Karnataka

Kolar

CC/54/2022

Sri.Narayanawamy - Complainant(s)

Versus

The Manager, TATa AIG General Insurance Company Ltd - Opp.Party(s)

29 Apr 2023

ORDER

Date of Filing: 25/11/2022

Date of Order: 29/04/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 29^thDAY OF APRIL 2023

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:54/2022

Sri. Narayanaswamy.

S/o Venkataramanappa,

Aged about 46 years,

R/a Appaiana Agrahara Village,

Masthi Post,

Malur Taluk.

Kolar District.

(Rep. by Sri.A.V. Ananda, Advocate)  ….  Complainant.

 

 

- V/s –

 

1. The Manager,

Tata AIG General Insurance Co.Ltd.,

2^nd Floor No.69,

JP & Devi Jambukeswar Arcade,

Millers Road,

Bengaluru – 560 052.

 

2. The Manager,

Tata AIG General Insurance Co.Ltd.,

Registered Office,

Penisula Business Park,

Tower A, 15^th Floor,

G.K. Marg, Lower Parel,

Mumbai – 400 013.

(Rep. by Sri.B.Kumar, Advocate for OP.1 & 2)

 

3. Sri. Nasir Baig, The agent,

Tata AIG General Insurance Co.Ltd.,

R/a R.V. Layout,

Hosakote Main Road,

Malur Town & Taluk.

(EXPARTE)  

 

4. Police Sub-Inspector,

Masthi Police Station,

Masthi Hobli,

Malur Taluk.

(EXPARTE)  

 

5. The Shriram Finance,

Shishilamma Complex,

1^st Floor Beside Vathsalya Hospital,

Hosakote Main Road,

Malur – 563 130.

 (Rep. by Sri.Ravichandra. R, Advocate for OP. 5)   ...Opposite Parties.

 

 

-: ORDER:-

BY SMT.SAVITHA AIRANI, LADY MEMBER.,

1)     The complainant has filed this complaint Under Section 35 of the Consumer Protection Act 2019 against the OPs alleging deficiency in service and prays to direct the Ops to pay the sum of Rs.50,00,000 along with interest 18% on the claim from the date of repudiation of claim till realization, towards deficiency in rendering service and for mental agony to the petitioner and award costs  in the interest  of justice and equity.

2)  Brief facts of the case:-  The complainant was owning vehicle No.K.A-16, C-4719, MAHINDA BOLERO PICUP,  and the same has been insured with the 1^st OP,  through the 3^rd OP as the 1^st Op is insurer of the said vehicle, 2^nd OP is the registered office of the 1^st OP and since complainant is an illiterate person was unable to get his vehicle insured, as such he has taken assistance of 3^rd OP, as he is agent of  3^rd OP, as he is agent of the said insurance company and the said policy No.0160210249, and the same was valid from 27/08/2020 to 26/8/2021 and he has paid Premium of Rs. 20,473/- as the complainant has purchased the vehicle by taking the loan from the  OP.No.5 i.e., Shriram Finance.

3)    The complainant was using the said Vehicle for his daily work, such being the case as per schedule he was parked his vehicle in front of his house on 2/7/2021 at about 10-30 PM, and in the next day morning i.e., 03/07/2021, when he wakeup at early morning at about 4-30 AM, his parked vehicle was not there and missing, and when he started to search the same he found in the CC camera Keseragere Village, that someone has stolen his vehicle and the same is evident in the CC camera, and the said footage is  also available with the complainant.  After noticed the said incident that the complainant rushed to the Jurisdictional police i.e. 4^th OP and lodged written complaint by narrating the entire incident, but the 4^th OP  has not registered the FIR, and not responded to the complainant request and gave evasive answers and finally on 20/07/2021complainant given the complaint at Masthi Police station by suppressing the earlier complaint dated 03/07/2021 and registered an FIR IN CR. N0.99/2021 for the offence punishable under section 379 of IPC.

4)    The complainant is an illiterate person has approached 3^rd OP and as per instructions the complainant has field claim with 1^st OP stating that his vehicle has been stolen and the said vehicle was insured with 1^st OP and as on the date of the theft vehicle was insured and due to the theft he sustained loss of Rs.4,50,00/- and at the time of filing claim he has also furnished all the necessary documents i.e., complaint dated  03/07/2021 which contains seal and signature of the 4^th OP and also in the said complaint the detail address as well as mobile number also mentioned, and further FIR dated 20/07/2021, RC, Driving Licenses, insurance policy and other documents which are necessary to file claim as the same was filed as per the instructions of the 3^rd OP.

5)     The Complainant has got received 1^st OP letter dated 03/12/2021 stating that 1^st OP is unable to entertain the complainants claim for the reason of delay in lodging FIR, complainant has to report the police as well as insurer within 48 hours from theft as the OPs are aware that the complainant has reported the theft of his vehicle on 03/07/2021 to the Jurisdictional Police which is within 24 hours, and also contacted 3^rd OP regarding to file claim as the complainant is an illiterate and also the 3^rd OP who is the agent and competent person to guide him to file the claim, and after receiving proper information from 3^rd OP and as per his instructions only the complainant has filed claim, as such the complainant has reported the theft and contacted the Insurance agent to file a claim, since the complainant is an illiterate, as such all the necessary formalities have been followed, and there is no lapses on the part of the complainant.

6)     The complainant has contacted the 3^rd Opponent about  his claim, and 3^rd Opponent assured the complainant that still some progress is going on and he will see that the complainant, that the complainant will get the claim, but again on 19/04/2022 the complainant got received a letter from opponent stating that claim of the complainant has been repudiated, and again the complaint rushed to 3^rd opponent  and again 3^rd opponent assured to the complainant and also taken the complainant to the 1^st opponent and since last fifteen days from issuing notice the 3^rd opponent was assuring complainant that he will get the claim from 1^st opponent, but recently 3^rd opponent has avoided the complainant and stating that the complainant will not the claim, on the above said grounds.

7)     The complainant has got the policy from 1^st opponent through the 3^rd opponent and when his vehicle has been stolen he lodged complaint with the 4^th opponent i.e. within 24 hours and also intimated the 4^th opponent as well as 1^st and  3^rd opponents about CC TV footage, and there is no delay in lodging  the complaint on part of the complainant is concerned, as he is having the endorsement made by the 4^th opponent to show that the complainant has lodged complaint is concerned, as he is having the endorsement made by the 4^th opponent to show that the complainant has lodged complaint on 03/07/2021 itself, and further the complainant is consumer under 1^st opponent through the 3^rd opponent as he has obtained the policy by paying the policy amount  and delay in registering FIR is the fault of 4^th opponent, and the complainant is no way concerned to any delay in registering FIR, and further the act of the 1^st and 3^rd opponent is nothing but deficiency of service, and also negligence on the part of the 4^th opponent in registering the FIR immediately after receiving complainant and the complainant has sustained loss of Rs.4,50,000/- towards vehicle and also Rs.50,000/- towards the expenses he incurred to get the claim.

8)   The complainant without any alternative he has got issued legal notice to the opponent on 06/10/2022 and the legal notice sent to the opponents 1,2 and 4 were served, but they have not complied the same, nor issued any replay, and notice to the 3^rd opponent returned with shara that not claimed on 08/10/2022 and it amounts to due service on the 3^rd opponent, in spite of legal notice the opponents have not complied as they have no regards for law,  and they are liable to pay the claim and damaged of the complainant.

9)  The opponent No.1 has rejected the claim the complainant, which is illegal and the rejected the claim of the complainant, which is illegal and the opponent No.1 has no basis to reject the claim, but in spite of the all these formalities the opponent No.1 has intentionally declined the claim of the complainant, which amounts to deficiency of service, thereby there is deficiency in rendering service by the opponents.  Hence this complaint.

10)   On issuance of notice, Ops appeared No. 1,2&5 through its counsel and filed their version.  Whereas the OP No. 3&4 despite the service of notice as per the postal track report failed to appear before this commission and the postal track report is sufficient to hold service of notice on OP No. 3&4 and thereon OP No. 3&4 placed exparte. 

The Op No.1&2 in their version contented that, the complaint is not maintainable either in law or on facts and hence the same is liable to be dismissed in limine with cost.

11)    The Op No.1&2 admits that, the interest of MAHINDRA BOLERO PICK UP vehicle bearing registration number KA 16C 4719 owned by the complainant was covered at the material time under the policy of insurance issued by the Ops subject to terms and conditions, exception and limitations thereof ad the confirmation of the compliance of Sec. 64 VB of the Insurance Act 1938.  The policy of Insurance issued by the OPs in favor of the complainant for the period from 27/08/2020 to 26/08/202.  The Ops main allegation is that the complainant above said vehicle somebody stolen on 03/07/2021 at about 4.30 AM but complainant lodged the complaint before Masti Police on 20/07/2021.  The delay in register of the case of theft of the above said vehicle within the time.  The Ops also contended that as per the terms and conditions of the policy, notice shall be give in writing to the Ops immediately upon occurrence of the any accident or 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 requite.

12)    Further contended that notice shall be given in writing to the Op insurance company immediately the insured shall have knowledge of any impending. Prosecution inquest fatal injury in respect of any occurrence which may be give rise to a claim under this policy the insured shall give immediate notice to the police and co-operate with the company securing the convection of the offender.  As such the complainant has not intimated the theft of the vehicle immediately which is usually construed to mean “within reasonable time having due regard to the nature of circumstances of case”.  As such claim laid by the complainant is not maintainable and the same will have to be dismissed in limine.

The Ops says that the dictionary meaning of the word “IMMEDIATELY”.

1. As per Oxford Advanced learner dictionary, the word immediately means “ At once
2. As per Stroud’s Judicial Dictionary, the word “immediately” is defined as under:- the word “ immediately” although in strictness it excludes all mean time s, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonably requires for doing the thing”
3. As per Black Law dictionary the word “immediately” means “immediately without interval of time, without delay, straight way, or without any delay or lapse of time.  When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of circumstances of the case” although, strictly, it means, “not deferred by any period of time.  The word “Immediately” and “forthwith” have generally the same meaning.  They are strong than the expression “without a reasonable time” and imply prompt, vigorous action without any delay.

13)    The Ops also contended that, the complainant has failed to inform the mishap immediately after the theft. The complainant failed to discharge the contractually liability of immediate intimation to police and the insurer.  The object immediate notice to the police is that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion, and steps for recovery of the vehicle could be expedited.  Furthermore the delayed in intimation to the Insurer also made, which diluted the possibility to find the culprit and upon timely investigation to ascertain the geniuses of the alleged theft case. On careful scanning of the entire complainant averment made in the complaint there is no deficiency in service and the complainant in the present case did not cared to inform the Op about the theft of vehicle. The entire averment made in the complaint is a concocted story with an intimation to get unlawful gain and on the above grounds prays to dismiss the complaint.

14)     OP No.5 i.e., Sriram Finance Co.Ltd in its version, contented that complaint filed by the complainant is false, frivolous and vexatious.  The same is not maintainable in law or on facts as no cause of action arose.  The same is liable to be dismissed without going into the merits.  The Op No.5 also contended that we are need not required to be answer the averments made in the complaint by the complainant.   We are not proper party because we are only lending the loan to the above said vehicle of the complainant.

15)     The Op No.5 is a Non Banking Public Ltd., financial institution and same is engaged in the commercial vehicle finance business.  The complainant has borrowed a loan from the Op No.5 to purchase a MAHINDRA BOLERO PICUP bearing Reg. No. KA-16 C 4719 for the commercial pursues. The Op No.1 and Op No.3 are two different entities they do not have any business connections. The Op O.5 also contended that the complainant is a chronic defaulter in paying EMI installments amount of the Hypothecated Light commercial vehicle with the Op No.5. The complainant borrowed loan from the Op No.5 to purchase vehicle for commercial purpose.  Therefore commercial use of the said vehicle by the complainant is not a consumer within the meaning of the section 2(1) (d) of the CONSUMER PROTECTION ACT.   Hence complainant has no locus standing to claim as a consumer.

16)   The Op No.5 contended that the complainant has unnecessarily and deliberately dragged them in to the vexatious litigation just to avoid the payments of EMI which is due in the Op No.5 finance. The Op No.1 issued policy for insurance, and the said matter in no way connected to the Op No.5   As per the terms of the contract for loan cum hypothecation clause the complainant being borrower has agreed and under taken to keep the hypothecated vehicle fully and comprehensively insured from time against all risks such as accidents, etc., therefore the Op No.5 being a finance of the vehicle no way liable to indemnify any losses to the complainant and the liability to pay insurance amount never arises at all the Op No.5. The Op No.5 has not at all committed any deficiency of services.  Hence dismiss the complaint of the complainant with cost.

17)     In order to prove the case of the complainant and Op Nos.1, 2&5 filed their affidavit evidence along with the supporting documents.

Hearted arguments of complainant and Op Nos.1,2&5.

 

18)   On the basis of the pleadings of complainant and Op Nos.1, 2&5 the points that do arise for our consideration.

1. Whether the complainant has proved deficiency in service on the part of the Ops?
2. Whether the complainant is entitled for the relief as sought is the complaint.
3.     What order?

            Heard the arguments of both the parties and perused the evidence placed on record.

19)   Our answers to the above points are as under:-

             POINT No. (1)& (2):-   Are in the affirmative

             POINT No. (3):-           As per the final order

                                                for the following :-

 

              REASONS

POINT NO. (1) & (2):-   On perusing the pleadings of the parties, these two points are interlinked to each other and for the sake of brevity and for convenience we have taken up together these points for discussion.

20)   On perusing the pleadings of the parties it is an undisputed fact that the complainant is the owner of vehicle bearing No. No.K.A-16, C-4719, MAHINDA BOLERO PICUP and the same is insured with the Ops insurance company bearing policy No. 0160210249.  The validity period of the said policy was commencing from 27/08/2020 to 26/08/2021.

It is the specific case of the complainant is that, the claim of the complainant was repudiated by the Op insurance company on the ground of delay in intimating theft of the vehicle and it leads to filing of this complaint.

21)   On perusal of the affidavit evidence of the complainant, it discloses that the complainant deposed all the facts narrated in the complaint petition.  On perusal of the lodging of the complaint before the jurisdictional police dated 03/07/2021, and the said complaint was not registered by the police in respect of the theft of the vehicle.  Hence the complainant once again on 20/07/2021 given the complaint to the said police and thereon the jurisdictional police have registered the complaint in Cr.No. 99/2021 as seen from the FIR produced by the complainant. On careful perusal of the both the complaints dated 03/07/2021 and 20/07/2021 it reveals that the jurisdictional police clearly endorsed the first complaint.  Hence in our view that the complainant immediately after the theft of the vehicle approached the jurisdictional police with a complaint on 03/07/2021 only, hence it is the duty of the jurisdictional police to register the complaint, but the reasons best known to them that the police registered same only on subsequent complaint.  Under these circumstances complainant impleaded the Op No.4 jurisdictional police to the present proceedings.  It is worth to mention that if the jurisdictional police failed to registered the complaint, that the complainant ought to have approached the higher authorities.  As per the definition of the consumer,  that the consumer can avail services from the service provider by paying suitable consideration,  In our view that the complainant not paid anything to the Op. No.4 police to avail the service and hence there is no privity of contract between the complainant and the Op. No.4 police.   Under these circumstances Op. No. 4 Jurisdictional police is not necessary or a proper party to the proceedings.  Hence the complaint against Op No.4 hereby dismissed.

22)     It is note worthy to mention that that the complainant had obtained the insurance policy from the Op No.1&2 through Op No.3 an agent, the act of the agent always binds the principal under this circumstances we are of the considered opinion that Op. No3 not a necessary party or a proper party to the proceedings and hence complaint against Op No.3 is also dismissed.   So also Op. No.5 is only a loan advanced to the complainant in order to purchase the vehicle by the complainant, and the same is insured with the Op No.1&2.  Hence in our view Op No.5 is not a necessary or proper party proceeding and hence complaint against Op No.5 is also dismissed.

The crux of the matter is to consider that, whether the repudiation of the claim by the Ops No.1&2   is justifiable one on the ground of delay in intimating the theft of the vehicle?

23)    On perusal of the complaint dated 03/07/2021 and the police endorsement on it, it clearly demonstrates that, immediately after theft of the vehicle, complainant was lodged the complaint before the jurisdictional police for not registering case immediately by the concerned police is not fatal to the case of the complainant, whereas the case was registered on 20/07/2021, it shows the bonafide attempt of the complainant.  Further the complainant was also intimated to the Ops insurance company and filed the claim papers.  However the Ops insurance company repudiated the claim based on registration of FIR and repudiated the claim for the delay of about 17  days.  It is not a dispute regarding the theft of the vehicle and filing ‘C’ report by the police. 

       There is a delay in intimating to the insurance company cannot exonerate its liability. However to decide the time factor in intimating to the insurance company there should be bonafide grounds, whereas complainant produced documents to establish bonafide grounds. Further the complainant has given cogent reasons for the delay in informing the Ops about the incident.

 

24)    The condition of the insurance policy state that notice shall be give 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 has to give  all such information and assistance as the company may require. It is common knowledge that a person who lost his vehicle may not straightaway go to 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 the 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.  When the rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in the insurance field.  If the reason for delay in making, a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.  The rejection of the claim by the insurance company should be fair and reasonable grounds. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine.  It need no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers.  It is a Benevolent Legislation that deserves liberal construction.  

25)    On over all perusal of evidence placed on record the repudiation the claim is not justifiable one and non-honoring the claim by the Ops insurance company it amounts to deficiency in their service.  On perusal of the policy complainant was paid premium amount of Rs. 20,422/- and insured declared value of the vehicle is shown is Rs.3,80,000/-.  In our view Ops 1&2 are liable to pay a sum of Rs.3,80,000/- to the complainant.  Further the Ops No. 1&2 repudiated the legitimate insurance claim merely on technical ground made the complainant wonder from pillar to post and hence Op No.1&2 are liable to pay at the interest 7.5% per annum on the insured amount along with Rs. 2000/- towards the cost of proceedings.  Accordingly we answer these points No. (1) & (2) are in the Affirmative.

 

 

•   

1. The complaint is hereby allowed in part with cost as against OP No.1 & 2 and dismissed as against OP No.3 to 5.
2. The OPs No.1 & 2 jointly and severally liable to pay to the complainant a sum of Rs.3,80,000 /-(Three Lakh Eighty Thousand Only) along with interest at the rate of 7.5% p.a from the date of repudiation of the claim till realization of the insured amount with interest to the complainant.
3. Further OP No.1 & 2 are directed to pay to the complainant a sum of Rs.2,000/- towards the cost of the proceedings.
4. Further OP No.1 & 2 are directed to comply the orders within 30 days from the date of receipt of orders and to submit compliance report within 45 days.
5. Send copies of this order to all the parties at free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 29^th DAY OF APRIL 2023)

 

 

 

  LADY MEMBER                      PRESIDENT