Tamil Nadu

North Chennai

88/2014

V.Raja Sekar, S/o.Venkatesan, - Complainant(s)

Versus

The General Manager, - Opp.Party(s)

M/s.K.R.Neelambar

10 Mar 2017

ORDER

 

                                                            Complaint presented on:  28.04.2014

                                                                Order pronounced on:  10.03.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 10^th   DAY OF MARCH 2017

 

C.C.NO.88/2014

 

V.Rajasekar,

S/o. Venkatesan,

No.4, 1^st Cross Street, 5^th Street,

Vijayaraghavapuram, Saligramam,

Chennai – 600 093.

                                                                                    ….. Complainant

 

..Vs..

1. The General Manager,

M/s. ICICI Lombard General Insurance Co., Ltd.,

ICICI Lombard House,

414, Veer Savarkar Marg,

Near Sidhi Vinayak Temple,

Prabhadevi, Mumbai – 400 025.

 

2.The Manager,

M/s. ICICI Lombard General Insurance Co., Ltd.,

Chotabhai Centre,

No.140, 2^nd & 3^rd Floor, Nungambakkam High Road,

Nungambakkam, Chennai – 600 034.

 

3. The Manager,

M/s. TATA Motors Finance Ltd.,

No.40, Bazulla Road, First Floor,

Rajen Properties,T.Nagar, Chennai – 600 017.

                                                                                    .....Opposite Parties                                                                                                

Date of complaint                                 : 02.05.2014

Counsel for Complainant                      : M/s.K.R.Neelambar & N.Maheswaraiah

Counsel for 1^st & 2^nd Opposite Parties     : Mrs.Elveera Ravindran, K.Vinod

 

Counsel for 3^rd opposite Party                       : M/s.Namasivayam

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant against the Opposite Parties 1 & 2 to pay his Insurance Claim amount and compensation for their negligent act, deficiency in service and causing mental agony to him with cost of the Complaint   u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant has purchased a Car namely TATA Indica, Silver Colour, Model – V2, LS BSIII, Chassis NO.MAT600 183 CTEBO731, Engine No.4751D103DXYP30785, bearing Regn No.TN10 AH 5448 with the financial assistance of the 3^rd Opposite Party for his livelihood and the said vehicle also has been Hypothecated to him.  The said vehicle has been insured with the Opposite Parties 1 and 2 under the policy No.3004/TM9160072/00/000 dated 30.06.2012, for the period from 30.06.2012 to 29.06.2013 mid night. He has also obtained the All India Tourist Permit from the RTO authorities for the said car to use the car as travels car as Owner cum Driver for his livelihood. The Complainant and his friend Mr.Jayashankar were using the car for Travels in and around Tamil Nadu, during course of time, on 24.03.2013 around 12.30 a.m his friend cum driver Mr.Jayashankar, parked his above said car, near the Complainant’s house at Shivam Pak, (Rajamannar Salai) as usual. On the same day 24.03.2013, at 11.30 a.m when the Complainant’s friend came to Shivam Park to take the car for duty, but he was shocked to see that the above said car was missing. Immediately he informed the Complainant about the same and both of them had searched at nearer places and they did not trace the vehicle. On the next day 25.03.2013, the Complainant lodged a Complaint with the Inspector of Police, R-7, K.K.Nagar, Police Station, Chennai- 600 078 and they had filed the FIR on 05.04.2013 in Crime No.652 of 2013. The Complainant immediately approached the Opposite Parties 1 & 2 for Insurance Claim for his missing/ Stolen car, The Opposite Parties 1 & 2 had repudiated through their letter dated 30.08.2013, stating the reason delayed FIR. The mere delay in filing the FIR to the Police Authorities cannot be a valid reason for repudiating the Insurance Claim. The Police Authorities also has given the Non Traceable Certificate dated 08.07.2013. In the mean time the 3^rd Opposite Party has sent a letter dated 11.01.2014 to repay the loan amount for the said car. Unless the Opposite Parties 1 & 2 release the Insurance amount the Complainant could not be able to repay the loan amount. The act of repudiating the genuine Insurance Claim of the Complainant by the Opposite Parties 1 & 2 in a negligent manner is amount to Deficiency in Service. Hence the Complainant filed this Complaint against the Opposite Parties 1 & 2 for the Insurance Claim  in order to settle the loan amount to the 3^rd Opposite Party and also to pay a compensation for negligent act, Deficiency in Service committed by the Opposite Parties 1 & 2 and for mental agony and with cost of the Complaint.

 

           

2. WRITTEN VERSION OF THE 1^st&2^nd   OPPOSITE PARTIES IN BRIEF:

          The Complainant had purchased the motor car namely Tata Indica bearing chassis No.MAT600 183 CTE BO7731. Engine No.4751D103DXYP30785 bearing Registration No.TN 10AH 5448 under hire purchase agreement with the 3^rd Opposite Party and that the said vehicle is hypothecated with the 3^rd Opposite Party. The Complainant is not a consumer as envisaged under the consumer Protection Act. Since the vehicle for which the claim was made namely tourist motor car bearing No.TN 10 AH 5448, was purchased for commercial purpose by the Complainant. The Complainant is put to strict proof of the same that he and his friend were using the car for travels. On 24.03.2013 around 12.30 a.m his friend left the car near the Complainant’s house at Shivam Park (Rajammanar Salai) and that on the same day at 11.30 a.m. When the Complainant’s friend went to take the car, he was shocked the see that the car was missing.  Immediately he informed the Complainant and both of them searched for the vehicle. The FIR was given by the Complainant as late as 05.04.2013. He had admitted that he had committed a delay in reporting the incident to the police and thereby violated the terms and conditions of the policy of insurance. As per the policy conditions the Complainant ought to have given notice in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim. The Opposite Parties clearly intimated to the Complainant the reasons for the repudiation of the claim. Hence the Opposite Party was diligent and there was no Deficiency in Service committed by them and prays to dismiss the Complaint with cost.

 

 

3. WRITTEN VERSION OF THE  3^rd OPPOSITE PARTY  IN BRIEF:

          The Complainant had availed loan from this Opposite Party for purchase of vehicle for commercial use as tourist motor taxi. The Complaint is filed against this Opposite Party only to evade repayment of outstanding amount of Rs.2,99,567/- to this Opposite Party. The Complainant alleged deficiency only against the Opposite Parties 1 & 2 and sought direction against this Opposite Party  to withdraw the EMI demand due to him. The Complainant entered into loan cum hypothecation cum guarantee agreement with this Opposite Party for an auto loan. This Opposite Party advanced only loan to the Complainant to purchase the vehicle and the Complainant is liable to repay the loan by way of installments as per the agreement executed by him. There is no merit  in the Complaint against this Opposite Party and prays to dismiss the same with cost.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1 

          The Complainant purchased a TATA Indica, Silver Colour,Model – V2, LS BS III,  Car bearing Registration No.TN10 AH 5448 by availing loan from the 3^rd Opposite Party and to earn for his livelihood. The said vehicle was insured with the Opposite Parties and they issued Ex.A2 policy for the said car for the period 30.06.2012 to 29.06.2013.  On 24.06.2013 around 12.30 a.m  a friend cum driver Mr Jaishankar, parked at Shivam Park as usual near to the Complainant’s house. on the same day at about 11.30 a.m the Complainant friend went to take the car and found that the said car was missing thereafter the Complainant lodged a Complaint with K.K.Nagar police and they registered Ex.A3 FIR. After obtaining Ex.A4 Non traceable certificate from the police, the Complainant made claim with the Opposite Parties. The Opposite Parties repudiated the claim under letter Ex.A5.

          6. Admittedly the Complainant is the owner of the missing vehicle as per Ex.A1 Registration Certificate and the Complainant also made claim to the Opposite Parties and the said claim was repudiated to the Opposite Parties for reasons that

(i)Though the vehicle was stolen on 24.03.2013, the FIR for the same was lodged on 05.04.2013 after 12 days of theft and      

(ii)The Complainant intimated claim to insurer/Opposite Parties 1 & 2 after 17 days of date of loss is violation policy condition.

As per the policy condition the Complainant should have given notice immediately to the Insurance Company and to the police enabling to ascertain the movement of the vehicle immediate to the occurrence. Admittedly the Complainant lodged the Complaint with a delay of 12 days to the police and 17 days to the Opposite Parties which is against the policy condition.

          7. The counsel for Complainant contended that the delay is immaterial in the case of theft and for the same he relied on a judgment of the Hon’ble Supreme Court of India reported in (2008)11 SCC 256 that the Complainant is entitled for ¾ of the claim amount to him. Per contra the Opposite Parties replied that the above referred judgment of the Supreme Court was not applicable to the facts of the case in hand and the said judgment of the Supreme Court also distinguished by the Hon’ble National Commission in a Judgment reported in CDJ 2009 (cons) case No.059 (New India Assurance Company Limited Vs.Trilochan Jane) and prays to dismiss the Complaint. The National Commission held in its judgment referring the judgment of the Hon’ble Court as follows:

          Learned Counsel for the respondent, relying upon the judgment of Hon’ble Supreme Court in National Insurance Company Limited V.Nitin Khandelwal reported in (2008) 11 SCC 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 2 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 kabaadi (scrap dealer).

As referred above the Hon’ble National Commission clearly distinguished the judgment of the Supreme Court of India that the facts in that case are different from that the case before the national Commission. Now, in the present case also the claim was repudiated on the ground that delay in preferring Complaint to the police and also to the Insurance Company, as the facts in the judgment of the Supreme Court referred above not deals with the delay in preferring the Complaint. Therefore the judgment of the Supreme Court of India is not applicable to the facts of the case in hand.

          8. The National Commission also held in the above referred case that there is delay of 9 days in informing the theft to the Insurance Company is fatal. In the case in hand also there is a delay of 17 days in informing the Insurance Company/Opposite Parties is a huge delay. Therefore following the judgment of the National Commission referred above we hold that the delay in preferring Complaint to the police as well as the Opposite Parties is fatal to the case of the Complaint and hence, it is held that the Opposite Parties have not committed Deficiency in Service.

09. POINT NO:2

          Since the Opposite Parties have not committed deficiency in service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.      

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 10^th day of March 2017.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 06.07.2012                   Registration Certificate of the TATA Indica Car in

                                                    TN 10 AH5448 and All India Permit

 

Ex.A2 dated 30.06.2012                   Car Insurance Policy No.3004/TM 916072/00/000

 

Ex.A3 dated 05.04.2013                   F.I.R. in Crime No.542 of 2013

 

Ex.A4 dated 08.07.2013                   Not Traceable Certificate of the car

 

Ex.A5 dated 20.08.2013                   Repudiation Letter of the Opposite Parties 1 & 2

 

Ex.A6 dated 11.01.2014                   Loan recall notice issued by the 3^rd Opposite Party

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated NIL                     Policy of Insurance Bearing

                                                    No.3004/TM91672/00/000

 

Ex.B2 dated NIL                     Terms & Conditions

 

Ex.B3 dated 20.08.2013                   Letter of repudiation sent by Opposite Party to

                                                    Complainant

 

 

 

 

MEMBER – II                                                               PRESIDENT