D.o.F:5/8/09 D.O.O:25/06/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.180/09 Dated this, the 25th day of June 2010. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI :MEMBER SMT.P.P.SYAMALADEVI : MEMBER Muhammed Kunhi.B , S/o Ibrahim Haji, R/at Nadeer Cottage , Bendicha PO, : Complainant Thekkil,Kasaragod (Adv.Kumaran Nair,Kasaragod) 1. Branch Manager, National Insurance Co.Ltd. Kasaragod : Opposite parties 2.The Divisional Manager, National Insurance Co.Ltd. P.B.No.40. Bank Road,Kannur. (Adv.M.Balagopal,Kasaragod) ORDER SRI.K.T.SIDHIQ : PRESIDENT The case of the complainant in brief is that the Maruthi Zen LXI car bearing Reg.No.KL 14-E 7276 insured with opposite parties has been stolen on 28/9/05. The complainant immediately lodged a complaint before Kasaragod Police and FIR was registered as crime No.705/05 U/S 379 IPC on 28/9/05 itself. Theft of the vehicle was informed opposite parties also. After a few days when he contacted Ist opposite party it was told that the claim could be entertained only after filing the final report by the police in the above mentioned crime. Accordingly on 27/12/2006 the police filed undetected (UD) report before the Court and closed the investigation. Then he contacted Ist opposite party again and made claim. But Ist opposite party directed him to contact 2nd opposite party. But 2nd opposite party also refused to entertain his claim. Finally complainant caused a registered lawyer notice along with all the relevant documents calling upon them to pay him a compensation of 340,000/- rupees. To which Ist opposite party sent a reply notice dtd.17/12/07 denying their liability on the ground that no written complaint was given to them about the missing of the car. In the said reply notice suggested the complainant to approach the grievance cell of the opposite party company. Accordingly on 18/3/08 the complainant sent a notice to the Grievance cell of opposite party company. But it was not considered. Hence the complaint. 2. According to opposite parties, the complainant never approached them in connection with the claim of loss of the vehicle. Complainant is not entitled for any relief since he has violated the terms and conditions of the policy. The complainant was negligent and in different in putting forward the claim before the company. The complainant has not intimated the loss of the vehicle by theft till the registered notice dtd.4/12/07 received by the opposite party on 11/12/07. As per the terms and conditions of policy the insured shall give immediate notice to the company in writing. Further the terms and conditions of policy expressly ban the claim of compensation after 12 calendar months from the date of incident. Therefore the complaint is liable to be dismissed. 3. Complainant filed affidavit in support of his claim. Exts.A1 to A3 marked. On the side of opposite party Ext.B1 marked. Both sides heard and documents perused. 4. Ext.A2 is the reply notice issued by opposite party as against his claim accompanied by Ext.A1 lawyer notice dtd4/12/07. In Ext.A2 as well as in the version the bone of contention is that complainant has not intimated the theft of the vehicle immediately after the theft and thereby violated the condition No.1 of the policy. But neither policy nor the policy conditions are brought before us. But in Ext.A2 only a part of the condition No.1 of the policy is reproduced. It envisages that in case of theft or criminal act which may be the subject matter of the 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. 5. So as per this condition the insured shall give immediate notice about the theft to the police and not to the insurer. In the instant case the theft is occurred on 28/9/05 and the FIR is also lodged on the same day. So the complainant has complied with condition No.1. The police investigated the matter they filed the undetected report in Dec.2006. It is not the case of opposite party that the complainant delayed the notice to the police. The lodging of FIR on the same date of occurrence of theft also shows that there was no fraud or collusion on the part of the complainant in setting the criminal law in to motion and thereby securing the conviction of the offender. 6. Though the case of the complainant is that he informed the insurer also within a few days after the occurrence of theft, no records are produced to prove it. So evidently there is some lethargy on the part of complainant. But it does not mean that his claim shall be rejected in toto. The Hon’ble Supreme Court in the case of Amalendra Sahoo vs. Oriental Insurance Co.Ltd reported in II (2010) CPJ 9(SC) has held that in case of any breach of warranty/ conditions of policy the rejection of the claim in toto is not justifiable and such claims shall be settled on non standard basis. The Hon’ble Apex Court while rendering the above verdict relied the following decision to support the findings. United India Insurance Co.Ltd vs. Gain Singh II (2006) CPJ 83(NC), National Insurance Co.Ltd vs. Nitin Khandelwal IV (2008) CPJ (1) (SC).and New India Assurance Co.Ltd vs. Narayana Prasad Appaprasad Pathak II(2006) CPJ 144(NC) In all the above cases though the facts and circumstances of each case are different, the dictum laid down is that in case of violation of policy condition the claims ought to have been settled on non-standard basis. We also hold that the said dictum can be applied in this case also to settle the claim of the complainant. While considering this case we have also gone through the judgments of Hon’ble National Commission in the cases reported in Devendra Singh vs. New India Assurance Co.Ltd. III (2003) CPJ 77(NC) and New India Assurance Co.Ltd vs. Dharma Singh and Anr. III (2006)CPJ 240(NC). But in both cases there were delay in lodging FIR and on that ground the claims were repudiated. But in this case there was no delay in lodging FIR and hence the said decisions are not applicable. 8. Relief & Costs: The Insured’s Declared Value(IDV) of the car at the time of taking the policy is no where seen mentioned in the complaint. The policy is also not produced. However the value of the car is shown as 3,44,322/- and the claim of the complainant is 3,40,000 rupees. This is not disputed by the opposite parties. The policy at the relevant time was for the period 29/3/05 to 28/3/06. The vehicle was stolen on 28/9/05 i.e. after 6 months from the issuance of policy. Hence a sum of Rs.40, 000/- can be deducted towards the depreciation in market value of the vehicle . So for assessing the compensation the IDV can be considered as 3,00,0000/- rupees. The insurer can deduct 25% of its IDV for settling the claim on non-standard basis. Therefore, the complainant is entitled for 75% of 3, 00,000/-rupees ie.2, 25,000/- rupees. In the result, the complaint is allowed in part and opposite parties are directed to pay 2,25,000/- rupees to the complainant together with cost of 3000/- rupees. Time for compliance is limited to 30 days from the date of receipt of copy of this order. Failing which opposite parties shall further pay interest @9% for the said amount 2,25,000/- rupees from the date of complaint till payment. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1-4/12/07office copy of lawyer notice A2-17/12/07-reply notice A3-18/3/08-lawyer notice B1- Copy of motor claim form PW1-B.Muhammed kunhi-complainant Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /Forwarded by Order/ SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
