This complaint is coming on for final hearing before us in the presence of Sri Ch.Rambabu, Advocate for the complainant and Sri D.Sivaram, Advocate for opposite party and having stood over for consideration, the Forum made the following:-

O   R   D   E   R

          This is a petition filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.P to pay a sum of Rs.45,155/- with subsequent interest at 24 % p.a., from the date of theft of the motor cycle till the date of realization and to pay a sum of Rs.25,000/- towards damages and to pay Rs.5,000/- towards costs on the following averments.  The complainant purchased one two wheeler Mahindra Rodeo bearing registration No. AP 35 M 9206 on 20-6-2011 and got it registered at Vizianagaram R.T.O., office.  The said two wheeler was insured with O.P. and the policy was in force from             20-6-2011 to 19-6-2012.  On 22-3-2012 night at about 9.30 p.m., the complainant parked the said vehicle in front of her house and at about 11.00 P.M., when she came out from the house she found that the vehicle was not there and it was stolen by somebody.  The complainant searched for the vehicle but of no avail.  On 24-3-2012 she lodged a report with police I-Town, Vizianagaram and one V.V.Ramana, Constable who was present at the Police station received the report and told that he would place the same before his higher authorities.  Some days later the complainant went to the Police station and enquired about her report and recovery of her vehicle upon which the police people stated that the matter is under investigation.  On 7-5-2012 the Police asked the complainant to come to police station and give another report upon which she gave another report basing on which the police registered a case in crime No.99/12 U/s 379 IPC.  The complainant made a claim with the O.P. for payment of insured amount upon which the O.Ps. sent a letter dt.9-5-2012 requesting her to submit the original keys, policy bond, RC Book service booklets, warrantee card and FIR copy.  On 9-5-2012 the complainant submitted the necessary documents as mentioned in the letter issued by them.  On 3-8-2012 the O.P. issued a letter stating that her claim is repudiated as the theft intimation was given 48 days after the incident.   On 14-11-2012 the O.P. sent repudiation letter stating that the condition one of the policy document was breached.   The reasons for repudiating the claim by the O.P. is unilateral and as there is deficiency in service on the part of O.P. in settling the claim of complainant she filed the complaint for the above said reliefs.

          The O.P. filed counter traversing the material allegations made in the complaint and has averred that the complainant is not a consumer and the complaint filed by her does not come under the purview of the provisions of C.P. Act.  It is averred that as seen from the documents submitted by the complainant the vehicle was committed theft on 23-3-2012 but a complaint was given to police on 7-5-2012 with a abnormal delay of 48 days.  It is averred that as per conditions of the policy a 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 the insured shall give all such information and assistance as the company requires but as the complainant lodged the complaint after 45 days of the occurrence of alleged theft there is breach of condition No.1 of the policy and as the complainant violated the terms and conditions of the policy her claim was repudiated and as the present complaint is filed with untenable allegations the same is liable to be dismissed.

          It is averred that the complainant has deliberately deprived the O.P. to establish the facts relating to the reported loss of vehicle and to determine the admissibility of claim and as there are no bonafides in the complaint and the same is liable to be dismissed. 

In support of the complainant’s case the evidence affidavit of P.W.1 is filed ad Ex.A.1 to A.6 are marked.  On behalf of O.P. the evidence affidavit of R.W.1 is filed and Ex.B.1 to B.7 are marked.  Perused the material placed on record and heard the learned counsel for respective parties. 

          Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for?

          The learned counsel for complainant has contended that the two wheeler which was insured with O.P. was committed theft at night on 23-2-2012 when it was parked in front of the house of the complainant and the complainant made search of the vehicle and when it was not traced she gave complaint to the police on 24-3-2012 and was regularly attending the Police station to know the progress of the case and when the police asked her to give a fresh complaint on 7-5-2012 she has given a complaint and also made a request to the O.Ps. to settle her claim and as the O.Ps. did not settle her claim she filed the present complaint seeking the reliefs prayed for in the complaint.

          As against the above said contention the learned advocate for O.P. has contended that there is delay of 48 days in submitting a complaint to the O.Ps. for settling the claim and as per terms of policy bond the complainant had to give a complaint in writing immediately after the incident and as no such complaint was given the O.Ps. were deprived of the opportunity to make necessary enquiries to know the cause for loss of vehicle and as there is no deficiency of service on the part of O.Ps. the complaint is liable to be dismissed.

          The evidence adduced on behalf of respective parties clearly reveals that the complainant purchased one two wheeler bearing registration No. AP 35 M 9206 on 20-6-2011 and the same was insured with the O.P. and the policy was in force from 20-6-2011 to 19-6-2012.  Ex.A.1 is the copy of insurance policy issued by the O.P. and as seen from its contents the policy was issued on               20-6-2011 and was in force still 19-6-2012.  Ex.A.2 is the copy of report given by complainant to the C.I. of Police dt.24-3-2012.  Though the complainant alleged to have given the said report to one V.V.Ramana, Constable who received and informed the complainant that he would bring that fact to his higher authorities,  no cogent evidence is adduced to prove that on 24-3-2012 the copy of original of  Ex.A.2 was given to V.V.Ramana.  The complainant did not choose to examine the said Ramana to speak that a complaint was given to him by the complainant on 24-3-2012 with regard to the theft of her two wheeler.  As seen from the contents of complaint the police asked the complainant to give another report upon which she gave a report dt.7-5-2012 basing on which the I-Town Police registered a case in Crime No.99/2012.  If really the complainant is true that she gave a complaint to the police in this regard on 24-3-2012 she had no necessity to give a fresh complaint on           7-5-2012.  As per respondents there was delay of 48 days in lodging a report with the police and as the complainant did not inform them about the theft immediately after the occurrence, it amounts to breach of the conditions of the policy and as such her claim was repudiated. 

          To substantiate the above said contention they have filed the insurance policy along with terms and conditions.  As per terms and conditions a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and there after the insured shall give all such information and assistance as the company shall require.  Coming to case on hand no notice was given in writing by the complainant to the O.P. immediately upon the occurrence of theft.  The above said conduct of complainant for not giving a notice in writing about the theft of vehicle to the O.P. amounts to breach of the conditions of the policy.

          In a decision in Revision Petition No.2982 of 2012 : Shri Kuldeep Singh Vs. IFCO Tokio General Insurance Co.Ltd.,  rendered by NCDRC, New Delhi.

wherein it is held:  When the policy provides that in case of theft the matter should be reported immediately.  The word “Immediately” has to be construed strictly to make the insurance company liable to pay the compensation.

          In another decision in I (2013) CPJ 71 (NC) Virender Kumar Vs. New India Assurance Co.Ltd.,

Wherein it is held: Para 4: We have given our anxious consideration to the above submissions.  The question as to whether the insured can be said to have committed the breach of the terms and conditions of the policy in giving intimation after some delay i.e., delay of two days of the theft of an insured vehicle has been considered by this Commission in First Appeal No.321 of 2005 titled as New India Assurance Company Limited V. Trilochan Jane, II (2011) CPJ 19 (SC)=IV (2011) SLT 303, decided on 9-12-2009, where on taking note of delay of two days, Commission held as under:

“ Learned Counsel for the respondent, relying upon the Judgment of Hon’ble Supreme Court in National Insurance Company Ltd., V.Nitin Khandelwal, reported in (2008) 11 SC 256, contended that in the case of theft of vehicle, breach of condition is not germane.  The said judgment was in a totally different context.  In the said case, the plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the policy.  The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not germane.  In the present case, the respondent did not care to inform the Insurance Company about the theft for a period of  9 days, which could be fatal to the investigation.  The delay in lodging the FIR after two days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to Kabadi (scrap dealer)

In our view, the State Commission erred in holding that the respondent / complainant had reported the theft of the vehicle to the appellant-Insurance Company within a reasonable time. We are not going into the other question regarding violation of condition No.5 of the Insurance Policy as we have non-suited the respondent / complainant on the first ground.”

Para 5:-In the case in hand, the delay in lodging the FIR and giving

intimation to the Insurance Company was about 10 days and 15 days respectively and therefore, applying the ratio of the above noted case, the State Commission was fully justified in taking the view it has taken.  In our view, the impugned order passed by the State Commission does not suffer from any illegality, material irregularity, much less any jurisdictional error, which warrants interference of this Commission in exercise of its revisional jurisdiction.

          The Revision petition as such is dismissed in limine.

          In another Decision in NCDRC, New Delhi in Revision Petition No.2683 of 2012 in between Mr.Satish Vs. United India Insurance Co.Ltd.,

Wherein it is held in : Para 6:- We have heard Mr.N.K.Chahar, Advocate for the petitioner and perused the record.  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 Co., immediately after the alleged incident.  In the circumstances, in line with the judgement dated 9-12-2009 of the National Commission in F.A.No.321 of 2005 in the case of New India Assurance Co.Ltd. Vs. Trilochan Jane, the State Commission accepted the appeal of the O.P. Insurance Co. 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 Co. 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.

          As seen from the principles laid down in the decision cited supra when the complainant fails to give a complaint to the police as well as to the Insurance Company immediately after the incident, it amounts to breach of conditions of policy which enables the Insurance company to repudiate the claim.   Since the complainant failed to give any written complaint immediately after the theft, it amounts to breach of conditions of policy.  Hence, the complainant is not justified to contend that the men of O.P. are in dereliction of their duties and there is deficiency in service on their part.  As the complaint merits no consideration the same is liable to be dismissed. 

          In the result, the complaint is dismissed, but under the circumstances without costs.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 12^th day of March, 2014.

Member                                                           President

CC. 83 of 2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Xerox copy of Insurance Policy
2. Ex.A.2 Xerox copy of letter dt.24-3-2012
3. Ex.A.3 Xerox copy of FIR dt.7-5-2012
4. Ex.A.4 letter of Bajaj Allianz Gen.Insurance Co.,dt.9-5-2012
5. Ex.A.5 letter dt.3-8-2012
6. Ex.A.6 letter dt.14-11-2012

For O.P:-

1. Ex.B.1 Xerox copy of Insurance Policy Duplicate
2. Ex.B.2 letter dt.3-8-2012
3. Ex.B.3 Acknowledgement
4. Ex.B.4 letter dt.26-9-2012 with postal receipt
5. Ex.B.5 Postal Acknowledgement
6. Ex.B.6 letter dt.14-11-2012
7. Ex.B.7 Postal acknowledgment.

                                                                                                President.