BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 4^th DAY OF FEBRUARY 2021

CONSUMER COMPLAINT NO.957/2017

PRESENT:                                                          

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.             ….        MEMBER

Sri.Mahesh K.B,

S/o Basavaraju K.R,

Aged about 26 Years,

R/at No.147/1, Lakshmipura Village & Post,

Dasanapura Hobli,

Bengaluru North,

Presently residing at

Kempanna Building,

Dasanapura Hobli,

Bangalore North Taluk.

(Rep by Sri.M.Prabhakar, Adv)

V/s

OPPOSITE PARTIES:

1. The Cholamandalam,

MS General Insurance Company Limited,

Registered Officer,

NSC Bose Road,

Represented by its Authorized Signatory.

2. The Cholamandalam,

MS General Insurance Company Limited,

Unit No.04, 9^th Floor (Level-06),

“Golden Heights” Complex,

Rajajinagar 4^th ‘M’ Block,

Represented by Regional manager.

(Opposite Parties Sri.Manojkumar M.R, Adv)

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

******

//ORDER ON MERIT//

1. This complaint has been filed under Section-12 of Consumer Protection Act, 1986 claiming the following reliefs;

1. Rs.4,98,175/- the policy amount in respect of the theft of the Ashok Leyland DOST Goods Vehicle bearing No.KA-52-A-2210.
2. Rs.51,906/- three months premium amount paid by the Complainant to the finance company.
3. Rs.5,00,000/- the finance amount including interest and other expenses for default of nonpayment of finance amount.
4. Rs.4,00,000/- as damage and loss suffered by the Complainant.
5. Rs.25,000/- towards Advocate fee and legal expenses and such other reliefs.

2. The case of the Complainant in brief is as under:

The Complainant has purchased vehicle Ashok Leyland DOST Goods vehicle bearing No.KA-52-A-2210 from Cauvery Motors (P) Limited by paying Rs.50,000/- + Rs.79,940/- i.e., Rs.1,29,940/- by way of cash and Rs.4,23,000/- obtained a loan from INDUJA LEYLAND FINANCE.

3. He had insured the above vehicle with Opposite Parties for the period from 29.10.2015 to 28.10.2016 for a sum of Rs.4,98,175/- by paying premium amount of Rs.28,016/-.

4. It is further case of the Complainant that he had parked the above vehicle in his residential address at Kempanna Building, Rajeshwarinagara, Domarahalli, Dasanapura Hobli, Bengaluru North Taluk and he came to know about theft of the above vehicle on 04.01.2016 at 6.00 a.m.  Immediately he informed missing of his vehicle to the Opposite Parties on 04.01.2016 and officials of the Opposite Parties have responded mentioning claim No.3379159450.  Immediately, Madanayakanahalli Police did not register the case stating that they will search for the said vehicle.   Ultimately, he lodged a complaint with Madanayakanahalli Police on 18.01.2016 in Crime No.20/2016.  He also lodged a petition with RTO, Nelamangala about theft of his vehicle.  The police after investigation filed a charge sheet.  He had submitted a claim petition with Opposite Parties and Opposite Parties repudiated the same without valid reason.    He was forced to pay the premium of Rs.17,302/- up to March-2016.  He has suffered Rs.5,00,000/- for repudiation of his claim and there is a deficiency of service on the part of Opposite Parties.  Therefore, Opposite Parties are liable to pay above amount. Hence this complaint.

5. In response to the notice, the Opposite Parties appear and file objection.  They admit the insurance of the above vehicle of the Complainant for Rs.4,98,175/- and policy was inforce till 28.10.2016.  The Complainant has not immediately intimated the theft of the vehicle to the Opposite Parties and to the Police.  The Opposite Parties dispute the registration of the claim of the Complainant No.3379159450.  Infact, the Complainant made a delay of 14 days in lodging the complaint to the Police on 18.01.2016, the delay has not been explained.  The Complainant is bound by the terms and conditions of the policy and Complainant is not entitle to any claim as there is no deficiency of service on the part of the Opposite Parties. Therefore, Opposite Parties request this Commission to dismiss the complaint.

6. The Complainant files affidavit evidence and relies on 17 documents. The Opposite Party has filed affidavit evidence of its official and relies on 12 documents.

7. Heard the arguments of Advocate for Opposite Parties only.  Oral argument for Complainant is taken as ‘Nil’.  We perused the written arguments of both side with citations.

8.  The points that arise for our consideration are;

1. Whether the Complainant proves deficiency of service on the part of the Opposite Parties ?

2. Whether the complainant is entitle to reliefs claimed in the complaint ?

3. What order? 

9. Our findings on the above points are as under:-

1. POINT NO.1           : Affirmative
2. POINT NO.2           : Affirmative in part
3. POINT NO.3           : As per the final order for

                                the following;

:REASONS:

10. POINT NO.1:- Both parties reiterated the facts pleaded in the complaint and in the version through their affidavit evidence.  According to the Complainant, when he parked his vehicle bearing No.KA-52/A-2210 near his house and came to know about theft of his vehicle on 04.01.2016 and immediately he had intimated the same to the Opposite Parties, who gave a Claim No.3379159450.  It is further case of the Complainant that he lodged a complaint to the Police on 18.01.2016 and earlier occasion Police did not register the theft of the case.  The Opposite Parties deny the registration of a claim of the Complainant on 01.04.2016.

11. In order to ascertain the contention of both parties.  It is relevant to refer some of the admitted facts and documents relied by both side.  It is proved from Document No.1 & 2 that the Complainant made payment of Rs.1,29,940/-to Cauvery Motors (P) Limited for purchase of the vehicle.  Document No.3 indicates that the Complainant availed loan of Rs.4,84,460/- from Hinduja Leyland Finance.  Document No.4 & 5 are the ‘B’ Register Extract and R.C Book of the vehicle bearing No.KA 52A 2210.  The insurance policy indicates that the Complainant had insured his vehicle with the Opposite Parties for the period from 29.10.2015 to 28.10.2016 by paying a premium amount of Rs.28,016/- for sum insured amount of Rs.4,98,175/-.   This fact is not in dispute.   The Complainant has produced e-mail message about notification of his claim under reference No.3379159450.  Even though, the Opposite Parties deny this fact, but letter of the Opposite Parties to the Complainant dt.01.04.2016 clearly refers the claim No.3379159450.  This reference of Claim Number clearly supports the contention of the Complainant that immediately he informed the Opposite Parties about theft of his vehicle.  It is true that the Complainant lodged a complaint with Police on 18.01.2016 stating that somebody had stolen his vehicle and despite his best effort he could not trace the vehicle.  Mere delay in registration of criminal case about theft with the Police, could not be the ground to reject the claim of the Complainant.  Moreover, the Complainant immediately informed about theft of the vehicle to the Opposite Parties and obtained claim reference number.  The Complainant also intimated to the RTO Office about theft of his vehicle on 29.01.2016.  The Opposite Parties had sent a letter referring Claim No.3379159450 calling the Complainant for submission of the documents.  It is true that ultimately Police have filed ‘C’ Report that the vehicle not traced.  In response to the legal notice dt.18.02.2017 of the Complainant, the Opposite Parties failed to settle the claim.

12. The Opposite Parties had repudiated the claim of the Complainant, only on the ground of delay quoting the condition.  It is true that the theft of the vehicle should be intimated to the Insurance Company immediately without any further delay.  But in the present case on hand, the Complainant immediately informed about the theft of the vehicle to the Opposite Parties and obtained claim reference number referred above. 

13. It is also relevant to refer 1 & 2 documents produced by the Opposite Parties.  Document No.1 is the letter of Complainant about filing a complaint with Police.  Document No.2 is the Claim Petition of the Complainant.  Document No.3 is the copy of FIR and Document No.4 is the copy of the complaint.  Document No.5 is the copy of the RC, vehicle of the Complainant.  Document No.6 is the Insurance Policy which has been already referred while referring the documents produced by the Complainant.   Document No.7 is the driving licence.  Document No.8 is the Report of surveyor with regard to the theft of the vehicle.  The theft of the vehicle is not in dispute.  Document No.9 is the letter of the Opposite Parties dt.12.02.2016 to the Complainant.  This document clearly indicates that timely intimation proof to police/Police Station GD Entry and Clarification for delay in intimation to FIR.  Eventhough, the Complainant has not submitted reply either to this letter or letter dt.01.04.2016, but the Complainant has intimated the theft of the vehicle to the Opposite Parties on 04.01.2016 and obtained a claim reference number.  It is true that document No.11 is the terms and conditions indicates that the theft of the insured vehicle must be intimated immediately.  Eventhough there is a delay of 14 days in filing the complaint to the Police, but the Complainant has assigned the reason that initially the Police did not entertain his complaint.  Moreover, the Complainant intimated the theft of the vehicle on 04.01.2016 to the Opposite Parties and obtained claim reference number. 
14. The Complainant places reliance on the decision of Hon’ble Supreme Court of India in Civil Appeal No.15611/2017, in the matter between Omprakash V/s Reliance General Insurance and Others.  This decision is also relied by the Opposite Parties, opposing the complaint. 
15. We carefully perused this decision, the Complainant has assigned cogent reason for delay in informing the Opposite Parties.  Eventhough, there is a delay of 14 days in registration of criminal case about the theft of the vehicle, but it has been proved that immediately after the theft the Complainant intimated the Opposite Parties and obtained claim reference number.  The attempt of Complainant to register criminal case was not fulfilled due to the action of the Police.  Therefore, this decision goes infavour of the Complainant.
16. Advocate for the Opposite Parties also places reliance on the another decision of Hon’ble Supreme Court of India in Revision Petition No.724/2018, in the matter between P.Khamar Pasha V/s Branch Manager, Oriental Insurance Company Limited.

17. The Hon’ble Supreme Court of India referring the earlier decision in Oriental Insurance Company Limited V/s Parvesh Chander Chadha held that repudiation of insurance claim by the Insurance Company cannot be faulted.  This decision is not applicable to the present case on hand.  As the Complainant not only intimated the Opposite Parties immediately after the theft, but he has obtained claim reference number.  Under such circumstances, it is relevant to refer the latest decision of Hon’ble Supreme Court of India in Civil Appeal No.653/2020, in the matter between Gurshinder Singh V/s Shriram General Insurance Company Limited and another dt.24.01.2020.

18. It is relevant to note that earlier decision of Hon’ble Supreme Court of India in Omprakash held that the registration of criminal case itself was an indication of intimation.  The report of the surveyor in the present case also proves the theft of the vehicle of the Complainant.  The Complainant proves that immediately after the theft he gave telephonic intimation to the Opposite Parties and obtained claim reference number.  This fact itself is sufficient to show that the Opposite Parties had a knowledge of theft of the vehicle of the Complainant on 04.01.2016.  Mere delay of registering the criminal case by the Police cannot be ground to reject the claim of the Complainant.  The rejection of the claim of the Complainant by the Opposite Parties is not correct and it means deficiency of service.  On the date of theft of the vehicle of the Complainant was insured with the Opposite Parties for Rs.4,98,175/-. Therefore, the Complainant is entitle to Rs.4,98,175/- from the Opposite Parties.  The Complainant has made payment of insurance premium of Rs.17,302/- in March 2016 after theft of the vehicle.  Therefore, the Complainant is not entitled to Rs.51,906/- towards premium from the Opposite Parties.  The Complainant claims Rs.5,00,000/- towards interest and other expense, but he has not placed any acceptable evidence to award this much amount towards interest and other expenses.  The Complainant has claimed Rs.4,00,000/- as damages, this claim exorbitant.  The Complainant is neither entitled to interest nor damages and not both.  The claim of the Complainant Rs.25,000/- towards legal expenses as exorbitant.  The Complainant has paid Rs.500/- only as a fee.  It is true that the Complainant has engaged the service of an Advocate and Advocate fee has to be quantified as Rs.3,000/-.  Therefore, the Complainant is entitle to Rs.4,98,175/- with interest at 8% p.a. from the date of complaint, till realization with litigation expenses of Rs.3,500/-.

19. POINT NO.3:  In view of the discussion referred above, the complaint requires to be allowed in part.  The Complainant is entitle to Rs.4,98,175/- with interest at 8% p.a. from the date of complaint, till realization and Rs.3,500/- towards cost of litigation.  We proceed to pass the following;
6698606.  

The complaint is allowed in part. 

The Opposite Parties are directed to pay Rs.4,98,175/-(Rupees Four Lakhs Ninety Eight Thousand One Seventy Five only) with interest at 8% p.a. from the date of complaint, till realization.

The Opposite Parties are directed to pay Rs.3,500/-(Rupees Three Thousand Five Hundred only) towards cost of litigation to the Complainant.  The claim towards expenses other expenses and damages is hereby rejected. 

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the Complainant.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 4^th day of February 2021)

• M.B. SEENA )      (L.MAMATHA)      (K.S.BILAGI)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Mahesh K.B, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. The cash voucher dt.09.01.2015.
2. The cash voucher dt.28.10.2015.
3. The statement of accounts issued by the Induja Leyland Finance.
4. The B-Register Extract,
5. Copy of Certification of Registration.
6. Certificate of Insurance.
7. Copy of the said SMS sent by the Opposite Parties.
8. The complaint lodged by the Complainant.
9. The FIR in Crime No.20/2016.
10. The intimation letter dt.29.01.2016 submitted by the Complainant.
11. Copy of notice dt.01.04.2016 issued by the Opposite Parties.
12. The letter dt.09.12.2016 issued by the police.
13. The Certified copy charge sheet filed in Crime No.20/2016.
14. Legal Notice dt.18.02.2017.
15. Original of the RPAD receipts.
16. The postal track sheets.
17. The Bank Statement for the Mary-2016.

Witness examined for the opposite party side:                  

 Sri.Ananda M, Authorized Signatory of the Opposite Parties has filed his affidavit.

Documents marked for the opposite parties side:

1. Intimation letter.
2. Original Claim form submitted by Complainant.
3. Photo copy of FIR No.20/2016
4. Photo copy of complaint dt.18.01.2016.
5. Photo copy of Smart Card.
6. Photo copy of policy of insurance.
7. Photo copy of DL of Complainant.
8. Investigator’s Report.
9. Letter dt.12.02.2016 of Opposite Party to Complainant.
10. Repudiation letter dt.01.04.2016.
11. True copy of the Policy.
12. True copy of policy terms and conditions.  

• M.B. SEENA )         (L.MAMATHA)          (K.S.BILAGI)    
•