Date of Filing: 22.05.2012
Date of Disposal:17.06.2013
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)
Smt.M.Sreelatha, B.A., B.L., Lady Member
Monday, the 17th day of June, 2013
C.C.No.26/2012
Between:
Akula Subbaramaiah,
S/o Late Ramappa,
D.No.1/24,
Jwalapuram Village,
Bathalapalli Mandal.
Anantapur District. … Complainant
Vs.
1. The Customer Service Manager,
ICICI Lombard General Insurance Company Limited,
Raghuveera Towers,
Anantapur.
2. ICICI Lombard General Insurance Company Limited,
Rep. by its Divisional Manager,
301,3rd Floor, Bhuvana Towers,
91, S.D. Road,
Secunderabad – 500 035. … Opposite Party
This case coming on this day for final hearing before us in the presence of Sri K.Nagi Reddy, Advocate for the complainant and the 1st opposite party call absent and set exparte and Sri G.Seetha Rama Rao, Advocate for the 2nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, President (FAC): - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.38,241/- towards value of the vehicle, Rs.10,000/- towards mental agony and Rs.5000/- towards legal expenses with interest @ 18% p.a. till the date of realization.
2. The brief facts of the complaint are that: - The complainant is a permanent resident of Jwalapuram Village, Bathalapalli Mandal, Anantapur District. The complainant purchased Hero Honda Glamour from C.Thippaiah Motors, Anantapur for a sum of Rs.38,241/- on 31.01.2011 and the registration No. AP-02-TR-1796 the said vehicle was insured by the 2nd opposite party through the 1st opposite party vide policy bearing No.3005/63236385/00/000 valid from 31.01.2011 to 30.01.2012. Subsequently on 18.07.2011 the complainant went to his site at Balija Colony of Gotluru Village, Dharmavaram Mandal, Anantapur District on his motor cycle. At that time one Balija Maruthi and others attacked the complainant and beat him and they also damaged the motor cycle of the complainant and set fire to it. As a result the motor cycle of the complainant was completely burnt. Immediately the complainant gave a complaint to Dharmavaram Rural Police Station and the police have registered the case as Crime No.51/2011 under sections 147,148,435 and 324 r/w 149 I.P.C. Later the complainant was admitted in Government General Hospital, Anantapur on the same day for the injuries and he was discharged from the hospital on 20.07.2011. The complainant informed about incident by phone to the 1st opposite party Customer Service Manager, Sri Mallikarjuna of Anantapur. Later after discharging from the hospital the complainant submitted necessary documents to the 1st opposite party. The complainant received a letter dt.19.01.2012 from the 1st opposite party requiring to provide some more documents and also to show reasons for the delay in intimation. After that the complainant submitted the necessary documents and also informed the 1st opposite party about giving telephonic information. Later the complainant received a letter dt.20.02.2012 from the 2nd opposite party in reference No.HYD/Mtrcim/1718/2012, dishonoring the claim of the complainant stating the reason that intimation was given after 4 ½ months form the date of incident. Subsequently the complainant got issued a legal notice on 07.04.2012 to the 2nd opposite party requesting to settle the claim, but the said notice was returned with an endorsement left. Hence, this complaint is filed by the complainant claiming a sum of Rs.38,241/- towards value of the vehicle, Rs.10,000/- towards mental agony and Rs.5000/- towards legal expenses.
3. The 1st opposite party called absent and set exparte.
4. The 2nd opposite party filed counter stating that all the allegations made in the complaint are all false and the complaint is not maintainable either on facts or in law. The 2nd opposite party admits that they have issued a policy to the vehicle in question covering period of insurance is from 31.01.2011 t0 30.01.2012 subject to terms and conditions and proposal submitted. The 2nd opposite party submits that they are not aware of the averments as mentioned in para No.l3 of the complaint and further submits that there was some dispute with regard to land between the complainant and one Balija Maruthi on the other hand and on the fateful day the said Balija Maruthi and others bet the complainant and damaged the motor cycle by setting fire to it. The 2nd opposite party submits the complainant never submitted any records within the stipulated time as alleged in the complaint. Further the 2nd opposite party submits that the accident and claim intimation is not at all intimated to this opposite party to process the claim. Further the 2nd opposite party submits that insurance is a contract of indemnity. It has to be viewed as a normal contract as per the Indian contract Act and any violation of the terms and conditions of the policy by the parties to the contract it becomes void and in such an event the 2nd opposite party would not be liable to the complainant. Hence, there is no liability on the part of the 2nd opposite party with regard to the above claim.
5. Basing on the above pleadings, the following points that arise for consideration are:-
- Whether there is any deficiency of service on the part of the opposite parties?
ii) To what relief?
6. In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A8 documents. On behalf of the 2nd opposite party, the 2nd opposite party filed evidence on affidavit and marked Ex.B1 document.
7. Heard both sides.
8. POINT: - It is an admitted fact that the complainant’s vehicle Hero Honda Glamour was insured by the 2nd opposite party and policy bearing No.3005/63236385/00/000 from 31.01.2011 to 30.01.2012. Subsequently on 18.07.2011 when the complainant went to his site in Balija Colony of Gotluru Village, Dharmavaram Mandal, Anantapur District on the said motor cycle there was a attack on the complainant by one Balija Maruthi and others. In that attack the complainant was injured and his motor cycle was damaged by the attackers and also set fire to the motor cycle. After that the complainant made a complaint to the Dharmavaram Rural Police Station and a case has been registered under Crime No.51/2011 under sections 147,148,435,324 r/w 149 I.P.C. Later the complainant was admitted in Government General Hospital, Anantapur on the same day and was discharged from the hospital on 20.07.2011.
9. The counsel for the complainant submitted that the complainant has informed the said incident to the 1st opposite party’s Customer Service Manager Sri Mallikarjuna of Anantapur by telephone. And after discharge from the hospital the complainant submitted all necessary documents to the 1st opposite party. The counsel for the complainant submitted that a letter was received by the complainant on 19.01.2012 from the 1st opposite party i.e, Customer Service Manager, Anantapur requiring to provide some more documents and also to show the reason for the delay in intimation. The counsel for the complainant submits that in response to the said letter, the complainant submitted all the necessary documents and also informed to the 1st opposite party but to the shock of the complainant a letter dt.20.02.2012 was sent by the 2nd opposite party repudiating the claim as the intimation was given after 4 ½ months from the date of the incident. The counsel for the complainant submitted that within a period of one month from the date of incident all the necessary documents were submitted to the 1st opposite party. Inspite of submitting the necessary documents the claim of the complainant was repudiated by the 2nd opposite party stating that there was a delay in 4 ½ months in intimating the incident. The counsel for the complainant submitted that there was no delay on the part of the complainant but in order to avoid the payment of the claim made by the complainant the 2nd opposite party has taken the plea that there was a delay. Hence there is deficiency of service on the part of the opposite parties for which they are liable.
10. The counsel for the 2nd opposite party argued that it is true that the complainant’s vehicle is insured by the 2nd opposite party and subsequently on 18.07.2011 the said vehicle was damaged by one Balija Maruthi and others with regard to a land dispute. The counsel for the 2nd opposite party argued that the complainant is bound by the terms and conditions of the policy and it is the duty of the complainant to inform the incident immediately after occurrence. And in case if the complainant fails to inform immediately the complainant could assign the reason for the delay in informing but in the instant case the complainant failed to inform to the 2nd opposite party immediately after the incident and the complainant has taken 4 ½ months time to inform the incident and subsequently made a claim. The counsel for the 2nd opposite party argued that in the above circumstances the 2nd opposite party has rightly repudiated the claim assigning the reason that there was an abnormal delay of 4 ½ months time in intimating the occurrence of the incident.
11. After hearing the arguments of the both sides and perusing the documents there is no dispute with regard to the policy taken by the complainant for his motor cycle bearing No.AP-02-TR-1796 from 31.01.2011 to 30.01.2012. The dispute is only with regard to the delay of 4 ½ months in intimating the incident in which the motor cycle was damaged. In support of his contention the counsel for opposite party has relied upon the ruling revision petition No. 2683/2012 National Consumer Disputes Redressal Commission, New Delhi:-
We have heard Mr.N.K.Chahar, Advocate for the petitioner and perused the records. It is not in dispute that the petitioner lodged the FIR in respect of the alleged theft of the vehicle in question after a period of 30 days. Besides this, it is also seen that the petitioner failed to inform the insurance company immediately after the alleged incident. In the circumstances, in line with the judgment date 09.12.2009 of the National Commission in F.A.No.321 of 2005 in the case of New India Assurance Company Limited Vs. Trilochan Jane, the State Commission accepted the appeal of the opposite party insurance company and reversed the order of the District Forum. In the absence of anything put forth before us to dispute the basic factual position by the petitioner, we do not find any infirmity or illegality in the impugned order. We may note that in that case (Supra), the delay in lodging the FIR was only of 2 days and that regarding the intimation to the insurance company was of 9 days but even this much of delay was treated as fatal and considered as a serious violation of the conditions of the insurance policy. We therefore agree with the view taken by the State Commission and dismiss the revision petition in limine.
Another revision petition No.3864/2012 National Consumer Disputes Redressal Commission, New Delhi:-
We agree with the view taken by the State Commission delay in informing the insurance company was fatal as it deprived the insurance company of its legitimate right to enquire into the alleged theft of vehicle and make an endeveaour to recover the same, Supreme Court of India in Oriental Insurance Company Limited Vs. Parvesh Chander Chadha – Civil Appeal No.6739/2010 decided on 17.08.2010, dismissed the complain holding that in terms of the policy issued by the insurance company, the insured was duty bound to inform about the theft of the vehicle immediately after the incident. Delay in intimation deprives the insurance company of its legitimate right to get enquiry conducted into the alleged theft of vehicle and make an endeavor to recover the same: that the insurance company could not be settled with the liability to pay compensation to the insured despite the fact that he had not complied with the terms of the policy. Relevant observations of the Supreme Court read as under:-
Admittedly the respondent had not informed the appellant about the alleged theft of the insured vehicle till he sent letter dt.22.05.1995 to the Branch Manager. In the complaint filed by him, the respondent did not give any explanation for his unusual delay in informing the appellant about the incident which gave rise to cause for claiming compensation. Before the District Forum, the respondent did state that he had given copy of the first information report to Rajender Singh Pawar through whom he had insured the car and untraced report prepared by police on 19.09.1995 was given to the said Shri Rajender Singh Pawar, but his explanation was worthless because in terms of the policy, the respondent was required to inform the appellant about the theft of the insured vehicle. It is difficult, it not impossible to fathom any reason why the respondent, who is said to have lodged First Information Report on 20.01.1995 about the theft of car did not inform the insurance company about the incident. In terms of the policy issued by the appellant, the respondent was duty bound to inform it about the theft of the vehicle immediately after the incident. On account of delayed intimation, the appellant was deprived of its legitimate right to get an inquiry conducted into the alleged theft of the vehicle and make an Endeavour to recover the same. Unfortunately, all the consumer foras omitted to consider this grave lapse on the part of the respondent and directed the appellant to settle his claim on non-standard basis. In our view, the appellant cannot be saddled with the liability to pay compensation to the respondent despite the fact that he had not complied with the terms of the policy.
We are of the same view as that taken by the bench headed by Justice Ashok Bhan in New India Insurance Company Limited Vs. Trilochan Jane (Supra) in Revision Petition No.295`1/2011. This petition has no ground, the same is dismissed.
The above said two rulings are with regard to claim of stolen vehicles but the instant case is not claim made for theft but the claim made for the damage due to setting on fire. The present case differs from the above two decisions as this complainant has filed the complaint on the same day of the incident and that to it is not a theft case. It is a case of setting fire of the motor cycle and the said motor cycle is very much in the custody of the Dharmavaram Rural Police Station. The opposite parties in order to ascertain whether the said incident has occurred or not on the said date can verify the Engine number and Chassis number of the said motor cycle which is in the custody of the Dharamvaram Rural P.S. In view of the above observations though there was a delay of 4 ½ months in intimating the incident by the complainant to the 2nd opposite party the delayed intimation is not very much fatal to this case. Hence, the opposite parties 1 & 2 are liable to pay the insurance claim as per their policy terms as the incident occurred within six months from the date of purchase. As per Ex.B1 which is the policy copy the declared value of the motor cycle is Rs.46,797/- and the depreciation schedule is as follows.
Age of the Vehicle | Rate of depreciation for fixing IDV |
Not Exceeding 6 months | 5% |
Exceeding 6 months but not exceeding 1 year | 15% |
Exceeding 1 year but not exceeding 2 year | 20% |
Exceeding 2 years but not exceeding 3 year | 30% |
Exceeding 3 years but not exceeding 4 years | 40% |
Exceeding 4 years but not exceeding 5 years | 50% |
Basing on the above schedule as the vehicle is damaged within a period of 6 months the rate of depreciation is 5% on declared value. Hence we are of the view that the opposite parties 1 & 2 are liable to pay compensation by deducting 5% on declared value of the vehicle.
13. In the result the complaint is allowed by directing the opposite parties 1 & 2 jointly and severally liable to pay to the complainant after deducting 5% of depreciation on declared value of the motor cycle Rs.46,797/- within one month from the date of this order failing which interest shall be paid @ 9% p.a. from the date of this order till the date of realization.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 17th day of June, 2013.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT:
NIL
ON BEHALF OF THE OPPOISITE PARTY
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of invoice dt.31.01.2011 issued M/s C.Thippaiah Motors in favour of
the complainant.
Ex.A2 Photo copy insurance policy issued by the ICICI Lombard Insurance Company
Mumbai in favour of the complainant.
Ex.A3 Photo copy of FIR crime No.51/2011 of Dharmavaram Rural P.S.
Ex.A4 Photo copy of letter ICICI Lombard Insurance Company to the complainant.
Ex.A5 Repudiation letter dt.20.02.2012 issued by the 2nd opposite part.
Ex.A6 Office copy of legal notice dt.07.04.2012 got issued by the complainant to the
2nd opposite party.
Ex.A7 Postal receipt.
Ex.A8 Returned postal cover addressed to the 2nd opposite party.
EXHIBITS MARKED ON BEHALF OF THE 2nd OPPOSITE PARTY
Ex.B1 Insurance policy issued by the ICICI Lombard Insurance Company Mumbai in
favour of the complainant.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
