Karnataka

Kolar

CC/11/2022

Sri.Venkatesh Prasad - Complainant(s)

Versus

The ICICI Lombard General Insurance Company - Opp.Party(s)

Sri.P.N.Srinath

05 Jul 2022

ORDER

                          Date of Filing: 09.02.2022

Date of Disposal: 05.07.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 05^TH DAY OF JULY 2022

PRESENT

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

 

CONSUMER COMPLAINT NO. 11 OF 2022

Sri. Venkatesh Prasad,

S/o. Krishnamurthy,

Aged About 35 years,

Presently residing at No.427,

Near Govt School, AKG Colony,

Channasandra, Bangalore-560076.

 

Permanent resident of

Savitha Building Behind Modern School,

Maruthi Extension, Malur Town,

Kolar District.                                                                ….  COMPLAINANT.

(Rep. by Sri. P.N. Srinath, Advocate)

- V/s –

1) The ICICI Lombard General Insurance

Company, No.121, 9^th Floor,

The Estate Building, Dickson Road,

Bangalore-560001.

(Rep. by Sri. B.Kumar, Advocate)                                   …. OPPOSITE PARTY.

ORDER

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   The complainant has filed this consumer complaint Under Section 35 of the Consumer Protection Act, 2019 against the opposite parties and pray for direction to the Op to pay the personal accident coverage to extent of an amount of Rs.60,494/- with interest @ 18% per annum from the date of theft till realization.

02.     The brief facts of the complainant’s case is that, the complainant is the owner of the Honda Activa 5G motor cycle bearing registration No. KA-01 – JH-9954.  On 29.01.2020 the complainant purchased the above vehicle from Anand Motors, Bommanahalli, Bangalore, for Rs.80,000/- on road price including life tax, insurance, registration charges and extra spare parts.  The complainant had taken policy from OP vide policy No. 3005/192536885/00/000 valid from 29.01.2020 to 28.01.2021 and the IDV value of the vehicle is Rs.60,494/-.  The complainant further submits that, on 03.11.2020 he has parked his vehicle at his residence Savitha Building, Maruthi Extension, IInd Stage, Malur Town, Kolar District, around 12.00 midnight after finishing his fish hotel business at his residence compound by locking the motor cycle and also the home entrance.  All the original documents like R.C. Book, Insurance policy, life tax payment receipt were kept in the vehicle.  When complainant was wake up around 06.00 AM he found that, the vehicle was missing. It is stated that the complainant was searched the vehicle along with his friends and relatives at Malur town and did not traced the vehicle and hence complainant finally after two days complaint was lodged the complaint before the Malur Police.  The said Malur police issued endorsement to the complainant on lodging the complaint.  The Malur police assured the complainant that, they will trace the vehicle since they have clues about the vehicle theft and intimate to the complainant.  Accordingly the complainant has waited for calls from the Malur police.  Further complainant states that, on 12.04.2021 the Malur police called the complainant and taken another compliant from him and registered a case in Crime No. 102/2021 and took up investigation and filed ‘C’ report by stating that, the vehicle is not traced.  The complainant to his utter surprise and dismay could not know why the police was not registered the complaint immediately after taking complaint from the complainant dated: 05.11.2020.  The reasons known to police that the Malur Police have registered the case only on 12.04.2021 instead of 05.11.2020.  The Malur police has assured the complainant about tracing the vehicle since they have clues about the theft and instructed the complainant not to report the theft of the vehicle to his insurance company and believing the same the complainant has not intimated the theft of vehicle to the insurance company.  After receiving final report from the Malur police in Crime No.102/2021 the complainant approached the OP for payment of ID value of Rs.60,494/- and after receiving the entire records pertaining to the claim the OP has rejected the genuine claim of the complainant vide letter dated: 31.08.2021 by stating that, the complaint is not in time and the complainant has not approached the OP in time and there was no intimation of theft of vehicle to the OP company.  Hence the complainant alleged that the repudiation of genuine claim by the OP – insurance company amounts to deficiency in service.    Hence this complaint.  

 

03.   On issuance of notice OP appeared through its counsel and filed its version contending that, the complaint is not maintainable either in law or on facts and hence the same is liable to be dismissed in limine.  The OP admits that, the Honda Activa 5G bearing registration No. KA-01 JH-9954 owned by the complainant was covered at the material time under the insurance policy issued by this OP subject to terms and conditions and the said policy was issued in favour of the complainant’s son bearing No. 3005/192536885/00/000 valid from 29.01.2020 to 28.01.2021.   Further OP contended that, the averments made in the complaint that, on 03.11.2020 the complainant had parked his vehicle at his residence around midnight after finishing his hotel business by locking the said vehicle and when he woke up at 06.00 AM he found that, his vehicle was missing and   the complainant has lodged police complaint after two days and the same has been acknowledged by the Malur Police and assured that, they will trace the vehicle and again on 12.04.2021 the police have taken complaint and have submitted ‘C’ report are all hereby specifically denied by this OP.   It is the contended that as per the terms and conditions of the policy, notice shall be given in writing to the OP immediately upon 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.  Further contended that notice shall be given in writing to the OP-insurance company immediately the insured shall have knowledge of any impending.  Prosecution inquest fatal injury in respect of any occurrence which may be give rise to a claim under this policy the insured shall give immediate notice to the police and co-operate with the company securing the conviction of the offender.  As such the complainant has not intimated the theft of the vehicle immediately which is usually construed to mean “within reasonable time having due regard to the nature of circumstances of case”.  As such the claim laid by the complainant is not maintainable and the same will have to be dismissed in limine.  It is contended that, the two wheeler was stolen on 03.11.2020 and the complainant has lodged by the complaint on 21.04.2021 and the FIR for the stolen vehicle is lodged after 160 days of the theft and this is the violation of terms and conditions of the insurance policy.  The complainant after lapse of 181 days had intimated the claim to the OP.  The OP further states that, as per the terms and conditions of the insurance policy it is the mandatory duty of the insured to immediately inform the occurrence of loss and hence the OP is not liable to pay amount as claimed in the complaint. On careful scanning of the entire complainant averments made in the complaint there is no deficiency in service and the Complainant in the present case did not cared to inform the OP about the theft of the vehicle.  The entire averments made in the complaint is a concocted story with an intention to get unlawful gain and on the above grounds prays to dismiss the complaint.

04.   In order to prove the case of the complainant and the OP-insurance company, and both the parties have filed their affidavit evidence along with the supporting documents.

05.   Heard arguments of complainant and Opposite party.

06.   On the basis of the pleadings of complainant and OP the points that do arise for our consideration are:-

(1) Whether the complaint is hopelessly barred by limitation?

(2) Whether the complainant has proved deficiency in service on the part of the OP?

(3) Whether the complainant is entitled for the relief as sought in the complaint.

(4)    What order?

 

07.   Our findings on the above points are:-

        POINT No.(1):-                In the Negative

        POINT Nos.(2) & (3):-       Are in the Negative

POINT No.(4):-                 As per the final order

                for the following:-

REASONS

08.   POINT (1):-  It is the case of the complainant that, whose motor bike was stolen on 03.11.2020 from his house and the complainant had searched for his bike up to two days and complainant did not traced his vehicle.  Thereafter on 05-11-2020 complainant lodged the police complaint and it is alleged that the police have taken second complaint on 12-04-2021 and registered the criminal case bearing crime No.102/2021.  Ultimately police filed ‘C’ report stating that, vehicle is not traced out.  Thereafter complainant filed papers to his insurance company in order to claim insurance amount as it is covered by the insurance policy issued by the OP.  On perusing the complaint the present complaint was filed on 09.02.2022.  On perusing the evidence placed on record it is not in dispute that the vehicle of the complainant was stolen on 03.11.2020 and the police complaint was registered on 12.04.2021 and hence the cause of action runs from the date of the incident i.e., from 03.11.2020 and the complainant ought to have filed the complaint within two years from the date of cause of action, whereas the complainant submitted the claim papers to the OP on 03.05.2021 and the insurance company rejected the claim on 31.08.2021 and hence the complaint is filed within 02 years from the date of rejection of the claim.  It is worth to note that, cause of action is a bundle of facts under the circumstances after repudiation of the claim the complaint is filed within 02 years of time.  Accordingly we answered Point No.(1) in the Negative.

 

POINT NOs.2 & 3:-

09.   On perusing the pleadings of the parties, these two points are interlinked to each other and for the sake of brevity and for convenience we have taken these points together for discussion.

         

10.   It is the specific case of the complainant is that, he is the RC owner of the Honda Activa 5G motor cycle bearing registration No. KA-01 JH-9954 and the said vehicle is insured with the OP.  The OP issued the insurance policy in respect of the above said motor cycle and the period of policy commencing from 29.01.2020 to 28.01.2021.  The complainant alleges that, when he came to know that, on 03.11.2020 at about 06.00 AM his vehicle was not found in his house premises which was parked and thereon complainant along with his friends searched the vehicle and despite of his search complainant failed to trace out the same. The complainant deposed that, when he did not traced the vehicle, on 05.11.2020 he lodged the complaint before the jurisdictional police and further alleges that, the jurisdictional police called the complainant on 12.04.2021 and asked him to give another complaint to register the case and accordingly complainant lodged another complaint and the police registered the case in Crime No.102/2021 and informed the complainant he should not reveal the fact of lodging the complaint to his insurance company and hence complainant states that, he could not intimated the same to the insurance company.  Ultimately the jurisdictional police filed ‘C’ report.  Thereafter complainant after 181 days delay finally approached the Ops to claim insurance amount against theft of the vehicle.

 

11.   It is not in dispute regarding the theft of the vehicle and filing ‘C’ report by the police.  The crux of the matter is to consider, whether the complainant is entitled for the insurance claim amount even though there is a delay of 181 days in approaching the OP ? 

12.   On perusal of the evidence placed on record it is not in dispute that, the complainant’s motor cycle was insured with the Op and the same was missing or thefted out by some unknown persons on 03.11.2020.  For the argument sake it may be acceptable one that the complainant had searched  his vehicle along with his friends and ultimately lodged the police complaint.  Whereas the complainant failed to produce any cogent evidence after the incident of theft that the complainant has lodged the police complaint on 05.11.2020, however on perusing the copy of the FIR and the complaint it discloses that, the insured vehicle was thefted on 03.11.2020 and the complaint is filed on 12.04.2021, the copy of FIR and the complaint discloses that, nowhere in the complaint it is stated that, about the lodging of the complaint on 05.11.2021 and hence the allegation of the complainant regarding lodging of the complaint on 05.11.2021 cannot be acceptable one, whereas the complainant did not place any bonafide evidence before this Commission to show that, why the complaint is not lodged at the earliest and the complaint is lodged after lapse of 04 months.  Furthermore the complainant has failed to produce any evidence to prove that, the jurisdictional police asked the complainant not to intimate the insurance company about the theft of the vehicle, in our opinion the complainant has taken very bald ground to convince the Commission to make out his case.  Furthermore the complainant did not denied in his evidence that the claim papers submitted to the OP-insurance company after 181 days of delay and no proper explanation is given by the complainant.  It is canvassed during the course of arguments though there is a delay in intimating to the insurance company and the insurance company cannot exonerate its liability.  However to decide the time factor in intimating to the insurance company there should be bonafide grounds, whereas complainant failed to produce any iota of evidence to establish bonafide grounds.  It is note worthy to mention that whenever the complainant approaches this Commission alleging deficiency in service on the part of the OP, the burden of proving the case heavily cast on the complainant alone, whereas the complainant failed to discharge his burden to prove bonafide grounds to consider the delay in intimating the insurance company. 

 

13.   It is well known fact that, insurance is a contract based on the doctrine of Uberrima fides (utmost faith). It is noteworthy to mention that, the policy in question in respect of vehicle insured commencing for the period from 29.01.2020 to 28.01.2021 and the claim made by the complainant with the Op insurance company on 03.05.2021 after the lapse of the currency of the insurance policy.   In the present case in hand it is the duty of the complainant to intimate the OP insurance company about the theft of the vehicle so as to provide an opportunity to the insurance investigator and to assist the police in order to trace out the thefted vehicle in question.  However the complainant utterly failed in his attempt to intimate the insurance company well within the reasonable time.  Viewing from any angle we are of the opinion that, the complainant has failed to prove deficiency in service on the part of the OP and thereon complainant is not entitled for the relief as sought in the complaint.  Accordingly we answered the Point Nos.2 & 3 are in the Negative.

POINT (4):-

14.   On the basis of the reasons assigned while answering Points Nos. (1) to (3) we proceed to pass the following:-

 

ORDER

01.   The complaint is dismissed.  No order as to costs.

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

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 05^th DAY OF JULY 2022

 

 

         LADY MEMBER                        PRESIDENT