Karnataka

Kolar

CC/18/2015

M.Muniraju - Complainant(s)

Versus

The Deputy Manager, New India Assurance Co.Ltd - Opp.Party(s)

Y.C.Somappa

16 Oct 2015

ORDER

Date of Filing: 08/06/2015

Date of Order: 16/10/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 16^th DAY OF OCTOBER 2015

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 18 OF 2015

Sri. M. Muniraju,

S/o. Late Muniyappa,

Aged About 30 years,

Agriculturist,

R/at: Madiwala Village,

Kurugal Post, Kolar Taluk

(Rep. by Sriyuth. Y.C. Somappa, Advocate)                    ….  Complainant.

 

- V/s -

1) The Deputy Manager,

The New India Assurance

Company Limited, Claims Hub,

Regional Office No.2-B,

Unity Building Annexe,

P. Kalinga Rao Road,

Bangalore-560 027.

 

2) The Branch Manager,

Doddapet, Kolar Branch,

Kolar

 

(OP Nos.1 & 2 are represented by

Sriyuth. B. Kumar, Advocate)                          …. Opposite Parties.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) has sought, relief against the Ops for payment of Rs.78,368/- with interest at the rate of 18% per annum from 05.03.2014 being the date of the theft of the vehicle till realization.

 

02.   The facts in brief:-

It is contention of the complainant that, being owner of Bajaj Pulser bearing Registration No. KA-07-U-7843 got the same insured with the OPs, who had issued policy bearing No.67160031130100004697 which was valid from 02.07.2013 to 01.07.2014.  And that on 05.03.2014 around 3.30 p.m. he had parked the said two wheeler in front of Root Diary Office, Kalamma Temple Road, Kolar.  And that having parked so, he had entered the said Milk Root Diary Office.  And that on return he noticed that, the said vehicle was stolen.  He has also stated that model of this two wheeler was 2013 bearing Engine No. DHZCD84912 and Chassis No. MD2411CZ4DCC97857.  And that he did lodge information in Kolar Town PS and Crime No.73/2014 came to be registered for the offence punishable Under Section 379 of I.P.C.  Ultimately the I.O. could submit “C” report to the Prl. Chief Judicial Magistrate, Kolar, on 20.10.2014. 

 

(a)    Further he has contended that, he has also lodged complaint in the RTO, Kolar, on 10.12.2014.  And that he had even lodged claim with regard to the theft of the vehicle with the OPs who had replied on 31.12.2014 that, there was delay of three months in intimating the same to them.

 

(b)    Further it is contended that, he made approach with the OPs on 06.01.2015 around 3.10 P.M. and one Sri. Goutham had informed that, claim form required to be filled-up.  And that next day he started suffering with ill-health and had been to S.N.R. Hospital, Kolar, for check-up.  And that medical investigation revealed that, he was suffering from Jaundice.  And that he was in-patient for a period of three months and 12 days to recover from the said ill-health.  And that in view of the said circumstances he could not intimate within statutory period.  And that even lack of legal knowledge to approach the OPs also came in the way.

 

(c)    He has further contended that, the total value of the said vehicle was of Rs.64,448/- and the compensation amount on account of inconvenience and deficiency in service on the part of the OPs was in a sum of Rs.13,920/- and thus the claim was for Rs.78,368/-.

 

(d)    So, contending the complainant has come up with this complaint on hand seeking the above set out reliefs.

 

(e)    With list dated: 08.06.2015 the complainant has submitted Xerox copies of following 11 documents:-

(i)    FIR No.73/2014 complaint

(ii)   “C” Report under Section 173 Cr.P.C.

(iii)  RC Certificate of registration

(iv)   Motor Driving License

(v)    Insurance copies dated: 02.07.2013 to 01.07.2014

(vi)   Transport Department ‘B’ Register Extract (Rules-48 of KMV 1990)

(vii) Loss/Damage intimation letter dated: 18.06.2014

(viii)   Reply Notice dated: 06.01.2015

(ix)  Intimation letter dated: 10.12.2014

(x)    Regional office No.2-B, Unity Buildings Annexe, P.Kanlinga Rao Road, Bangalore-560 027, letter dated: 12.03.2014 & 31.12.2014.

(xi)  SNR Hospital, Kolar, in-patient certificate dated: 13.06.2014.

 

03.   On registration of the case and in response to the notices issued OPs have put in their appearance through their learned counsel and have submitted written version resisting the claim of the complainant in toto.

 

(a)    However it is worth to note that, these OPs have conceded that, they had issued the said insurance policy which was to cover for the period from 02.07.2013 to 01.07.2014.  Further it is specifically pleaded that, the complainant has failed to issue notice in writing to them about the said theft immediately.  And that the theft had occurred on 05.03.2014 and intimation was dated: 18.06.2014, thus committed delay of 104 days.  And that under the circumstances, they were justified in communicating the repudiation vide letter dated: 10.03.2015.  So contending, dismissal of the complaint has been sought.

 

04.   The complainant Sri.M.Muniraju has submitted his affidavit evidence.  And on behalf of OPs Sri.K. Murali Krishna, Senior Divisional Manager, has put-in, his affidavit evidence.  On 08.10.2015 the learned counsel appearing for both sides have submitted their respective written arguments.  On 15.10.2015 the learned counsel appearing for the complainant has submitted Xerox copy of the following citation:-

 IV (2009) CPJ 96

 

05.   On this 15.10.2015 itself the learned counsel appearing for the OPs with memo have submitted Xerox copies of following citations:-

(i)       First Appeal No.426/2004 The New India Assurance Company Limited –V/s- Shri.Dharam Singh & Ano- dated: 17.09.2004. NCDRC.

 

(ii) First Appeal No.321/2005, New India Assurance Company Limited –V/s- Trilochan Jane, Dated: 03.06.2005. NCDRC.

 

(iii) Revision Petition No.1362/2011 Bang Lal (Deceased) Through his legal representatives Smt. Gyarsi Devi & Others –V/s. Manager, United India Insurance Company Limited & Another, dated: 01.09.2011. NCDRC.

 

(iv) Appeal No.169/2011 Royal Sundaram Alliance Insurance Company Limited –V/s- Babu Reddy, Dated: 15.06.2011, Karnataka State Forum, Bangalore.

 

06.   On this 15.10.2015 itself the learned counsel appearing for OPs have submitted Xerox copy of policy of insurance and terms and conditions.

 

07.   On 15.10.2015 itself heard the oral arguments as advanced by the learned counsel appearing for both sides.

 

08.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the repudiation on the part of the OPs with regard to claim of the complainant would tantamount to deficiency in service?

 

2.   If so, to what relief the complainant is entitled to?

 

3.  What order?

 

09.   Findings of this District Forum on the above stated points for the following reasons are:-

 

POINT 1:     In the Affirmative.

 

POINT 2:     The complainant is held entitled to total compensation of Rs.78,368/- together with interest @ 9% per annum from 08.06.2015 being the date of the complaint till realization, for being recovered from the OP Nos.1 & 2 jointly and severally.

 

POINT 3:     As per final order for the following:-

 

REASONS

POINT 1 & 2:-

10.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    It is an admitted aspect that, the OPs had so insured in respect of the said two wheeler which was to cover the period from 02.07.2013 to 01.07.2014.  So the contention of the complainant is that, the said vehicle was subject matter of a theft on 05.03.2014 around 3.30 P.M. when the said vehicle was parked at the said place would cover the duration of the said insurance policy.

 

(b)    The Ops have never denied about theft of the said vehicle.  They are very much particular with regard to communication of the said theft to them by the complainant on 18.06.2014 though the theft had taken place in respect of the said vehicle on 05.03.2014.  Thus according to these OPs there was delay of 104 days (reliance placed on Para No. IV, 8 of the written version).  In this context our attention has been drawn to the conditions as envisaged in the policy issued by the OPs.  Its relevant Para-1 with preamble paragraph reads thus:-

“This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.

 

“(1) Notice shall be given in writing to the company immediately upon the occurrence of any accident 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.  Every letter claim writ summons and/or process shall be forwarded to the company immediately on receipt by the insured.  Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending Prosecution Inquest Fatal Inquiry in respect of any occurrence which may give rise to a claim under this Policy.  In case of theft or other criminal act which may be subject of claim under this Policy the Insured shall give immediate notice to the Police and co-operate with the Company in securing the conviction of the offender.”   

 

(c)    So in this context it is worth to note that principles enunciated in the said citations as relied by the learned counsel appearing for the OPs.  In first appeal No.426/2004 the Hon’ble National Commission in its order dated: 04.07.2006 on the last but one para has categorically noted that, in the said case FIR was lodged on 15.07.1991 which was after committing delay of above two months of the truck stolen being the contention in the said case.

 

(d)    In another case bearing First Appeal No.321/2005 order dated: 09.12.2009 of the Hon’ble National Commission as relied by the learned counsel appearing for the OPs on page-8 it has been specifically observed that, “in case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent/complainant to inform the police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle.  And further it has been observed that, similarly, the insurer should also be informed within a day or two.”

 

(e)    The principle enunciated in yet another decision in Revision Petition No.1362/2011, dated: 01.09.2011, as passed by the Hon’ble National Commission theft of the tractor therein had taken place on 08.06.2004 and criminal case was registered on 21.06.2004 and insurance company was informed only on 25.08.2004.

 

(f)     The fourth citation relied by the learned counsel appearing for the OPs is the order dated: 15.06.2011 passed in Appeal No.169/2011 by the Hon’ble State Commission, Bangalore.  And the principle enunciated as to be found on pages-6 and 7 would indicate that when there could be no documentary evidence on record to show that the respondent/complainant had informed immediately about the theft on the night of 12.09.2008 the claim was bound to be rejected and hence rejected.

 

(g)    On going through the said citations as relied by the OPs and on meticulously going through the principles enunciated in the said citation what is most important is that, without loss of time there should be information lodged with the police and such information should be immediately after occurrence of theft.

 

(h)    There is substantial compliance of the said principles enunciated in the said citations on the part of the complainant, for, theft of the said vehicle was on 05.03.2014 around 3.30 P.M. and FIR came to be registered on 06.03.2014 by 3.30 P.M.  So the first information came to be registered within 24 hours of the occurrence of the said theft.

 

(i)     True, the complainant lagged behind in intimating the same to the OPs being the insurer, for, on 18.06.2014 the said intimation was given.  Here as the complainant has strictly complied statutory requirement of lodging information with police within the shortest period of 24 hours the delay in communicating the same with the Ops would loose any significance.   Moreover admittedly the police have submitted a final “C” Report dated: 20.10.2014 regarding which the complainant cannot have any adverse say.  As such, such information given on 18.06.2014 on the part of the complainant which was in continuation and confirmation of the FIR dated: 06.03.2014 cannot be termed as a delay at all.  To do so would be hyper technical.  Even otherwise contention of the complainant that, he was ill because of jaundice that came in the way shall have to be accepted on humanitarian grounds. 

 

(j)     Besides, the learned counsel appearing for the complainant has placed reliance on principles enunciated in IV (2009) CPJ 96.  The principle enunciated in this citation is to the effect that the delay in intimating the police and the insurer should not come in the way and it has been held further that repudiation on the part of the insurer was untenable.  Therefore following the principle enunciated in this citation we are of the definite opinion that, the repudiation dated: 31.12.2014 on the part of the Ops with regard to the legitimate claim of the complainant was/is untenable.

 

(k)    Vide terms of the said insurance policy the risk with regard to the said two wheeler covered was in sum of Rs.64,448/- which is claimed in this complaint.  We are of the opinion that, the OPs are liable to pay the same.

 

(l)     We cannot forget that such a repudiation which was untenable did cause inconvenience and agony to the complainant and this agony and inconvenience were only on account of deficiency in service on the part of the Ops.  As such the claim for compensation in sum of Rs.13,920/- as made by the complainant is bound to be up held.

 

(m)   Consequently we are of the definite opinion that the complainant is held entitled to total compensation of Rs.78,368/- together with interest at the rate of 9% per annum from 08.06.2015 being date of the complaint, till realization for being recovered from Op Nos.1 & 2 jointly and severally.

 

POINT 3:-

11.   We proceed to pass the following:-

 

ORDER

01.   For foregoing reasons the complaint stands allowed with costs of Rs.5,000/- as against these OP Nos.1 & 2 as hereunder:-

 

(a) The complainant is held entitled to recover total compensation of Rs.78,368/- together with interest @ 9% p.a. from 08.06.2015 being the date of the complaint till realization for being recovered from the Op Nos.1 & 2 jointly and severally.

 

(b)    We give time of 30 days to the OPs to comply this order from the date of communication of the same.

 

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 16^th DAY OF OCTOBER 2015)

 

 

 

 

MEMBER                             MEMBER                     PRESIDENT