Karnataka

Belgaum

CC/200/2015

Jagadish K Badiger - Complainant(s)

Versus

The Manager Bajaj Allianz General Insurance Cmpy Ltd - Opp.Party(s)

M S Bagali

03 Jun 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.200/2015

 

                       Date of filing: 07/04/2015

 

                                                                                                                 Date of disposal:03/06/2017

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Shri. Jagadish S/o Kallappa Badiger, Age: 39 Years, Occ: Service, R/o: H.No.128E, CTS No.1859, Vishnu Galli, Vadagoan, Belagavi.                            (Rep.by Sri.M.S.Bagali, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Manager, Bajaj Allianz General Insurance Co. Ltd., Having its Office at Club Road,   Belagavi.                         (Rep. by Sri.B.N.Chougala, Adv.)

 

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay the insured amount of Rs.9,00,000/- with interest @ 18 % p.a. till the date of actual payment and Rs.50,000/- towards compensation for mental agony, due to non-settlement of the claim and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

          It is the case of  complainant that, the complainant is the registered owner of the Innova Car bearing No.KA-03/ML-8080 and insured with the OP insurance company under the Policy bearing No.OG-14-1701-1801-00011909 valid from 04.06.2013 to 03.06.2014 and further the said vehicle was earlier standing in the name of Managing Director, M/s SSTA Logistics (India) Pvt. Ltd., Bengaluru and the said vehicle was purchased by the complainant and thereafter the name of the complainant came to be entered in the Registration Certificate Belagavi on dtd: 11.11.2013 and further the complainant submitted an application to the OP/Insurance company on dtd: 22.11.2013 for entering his name in the Insurance Policy by deleting the name of the previous owner within the stipulated time period of fourteen days as per the provisions of the M.V. Act 1988.

 

          It is further case of the complainant that, On dtd: 18.11.2013, the complainant sent his driver to Kolhapur for servicing the said vehicle and asked the driver to drop his friends to Kolhapur and further during the lunch hours the persons have offered the driver to have lunch with them and driver of the complainant parked the vehicle near Kolhapur and went inside the hotel for lunch. Later, the said person asked the driver to give the key of the vehicle to bring the cash and the driver of the complainant gave the key, but the said person did not return even after sometime. Immediately, the driver of the complainant went to the spot where the vehicle was parked and to the utter shock the vehicle was stolen by the said persons. Thereafter driver informed the complainant regarding the said incident and immediately the complaint was lodged in the Shahupuri Police Station at Kolhapur under its PS Crime No.277/2013 and further the complainant has also gave intimation regarding the theft of his vehicle to the OP and further the complainant and the police made all deliberate efforts to search the said vehicle, but could not trace the same and further on dtd:19.12.2013 the complainant has submitted the claim form alongwith all relevant documents pertaining to the said vehicle to the OP/Company to make payment of insurance amount towards theft of the said vehicle. But, the OP/Company issued reply letters dtd: 14.03.2014 and 20.03.2014 to the complainant and stating that, as the material time of the incident, the complainant did not had any insurable contract in the subject vehicle and also stated that, the complainant has failed to take reasonable care and as to why claim should not be repudiated and policy should not be cancelled, the complainant had given detailed explanation and thereby requested to settle his claim. But, the OP/Company has repudiating his claim on dtd: 10.06.2014 and stating that, there was no insurable contract at the time of the incident between the complainant and the OP and complainant failed to take minimum care as required etc., Therefore this act of the OP, it amounts to deficiency in service on the part of the OP.   Hence the complainant constrained to file this complaint.

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant that, the contents of para 1 to 6 of the complaint denied by OP and it is further  contended that, the policy is standing in the name of M/s Managing Director, M/s SSTA Logistic (India) Pvt. Ltd., not in the name of present complainant and the complainant was purchased the vehicle on 11.11.2013 and RC got transferred on 11.11.2013 date of loss is 18.11.2013 and further at the time of incident, there is no privity  of contract with complainant by this OP. Hence, the complaint filed by the complainant may kindly be dismissed on this count alone and the OP contended that, as per rule GR 17, the transferee of the vehicle is required to apply for transfer of insurance policy in writing and that too alongwith consent of the previous owner of the vehicle. The complainant has neither produced any evidence to prove that, he applied for insurance in writing nor he has produced any evidence to show that, the previous owner gave his consent for transfer of insurance policy in his name. In absence of any evidence to this effect, the Op is not liable to pay to the complainant.  

 

          It is further submitted that, without admitting the liability of OP/Insurance company, as on the material date of incident, the vehicle was handed over to the unknown person with ignition key without proper care and understanding, thus the complainant has failed to take minimum and reasonable care in handing over the vehicle which amounts to violation of terms and conditions No.4 which states that, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage’’ and further contended that, the claim was intimated to OPs on 19.12.2013, hence delay of 31 days in reporting to the OP that about the theft of the Insured Vehicle, would be a violation of condition of the policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace in tracing the vehicle and there is no deficiency in service on the part of OP and complaint is deserved to be dismissed as there was violation of terms and conditions of policy and prayed for dismissal of the complaint.

 

4.      Both the parties have filed their affidavits in support of their case and on behalf of complainant has produced 18 documents which are marked as Ex.P-1 to Ex.P-18, as against this, the OP has produced 05 documents which are marked as Ex.R-1 to
Ex.R-5, for sake of our convenience, we have marked P & R series. Heard the arguments on both sides.

 

 

 

5.      Now, on the basis of these facts, the following points arise for          our consideration:

 

1. Whether the complainant has proved that, there is negligence and deficiency in service on the part of the OP in repudiation of claim of the Complainant?

 

2. What Order?

 

6.     Our findings to the above points are as under:

 

1. In the affirmative.
2. As per the final order for the following:

 

 

                                R E A S O N S

 

7.       POINT.NO:1:- We have perused the pleadings of the parties, evidence and documents placed on record and the arguments advanced, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy which is marked as Ex.P-6 and the OP denied in respect of insurable interest as such the complainant did not had any insurable contract in the subject vehicle at the time of Theft and the name of the previous owner has been shown in the insurance policy.  

 

       The case of the complainant that, the said vehicle Innova was purchased from previous owner and the name of the complainant  has been entered in R.C. book on dtd: 11.11.2013  and on dtd: 18.11.2013 the complainant sent his driver to Kolhapur for servicing the said vehicle and asked the driver to drop his friends to Kolhapur and further during the lunch hours the friends of complainant have offered the driver to have lunch with them and the driver parked the vehicle near Kolhapur and went inside the hotel for lunch. Later, the said person/friend asked the driver to give the key of the vehicle to bring the cash bag and the driver of the vehicle gave the key, but the said person/friend did not return even after sometime. Immediately, the driver of the complainant went to the spot where the vehicle was parked and to the utter shock the vehicle was stolen by the said persons/friend    and immediately, the driver informed to the complainant regarding the said incident and on same day  the complaint was lodged before Shahupuri Police Station at Kolhapur under its PS Crime No.277/2013 which is marked as Ex P-9 and further the complainant has also gave intimation regarding the theft of his vehicle to the OP, thereafter the complainant and  police made all deliberate efforts to search the said vehicle, but could not trace the same.

 On 22/11/2013 the complainant applied  for transfer of insurance policy in writing alongwith R.C. Xerox copy and Insurance policy to the OP for entering his name in the Insurance Policy by deleting the name of the previous owner within the stipulated time period of fourteen days as per Sec. 157 of the M.V. Act 1988 and another letter on the same day given and intimate regarding lost alongwith document i.e. Insurance Policy, R.C. Book and F.I.R, the said two document is marked as Ex P-1 and  finally  on dtd:19.12.2013 the complainant has submitted the claim form alongwith all relevant documents pertaining to the said vehicle to the OP/Insurance Company to make payment of insurance amount towards theft of the said vehicle. But, the OP/Insurance Company issued reply letters vide letter dtd: 14.03.2014 and 20.03.2014 to the complainant and stating that, as the material time of the incident  the policy was standing in the name of previous owner i.e M/s Managing Director, M/s SSTA Logistic (India) Pvt. Ltd, and the complainant did not had any insurable interest and contract in the subject vehicle and  there is no privity  of contract with complainant by this OP.   Further stated that, the complainant has failed to take reasonable care towards vehicle. These attitude and acts of the Op is amounts to deficiency in service on their part.  

 

8.     The specific  case of the OP that, there is a breach of terms and condition of the policy and first of all the complainant has violated the policy conditions by making delay in intimating about the theft of vehicle, and second thing is that the complainant did not had any insurable contract in the subject vehicle at the time of Theft and lastly the complainant handed over the vehicle  to the unknown person with ignition key without proper care and understanding, thus the complainant has failed to take minimum and reasonable care in handing over the vehicle which amounts to violation of terms and conditions No.4 which states that, “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage’’,   hence the OP justified in repudiating the claim of the complainant through repudiation letter as per Ex.R-6 and there is no any deficiency in service on their part as alleged by the complainant. 

 

 

9.        The counsel for the OP vehemently  argued that, the alleged theft of the vehicle was on 18/11/2013, but intimation of theft of vehicle Innova was given on 19-12-2013, there is delay in intimation of the theft of the said vehicle to the OP, hence the repudiation of the claim of the complainant is in accordance with law, for that proposition and alleged contention, the OP has not produced any cogent, iota of evidence and material document showing that, there is a strict condition in the policy as mentioned, but OP has failed to substantiate the same as alleged in the written version and evidence.

                                        

            Further we detail scanned the condition No. 1, for convenience it is reproduced here below as:

 

 Condition No.1: “Notice shall be given in writing to the company immediately upon the occurrence any accidental 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.  Every letter claim writ summons and/or process or coy thereof shall be forwarded to the company immediately on receipt by the insured.  Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy”.  “In case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”. 

10.         In this policy there is no special condition as alleged by the OP that, the intimation should give to the insurer immediately in case of theft of the vehicle to Insurance Company, looking to the above Condition No.1, there was no such condition to give immediate complaint to insurance company, again we have made two parts and perused, we came to conclusion that  “ In case of theft,  the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.  Therefore, in our considered view, the complainant has complied and fulfill the terms and condition No.1 of the policy by immediately lodging the complaint in respect of theft before the police on the same day of theft on 18-11-2013, therefore there is no any breach or violation of policy condition by the complainant and mere there is no name of the complainant in insurance policy, which is not fatal to the case of the complainant and moreover the complainant has give application to change the previous name in Insurance Policy on dated 22/11/2013 which is already marked as Ex.P-1, it is within 14 days U/s 157 of provisions of M.V Act 1988, it is an object of legislature to grant time to the insured to give application within 14 days for changing the name and it is statutory period of 14 days. Hence,  it is deemed that, the complainant has complied the condition of the terms of Insurance Policy, moreover there is no any explanation from the Op/Insurance Company regarding change of name of previous owner whether the said previous owner name has been deleted or not, the Op ought to have given any explanation in this regard or effect the same in the Insurance Policy by deleting the previous owner, but kept mum till filing of this complaint and now the Op taken such untenable contention which is unsustainable under law and the Op contention cannot be acceptable. So in our considered view that, the repudiation by the Op/Insurance Company is not proper and justifiable and  also the OP has not produced any cogent, iota of evidence and material document showing that, there is a strict condition in the policy in this regard, but OP has failed to substantiate the same as alleged in the written version and evidence. It amounts to deficiency on service on the part of Op/Insurance Company.

 

11.           In our consider view, it will not amounts to  breach or violation of policy conditions by the complainant, when the Complainant has applied to change the name of previous owner in Insurance Policy U/s.157 of M.V. Act, and it is mandatory duty of the insurance company to make effect in this regard, without making change in the insurance policy, the OP taken unsustainable contention regarding insurable interest which is worthless, then the question does not arise to breach or violating the policy terms and conditions by the complainant, moreover the OP though contended that, there is volition of policy condition by delay in intimating the theft to the OP and did not have any insurable contract between Complainant and OP the contentions are not acceptable and it has no force in the contention.

 

           Further, the counsel of the OP has relied decisions of the Hon’ble National Commission reported in as below;

 

1. Revision Petition No.4576 of 2013
2. I (2015) CPR 383 (NC)
3. III (2015) CPR 474 (NC)

           The relied decisions are not applicable to the instant case, for the reason that, the relied decisions pertains to intimation wherein the intimation has not given to the Police as well as Insurance Company immediately, and observed that immediately  the complainant has not lodged complaint before the Police and not intimated to the OP/Insurance Company regarding the theft of said vehicle. Whereas, in the instant case, the complainant has lodge the compliant before the Police on the same day and intimated to the OP/Insurance Company alongwith claim form, therefore with due respect to the Hon’ble National Commission,  the relied decisions by the OP Counsel are not helpful.     

 

12.         We have gone in details towards FIR and FIR reveals that, the case register U/s 406, 420 & 34 of IPC, but not under section 378. Anyhow in any case, this would be a malicious act and the policy covers such peril and the exclusion clauses also nowhere provide that an offence U/s. 406 of IPC is excluded. Even the passenger dishonestly took away the vehicle Innova, it comes under the U/s. 378 of IPC, wherein  “theft” has been defined,  the instant case is fully covered by illustration (d) appended to that section. The said illustration reads as follows:

(d) A, being Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs away with the plate, without Z’s consent. A has committed theft. In the present case the driver was entrusted key with the passengers. He did not take it back to the driver but he has gone away somewhere to intend to self.

 

It is not case of the OP that, the police has registered the case U/s. 406 of the IPC, the act of taking away of vehicle by the person/friend would not amount to theft and there is no any contention raise by the OP regarding the same, but in our view the definition of the theft U/s. 378 of the IPC illustration (d) to Sec.378 specifically provides. An identical issue has been considered by the Hon’ble National Commission in S. Bhaghat Singh V/s Oriental Insurance Co., Ltd., in Revision Petition No.07/1991 decided by bench of four Members on dtd: 03.10.1991 and we would like to refer a recent decision reported in II (2017) CPJ 337 (NC) wherein the Hon’ble National Commission observed that, the vehicle was insured inter alia against loss on account of (i) Burglary, House Breaking or Theft, (ii) by malicious Act. Therefore, the question it arises for consideration is as to whether the loss of vehicle infact and circumstances of the case, can be construed to be covered by theft or malicious Act.        

 

         

13. However, there is violation of policy condition as contended by the OP, the Insurer cannot be repudiate the claim of the complainant in toto and claim should be settled on non-standard basis. Therefore in our opinion that, the repudiation by the OP is not correct and justifiable, it amounts to deficiency in service on the part of the OP. For that proposition, we would like to rely on the decision of the Hon’ble Apex Court reported in II 2010 CPJ 9 (SC) in case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd.  Further we would like to rely on a decision of the National Commission in the case of New India Assurance Co. Ltd., Vs. Narayana Prasad Appa Prasad Pathak, reported in II (2006) CPJ 144 (NC), wherein it is observed that while granting the claim on non-standard basis the National Commission set out on its Judgment the guidelines issued by the Insurance company about settling all such non-standard claims.

 

 

 

  14.    Looking to the above observation and applying the guideline of Hon’ble Supreme Court and Hon’ble National Commission, we are of the view that, 50% of the I.D. value has to fix to indemnify the insured.  Therefore we are of the view that by applying the above said observations of the Hon’ble Supreme Court and National Commission and law laid down, therefore there is no merit in the contention of the OP at all and hence in our opinion the repudiation of the claim of the complainant is amount to deficiency in service on the part of the OP.  Therefore, in our considered view, it would be just and proper to award a compensation 50% of the IDV of the said Innova vehicle ( 50% of  Rs.5,56,500/-) i.e. Rs.2,78,250/- and Rs.3,000/- towards mental agony and Rs.2,000/- towards costs of the proceedings. Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following:  

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed.

 

           The OP shall pay a sum of Rs.2,78,250/-  towards the theft of the vehicle i.e Innova.  

 

 

          The OP shall pay a sum of Rs.3,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

 

          The OP is grant 10 weeks time for compliance of this order, if they failed to comply this order, the OP shall pay interest @ 6% p.a. from the date of this order till realization.

 

 

            (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 03^rd June -2017).

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,                Lady Member.

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