Karnataka

Bijapur

CC/16/2014

Shreshail S/o Tippanna Indi - Complainant(s)

Versus

The Divisional manager Oriental Insurance Company Bijapur - Opp.Party(s)

Sri L.M.Hanchali

04 Dec 2015

ORDER

                

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

 

DATE OF FILING 20^th  DAY OF SEPTEMBER, 2013

CONSUMER COMPLAINT NO. 16/2014

 

DATED THIS THE 04^TH DAY OF DECEMBER, 2015

 

01) Sri S.H. Hosalli                            -          President.     

                  B.Com.LLB. (Spl),

 

02) Smt.V.B. Chiniwal                       -        Lady Member.

                   B.Com.LLB. (Spl),                  

 

03) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

 

COMPLAINANT   -

Shrishail S/o Tippanna Indi, Age: 45 Years, Occ: Transport Business, R/o: Nagathan Village, Tq:Dist. Bijapur.                         (Rep. by Sri. L.M.Hanchali, Adv.)

- V/S -

 

OPPOSITE PARTY  -

The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Bidri Complex, S.S. Road, Bijapur – 586 101.                   (Rep. by Sri. B.S.Soragaon, Adv.)

O R D E R

 

Speaking through Smt. V.B. Chiniwal, Lady Member.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Op”) for award the compensation of Rs.6,00,000/- in favour of complainant for having caused deficiency of service towards the complainant and direct the Opponent to pay Rs.1,00,000/- for having caused mental agony and cost of the complaint alongwith interest.

 

2.      The facts of the case in brief are that;

 

          That, the complainant is registered owner of Truck Ashok Leyland 6 wheelers bearing its Reg. No.-MH-11/M-3556. The complainant purchased the said truck in the month of November 2007 to ply the said vehicle on road on hire or reward for transporting the goods. The complainant is driver cum owner of said truck having valid driving license.

 

          It is contended that, the complainant parked his said vehicle near KEB at Nagathan Village during the evening hours on dtd:04.06.2012. The complainant on the next day dtd:05.06.2012 in the morning about to go to Bijapur came to the place wherein the vehicle was parked, the vehicle was not found and it was stolen by some body by committing theft of said  vehicle of the complainant.

 

          It is contended that, the complainant made the enquiry by searching out the said vehicle at Bijapur, Solapur, Hubli, Belgaum, Hospet, Hyderabad, Bangalore and other places. The vehicle was not traced out. The complainant lodged the complaint before the P.S.I. Rural Police Station, Bijapur dtd:13.06.2012. The P.S.I. Rural Police Station registered the case in its Rural P.S. Crime No.145/2012 for the Offence Punishable U/s. 379 of I.P.C.

 

          It is contended that, the Police of Bijapur Rural Police Station submitted F.I.R. to the IInd Additional J.M.F.C. Court Bijapur and investigated the case and it is thereafter the C.P.I. Rural Circle Bijapur has submitted ‘C’ Report to the said court.  The said Court accepted the ‘C’ Report on 20.06.2013.

 

          It is contended that, the opponent at the time of insuring the said vehicle promised the complainant to reimburse the loss arising out of damage or loss or theft of vehicle of complainant by issuing insurance policy No.472902/31/2012/9892 which was valid w.e.f. 20.12.2011 to midnight of 19.12.2012. The vehicle of the complainant was stolen by committing theft and at that time the original documents of the said vehicle were kept in the vehicle itself. Therefore it was not possible for the complainant to submit all those original documents to the Opponent and there is no negligence on the part of the complainant. Since the complainant has taken all reasonable steps to safeguard the vehicle by parking the same by locking out the doors of said vehicle.

 

          It is contended that, the complainant intimated to opponent regarding theft of vehicle on the very next day i.e. on 05.06.2012. The opponent repudiated the claim of the complainant by assigning false reasons intimating the complainant through letter dtd: 05.08.2013. The complainant has given reply to the notice of opponent through reply notice dtd: 17.08.2013, which was duly acknowledge by the opponent on 21.08.2013.

 

          It is contended that, the opponent caused deficiency of service towards the complainant by committing fault in reimbursement of the loss sustained by the complainant due to theft of vehicle. Therefore the opponent is liable to pay compensation of Rs.6,00,000/- to the complainant and also prays that, Rs.1,00,000/- towards mental agony and physical harassment was caused to the complainant. Therefore the complainant has no other grounds except to file this complaint.

 

3.      After issue of notice, the Respondent has appeared through his counsel and opposed the claim of the complainant by filing his written version. Wherein Respondent has totally denied the allegations made by the complainant. The Respondent is further stated that, on the date of the alleged theft of the said truck at evening. The complainant has left the original  ignition key and all the original documents of the truck, the dash board of the said truck and went away to his house for sleeping. Therefore, the complainant has breached the condition No.5 of the standred motor policy as he failed to take a reasonable care to safeguard his truck by parking it un-attended and far from his house.

 

          Further stated that, as per the F.I.R. and Complaint, the alleged theft of the insured truck was committed by an unknown culprit in between 10.11 PM to 4-00 A.M. on 04.06.2012 to 05.06.2012. But, the complainant has not filed a Criminal Complaint before the Jurisdictional Police Station immediately after the theft of his truck. The complainant has filed a Criminal Complaint before the Bijapur Rural Police Station on 13.06.2012. There is delay of 8 days in filing the complaint. The complainant has breached the policy conditions. Therefore, the complainant is not entitled for any compensation as claimed in prayer clause. Hence, the Hon’ble Forum may kindly be dismiss the complaint with compensatory cost of Rs.5,000/-.

 

4.      The Opponent has filed their affidavit in support of their case and produced 01 to 09 documents on behalf of complainant are marked as Ex-CO No.1 to Ex.CO No.09 as under;

01. The  Photo  copy  of  R.C. Book  of  the vehicle

      Ex.Co.No.1.

          02. The copy of Certification of taxation Ex.Co.No.2.

          03. The copy of Emission Testing Certificate Ex.Co.No.3.

          04. The copy of Insurance Policy Ex.Co.No.4.

          05. The copy of F.I.R. and Complaint Ex.Co.No.5.

          06. The copy of Final Report Ex.Co.No.6.

          07. The  Office  copy  of  Intimation  of  Opponent

              dtd:05.08.2013 Ex.Co.No.7.

          08. The Office copy of reply notice issued to Opponent

              dtd:17.08.2013 Ex.Co.No.8.

          09. The copy of Postal Acknowledgement Ex.Co.No.9.

 

          On behalf of Opponent also produced 01 to 03 documents are marked as Ex.OP No.1 to Ex.OP No.03 as under;

 

1. Repudiation letter dtd:05.08.2013 Ex.Op.No.1.

2. Letter Written by Complainant to Opponent

       dtd:10.12.2012 Ex.OP No.2.

3. Letter Written by the Complainant to Opponent

       dtd:15.04.2013.

    

   Both parties have filed their written arguments. Both side arguments taken as heard. Now we have formulated the following points do arise for our consideration in deciding the case they are;

    

4. Whether the Op has rendered the deficiency

    in service to the complainant?

    

5. Whether the complainant is entitled for the

    relief as is sought for?

    

6. What order?

    

   5.      Answer to the above Points:-

    

7. Negative.

8. Negative.

9. As per final Order.

    

   R E A S O N S :-

    

   6.      Point No.1 & 2: The complainant is a driver cum owner of the said truck Ashok Leyland 6 wheelers bearing its Reg. No.-MH-11/M-3556. The complainant purchased the said truck in the month of November 2007. The complainant had got insured his truck policy No.472902/31/2012/9892 which was valid w.e.f. 20.12.2011 to midnight of 19.12.2012. The vehicle of the complainant was stolen by committing theft on 04.06.2012 at midnight. The complainant parked his said vehicle near K.E.B. at Nagathan Village during the evening hours.

    

             The complainant himself admitted that, on 04.06.2012 during evening hours. The said vehicle was parked near K.E.B. at Nagathan Village. The said vehicle was stolen by culprits being surprised, the complainant under frustration searched out the said vehicle at Bijapur, Solapur, Hubli, Belgaum, Hospet, Hyderbad, Bangalore and other places. The Complainant  returned empty hand and lodged complaint at Rural Police Station, Bijapur on 13.06.2012 and the case is Registered under Rural P.S. Crime No.145/2012 for Offence Punishable U/s 379 of I.P.C. The Police after thorough investigation submitted ‘C’ Report to the J.M.F.C. IInd Court Bijapur on 20.06.2013, the said Court accepted the ‘C’ Report.

    

             Why the driver cum owner was not intimated to opponent immediately. There is delay of 08 days in filing the complaint as per Ex.Co.No.6. But, the complainant has not filed a Criminal Complaint before the Jurisdictional Police Station immediately after theft of truck. The requirement of the law is that, the report must be lodged immediately. The word “Immediately” was discussed at length in the case of New India Assurance Co. Ltd., V/s. Trilochen Jane FA 321 of 2005 decided on 09.12.2009. As per Oxfard Advanced Learners Dictionary the word ‘immediately’ defined in Stroud’s Judicial Dictionary, Fifth Edition and Black’s Law Dictionary Sixth Edition and Mitra’s Legal & Commercial Dictionary Fifth Edition were also discussed in this citation relay upon;

    

   National Consumer Disputes Redressal Commission, New Delhi 2015 CPJ page 195 N.C.

    

   The Hon’ble Apex Court in Oriental Insurance Co. Ltd., V/s Parvesh Chendra – 2010 decided on 17.08.2010 was pleased to hold that, delay in intimation to the insurance Co., deprive it of its legitimate right to get enquiry conducted into alleged theft of vehicle and make an Endeavour to recover the same consequently, the Insurance Co. cannot be settled with liability to pay compensation to the complainant.

    

             The Complainant has breached the policy condition No.5. The Opponent has issued a claim repudiation letter dtd:05.08.2013 by R.P.A.D. stating the reasons of repudiation. The same was served upon the complainant as per Ex.Co.No.7 after report of the said repudiation letter, the complainant has sent a notice to opponent through his counsel dtd:17.08.2013 it is noted that, all the original documents, original R.C. Book, Original Permit, Original D.L. and other papers which have been kept in the vehicle. The Original ignition keys of above vehicle-2 numbers was not possible to produce the same in the reply notice as per Ex.Co.No.8.

    

             As per Ex.Op.No.2 & Ex.Op.No.3 documents, the complainant himself admitted that, the letter dtd:10.12.2012 and 15.04.2013 as under;

    

             ¤ªÀÄä PÁAiÀiÁð®AiÀÄzÀ 09/01/2013 ¥ÀvÀæ ªÀÄÄnÖzÀÄÝ vÁªÀÅ ¸ÀzÀgÀ ¥ÀvÀæzÀ°è PÉýzÀ ªÉÄð£À ªÁºÀ£ÀzÀ Njf£À¯ï 2 ZÁ« Njf£À¯ï Dgï.¹. mÁåPïì PÁqÀð, ¥ÀgÀ«Ämï, J¥sï.¹. Njf£À¯ï ¥Á®¹ EªÉ®èªÀÅUÀ¼À£ÀÄß ªÉÄð£À ªÁºÀ£À PÀ¼ÀĪÁUÀĪÀ ªÀÄÄAZÉ ¸ÀzÀgÀ ªÁºÀ£ÀzÀ°èAiÉÄà EnÖzÀÝjAzÀ ºÁUÀÆ ¸ÀzÀgÀ ªÁºÀ£À PÀ¼ÀªÁVzÀÝjAzÀ ¤ªÀÄä PÁAiÀiÁð®AiÀÄPÉÌ PÉÆÃqÀ°PÉÌ DUÀĪÀ¢®è. £À£Àß ºÀwÛgÀ ªÀÄ£ÉAiÀÄ°è EnÖzÀÝ ªÉÄð£À ªÁºÀ£À MAzÀÄ ZÁ«AiÀÄ£ÀÄß F ¥ÀvÀæzÀ eÉÆvÉUÉ PÉÆÃqÀÄwÛzÉÝãÉ.

    

   The Hon’ble Dist. Forum observe and perused the said letter dtd:10.12.2012 and 15.04.2013. The complainant did not state as to what it necessitated him to all original documents of truck and ignition key on dash board of the said truck and went away to his house for sleeping. Therefore, merely negligence on the part of complainant himself in this case. What was the emergency of parking near K.E.B. Nagathan Village was not disclosed. If there was no emergency why did he leave the key in the said truck. Leaving the key and original documents in the truck is itself an invitation to thieves to steal it.

    

             The District Forum cited the following authorities in support of this case rely upon;

    

   National Consumer Disputes Redressal Commission, New Delhi IV (2015) CPJ 188 (N.C.)

    

   Iffco Tokio General Insurance Co. Ltd.,   

          V/s. Sanjay Bhagwar Malwade.

    

   Consumer Protection Act, 1986 – Sections 2(1) (g), 21(b) – Insurance – Theft of vehicle – Negligence of driver – Surveyor appointed – Claim repudiated – Alleged deficiency in service – District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Vehicle was being used for hire and reward – Driver on his own admission having left key in vehicle while going to buy medicines leaving unidentified persons in vehicle and directly contributed to its theft – Violation of material condition of Insurance contracts – Repudiation justified.

    

    

   In the present case, we do not accept the contentions raised by the Counsel for the complainant driver cum owner of said vehicle. The Complainant has left the original ignition key and original documents of truck stolen. The Criminality about the theft of truck would increase day by day. The purpose of Courts and this Dist. Forum is to be banish criminality. In the light of this discussion we hereby following point No. 1 & 2 are Negative.

    

 

7.      Point No: 3:- With these findings on Point No.1 & 2, we proceed to pass the following;

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

O R D E R

 

The complaint is dismissed without cost.  

 

 

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 04^th day of December, 2015).

 

 

 

Smt. V. B. Chiniwal,   Lady Member.

Smt. G. S. Kalyani,    Lady Member.

Sri. S. H. Hosalli,     President.