Tamil Nadu

North Chennai

195/2013

J.Saravanan, - Complainant(s)

Versus

The Manager, ICICI Lombard General Insurance Co.Ltd, - Opp.Party(s)

M/s.M.Sampath Kumar

10 Aug 2016

ORDER

                                                              Complaint presented on  :  09.10.2013

                                                                     Order pronounced on  28.09.2016

 

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

 

WEDNESDAY THE 28th   DAY OF SEPTEMBER 2016

 

C.C.NO.195/2013

 

Mr.J.Saravanan,

No.5, 1^st Cross, Kulakrai Street,

Lakshmipuram,

Chromepet, Chennai – 600 044.

                                                                                 ..... Complainant

 

..Vs..

 

1. The Manager,

M/s. ICICI Lombard General Insurance Company Ltd,

Chotabhai Centre, 140, 2^nd & 3^rd Floors,

Nungambakkam High Road,

Chennai – 600 034.

 

2. The Manager,

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

Building No.11, 401/402, 4^th Floor,

New Link Road, Malad (w),

Mumbai – 400 064.

...Opposite Parties

Date of complaint                                   : 10.10.2013

Counsel for Complainant                       : M/s.Sampathkumar & Associates

Counsel for   Opposite parties                   :Eleverra Ravindran

 

O R D E R

 

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

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The Complainant insured his vehicle, Ashok Leyland Tipper Lorry bearing Registration No.TN 31 J 4485 with the Opposite Parties and the 2^nd Opposite Party issued policy for the said vehicle for the period 18.03.2011 to 17.03.2012. The Complainant lost the vehicle when his driver parked it in the GST Road at Irumbuliur bus stand on 23.03.2011. A Complaint was given to the Tambaram Police Station on 24.03.2011 an FIR in Crime number 286/2011 was registered. The Complainant immediately lodged a claim for claiming compensation towards the loss of vehicle with the 2^nd Opposite Party. The 2^nd Opposite Party repudiated the claim in his letter dated 12.09.2011 that due to negligent of the driver ,the vehicle  being stolen  and the Complainant had not safeguarded the vehicle properly for violation of the terms and conditions of the policy. The Complainant paid a sum of Rs.17,001/- as annual premium for the total value of the lorry of Rs.6,54,000/-. The 2^nd Opposite Party committed Deficiency in Service by rejecting the claim of the Complainant, inspite of that the vehicle was stolen during the insured period. Hence the Complainant filed this Complaint to reimburse a sum of Rs.6,54,000/- towards loss of vehicle with interest and compensation for mental agony with cost of the Complaint.

 

2. WRITTEN VERSION OF THE OPPOSITE PARTIES IN BRIEF:

          The Opposite Parties have issued a policy bearing No.3003/63865350/00/B00 covering the period between   18/03/2011 to midnight of 17/03/2012 as per the terms and conditions appended to the said policy. The Complainant has not come with clean hands before this Hon’ble Forum and as vaguely stated that the vehicle was lost when the driver parked it on the GST Road at Irumbullliyur Bus stand on 23.03.2011. The Complainant has not stated in the FIR that his vehicle was stolen. Further the driver of the vehicle had parked the vehicle with the keys in the vehicle, which has been stated by the Complainant himself. The diver did not park the vehicle in a parking slot which he ought to have done as a prudent person and obtained the parking ticket and no person much less a prudent person would allege that he parked his vehicle unattended on GST Road, and that thereafter the vehicle was lost. The insured shall take all reasonable steps to safeguard the vehicle.  As per the guidelines of the IRDA the Opposite Parties had repudiated the illegal and unjust claim and hence there was no liability. The contract of insurance is a contract of ‘uberrimae fidei’ utmost good faith between the contracting parties and it is clearly seen that the Complainant had grossly violated the same and hence the Opposite Parties are not liable. The Complainant has not safeguarded the vehicle and thereby breached the condition of the policy and hence the Opposite Parties have not committed any Deficiency in Service in repudiating the claim and prays to dismiss the Complaint with costs.

3. POINTS FOR CONSIDERATION:

          1. whether the Complaint is barred by limitation?

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

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

 

4. POINT NO:1

          The Complainant  lost his vehicle on 23.03.2011 and his claim was rejected on 12.09.2011  under Ex.A4. The Opposite Parties contended that from the date of repudiation, the Complainant ought to have filed within two years i.e on or before 11.09.2013 and however the Complainant filed this Complaint on 20.09.2013 with a delay of 9 days and therefore the Complaint is barred by limitation.  The Complainant replied that the claim was rejected under Ex.A8 on 22.05.2012 and from that date within two years the Complaint has been filed and therefore the Complaint is not barred by limitation. In Ex.A8 while rejecting the claim it is observed that upon perusal of the document submitted by him, the claim was rejected. Therefore after rejecting claim under Ex.A4, subsequently the Complainant filed further documents and upon perusing such documents and thereafter the claim was further rejected in Ex.A8. Therefore Ex.A8 also gives cause of action to the Complainant to file this Complaint and accordingly this Complaint is filed within the limitation period and therefore the Complaint is not barred by limitation.

5. POINT NO :2

          It is an admitted fact that the Complainant is the owner of the Ashok Leyland Tipper Lorry bearing registration no.TN 31 –J-4485 and the said lorry was insured with the Opposite Parties and the 2^nd Opposite Party issued Ex.A1 policy for the period 18.03.2011 to 17.03.2012 for a sum assured of Rs.6,54,000/- and the Complainant driver  parked the vehicle at GST Road, Irumbuliur Bus Stand on 23.02.2011  and he found on the next day the vehicle was stolen and a Complaint was given to the Tambaram Police Station  by the Complainant  who is the  owner of the vehicle and based on the Complainant Ex.A3 FIR was registered by the said police and thereafter the Complainant made a claim to the Opposite Parties  and the said claim rejected by the 2^nd Opposite Party under Ex.A4 letter dated 12.09.2011 and thereafter the Complainant issued Ex.A6 legal notice and then filed this Complaint claiming value of the vehicle with compensation.

          6. The Complainant contended that the repudiation of the claim made by the Opposite Parties is not sustainable in view of that the vehicle was insured during the period of theft and therefore the claim is maintainable.  

7. The Opposite Parties replied that the Complainant driver left the key in the vehicle at the time of parking the same and thereby he had not safeguarded the vehicle and hence he had breached the terms and conditions of the policy and hence the rejection of claim is sustainable.

8.  The Opposite Parties rejected the claim in Ex.A4 letter as follows:

The Keys of the vehicle were left with the vehicle. It is mentioned in your statement, that on 23^rd March 2011 your driver, Senthil, parked the insured vehicle at Irumbuliyar bus stand with the ignition key on the vehicle, leaving the vehicle unattended and went to his residence. The next day when he returned to the parking spot he found the vehicle missing from the place where it was parked earlier. This is a gross negligent act of leaving key with the vehicle which lead to the incidence of the insured asset being stolen, sufficient care was not-taken which a prudent man ought to have taken. This is violation of terms and conditions of insurance policy issued to you which state. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage.

The claim was rejected that the driver of the vehicle left the key in the vehicle and thereby not safeguarded the vehicle and hence the condition of the policy is violated. The Complainant would contend that the driver had not left the key in the vehicle. Ex.A5 is the letter addressed by the Complainant to the 1^st Opposite Party stating that “Wherein my driver had wrongly given a statement as he had left the ignition key in the lorry”. As per the above statement the Complainant himself admits that the  driver gave statement to the insurance company that he had left the key in the vehicle itself.   Though Complainant stated that the driver wrongly gave such statement, to support such contention the evidence of the driver was not filed before this Forum or he had not added him as a party to state that he had wrongly given a statement as he had   left the key in the vehicle itself.  In the absence of the evidence of the lorry driver the version of the Complainant that the driver wrongly gave statement in respect of the key is not accepted. Therefore we hold that the  Complainant’s driver left the key in the vehicle itself on the alleged place and time of parking and thereby he had not safeguarded the vehicle  and thereby violated the conditions of the policy and hence we further hold that the Opposite Parties have not committed any Deficiency in Service.

9. POINT NO:3

          Since the Opposite Parties have not committed any deficiency in service, the Complainant is not entitled for any relief in this Complaint 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 28^th  day of September 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 18.03.2011                Certificate cum policy schedule issued by Opposite

                                              Party to Complainant with enclosures

 

Ex.A2 dated NIL                  Communication details of the Complainant

 

Ex.A3 dated 24.03.2011                First information Report of S-11 Tambaram

                                             Police  station

 

Ex.A4 dated 12.09.2011                Letter from Opposite Party to Complainant  

 

Ex.A5 dated 28.10.2011                Letter from Complainant to Opposite Party with

                                                      Ack.Card

Ex.A6 dated 06.01.2012                Complainant’s counsel to Opposite Party .Notice

Ex.A7 dated 14.04.2012                Letter from Complainant to IRDA

 

Ex.A8 dated  22.05.2012               Letter from Opposite Party to Complainant

                                                repudiating the claim

 

Ex.A9 dated  NIL                   Trip Sheets of the Complainant from 04.03.2011 to

                                               23.03.2011 (16 sheets)

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTIES:

                                      …… NIL…….                                 

 

MEMBER – II                                                               PRESIDENT