BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 64/11.
THIS THE 6th DAY OF JANUARY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Bapur Venkatesh S/o. B.Earanna, age: 40 years, Occ:
Business, R/o. H.No. 6-8-91, Thimmapurpet, Raichur.
//VERSUS//
OPPOSITE PARTY :- The Manager, I.C.I.C.I Lombard General Insurance
Company, ICICI Bank Tower, Bandra Kurla, Complex, Bandra East Mumbai- 400 051.
CLAIM :- For directing the opposites to pay an amount of Rs.
21,389/- with cost.
Date of institution :- 07-09-2011.
Notice served :- 28-09-2011.
Date of disposal :- 06-01-2012.
Complainant represented by Sri. Prasanna Sharma, Advocate.
Opposite represented by Sri. A.S. Malipatil, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by complainant Bapur Venkatesh S/o. B.V. Earanna against the Manager, ICICI Lombard General Insurance Company Ltd., Mumbai, U/sec. 12 of Consumer Protection Act for directing the opposites to pay an amount of Rs. 21,389/- with cost.
2. The brief facts of the complainant’s case are that, he is the absolute owner and possessor Hero Honda Splendor Plus Motor Cycle bearing Registration No. KA-36/S 1566. The said vehicle was insured with Respondent Insurance Company vide Policy No. 3005/11/723243/10123/000 valid for the period from 26-08-10 to 25-08-11 by paying annual premium of Rs. 984/-. Further it is the case of the complainant that, on 22-12-10 at about 8:50 PM the complainant had parked the said motor cycle in front of the gate of Veerashaiva Kalyana Mantapa, Raichur by locking the same and went inside the said Kalyana Mantapa to attend some work but when he returned back at about 10:00 PM he noticed that, said motor cycle was missing. Thereafter the complainant and his elder brother Venkatesh searched for motor cycle but could not find the same. Later on complainant and his elder brother made enquiries with the friends and other relatives but after having lost all the hopes the complainant lodged the complaint before the PSI of Sadar Bazar, PS, Raichur on 06-01-11 and the said police by registering the case had issued FIR. Further, it is the case of the complainant that, after some time the concerned police had recovered the motor cycle from the offender one who have stolen the vehicle and intimated the same to the complainant accordingly he went to Sadar Bazar Police Station Raichur, and showed the motor cycle to him. After keen observations the complainant found that, some of the parts in the motor cycle have been missing and same has been informed to the Respondent and the complainant got replaced those missing parts to the motor cycle by spending an amount of Rs. 9389/- and Rs. 1364/- in all Rs. 10,753/-. After replacement of the said parts the complainant had informed the Respondent Insurance Company and asked for to settle the insurance claim to that effect. Further it is the case of the complainant that, the said missing parts have been purchased by authorized show room Sri. Sitaram Automobiles, Raichur. The policy was in force under such circumstances, the Respondent Company is liable to reimburse the said amount to the complainant but the Respondent has not settled the claim. Hence he has sought direction against the Respondent to pay a sum of Rs. 21,389/- with cost.
3. After service of the notice, the Respondent Insurance Company has appeared in this case through its Advocate and filed written version by denying all the allegations made against it and contended that, as per the averments of the complaint and policy papers the alleged theft has been taken place on 22-12-10 but the complaint has been filed by the complainant on 06-01-11, there is a delay of filing the complaint and said delay has not been explained properly if really, the said vehicle has been stolen on 22-12-10 the complainant would have given complaint on the same day. As per the law and policy terms and conditions the complaint ought to have informed about the theft of the vehicle immediately after alleged theft therefore, there is a delay in filing the complaint and intimation to the company therefore this Respondent is not liable to pay any compensation.
Further it is contended that, though the police authorities who have conducted the panchanama have not shown anything regarding damage and missing parts list in the said panchanama. Therefore, no such damage or missing of any parts in the vehicle is caused only in order to get the higher compensation the complainant has made false claim of damages against the Respondent. The driver of the vehicle was not having valid and specific class of driving licence to drive the said vehicle. The vehicle in question is also did not have valid fitness certificate. No written intimation about the loss or damage. The survey is to be conducted on the spot itself, and after survey the vehicle may be moved to be garage and in the present case, the complaint has not given any intimation after tracing out by police. This itself would goes to show that, no damage has been caused to the vehicle. Hence, the complaint filed by the complainant is not maintainable and sought for dismissal of the complaint among other grounds with cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that there is deficiency in service on the part of the Respondent Insurance Company as alleged.?
2. Whether complainant is entitled for the relief’s as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the negative.
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-7 are marked. On the other hand the affidavit-evidence of Manager (Legal) of opposite Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked.
7. On going through the pleadings of the parties and their respective evidences and documents it discloses that parties are not in dispute on the following point:-
The complainant is the absolute owner of the vehicle bearing Registration No. KA-36/S1566, and coverage of insurance policy to the said vehicle. Further it is also not in dispute that, the vehicle bearing KA 36/S1566 was stolen on 22-12-2010 and police complaint was filed in this regard on 6-1-2011 vide crime No. No. 8/2011 and it is also not in dispute that, the said vehicle has been traced out and recovered by the police and in term same has been handed over to the complainant.
8. The complainant has produced in all 7 documents at Ex.P-1 to Ex.P-7 they are as follows;- (1) Copy of FIR along with written complaint in Crime No. 8/2011 marked at Ex.P-1, (2) Copy of policy is marked at Ex.P-2, (3) Invoice dt. 30-03-11 marked at Ex.P-3, (4) Tax invoice dt. 29-03-11 marked at Ex.P-4 and Estimation/quotation at Ex.P-4(1) (5) Letter of Respondent dt. 12-07-11 marked at Ex.P-5, (6) Copy of RC book marked at Ex.P-6, (7) Copy of DL is marked at Ex.P-7.
9. The Respondent Insurance Company in their written version mainly contended that, within 48 hours complainant has to be informed to the insurer about the occurrence of the theft, whereas in the present case there was a delay in filing the complaint before the police and informing about the theft, to the opposite insurance company, which is breach of policy condition. Further it is also contended that, the details about the missing parts are not made available. Even in-spite of through three letters dated 10-6-2011, 1-7-2011 and 12-07-2011, which are marked under Ex R1,2 & 3 respectively,. the op has called the complainant to produced the Mahajara Panchanama or Panchanama report with damaged and missing part listed by police, but the complainant has not submitted the same before the OP even after laps of 100 days. Under such circumstances they have treated as no claim on the part of complainant. On perusal of the FIR filed by the complainant, it is clearly goes to shows that, the alleged theft has been place on 22-12-2010 at about 8.00 pm to 10.00 pm. The complaint has been lodged on 6-01-2011, and accordingly the said FIR has been issued under crime No. 8/2011. This fact is clearly goes to shows that, there is delay of almost all 14 days in filing the complaint. Further there is no any documents to show that, when the complainant has lodged his complaint before the Opposite insurance company about the missing of the vehicle. However the insurance company on 10-06-2011 through Ex R-1 has sought Mahajar report or Panchanama report with damaged and missing parts listed by police authority. Further the said Ex R-1 discloses that, the matter has been pending for 60 days, it means earlier to 10-06-2011 the matter has been intimated to insurance company, if we calculated the 60 days from 10-6-2011 it will be not earlier to 10-04-2011, when the complainant has intimated the insurance company about the alleged theft, then the delay is all most all more than 4 months from the date of theft. In order to disprove our view complainant has not filed any documents to show that, he has intimated to the opposite insurance company in time. Under such circumstances the contention of the op regarding delay in filing the complaint and intimation about the theft to the Op cannot be discarded. On the other hand it is clearly goes to show that, there is delay of 14 days in filing the complaint before the police, and there is also a delay of 4 months in intimating the same to the Op insurance company. Under such circumstance no doubt there is violation of policy condition by the complainant as contended by the op. In this regard, we have referred the judgment of Hon’ble National Commission in First Appeal No. 321 of 2005 in New India Assurance Company Ltd, V/s. Trilochan Jane Case. The Hon’ble National Commission in the said judgment categorically observed about the delay in informing about the occurrence of the theft and what is its consequences if it is not informed about the theft in time or immediately. Further it was also held that, “when there is no bodily injury to the complainant or to the insured it is incumbent upon the insured to inform the police about the theft immediately, say within 24 hours otherwise valuable time would be lost in tracing the vehicle”. Similarly the insurer should also be informed within a day or two, so that the insurer can verify has to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the police to trace the vehicle. Delay in reporting to the insurer about the theft of the vehicle would be a violation of condition of the policy as it deprives the insurers of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle. The Hon’ble National Commission in the said judgment was also referred the Hon’ble Supreme Court judgment cited in JT 2004 (8) SC 8 in United India Insurance Company Ltd., V/s. M/s. Harchand Rai Chandan Lal wherein it has held that, the terms of the police have to be construed as it is and nothing can be added or subtracted from the same.
In the present case the theft was occurred on 22-12-10 and same was informed to the police on 6-1-2011 as per the Ex P-1 FIR, and the matter was also informed to the insurance company in the month of April 2011 as per the letter dated 10-06-2011 i.e. Ex R-1, it means there is a delay of 14 days in filing the complaint and also delay of 4 months in intimating same to the insurance company, as we have stated supra. There is no any other documents or evidence to show that, the complainant has informed the opposite about the occurrence of the theft immediately day or two. This fact would clearly goes to show that, there is a delay in informing the theft of the vehicle to the opposite. Under such circumstances, the say of the Respondent regarding violation of the policy condition cannot be ruled out. Similarly it is not the case of the complainant that, he was injured and for that, he was not informed about the theft of the vehicle to the opposite or concerned police. Under such circumstances, his delay cannot be accepted. Hence we do not find any reasons to believe that, there is any lapse on the part of the Respondent.
10. The complainant in his complaint has alleged that, the op have not paid the amount against the missing parts of the vehicle, which was under theft. It is worthwhile note here that, the complainant neither he has produced any police document in the form of Mahajar Report Or Panchanama report with damaged and missing parts list nor any other single peace of documents about the missing parts. Further in his complaint at para No. 4 he has contended that, surveyor of OP by name Mr. Tirumalesha inspected the motor cycle and submitted the report regarding missing of the parts for an amount of Rs. 9,389/- and 1,364/-, and it is also contended that, the report has been submitted by the surveyor in this regard, but no such report has been produced before this Forum. Further there are also no records to call for the same from the Op. Under such circumstances the contention of the complainant holds no good. Further on perusal of the complaint and documents filed by the complainant, we were also unable to under stand when the vehicle has been traced out by the police, and when it has been handed over to the complainant, and when the surveyor has conducted the survey. Further it is also not made known to this Forum, what was the say of the police regarding missing of the parts and whether the complainant has made any complaint regarding missing of the parts immediately after searching or taken possession of the vehicle. In absence of any peace of evidence the version of the complaint cannot be accepted.
11. The complainant regarding his claim is concerned about the missing parts mainly relied upon the invoice and estimation/quotation no doubt in the said invoice and estimation produced under Ex P-3 and Ex P-4. The quantum of loss as been assessed of Rs. 9,389/- and 1,364/- in all 10,512/-. But we do not understand how these documents are born and how the parts of the motor cycle are mentioned under them. Because the complainant in his complaint neither he has not stated specific name of the missing parts nor he has obtained any police records or survey report in this regard. Further these documents are invoice and estimation, they are not the bills. Under such circumstance the version of the complainant about the spending money for to replace the missing parts and loss sustained in this regard cannot be believable. Hence we have rejected the claim of the complainant in this regard.
12. Further on perusal of pleadings of the op and the documents filed by them it is very clear that, the op through Ex R-1,2 & Ex R-3 sought the details about missing parts from the complainant, but there is no evidence to shows that, the complainant has made any efforts to send the concerned document such as Mahajar Report or Panchanama report and list of missing parts. Under such circumstances, allegations made against opposite is not correct, Under the above circumstances we have not noticed any kind of deficiency in service on the part of opposites. Hence we answered Point No-1 in negative.
13. The complainant failed to prove the fact involved in Point No-1 and thereby he is not entitled for to get any one of the relief’s as prayed in this complaint, accordingly we answered Point Nos.1 & 2 in Negative.
POINT NO.3:-
14. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant against opposite is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 06-01-2012)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
