Tamil Nadu
South Chennai
CC/422/2016
P.Sudhakar - Complainant(s)
Versus
The Manager, Liberty Videocon General Insurance Company Ltd - Opp.Party(s)
R.Vetrivel
17 Aug 2022
ORDER
Date of Complaint Filed : 19.12.2016
Date of Reservation : 18.07.2022
Date of Order : 17.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No. 422/2016
WEDNESDAY, THE 17th DAY OF AUGUST 2022
P.Sudhakar,
S/o. Perumal,
No. 123, 4th Street,
Govindan Street, Carnatic Mill,
Binny Mill Quarters,
Mettupalayam,
Chennai - 600 012. …Complainant
-Vs-
1.The Manager,
M/s.Liberty Videocon General Insurance Company Ltd,
Anmol Palani,
No.88, G.N. Chetty Street,
Level-4, Unit No. E5 & F5,
T.Nagar,
Chennai - 600 017.
2.The Manager,
M/s.Liberty Videocon General Insurance Company Ltd,
Regd. & Corp. Office: 10th Floor, Tower A,
Peninsula Business Park,
Ganpatro Kadam Marg, Lower Parel,
Mumbai – 400 013. ... Opposite Parties
******
Counsel for the Complainant : M/s. R. Vetrivel
Counsel for the Opposite Parties : M/s. M.B. Gopalan Associates
On perusal of records and on endorsement made by the Complainant to treat the written arguments as oral arguments, and upon hearing the oral argument of the Opposite Parties, we delivered the following:
ORDER
Pronounced by Member-I, Thiru. T.R.Sivakumhar., B.A., B.L.,
1. The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.1,00,000/- towards disservice and deficiency of service and to pay a sum of Rs.1,00,000/- towards compensation and to pay a sum of Rs.2,00,0000/- towards mental agony and torture caused to the Complainant along with cost.
2. The averments of Complaint in brief are as follows:-
The Complainant had taken Insurance Policy bearing No. 201250040115100549100000 from the 1st Opposite Party for his two wheeler Hero Honda Shine (Black Colour) bearing Registration No. TN 05 AU 6332 for the period from 29.01.2016 to Midnight of 28.01.2017 and the 2nd Opposite Party is being the Registered and Corporate Office of the 1st Opposite Party carrying on its business at Mumbai. He had parked his two wheeler Honda Shine in front of his above house on 02.02.2016 and went to his relative's house at Bangalore on 02.02.2016 due to his illness and came back to his residence at Chennai only on 16.02.2016. To his shock and surprise, his aforesaid two wheeler, which was parked in front his house was stolen and despite his diligent search, he could not trace out the same. Hence, the Complainant judged a complaint with the P-2 Police Station on 17.02.2016 and The Inspector of Police (Crime), P-2 Otteri Police Station, Chennai - 600 012 had also accepted his complaint and issued him P2 CSR No. 116/16 dated 17.02.2016. He made several visits to the above P-2 Otteri Police Station to know about the fate of the vehicle. The Police officials informed the Complainant that since they were all busy with the Election duty (T.Nadu State Assembly Election-May 2016), there might be some delay in searching the same and in the meantime, they also asked the Complainant to make his personal search near Pailway Station, Bus Stand and busy market areas. Accordingly, the Complainant also made diligent search to trace out his aforesaid two wheeler which proved futile. On receipt of the PLR. Crime No.267/16 on 18.03.2016 from P2 Police Station, he had submitted the original F1R to the first Opposite Party seeking claim from them. He received a letter dated 03.08.2016 from the 1st Opposite Party in which the 1st Opposite Party expressed its inability to process the claim alleging that the Complainant had not informed about the theft of his vehicle either to Insurance Company, ie, the 1st Opposite Party herein or to the Police Station within a reasonable time from the date of occurrence of theft. It is presumed that the first Opposite Party had taken into consideration of the FIR. dated 18.03.2016 as the date of information to the Police which is not correct and in fact, the Complainant had informed to the Police Station, vix., P-2 Otteri Police Station on 17.02.2016 itself, the very next day of the theft of his two-wheeler thereby the Complainant had promptly acted and followed making complaints within reason time. It is purely Unfair Trade Practice on the part of the first Opposite Party. He made several visits to the first Opposite Party for seeking his claim, but the 1st Opposite Party had not considered the Complainant's claim and rejected his claim. He has every right to claim from the Opposite Parties as he had paid insurance amount for his two-wheeler promptly and he had also promptly made the complaint to the aforesaid Police Station within reasonable time from the date of occurrence of theft. Hence, the Complainant is entitled to claim insurance from the Opposite Parties pertaining to the theft of his aforesaid two wheeler. Hence the complaint.
3. Written Version filed by the Opposite Parties in brief are as follows:-
The Complainant’s Motorcycle TN 05 AU 6332 was insured under Motor Policy No.201250040115100549100000 for the period from 29.01.2016 to 28.01.2017. the policy is issued subject to terms and conditions which govern the liability of this Opposite Party for any claim and in the event of any breach of the said terms, the Opposite Party is not liable to admit the claim. The vehicle is insured on the condition that in the event of any theft, complaint must be lodged with Police immediately besides intimation to the Opposite Party Condition No.1 of the Policy reads as follows:
Condition No. 1: “Notice shall be given in writing to the Company immediately upon the occurrence of 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 copy 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 Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or 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”.
Condition No.4: "The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured in the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk.”
Condition No.8:"The due observance and fulfillment of the terms, conditions and endorsements of this Policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under this Policy"
The requirement of taking reasonable care to safeguard the vehicle. lodging immediate Police complaint and intimation of loss to the Opposite Party, are all crucial and fundamental conditions subject to which they have agreed to insure the Complainant's vehicle. Failure to give immediate complaint and/or intimation or to take care to avoid loss or damage would amount to fundamental breach of the Policy and the Opposite Party would be entitled to deny liability. The Complainant had left his vehicle on road (even if in front of his house as alleged) for more than 15 days from 02.02.2016 to 16.02.2016 when he was away at his relative's house in Bangalore. While the Complainant allegedly discovered the theft on his return on 16.02.2016 it cannot be said that the theft occurred on 16.02.2016 only. It is not known when the theft took place. The FIR was registered with the Otteri Police Station on 18.03.2016. The FIR clearly mentioned that the delay in lodging complaint was on the part of the Complainant. More importantly, intimation was admittedly given to this Opposite Party only on 26.03.2016 more than a month after discovery of the loss. Considering the purpose and object of the requirement of immediate intimation to this Opposite Party which is also well recognized by various decisions of the Hon'ble Supreme Court and the National Commission holding that Insurance Company will not be liable in case of delay (Delay of 2 days in FIR and 9 days to Insurance Co. New India vs Tirlochan Jane FA 321/2005 dated 9.12.2009; 4 days in lodging FIR and 1 month in reporting to Insurer FA 426/2004 dated 4.7.2006; 10 days delay - Virender Kumar vs New India RP 2534/202 dated 7.11.2012; 5 days delay - Rahul Tanwar vs Oriental RP 2951/2011 Dt. 9.11.2012; Kuldeep Singh vs Iffco Tokio RP 2982/2012 dated 18.1.2013) the claim was found to be not payable.
The Hon'ble National Consumer Disputes Redressal Commission in its Judgment dated 11-Jan-2015 in Revision Petition Number 2479/2015 between Reliance General Insurance Company Limited Vs Jai Prakash held “On a comparison of the Clouse applicable in the year 1995-96 and the clause applicable in the subsequent policies, we find that whereas the previous clause required the insured to intimate the insurance company immediately upon the occurrence of any accident or loss or damage, the later clause required him to give such intimation upon the occurrence of any accidental loss or damage. Since theft of a vehicle is also a loss, the earlier clause obviously required immediate intimation of the theft of the vehicle to be given to the insurance company. Therefore, the question which arises for our consideration is as to whether there is any change in the obligation of the insured in this regard, considering that the expression 'accidental loss or damage is used in the clause contained in the later policies. If the clause contained in the later policies read in isolation, it may give an impression that the notice to the insurance company is required to be given only in the event of the loss or damage to the vehicle due to an accident as it is normally understood, if the insured intends to lodge a claim with the insurer for reimbursement of the loss or damage sustained by him. But, a deeper scrutiny of the later insurance policies, we are satisfied that even a loss or damage, due to theft of the vehicle, is required to be reported to the insurance company immediately after the theft is detected, in case the insured intends to lodge a claim with the insurer for reimbursement of the loss or damage sustained by him."
The verification and recovery of vehicle have been seriously prejudiced by the delay in intimation of claim to this Opposite Party Although Complainant has alleged that having given complaint on 17.02.2016 and obtained CSR, the mention of delay in FIR raises doubts over the said document. The Complainant had left the vehicle unattended for over 14 days in a public place which has facilitated the theft. Thereby Complainant has miserably failed to take reasonable care of the vehicle and had committed breach of Condition No.4 of the Policy. The Complainant had thus violated basic terms of the Policy that have resulted in the cause of loss and also prevented any meaningful action for tracing the vehicle or recovering the same. The decision of this Opposite Party was entirely in accordance with the Policy as interpreted by the Opposite Party has not acted contrary to the terms of the higher Courts, and the contract of insurance. Hence prayed to dismiss the complaint.
4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-10 were marked. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents Ex.B-1 alone was marked.
Points for consideration:-
1. Whether the Opposite Parties have committed deficiency of service?
2. Whether the Complainant is entitled for reliefs claimed in the Complaint?
3. Whether the Complainant is entitled for any other relief/s?
Point No.1:-
It is an undisputed fact that the Complainant had availed the service of the Opposite Party by availing Insurance Policy bearing No.201250040115100549100000 for his two wheeler Honda Shine (Black Colour) bearing Registration No. TN 05 AU 6332.
The disputed fact is that the Insurance Claim of the Complainant was rejected as the intimation of his stolen vehicle was not given immediately to the Opposite Parties, as per the terms and conditions of the Policy.
On reading of the Complaint that the Complainant’s vehicle which was parked outside his house on 02.02.2016 was found to be stolen on 16.02.2016 on his return from Bangalore and immediately he had lodged complaint on 17.02.2016 and a CSR No.116/16 for lodging the Complaint was issued on 17.02.2016 by P-2, Otterri Police Station, as found in EX.A-3, from the said Exhibit it is found that the subject vehicle was parked in front of his house on 02.02.2016 and he went to Bangalore and on his return on 16.02.2016 he found the vehicle was missing/stolen. Thereafter FIR was registered on 18.03.2016 by the said Police Authority as found in Ex.A-4.It is pertinent to note that the actual date of theft occurred was not known to the Complainant and only on his return from Bangalore on 16.02.2016 he came to know about missing/stolen of his two wheeler and immediately from the date of knowledge of missing vehicle, ie., on 17.02.2016 itself he had lodged a Complaint before Concerned Police Station, but it is to be noted that the Complainant had acted as per the terms and conditions of the Policy of the Opposite Party by giving immediate notice to the Opposite Party about the theft of his two wheeler, whereas admittedly the Complainant had submitted his claim form to the Opposite Party only on 26.03.2016, which is clearly after 40 days from the date of occurrence of theft of his vehicle,as found in Ex.A-10, hence there was a delay of 40 days in intimating the Opposite Party about the theft of his vehicle, which is in clear violation of Condition No.1 of the Insurance Policy as mentioned in Ex.A-6, the Repudiation letter dated 03.08.2016 sent to the Complainant and Condition No.1 is reproduced as follows:
“Notice shall be given in writing to the Company immediately upon the occurrence of 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 copy 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 Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or 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”.
The Complainant had relied upon the Judgments of the Hon’ble Supreme Court in Civil Appeal No.15611 of 2017 dated 04.10.2017 in Om Prakash Vs- Reliance General Insurance Ltd & Another, wherein it is observed in Paragraph No.11 that “ It is common knowledge that a person who lost his vehicle may not straightaway go the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the calims made under the Act. In paragraph No.12 it is observed that “ In the instant case, the appellant has given cogent reasons for the delay of 8 days in informing the respondent about the incident. The Investigator had verified the theft to be genuine and the payment of Rs.7,85,000/- towards the claim was approved by the Corporate Claims Manager, which, in our opinion, is just and proper.” And thereby allowed the appeal and the orders of National Commission, State Commission and District Forum are set aside.
As in the instant case the Complainant had not intimated the Opposite Party immediately after the date of occurrence of theft or after the date of knowledge of theft of his vehicle and further the Complainant had submitted his claim form on 26.03.2016, as found in Ex.A-10, after a delay of 40 days from the date of knowledge of theft, and no reasons has been assigned by the Complainant for the delay in submitting the Claim Form from 18.03.2016(date of FIR) to 26.03.2016 (Date on which claim Form submitted), where there is a delay of 8 days, hence the above judgment relied upon by the Complainant would not apply to his case.
On the other hand, the Opposite Parties had relied upon the Judgement passed by the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 1362 of 2011 on 01.09.2011 in Rang Lal (Deceased) & 5 Others Vs- The Manager, United India Insurance Co Ltd & Another, wherein the delay in intimating the Insurance Company resulting the repudiation of claim was upheld, as well as reliance made on the Judgement passed by our Hon’ble Tanil Nadu State Consumer Disputes Redressal Commission in F.A.No.315 of 2013 on 16.02.2022 in The New India Assurance Co Ltd Vs- A.P.Tamilselvan (since Deceased) & 7 Others, wherein the delay in filing the complaint is a justifiable reason for rejecting the claim by the Opposite Party, which is also in violation of the terms and conditions of the Policy and the order of the District Consumer Disputes Redressal Forum, Villupuram, in allowing the complaint was set aside. Hence, both the judgments relied upon by the Opposite Parties squarely applies to the instant case.
Considering the facts and circumstances of the case and the Judgments relied upon by the Opposite Parties, we are of the Opinion that the delay of 40 days in intimating the Opposite Parties about the occurrence of theft of the Complainant’s vehicle, resulted in repudiation of claim made by the Opposite Party following the terms and conditions of the policy, is legally sustainable. Hence, there is no deficiency of service on the part of the Opposite Party. Accordingly Point No.1 Is answered.
Point Nos.2 &3:-
As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint. And hence the Complainant is not entitled for any other relief/s. Accordingly, Point Nos. 2 and 3 are answered.
In the result the Complaint is dismissed. No costs.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 17th of August 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 07.10.2013 | R.C. Book of Vehicle bearing No.TN05AU6332 |
Ex.A2 | 29.01.2016 | 1st Opposite Party’s Insurance Policy bearing No.201250040115100549100000 for the period from 29.01.2016 to 28.01.2017 |
Ex.A3 | 17.02.2016 | P-2 Police Station CSR No.116/16 |
Ex.A4 | 18.03.2016 | Copy of FIR Report |
Ex.A5 | 15.07.2016 | Vehicle not found certificate given by P-2 Police Station |
Ex.A6 | 03.08.2016 | Letter from the 1st Opposite Party to the Complainant |
Ex.A7 | 24.10.2016 | Legal notice issued by the Complainant’s counsel to the Opposite Parties |
Ex.A8 | 25.10.2016 | Postal receipts – 2 Nos. for having sent the legal notice by the Complainant’s counsel to the Opposite Parties |
Ex.A9 | 26.10.2016 | Postal acknowledgement card of the 1st Opposite Party |
Ex.A10 | 26.03.2016 | Motor insurance claim form |
List of documents filed on the side of the Opposite Parties:-
Ex.B1 | - | Insurance policy with terms and conditions |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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