BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

                                                       Dated this the 20^th February 2017

PRESENT

        SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

        SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C. No.116/2014

(Admitted on 27.03.2014)

Mr. John Lancy D Souza,

S/o Mrs. Miliana D Souza,

Aged 515 years,

R/at Milla Villa, Maroli,

Kulshekar Post,

Mangalore Tq.

                                                                 ….. COMPLAINANT

(Advocate for the Complainant: Sri SLS)

VERSUS

The Manager,

National Insurance Co,

2^nd Floor,

Rasik Chambers,

Opp. Central Market,

Market Road, Mangalore  575001.

D.K., District.

                                                                    …......OPPOSITE PARTY

(Advocate for the Opposite Party: Sri PJR)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite party claiming certain reliefs to pay Rs.1,00,000/ covered under policy for the period from 27.09.2011 to 26.09.2012, to pay Rs.50,000/ towards mental agony financial loss as compensation and to pay Rs.2,500/ towards cost of the complaint.

 2.    In support of the above complainant Mr. John Lancy D’Souza filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents not marked.  On behalf of the opposite party Mr. Bhavanishankar M (RW1) Assistant Manager, The National Insurance Company Ltd, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R9 as detailed in the annexure here below.

The brief facts of the case are as under:

          We have perused the complaint and the version of the parties. The dispute is with regard to the house hold policy taken by the complainant’s mother (now deceased) and the complainant alleges the theft in the house and claimed the loss on theft by lodging claim but the opposite party repudiated the claim. The opposite party insurance company contends that the complainant had delayed in informing the theft by 17 months and the FIR lodged after one year. The suspected are the relations of the complainant etc and claims the repudiation is legal and no deficiency in service from their part these being the facts of dispute in resolving it we consider the following

POINTS FOR ADJUDICATION

          On consideration of the evidence produced and the documents filed the admitted facts are, the purchase of the house holder policy no 604300/48/11/3600001645 by the complainant’s mother (now deceased).  It is also admitted that the claim made by the complainant and the opposite party repudiated the claim. The lodging of the FIR is also admitted and the information to the opposite party is also admitted.  The appointment of surveyor and his survey being conducted is not disputed. It is denied that the complainant is the assignee of the policy holder and authority as consumer. It is denied that the opposite party had illegally repudiated the claim of the complainant and liable for deficiency in service.  These are being the admissions and the denials we consider the following points to be adjudicated in resolving this dispute:

1. Whether the complainant is the consumer as per Consumer Protection Act 1986?
2. Whether the complainant proves the deficiency in service on the part of the opposite party?
3. Whether the complainant entitled for the relief prayed for?
4. What order?

     After careful examination of the evidence and the documents produced, we considered the notes filed by the parties and heard submissions of the parties and answered the above points as under:

1. In the negative.
2. In the negative.
3. In the negative.
4. As per delivered order.

REASON

POINT NO 1: The complainant produced the policy copy No 604300/48/11/3600001645 which is the name of undisputedly complainant’s mother deceased MRS MILIANAD.D. SOUZA. The complainant claims to be the assignee of the policy holder and filed this complainant but the policy does not contain the name of the complainant as the assignee. Even the succession certificate under section 381 of the Indian succession Act is not produced to file complainant as legal heir. Hence in the first place the complainant is not a consumer as legally he has not entered the shoes of the deceased insured. Hence the complainant has no locus standi as consumer. So we answered the point no 1 in the negative. 

POINT NO 2 & 3: The opposite party has taken contention inter alia

1) There is delay in informing the police by 12 months and delay in informing the opposite party by 17 months without proper explanation.

2) FIR lodged reveals that the complainant is suspecting his own relations for the theft, the actual value of loss not declared, the actual date of incident not mentioned.

3) As per policy condition the theft should be informed immediately but delay of 17 months is not reasonable.

4) There is no house breaking in or breaking out of the house while alleged theft happened.

5) As per policy condition the jewelry is not covered under the policy.

6) As per policy condition in Section II (i) the company shall not be liable for the loss or damage by burglary and /or house breaking where the any member of the insured’s family is concerned  as principal or accessory.

2.     The complainant not succeeded in defending any of the contentions raised by the opposite party in proving his case.  He neither explained the reason for delay to convince us in reporting to police or insurance company giving an opportunity for them for finding out the culprit or averting the loss. It is admitted fact that the complainant relations are looking after his mother and the complainant himself suspected them for the theft. As such we hold the complainant has not proved his case and we answered in the negative and as such the point no 3 in the negative.

POINT NO 4: in the light of above discussion and adjudication of the above points we deliver the following

ORDER

          The complaint is dismissed. No order as to cost.

     Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 6 directly typed by member, revised and pronounced in the open court on this the 20^th February 2017)

             MEMBER                                         PRESIDENT

  (SRI T.C. RAJASHEKAR)         (SRI VISHWESHWARA BHAT D)

D.K. District Consumer Forum           D.K. District Consumer Forum

 Additional Bench, Mangalore             Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. John Lancy D’Souza

Documents marked on behalf of the Complainant:

Nil 

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Bhavanishankar M, Assistant Manager, The National Insurance Company Ltd,

Documents marked on behalf of the Opposite Party:

Ex.R1:                 : Certified copy of the policy bearing No.604300/48/11/3600001645 standing in the name of Mrs. Millina D’Souza for                                   the period from 27.09.2011 to 26.09.2012

Ex.R2: 25.10.2013: Original Burglary claim form submitted by Mrs. Milliana D’Souza with unsigned list of Missing/stolen items

Ex.R3: 10.10.2013: Copy of the FIR furnished by the insured

Ex.R4: 15.10.2013: Office copy of the letter from OP to the insured

Ex.R5:                 : Acknowledgment of the insured for service of  Above letter dated 15.10.13

Ex.R6: 11.10.2013: Letter written by Mr. John Lancy D Souza on behalf of insured

Ex.R7: 19.11.2013: Survey Report of Universal Marine Surveyors &  Loss Assessors with reference No. NIC/2013/218

Ex.R8: 07.01.2014: Repudiation letter issued by O.P to the insured

Ex.R9:                  : Unserved returned letter with cover with Endorsement deceased.

Dated: 20.02.2017                                              MEMBER