ORDER

SRI RAMACHANDRA.M.S, PRESIDENT

1. This complaint is filed by the complainant under section 35 of C.P.Act, 2019 against the OPs for deficiency in service and to direct the OPs to pay a sum of Rs.66,395/-,  the IDV value of vehicle along with interest at 18% p.a. from 18.11.2022 and to pay the outstanding due of loan amount of Rs.44,532/- to TVS loan services Ltd., compensation of Rs.3,00,000/- towards mental agony, mental stress  and such other reliefs.

2.   The brief facts of the case is as follows: 

This is the case of the complainant that the complainant had purchased two wheeler Hero Honda Splender BS6-135 DRS bearing registration No.KA-01 JS-5705 in the month of September-2022 and the complainant has taken insurance policy to the said vehicle bearing No.PO023200001/4113/680429 for a period commencing from 12.09.2022 to 11.09.2023 from OP-1 and the total IDV value of the said vehicle is Rs.66,395/-.The complainant submits that the complainant availed loan facility from OP-2 for a sum of Rs.75,470/- and the vehicle hypothecated with the OP-2 and the complainant making EMI’s of Rs.4,948/- regularly to OP-2 without any default.The complainant submits that on 18.11.2022 night the complainant parked the vehicle in his house and locked the vehicle, but unfortunately the next day morningi.e. on19.11.2022 at about 6.00AM the complainant was shocked that the vehicle parked was not there in the place where he parkedand his vehicle has stolen by someone. Subsequently, the complainant searched for the stolen vehicle and also enquired with neighbours, relative and friends, but not found the vehicle and then on 22.11.2022 the complainant filed written complaint to Kadugodi Police Station and on 23.11.2022, the complaint was registered in Cr.No.0226/2022 and on same day the complainant intimated the OP-1 regarding theft of the said vehicleand OP-1 have registered a theft claim No.C1234113132438 and sent letters on 09.03.2023 and 22.03.2023 to provide details of theft claim, accordingly the complainant submitted necessary documents to OP-1. On 22.03.2023 the OP-1 sent letter to the complainant stating that the claim of the complainant repudiated and again the complainant approached OP-2 on 18.08.2023 through RPAD but same was returned unserved and on 19.11.2023 the complainant contacted OP-2 representative through phoneand after receiving the documents OP-2 have returned original key of the vehicle to the complainant through courier.The complainant submits that the OP have not taken any remedial action to settle the dues of loan amount of Rs.44,532/-. Aggrieved by the act of the OPs, the complainant preferred this complaint seeking relief as prayed for in the complaint.

3. Notice to OP-1&2 duly served, OP-2 remained absent and they were placed ex-parte. OP-1 represented by counsel filed written version and also filed chief examination affidavit  along with relevant documents in support of their contention.

4. The complainant filed chief examination affidavit  along with relevant documents.

5. Heard arguments and matter is reserved for orders.

6. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1           :       Partly Affirmative

Point No.2           :       As per final order

REASONS

8. POINT NO.1:-That the  complainant is the owner of Two wheeler Hero Honda Splender BS6-13S DRS bearing registration No.KA-01 JS-5705  and the said vehicle is also insured with OP-1. As per policy bearing No.PO023200001/4113/680429, the policy commencing form 12.09.2022 to 11.09.2023 and the said vehicle was insured with the OP for a IDV value of Rs.66,395/-.

9. It is the case of the complainant that the complainant had availed loan of Rs.75,470/- form OP-2 banker and the aforesaid vehicle was hypothecated with OP-2 and he was regularly paying EMI’s towards loan availed from OP-2. It is the case of the complainant that on18.11.2022 in the night he had parked the said vehicle in his house and locked  the vehicle, but unfortunately, the next day morning on 19.11.2022 at about 6.00AM the complainant was shocked that the vehicle parked was not there  at the place  he parked the vehicle and later it came to the knowledge of the complainant that the said two wheeler  was stolen by someone. After making enquiry  with neighbours, relative and friends, the complainant lodged written complaint with the Kadugodi Police Station on 23.11.2022, meanwhile the Police have registered complaint in Crime No.0226/2022 and thereafter the complainant has intimated the OP-1 regarding theft of the vehicle  on the same day. When the complainant has claimed for  insurance amount with regard to the vehicle, but the OP-1 has repudiated the claim of the complainant as it is legally not payable as there is violation of policy terms of the insurance contract, for which they refused  to settle the claim of the complainant.

10. The OP-1 represented by counsel  had filed written version and also denied entire complaint allegations  of any deficiency in service on their part. They admitted the issuance of policy  of  complainant vehicle  and they admitted that it is valid policy as on the date of alleged theft of the said vehicle. Their only contention for rejection of complainant claim is the  violation of terms of the policy, the complainant should have intimate the OP-1 immediately  soon after  theft of the said vehicle, as the complainant has failed to intimate the theft of vehicle  to the OP-1 immediately and the right of the OP either to make enquire or to make investigation with regard to where abouts of the said vehicle. This conduct of the complainant is defeated the right of OP-1 in order to conduct an  investigation of theft of the said vehicle. By agitating the same, the OP had denied the claim of the complainant and for violation of the policy terms, they contended that they are not liable to pay the insurance amount to the complainant as claimed by the complainant.

11. The complainant filed chief examination affidavit and also produced documents which has been marked as C1 to C19. In the affidavit the complainant has reiterated entire complaint allegations and agitated the deficiency in service  which is rendered by the OP during the course of considering the claim of the complainant. From the perusal of the annexure documents and the contention taken by  both the parties, the commission opines that the ownership of the vehicle  and issuance of insurance policy in the name of the complainant vehicle and validity of the policy as on the date of theft of said vehicle is not at all disputed by the OP-1 company. The only contention that there is delay in giving intimation to the OP-1 company with regard to the theft of said vehicle. From the facts and events, which took between the parties, it is observed that the commission found that there is delay of 04 days in giving intimation to the OP-1 company with regard to theft. It is pertinent to note  that soon after theft of vehicle, the complainant has lodged complaint before the concerned police on 23.11.2022 in Cr.No.226/2022, this fact clearly shows that the complainant has approached this commission with clean hands and the complainant soon after theft has searched the vehicle with neighbours, relatives and friends and then lodged FIR before the jurisdictional police.  The conduct of the complainant needs to be considered on merits of the complaint. Here, even though there is delay of 04 days in intimating to the OP company, on the other hand when the complainant has lodged complaint with the concerned police soon after the theft. The conduct clearly shows that complainant has acted in a prudent manner and also initiated an action for recovery of theft vehicle by lodging police. The delay in intimating the OP company cannot be said to be a lapse on the part of the complainant. Mere delay of 04 days in intimating the OP company is not fatal to the case of the complainant. When the complainant has lodged FIR before the jurisdictional police station soon after theft of the said vehicle  when he has set the law in motion in order to take steps for recovery of said vehicle. It is observed that, the complainant acted in a prudent manner and delay of 04 days in giving intimation to the OP company is to be condoned as per the rulings of Hon’ble Supreme Court of India and Hon’ble NCDRC, New Delhi, as per which  any claim of the policy holder should not be dismissed  on a flimsy and  technical grounds and the  rejection of claim of the policy holder which should be  on a valid and sound grounds and rejection of the claim should be justifiable under the provisions of law. Here, the rejection of complainant claim for delay in intimating which is considered as deficient service on the part of the OP company. Rejection of claim of complainant on the ground is not justifiable and the OP have rendered deficient service while rejecting the claim of the complainant. The OP company is bounden duty to get the insurance claim settled  by taking initiation and also by approaching the complainant for relevant documents  in order to facilitate the policy holder  to settle  insurance claim settled which is covered under the policy.  As such the OP is liable to settle the claim of the complainant  which is covered under the policy for the above said reasons.  The complainant has not claimed any claim as against  OP-2 and the complaint against OP-2 deserves to  be dismissed.

12. In view of above discussion, by considering the facts of the case and on appreciation of annexure documents produced, the commission held that there is deficiency of service  on the part of OP-1. For which OP-1 is held liable to reimburse the insurance claim amount to the complainant along with interest and other reliefs which is granted in the complaint. Accordingly, we answer the Point No.1in Partly Affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                      ORDER

1. The complaint is hereby allowed in part.
2. The OP-1 is directed pay IDV value of the vehicle Rs.66,395/-along with interest  at 6% p.a. from the date of repudiation till entire payment is made to the complainant.
3. The OP-1 is directed to pay compensation of Rs.10,000/- for the deficiency in service and Rs.10,000/- towards cost of proceedings.
4. The OP-1 shall comply the order within 45 days from the date of this order.
5. The complaint as against OP-2 is hereby dismissed.
6. Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th  June 2024)

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)         (SHRINIDHI.H.N)            

     MEMBER                                MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri Muniswamy Gowda.C.R-Who being the complainant.

Documents produced by the complainant:

Witness examined on behalf of the OP-1 by way of affidavit:

Sri Pradeep.K.S.-Who being the Asst. Manager of OP-1.

Witness examined on behalf of the OP-2 by way of affidavit: Nil

Documents produced by the OP-1:

(RAMACHANDRA M.S.)

PRESIDENT

     (NANDINI H KUMBHAR)         (SHRINIDHI.H.N)            

                    MEMBER                             MEMBER 

SKA*