This Complaint coming up before us for hearing on 12-10-11 in the presence of Sri P. Venkateswarlu, advocate for complainant and of Sri G. Srinivasu, advocate for opposite parties 1 and 2, upon perusing the material on record after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Smt T. Suneetha, Member:-

        The complainant filed this complaint under section 12 of Consumer Protection Act seeking directions on the opposite parties to settle the claim of the complainant of Rs.55,813/-; compensation of Rs.40,000/- towards mental agony and to pay the costs of the complaint.

1. In brief the averments of the complaint are these:

The complainant purchased a Hero Honda DSS PBK bike under invoice No.V0906672 on 31-03-10 from Annapurna Auto Agencies under the cover of insurance issued by the 1^st opposite party vide policy No.3005/111118791/10590/000 valid upto 29-03-11.   The complainant purchased the bike on availing loan from Fulletron India Credit Company Limited, Guntur.

On 12-06-10 when the complainant stationed his motor bike in front of his uncle’s house situated at 5^th lane Kannavarithota, Guntur and went on his commercial work he found that his motor bike was missing at 10.30 pm.   After due enquiries he came to know that neither his uncle nor any of the local inhabitant have seen his vehicle and as such the complainant gave a report to Nagarampalem PS suspecting the theft of his vehicle and was registered under FIR No.39/2010 for the offence punishable under section 379 IPC on 16-06-10.   So far no recovery was made. 

The complainant approached the opposite parties and submitted all the relevant papers and the photo copy of the FIR intimating about the theft.   The complainant negotiated with the opposite parties several times and the opposite parties have been protracting the matter since long time in not settling the claim of the complainant.   The financier of the complainant has been continuously pressurizing him for repayment of loan amount.   The attitude of the opposite parties in not settling the claim of the complainant has put complainant to untold hardship and mental agony.   The opposite parties are not coming forward to settle the claim of the complainant.   Thus there is deficiency of service on the part of the opposite parties.   Hence the complaint. 

3.   The opposite parties filed their version and the contents in brief are hereunder:

         The opposite parties submit to the Hon’ble Forum that the complainant is guilty of suppressio vari and suggestionfalsi and the complaint itself is not maintainable. 

        As per the Motor Insurance Policy issued to the complainant, in case of theft or criminal act which may be the subject of claim under the policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.   The FIR should have lodged immediately after the theft.    But in this case the FIR was lodged five days after the theft of the vehicle.   As per the Motor Insurance policy issued to the complainant the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part there of or any driver or employee of the insured, in the event of any accident or brake down, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage to the vehicle shall be entirely insured’s own risk. The insured left the vehicle unattended and sufficient care was not taken which a prudent man ought to have taken. 

        The complainant has not given immediate notice to the opposite parties and as well as the police.    The complainant has not submitted any claim form and relevant documents to the opposite parties till today.  As such the complainant has violated the terms and conditions of the policy issued to him.  There is no deficiency of service on the part of the opposite parties and the Forum may be pleased to dismiss the complaint with costs.

4.     Both parties have filed their respective affidavits. Ex.A1 to A5 on behalf of complainant and Ex.B1 and B2 on behalf of opposite parties were marked.

5.      Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?
2. To what relief the complainant is entitled to?

6.      POINTS 1 & 2:- 

        The terms and conditions of the policy Ex.B-1 are extracted hereunder:

Condition No.1 “Notice shall be given in writing to the company immediately upon the occurrence of any accidental or 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………………………………..  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 cooperate with the company in securing the conviction of the offender.”

        The opposite parties contention is that they did not receive any intimation from the complainant about the theft of the vehicle.    As per the condition No.1 of the terms and conditions of the policy the complainant shall inform the opposite parties and police immediately after the incident of theft and to co-operate with them in securing the conviction of the offender.

        The complainant did not file any document like intimation letter, acknowledgment of posted/received, showing that the complainant informed the opposite parties about the theft of the motor bike.

        It appears that the complainant failed to inform the opposite parties about the theft of the vehicle and have issued notices directly to settle the matter. In these circumstances the opposite parties would not have opportunity to work on the matter of theft.

        The complainant lost his bike on 12-06-10 and he gave police report on 16-06-10.  Thus there is a delay of 4 days in filing complaint in the police station as per the FIR vide Ex.A-2.  The complainant violated the condition No.1 of the terms and conditions of the policy.

                Hon’ble Supreme Court of India in United India Insurance Company Limited vs. M/s Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8 has held that the terms of policy have to be construed as it is and nothing can be added or subtracted from the same.   The policy provides that in the case of theft, the matter should be reported ‘immediately’.   In the context of a theft of the car, word ‘immediately’ has to be construed strictly to make the insurance company liable to pay the compensation.

        The National Commission, New Delhi in 2011 (3) CPR 369 (NC) between Rang Lal (Deceased) through his legal representative & others Vs. Manager, United India Insurance Company Ltd. & others observed that, peril must be reported to insurance company immediately.

        “On the basis of the decision of this Commission in the case of New India Assurance Company Limited vs. Trilochan Jane, the State Commission held that this delay was fatal because it completely prevented the insurance company from carrying out any investigation as to the truth of the alleged theft.   It was also noticed that the police was unable to recover the tractor and put up a final report before the Court to be effect that the tractor was not traceable.

                In the above-mentioned case relied upon by the State Commission, this Commission had observed inter alia as under.           

                The respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation.  The delay in lodging the FIR after 2 days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that item and sold to Kabaadi (scrap dealer).

                Notably, in this case the delay in intimating the theft to the police is 5 days and failed to inform the opposite party about the same. Thereby the complainant violated the condition No:1  of the terms and conditions of policy. The Forum opines that the objections raised by opposite parties are justified.  Thus, there is no deficiency of service on the part of opposite parties. Hence, the opposite parties are not liable to compensate the complainant.

In the result the complaint is dismissed without costs.

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 22nd day of October, 2011.   

       MEMBER                         MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:

                                                                                      PRESIDENT