsive evidence establish his case that the respondent has not committed any deficiency in service and repudiation of the claim with valid and proper grounds. Hence, complainant is not entitled for any reliefs much less the reliefs as sought.
11. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in Negative.
12. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24th day of February 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
