Date of Filing: 02.07.2010
Date of Order: 19.04.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 19TH DAY OF APRIL 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 1490 OF 2010
Ravi C.
S/o. Chikkakannashettappa
No. 113, 5th Cross, Manjunatha Nilaya
Kalidasa Extension
Srinagar, Bangalore 560 050 Complainant
V/S
The Manager
Bajaj Allianz General Insurance Co. Ltd.
105 a/ 107A, 1st Floor, Cears Plaza
136, Residency Road, Bangalore 560 025 Opposite Party
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed under section 12 of the Consumer Protection Act.
The facts of the case are that complainant is owner of Tata Sumo vehicle bearing Registration No. KA 05 C 6207 having purchased in the year 2004. Vehicle is insured with the opposite party. The policy covered from 03.10.2007 to 02.10.2008. He had paid Rs. 9,071/- as premium amount. The vehicle was parked in front of the house of one Sri Arun in the early morning. On 10.04.2008 complainant shocked to hear that parked vehicle was missing from place. Complainant rushed to the near by police station and reported the matter jurisdictional Police station Hebbagodi police station. On the advise of the officials complainant along with his friends searched the vehicle in the city and surrounding town. He could not trace the vehicle. He lodged the police complaint on 04.05.2008. Hebbagodi police registered case in Crime No. 129/2008 under section 379 of Indian penal code against unknown persons. Complainant approached the Insurance company and made representation that vehicle was stolen. The police could not trace the vehicle and ‘C’ report was filed. The opposite party company postponed to settle the claim of insurance. Complainant got issued legal notice through his advocate. The opposite party company failed to settle the claim. The opposite party neglected to settle the claim. Hence, the complaint seeking direction to the opposite party to settle the claim at Rs. 1,80,600/- and to pay compensation of Rs. 2,00,000/-.
2. Opposite party filed defence version stating that claim is not maintainable. Obtaining policy is admitted. The opposite party had taken defence that complainant has sold the vehicle to one Rudresh son of Nagaraj and he had failed to obtain transfer of policy of insurance in respect of the subject insured vehicle. Hence, the complaint is not maintainable. Policy was issued subject to terms and conditions. The theft of the vehicle occurred on 10.04.2008. Same was intimated to the opposite party only on 09.05.2008. Complainant has belatedly intimated about the occurrence and not submitted vehicle documents. Complainant submitted claim form on 09.05.2008. Complainant has not replied to the letter after application sought by the opposite party. Complainant has no insurable interest on the date of alleged theft. Hence, he is not liable to be compensated. Mr. Rudresh did not have any insurable interest in respect of vehicle. There existed no privity of contract. There is no deficiency of service on the part of opposite party. Therefore, opposite party prayed to dismiss the complaint.
3. Respective parties have filed affidavit evidence. The complainant has also filed affidavit evidence of Rudresh S/o. Nagaraj. The parties have also produced documents.
4. I have gone through the pleadings, affidavit evidence and documents carefully.
5. The points for consideration are:
1. Whether the complainant has proved deficiency of service on the part of opposite party?
2. Whether the complainant is entitled for the relief?
REASONS
6. It is admitted case of the parties that complainant is owner of Tata Sumo bearing registration No. KA 05 C 6207. The complainant has produced registration certificate. As per this document the vehicle stands in the name of Mr. Ravi. It is also admitted fact that the complainant has insured the said vehicle with the opposite party. The insurance period was from 03.10.2007 to 02.10.2008. The total sum insured is Rs. 1,80,600/-. Policy document is produced. It is the case of the complainant that when his driver had parked vehicle on 10.04.2008 in front of house of one Mr. Aurn, the vehicle was missing. The complainant shocked to see that vehicle was missing. He reported the matter to Hebbagodi police. The police officials instructed the complainant to search the vehicle. Accordingly, the complainant along with friends and relatives searched the vehicle around city and town but he could not found the vehicle. Therefore, he lodged police complaint in writing on 04.05.2008 to the Hebbagodi police station. The police registered complaint in crime No. 129/08 under section 379 of Indian Penal Code for the offence punishable under section 154 Cr. PC against unknown persons. The complainant has produced copy of FIR and also copy of his complaint given to the police. The police took up the investigation and ultimately could not find the culprit and submitted ‘C’ final report to the court under section 173 of the Cr.PC. The copy of ‘C’ report is also produced by the complainant. The complainant has put up claim before the opposite party. The opposite party did not settle the claim and repudiated the same on the ground that there was delay in filing police complaint and also delay of 29 days in intimating to the opposite party company about the theft of the vehicle. On these two grounds the opposite party repudiated the claim. In the defence version one more defence is taken by the opposite party that complainant had sold the vehicle to one Rudresh and policy was not transferred to the name of Rudresh. Therefore, there is no insurable interest. Hence, claim is not settled and opposite party taken defence that complainant is not entitled for the claim amount. It is true that vehicle was missing on 10.04.2008 and the written complaint was given to the police on 04.05.2008, may be after 24 days of the occurrence. To this delay the complainant has given explanation in his complaint that soon after noticing in the early morning on 10.04.2008 that his vehicle was missing he rushed to the jurisdictional police and reported the matter to the police. The police officials instructed the complainant to search the vehicle and accordingly, complainant along with friends and relatives searched for the vehicle in the city and surrounding town and he could not find the vehicle. Therefore, ultimately he lodged a written complaint to the police on 04.05.2008. This explanation can be accepted. Usually it does happen in day to day business. Police will not accept the complaint immediately even though the complainants approach police with their grievance. This is a practical problem faced by all the complainants. Delay of 24 days in filing complaint to the police could be condoned. The police after taking up investigation could not find out the vehicle and culprit was not traced. Therefore, ultimately the concerned police submitted ‘C’ final report to the Magistrate Court. The report of the police has to be accepted. The second defence taken is that the complainant has made delay of 29 days in informing to the company about the occurrence. Again this delay can also be condoned because on 04.05.2008 there is written complaint to the police by the complainant and on 09.05.2008 the complainant has informed matter to the opposite party company. That means there is only 5 days delay in informing the company of the theft from the date of filing police complaint. This 5 days delay can also be condoned. The complainant has not made inordinate delay in informing the opposite party company of the occurrence. The question of investigation or inspection of the vehicle in this case does not arise because it is the case of theft and not accident. Therefore, no prejudice will cause to the opposite party on account of delay in informing the occurrence. Therefore, this defence is not available to the opposite party. The opposite party should take liberal approach in settling the claim of the customers. When there are doubts with the interpretations of terms and conditions of the policy the benefit should be given to the customers / consumers. Complainant has not made inordinate delay to intimate the occurrence to the opposite party company. Therefore, any delay made in this case could be condoned to meet the ends of justice. The third defence taken by the opposite party in the defence version that vehicle in question was sold to one Rudresh S/o. Nagaraj by the complainant. Therefore, the complaint is not maintainable. In this defence there is absolutely no merit or substance. Mere taking defence that vehicle was sold to one Rudresh is of no avail to the opposite party. Admittedly, the vehicle stands in the name of complainant in the RTO records. The certificate of registration stands in the name of complainant C. Ravi till today. Admittedly, the vehicle is not transferred to the name of Rudresh S/o. Nagaraj in the RTO records. Unless and until the vehicle is transferred and name of purchaser entered in the RTO records that sale cannot be considered as a sale in the eye of law apart from the non-availability of documents in the name of Rudresh. In this case Rudresh S/o. Nagaraj himself has come forward and he has filed affidavit in favour of the complainant herein stating that he was only driver of the vehicle and he has not purchased the vehicle in question from the complainant. When this is the clear case of complainant where is the question vehicle being sold to Rudresh. Therefore, there is absolutely no merit in defence taken by the opposite party on the question of sale of vehicle. All the three defences taken by the opposite party are not fit to be accepted. The opposite party could have settled the claim but instead of that the claim was repudiated. Therefore, it amounts to deficiency in service. As per the policy total sum insured is Rs. 1,80,600/-. The vehicle’s manufactured year was 2004. Theft had occurred in the year 2008. Therefore, as per the policy itself depreciation has to be given at 25%. Age of the vehicle exceeds 3 years and not exceeds 4 years. The sum insured in this case is Rs. 1,80,600/-. After deducting 25% of depreciation the complainant is entitled for claim amount of Rs. 1,35,450/- from the opposite party. The opposite party in this case shall have to be directed to pay this amount of Rs. 1,35,450/- to the complainant. The complainant has claimed for Rs. 2,00,000/- for mental agony, torture etc. There is absolutely no evidence or any proof as to how the complainant has suffered mental agony. Therefore, the claim of compensation is not considered. In the result I proceed to pass the following:
ORDER
7. The complaint is allowed. The opposite party is directed to pay Rs. 1,35,450/- to the complainant within 30 days from the date of this order. In the event of non-compliance of the order the above amount carries interest at 6% p.a. from the date of order till payment / realisation.
8. The complainant is also entitled for Rs. 1,000/- as costs of the present proceedings from the opposite party.
9. Send the copy of this Order to both the parties free of costs immediately.
10. Pronounced in the Open Forum on this 19TH DAY OF APRIL 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
