BEFORE THE DISTRICT CONSUMER FORUM:KURNOOL

Present: Sri.K.V.H. Prasad, B.A., LL.B President

And

Smt. C.Preethi, M.A.LL.B., Lady Member

Wednesday the 21st day of January , 2009

C.C.No. 52/08

Between:

 E. Narayana Goud,  S/o. E.Kondanna Goud,

H.No.13-58, Chinna Boyageri,  Kodumur Town,  Kurnool District.                                                                … Complainant

Versus

 1. The Branch Manager,  M/s. National Insurance Company Limited,

Upstairs of Tula Complex ,  Gandhi Nagar,  Kurnool.

2. M/s. Shriram Transport Finance Company limited,  Kurnool Branch,  Represented by its Branch Manager,

Upstairs, S.V.Complex,  Railway Station Road,  Kurnool.                                                                 … Opposite parties

 This complaint is coming on this day for orders in the presence of Sri.G.Naga Ramesh , Advocate, for the  complainant, and Sri. D.A.A.Ahamed , Advocate for OP.No.1 and Sri.P.Siva Sudharshan, Advocate for OP.No.2 and upon perusing the material papers on record, the  Forum made the following.

ORDER

(As per Sri. K.V.H.Prasad, President )

C.C.No. 52/08

1. This case of the complainant is filed seeking direction on the opposite party No. 1 to pay Rs. 3,62,185/- with 24% interest , Rs.1 lakh as  compensation for mental agony and cost of the case alleging deficiency of  service on the part of the opposite party No. 1 in wrong repudiation of his  insurance claim arising on account of theft of his vehicle bearing No. AP 21 –V-5261 on 24-6-2003 which was purchased under hire purchase from the opposite party No. 2 and which was insured with opposite party No. 1 .

2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the case denying their liability filling their written versions .

3. The written version of the opposite party No. 2 even though admits the complainant as purchase of said vehicle with it under hire purchase agreement and the commission of defaults in payment of installments besides pleadings ignorance of the fact relating to the theft of the vehicle and any of its concern in repudiation of claim by opposite party No. 1 , seeks dismissal of the complainants case for want of cause of action against it and the jurisdiction to this forum in view of the pendency of arbitration proceedings for realizing the due of amount of loan from the complainant.

4. The written version of the opposite party No. 1 even though admits the status of the complainant as its insured as to the concerned vehicle and the claim of insurance from complainant for said vehicle, justifies its repudiation alleging that the terms and conditions of the said policy does not permit an insurance claim in the case of cheating of the insured by the others and further as the driver of the said vehicle was not  possessing a valid driving license .

5. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A7 and the sworn affidavit of the complainant , the opposite party side has taken reliance on documentary record in Ex.B1 to B9 and sworn affidavits of opposite parties 1 and 2.

6. Hence the point for consideration is whether the complainant has made out any deficiency of the opposite parties in repudiation of the insurance claim and there by any of their liability to the complainant’s claim.

7. The Ex.B1 is the insurance policy bearing No. 551001 / 31 / 02 / 6312290 issued by opposite party No. 1 to the vehicle bearing No. AP 21 V  5261 of the complainant . The Ex.B2 is the terms and conditions governing the said insurance policy . The Ex.B1 excludes from the scope of said insurance organized racing , pacemaking , reliability trials and speed testing limiting its liability to accidents and the events covered under Sec. 11 – ( i) and (ii) of M.V.Act and warrants a valid driving license to the driver of said vehicle at the time of accident . None of the stipulations in Ex.B1 and B2 says the claim of insurance lies in the cases of theft only and not in any other case . Nor the opposite party No. 1 substantiated its contentions that the claim of insurance does not lie in case of loss of insured vehicle on account of cheating – by referring to any relevant provisions of Ex.B1 and B2 . On the other hand the condition No. 1 of the Ex. B2 in its page No. 4 merely warranting the insured to give immediate notice to the police in case of a criminal Act not specifying of said Criminal Act, implies the coverage of the insured vehicle against all criminal offences . Hence there appears any justification in repudiation of complainants insurance claim by the opposite party No. 1 on the ground that the offence of cheating is not covered for insurance claim , especially when the police, Kodumur registered the case U/S 379 IPC vide Ex.A6 on the basis of the complaint of the complainants driver alleging the theft of the vehicle making out the elements of Sec. 379 IPC . When it is stated vide Ex. B6 that the Police has treated the case as undetectable vide Ex.B5 and B6 and in Ex.B4 letter addressed to complainant in its reference says it as theft of AP 21 V 5261 and the insured is in loss of the insured vehicle on account of Criminal Act of others , there appears of any justifiability in the conduct of the opposite party in repudiating the claim . Further when the loss of the insured vehicle being not on account of road accident while it is being driven there appears any justifiability in the conduct of the opposite party No. 1 in repudiating the claim on the said ground that the driver of the vehicle was not possessing an effective valid driving license .

8. The Ex.A4 is the letter dated 27-06-2003 addressed to opposite party No. 1 intimating the theft of the insured vehicle and police registering the FIR, is satisfying the conditions of the policy as to giving intimation relating to insured vehicle which is giving raise to claim especially when there is any complaint as to non intimation to opposite party No.1 as to the insured vehicle from the complainant and opposite party No. 1 did not have any grouse of any belated intimation said to have been received by it, under Ex. B3, in entertaining the claim.

9. The Ex.B7 is the letter dated 21-4-2005 of the opposite party No.1 addressed to complainant assigning the reasons for repudiation of the complainants insurance claim as to insured vehicle bearing No. AP 21 V 5261. It was said to have been communicated to the complainant under registered post vide postal receipt No. 4372 in EX.A7 and the entry at Sl. No.77 of postage book of opposite party No.1 in Ex. B9 . When the said repudiation intimation was sent in due process the presumption is its receipt by the addressee till other wise proved . The complainant except alleging that the Ex.B7 was not received by him , did not rebutt the presumption of due service when sent under due process . Hence his causing the Ex.A3 notice to the opposite party No. 1 appears to be nothing but an effort to create a new limitation on the basis of Ex.B8 reply of opposite party No. 1 (Ex.B7) for agitating of repudiation of claim which remains expired otherwise for any actionable claim by the very date of Ex.A3 i..e, 7-8-2007 which is beyond to two years to 21-4-2005 i.e, date of repudiation of complainants insurance claim.

10. The Ex.A1 , A2 and A7 needs any appreciation being the status of the complainant as hire purchaser of opposite party No. 1 and institution of arbitration proceedings by opposite party No. 2 against the complainant is not in dispute from the opposite party No. 2 .

11. As the claim of the complainant was not repudiated by opposite party No. 1 on the pretext of the pendency of any investigation of police as to the loss of insured vehicle but on account of other reasons expressed in Ex.B7 , the Ex.A5 – returned copy of application in Cr.No. 36/03 of P.S., Kodumur with Court’s endorsement that no final report was filed by the police in said crime remains with little relevancy for appreciation.

12. As there being any cause of action or claim of the complainant against the opposite party No. 2 in reference to the repudiation of complainants insurance claim , the opposite party No. 2 being not remaining liable to any of the reliefs sought by the complainant against the opposite party No. 1 – the case of the complainant against the opposite party No. 2 is dismissed.

13. Even though there is any pleading from the opposite party side questioning the limitation to the complainant’s case , but as the statutory plea of limitation is always available to the opposite party to have a statutory protection against the Law suits filed beyond the period of limitation and there being any endeavour on the complainants side seeking condonation of the delay in filling the case against the opposite parties and there being any bonafidees in the conduct of the complainant, in taking limitation from the reply received under Ex.B8 - as no sane person with any genuine claim shall keep quite without any eagerness to know about the fate of his insurance claim, the case of the complainant being filed on 5-3-2008 i.e, more than two years eight months to 21-4-2005 ( Ex. B7 – letter of repudiation ) the case of the complainant is remaining suffering for want of statutory limitation prescribed under Sec. 24 (A) of C.P.Act being this complaint is filed about nine months after to the expiry of two years statutory prescribed limitation even without seeking for any condonation of the delay .

14. Consequently, the case of the complainant being barred by limitation for being entertained by the Forum , the case of the complainant is dismissed with cost.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 21st day of January , 2009.  

 Sd/-                                                                                                                                                           Sd/-

 MEMBER                                                                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

Witnesses Examined

 For the complainant :Nil                                                                                             For the opposite parties :Nil

 List of exhibits marked for the complainant:-

 Ex.A1.                  Xerox copy claim petition filed in arbitration application  No.43/2007 before the arbitral

                                tribunal kurnool.  

Ex.A2.                   Xerox copy of hire purchase/guarantee agreement dated  05-03-2003.

 Ex.A3.                  Office copy of legal notice dated 07-08-2007.

 Ex.A4.                  Office copy of letter dated 27-06-2003 of complainant to OP.No.1.

Ex.A5.                   Returned copy application in Cr.No.36/2003 of PS, Kodumur  by 1st class magistrate,

                                Kurnool.  

Ex.A6.                   Certificate copy of FIR in Cr.No.36/05 of Kodumur (PS).

 Ex.A7.                  Xerox copy of certificate of registration.

List of exhibits marked for the opposite parties:

 Ex.B1.                   Policy No.551001/31/02/6312290.

 Ex.B2.                   Terms and conditions of policy.

 Ex.B3.                   Intimation of accident dated 22-06-2004.

 Ex.B4.                   Office copy of letter dated 22-06-2004 addressed to complainant.

 Ex.B5.                   Notice of police to S.Shashavali.

 Ex.B6.                   Copy of final report submitted to court in Cr.No.36/03 Of PS, Kodumur.

 Ex.B7.                   Letter dated 21-04-205 of OP to complainant along with Postal receipt.

 Ex.B8.                   Reply dated 04-09-2007 to Ex.A3 along with acknowledgement.

 Ex.B9.                   Xerox extract of postage book for Sl.No.77 dated 21-04-2005 of OP.

     Sd/-                                                                                                                                                                  Sd/-

MEMBER                                                                                                                                                    PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

Copy was made ready on :

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