Karnataka

Bijapur

CC/94/2016

Sri Golappa S/o Basappa Sabasagar - Complainant(s)

Versus

The Manager, Tata AIG General Insurance Co.Ltd., - Opp.Party(s)

S D Kallur

15 Feb 2018

ORDER

                

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

DATE OF FILING 1st DAY OF DECEMBER 2016

 

CONSUMER COMPLAINT NO:94/2016

 

 

DATED THIS THE 15^TH  DAY OF FEBRUARY, 2018

 

01) Sri S.H. Hosalli                            -             President.  

                  B.Com.LLB. (Spl),

 

02) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

COMPLAINANT   -	1	Sri. Golappa S/o Basappa Sabasagar Age:35 Yrs, Occ:Business. R/o Sindagi Naka, Jai Karnataka Colony, Vijayapur-586101.
		(By Sri. S.D.Kallur,  Adv)

- V/S -

 

 

OPPOSITE PARTY  -	1	The Manager,      Tata AIG General Insurance Co.Ltd.,      3rd Floor, J.P. and Devi      Jambukeshwar Arcade, # 69, Millers      Road, Bangalore-560052.
	2	Beemasen Rao Naik,      Muranakeri, Bagalkot Road,      Vijayapur.         (Op-1 & 2 by Smt. V.P.Jamangoudar, Adv)

O R D E R

 

Speaking through Smt. G.S. Kalyani, Lady Member.

 

 

 

This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as the Act) against the Opposite Parties (in short the “Ops”) directing the Ops to pay Rs.18,20,690/-as a Compensation towards the IDV value of the vehicle, Rs.25,000/- towards mental agony and physical agony and any other reliefs as the forum deems fit under the circumstance of the case. 

 

 

 

 

2)       The brief facts of the case are that:-

         

          The complainant contended that he is the owner of Tipper  bearing No.KA-28/B-5368 (Tata LPK 2518 model). The complainant purchased the above said vehicle on 09/05/2012.  Complainant purchased the vehicle for his livelihood by way of self employment.

 

3)       The complainant submits that he said vehicle insured with Op company bearing policy No.015235166701 which is valid  from 27/02/2014 to 26/02/2015. As per the policy of insurance IDV value of said vehicle is Rs.17,85,690/-.  Complainant paid Rs.37,301/- towards premium, complainant alleged that he had purchased said vehicle by availing loan from Cholamandalam Investment  and Finance Co. Ltd., Chennai and has been paying monthly installments right from the date of purchase.

 

4)       Complainant further alleged that on 13/10/2014 in routine course complainant left/parked his vehicle in front of his uncle’s house by name Sri. Yallappa Parasappa Logavi, R/o Allapur Tanda.  Therefore, on 14/10/2014 at about 5.30 PM in the evening when the complainant went to the place where the vehicle was parked he did not find the vehicle and he enquired with the driver and his elder brother on such enquiry they informed that  the vehicle is not with them, despite of search vehicle was not found.  Hence, complainant sensed that somebody has committed theft, and immediately complainant informed the same to the agent of Op-1, i.e. Op-2, Op-1 instructed complainant to lodge complaint before the Police.  Accordingly, complainant on the same day lodged the complaint before Gol Gumbaz Police Station, who assured the complainant that the vehicle would be trace and first if it is not found then the register FIR/Case.  The vehicle was not traced even after lapse of 3 days, then complaint was registered under Crime No.135/2014.  After investigation the Gol Gumbaz PS police have been submitted “C” Final report (not traced) before the C.J.M. Court, Vijayapur.  In view of the above fact the complainant approached the Op-2 along with written letter to Op-1 requesting to pay a sum of Rs.17,85,690/- being the IDV value of said vehicle.  In view of the said letter Op-1 issued letter dtd:11/05/2016, seeking clarification.  After clarification Op-1 rejected the claim of Complainant on 31/05/2016.  On the reason that there was delay of 7 days in intimating the claim and 2 days delay in registration of  FIR, the Ops act is highly arbitrary and illegal and contrary to the provisions of the C.P.Act, and nothing but it is deficiency of service and un-trade business.

 

5)       Complainant further alleged that immediately after the incident complainant informed the same to Op-2 who is agent of Op-1 and also to the Police on the same day.  Hence, there is no delay in intimating the incident to the Op.  Hence, complainant filed this complaint praying for allowing complaint as prayed.

 

6)       On appearance of Op, Op filed version contending that complaint is vexatious, frivolous and is contrary to law and facts of the case, and is not maintainable either in law or on facts.

 

7)       The Op has admits that he issued policy No.015235166701 covering the vehicle Tipper bearing its Reg. No.KA-28/B-5368 for the period from 27/02/2014 to 26/02/2015.  The Policy of insurance has been issued subject to the terms, conditions and the exceptions enumerated in the policy of insurance.

 

8)       This Op submits that complainant intimated on 21/10/2014 to this Op stating that his vehicle has been stolen on 12/10/2014, as per condition No.1 of policy of insurance.  Complainant was to inform to Op immediately after the occurrence of incident.  But complainant has failed and neglected to inform immediately, there is 7 days delay in intimating, hence it is clear breach of condition No.1 of policy.

 

9)       Op further submits that the complainant intimated the theft of his vehicle through call centre stating that the vehicle was stolen on 12/10/2014.  But as per FIR Complaint dtd:16/10/2014 date of theft was mentioned as 13/10/2014 to 14/10/2014, hence Op submits that complainant misrepresented the material  facts, this Op sent letter dtd:27/10/2014, 04/03/2016, 28/04/2016, 11/05/2016 and 31/05/2016 for seeking documents and clarification regarding mismatch in date of theft,  complainant failed to give satisfactory reply till date. Hence, finally on 08/08/2016 letter of repudiation send with reasons as mentioned under.

 

          “Commercial vehicle policy Condition No.1 reads as under:- Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage 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 write summons and / or process or copy thereof shall be forwarded to the company immediately on receipt by the Insured.  Notice shall also be given 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 give rise to 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”.  There being violation of condition of policy of Insurance by the Insured owner, this Respondent is not liable to pay any claim to the Insured.”  

 

10)     Op submits that complainant has failed to intimate immediately and the repudiation of the claim by Op is proper and legal and hence there was no deficiency of the service on the part of Op.  Hence, complainant is not entitled to get either IDV value of vehicle or other reliefs towards mental agony and physical agony.  Hence, Op, prayed for dismissal of complaint with exemplary cost of Rs.10,000/-

 

11)     Complainant filed complainant affidavit in lieu of evidence and produced 12 documents in support of his case, on the other side Op filed Op-1’s affidavit and produced in all 8 documents in support of his case, Op advocate filed written argument.  Complainant advocate argued the matter orally.  Heard the argument, perused the records the following points arise for our consideration in deciding the case is as under:-

 

 

1)   Whether the complainant is entitled for the reliefs as sought for?

 2) What order?

 

12)     Answer to the above points.

 

1)   Partly in affirmative.

2)   As per Final order.          

REASONS

 

13)    Point No.1:- it is not in dispute that complainant is the owner of vehicle TATA LPK 2518 (Tipper) bearing Reg. No.KA-28
B-5368 and the same was insured with Op-1 under policy No.015235166701, covering the period from 27/02/2014 to 26/02/2015.

 

14)     It is also admitted fact that the said vehicle was stolen and as on the date of stolen the policy of insurance was inforce.  According to complaint, complainant alleged that the said vehicle was stolen when he parked the vehicle on 13/10/2014 in front of his uncle’s house.  Thereafter on 14/10/2014 at about 5.30 PM in the evening when complainant come to the place where the tipper was parked, complainant not found the tipper complainant shocked and enquired the same to his uncle and his driver but they also told that they did not know about the vehicle.  Thereafter, immediately complainant approached to Op-2 who is agent of
Op-1, because at the time of insuring the vehicle usually insured made his vehicle insurance through agent, like wise complainant also made vehic1 informed the complainant to lodge complaint before the Police.  Accordingly complainant lodge the complaint before Gol Gumbaz Police Station, on the same day further complainant alleged that after lodging the complaint Police not registered the case immediately they assured the complainant that trace the vehicle first and if not found then they register FIR.  Accordingly Police has registered FIR on 16/10/2014.  Complainant produced the certified copy of FIR i.e. marked as Ex.C-5.  Wherein it is also mentioned the reason for delay in filing FIR, complainant produced the RA of his vehicle i.e. Ex.C-1 and fitness certificate i.e. Ex.C-2 permit copy i.e. Ex.C-3 and insurance policy i.e. Ex.C-4.  Complainant also produced the certified copy of FIR Ex.C-5, complaint Ex.C-6 i.e. “C” report i.e. Ex.C-7.  It clearly goes to show that the complainant is the owner of said vehicle and said vehicle was registered and valid permit and as well as valid insurance as on the date of accident / incident this fact is also not disputed by the Op.

 

15)     After the theft of his vehicle complainant alleged that he intimated to the said incident to Op-1.  But Op submits that complainant made delay of 7 days in intimating the incident.  But Op in his written version at para-5 submits that complainant intimated the theft of the vehicle through call centre stating that the vehicle was stolen on 12/10/2014.  But as per FIR the FIR dtd:16/10/2014.  We go through document at Ex.C-5 which is FIR it clearly show that the FIR was made on 16/10/2014.  It is clear that we go through documents as well as averments complainant parked his vehicle on 13/10/2014 and he went to the place where we parked his vehicle on 14/10/2014 at evening and he tried to trace out his vehicle through driver and his uncle then he lodged the complaint on the same day, but Police have been registered the complaint on 16/10/2014.  Hence, there is no delay in lodging the complaint when the vehicle was not found 1^st of all a prudent man can try to trace out his vehicle, when the vehicle was not traced out then prudent man could approached Op or Police station.  Here in this case also complainants act as a prudent man.  Hence, there is no delay in intimating the incident to the Police as well as Op.  The Op himself admits in his written version at Para No.5 that  complainant intimated about the incident through call centre stating that his vehicle was stolen on 12/10/2014.  But Op not disclose the date in what date he intimated to the Op through call centre it means that Op had knowledge about the incident before he complainant applied for claim. According to Op, Op submits in his written version at para No.4 that The complainant has intimated the claim on 21/10/2014, we go through the written  version of Op at para No.4 & 5 Ex.Op-3 there is a contradiction with regard to date of intimation regarding the theft of complainant vehicle.  So Ops act of repudiation of claim of complainant is not legal it is illegal and not justified in the eye of law, near allegation that complainant not intimated about the incident immediately, hence, he violated the condition No.1 of insurance policy and rejected the claim, genuine claim of complainant is not only deficiency of service also it amounts to mala trade business by the Op.  In this regard we rely upon the ruling reported in 2017 (4) CPR 21 (SC) Page No.21 & 22 Om Prakash V/s Reliance General Insurance and Anr. head notes reads as follows.

         

          “ (A) Consumer Protection Act, 1986 – Section 12 – Insurance – Theft of Truck – Claim repudiated on ground of delay in intimation of theft – A person who lost his vehicle may not straightway go to Insurance Company to claim compensation – At first, he will make efforts to trace vehicle – It is true that the owner has to intimate insurer immediately after theft of vehicle – However, this condition should not bar settlement of genuine claims particularly when delay in intimation or submission of documents is due to unavoidable circumstances – Decision of Insurer to reject claim has to be based on valid grounds – Rejection of claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy – holders in insurance industry – If reason for delay in making claim is satisfactorily explained, such a claim cannot be rejected on ground of delay – Appellant has given cogent reasons for delay of 8 days in informing  respondent about incident – Investigator had verified theft to be genuine and payment of Rs.7,85,000/- towards claim was approved by Corporate claims Manager which is just and proper – National Commission is not justified in rejecting claim of appellant without considering explanations for delay – Claimant is entitled for a sum of Rs.50,000/-  towards compensation – Respondents directed to pay a sum of Rs.8,35,000/- to appellant with 8% interest (Paras 11, 12 and 13).”

 

 

16)     Wherein it is also held that it would not be for and reasonable to reject genuine which has been already admitted and verified by the documents. The above citation is applicable to this case.  The complainant mentioned reason for delay in the FIR (Complaint) delay is satisfactorily explained.

 

 

17)     We go through documents, produced by Op at Ex.Op-3.  Wherein Op written there is 9 days delay in intimating the theft to Op.  We go through the averments of Op it clearly shows that Op repudiated the claim only with a view to get rid from his liability and take undue advantage of condition No.1 of insurance policy Ops averments is contrary.

 

18)     Therefore, we are of the opinion that the repudiation of claim of complainant is illegal and without any reasonable cause.  Hence, we hold that complainant is entitled to get relief and also proved his cause under the circumstances we are of the considered view that Op-1 is liable to refund the IDV Value of vehicle i.e. Rs.17,85,690/- with 9% interest from the date of filing this complaint, further the Op-1 is liable to pay Rs.5,000/-  towards mental agony and deficiency in service and Rs.2,000/- towards litigation cost.  Complainant not entitled to any other reliefs as prayed by him without cogent evidence except the above relief.  We answer to the above Point No.1 as partly affirmative.

 

 

 

19)    Point No.2:- In view of the above discussion at point No.1 we proceed to pass the following order.

 

 

O R D E R

 

 

1)   The Complaint is allowed in part.

 

2)   Op-1 is ordered to pay Rs.17,85,690/- with 9% interest from the date of filing of this complaint i.e. on 01/12/2016.   

 

 

3)   Op-1 is ordered to pay Rs.5,000/- (Rs.Five Thousand Only) towards mental agony and Rs.2,000/-
(Rs.Two  Thousand Only) towards litigation cost.

 

4)   Op-1 shall comply this order within two months from the date of this order, failure of which the above said amount i.e. Rs.17,85,690/- shall carry on interest at the rate of 12% p.a. from the date of filing complaint i.e. 01/12/2016.

5)   Free copy of this order shall be sent to the parties.

 

 

 (This order is dictated to the Stenographer, directly on computer transcript edited, corrected and then pronounced in the open forum on this  15^th  day  of FEBRUARY 2018).

 

 

 

 

 

Sri. S. H. Hosalli  President.

Smt. G. S. Kalyani           Lady Member.