COMPLAINT FILED ON: 25.08.2009

DISPOSED ON: 07.01.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

07^TH JANUARY 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER 

      Advocate:B.C.Shivanne Gowda

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party  (herein after called as O.P) to settle the claim amount of Rs.28,000/- along with interest and costs and  compensation of Rs.10,000/- on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

          Complainant is a owner of the vehicle 2005 model Hero Honda passion plus bearing registration No.KA 05 ER 3628 on 23.11.2007 complainant at around 7.30 pm has parked the said vehicle at Bannergatta Road, Opp: Shoppers stop (Hero Honda showroom) Near shilpa kala choultary, Bangalore. When she returned back around 8.15.p.m. she found her vehicle was stolen.  The said vehicle was insured with OP having policy bearing No.071602/31/06/01/14435. Insurance was valid from 12.03.2007 to 11.03.2008. Complainant lodged a police complaint with jurisdictional police station J.P.Nagar on 25.11.2007 in Crime No.0529/2007. On 25.11.2007 FIR has been filed by the police. Inspite of every effort vehicle was not traced by the police.  Hence Police filed ‘C’ report and issued notice to the complainant.  Since the vehicle insured with the Opposite Party, the Complainant requested OP to settle the claim.  OP rejected the claim on the ground keys were left in the vehicle parked as per investigation report and OP doubts the alleged theft and there is a delay of four days in intimating the same. Hence complainant felt deficiency of service. Under the circumstances she is advised to file this complaint for the necessary relief’s.

3.      On appearance OP filed version admitting the issuance of the policy in respect of Hero Honda Passion Plus bearing registration No.KA 05 ER 3628 which is valid from 12.03.2007 to 11.03.2008 as per the provision of Motor Vehicle Act liability of the OP is limited as per the terms and conditions of the policy of the insurance. Complainant informed OP on 26.06.2007 stating her motor cycle was stolen on 23.11.2007 and accordingly OP appointed the investigator and investigated the same.  The investigator submitted his report to OP.  OP in turn requested the complainant to submit the claim form along with other relevant documents. But complainant has not produced original documents including 2 ignition keys inspite of repeated requests. On scrutiny of the investigation report and policy documents produced by the complainant, it is clear that there is a serious doubt regarding theft. Hence OP repudiated the claim of the complainant. As per Investigation Officer report the motor cycle was parked without locking the vehicle and keys were kept in the motor cycle and even if it is locked it cannot be moved without original keys. As per the report there is some serious doubts regarding committing of theft of insured vehicle and there is clear negligence on the complainant’s son while safe guarding the insured vehicle with reasonable care.  Hence OP is not liable to pay any compensation and complaint is to be dismissed.  It is the duty of the complainant to intimate the alleged the theft with the concerned police immediately after the alleged theft was noticed. In this case no such attempt was made by the complainant. Police complaint was filed only on 25.11.2007 and same was informed to OP on 26.11.2007; after laps of four days, same is against the policy terms and conditions. As per complainant’s son’s statements and other investigation report, the insured motor vehicle would not have stolen if at all the said vehicle was properly locked before parking. It is clear that complainant’s son has not locked the motor cycle itself and misrepresenting the fact in order to get on unlawful gain. If at all complainant has lost the original keys she should have lodged the complaint with the police or it should have been mentioned in the complaint.  Hence it is a clear case of fraud. The complaint No.388/2009 filed before the Hon’ble 3^rd Additional District Consumer Forum Bangalore dismissed on 17.08.2009 itself.  Complainant suppressed the said fact and filed this present complaint on the same cause of action. Hence complaint is not maintainable and there is no deficiency in service on the part of the OP. Among other grounds OP prayed for dismissal of the complaint.

4.      To substantiate the complaint averments complainant filed her affidavit evidence and produced the copy of the letters dated 26.11.2007 and 12.04.2008, 10.06.2008, 26.06.2008. Copy of the police complaint, copy of the FIR, copy of the C Report, copy of the insurance policy, copy of the letter of subrogation, copy of the email correspondence. On behalf of OP its Senior Divisional Manager, filed his affidavit evidence. OP has not produced any documents. Complainant submitted written arguments. Heard oral arguments from both the sides.

5.      From the above pleadings, the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OP?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that the complainant is the owner of the vehicle Model 2005 Hero Honda Passion Plus bearing Registration No.KA 05 ER-3628. On 23.11.2007 around 7.30 pm. complainant has parked the said vehicle at Bannergatta Road, OPP shoppers stop, near Shilpa Kala choultary, Bangalore. At 8.15 pm when complainant returned back she found that her vehicle was stolen. Complainant lodged the police complaint on 25.11.2007 with J.P. Nagar Police station. Copy of the police complaint is produced. Based on the same crime No.0529/2009 came to be registered and FIR has been issued.  Inspite of best efforts vehicle could not be traced. Hence police filed ‘C’ Report. It is also not in dispute that complainant informed OP on 26.11.2007. Thereafter complainant made the claim before OP claiming the amount and submitted all the documents sought by the OP.  On 09.07.2008 OP collected the letter of subrogation from the complainant.  Almost two years now OP failed to settle the claim inspite of repeated requests and correspondence, made by the complainant, on the ground vehicle was not locked before parking and there was a delay of four days in reporting OP. As per the policy condition claim is not payable. Hence complainant approached this forum.

8.      It is contended by the complainant that she has already lodged the complaint on 25.11.2007 before the jurisdictional Police. OP was informed on 26.11.2007. Merely because OP was informed after four days; OP is not justified in repudiating the claim.  Per contra it is contended for OP that there is a delay of four days in intimating the OP. Complainant has not reported the same immediately.  OP appointed the investigator and he has submitted his report.  Through OP has sworn to the fact that copy of report is produced but in fact OP has not produced the report of the investigator. OP has failed to produce the report for the reasons best known to it.  It is not correct to say that complainant failed to produce the documents sought by the OP. We have perused the correspondences produced by the complainant. The contention of the OP that key were left in the vehicle is not supported by any proof.  Hence same cannot be accepted. OP has failed to prove the allegations of breach of conditions and negligence on the part of the complainant.  In our view as per the principles laid down in IV (2008) CPJ 1 (SC) National Insurance Co. Ltd., V/s. Nitin Khandelwal wherein the Hon’ble Supreme Court observed:

“In the case of theft of a vehicle, the breach of condition is not germane.  The law is well settled that in case of theft of the vehicle, the nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis”.

          In I (2009) CPJ 123 ICICI Lombard General Insurance Co. Ltd., & others V/s Radha Devi & another the State Commission, Jaipur held that:

“In case of theft of vehicle, breach of condition not germane, nature of use of vehicle should not be looked into – Vehicle stolen away during insurance period – Obligatory on insurer to indemnify insured for loss suffered – Repudiation of claim unjustified”.

          The observations and principles of the above two citations are aptly applicable to the facts of the case.  On the basis of the above decided cases even on the basis of such a clause, OP is not justified in not settling the claim of the complainant.  Failure on the part of the OP to settle the claim without any justifiable cause is nothing but deficiency in service on the part of the OP. We satisfied that complainant is able to prove the deficiency in service on the part of the OP.

09.    Further it is contended by the OP that complaint No. 388/09 filed by the complainant before Hon’ble 3^rd Additional District Consumer Forum, Bangalore is dismissed; without challenging the said order; the complainant has filed the present complaint for the same cause of action said fact has not been disclosed in the present complaint and hence complaint is not maintainable.  We have perused the copy of the order sheet in Misc. petition No.02/2009 in C.No.388/09 of the 3^rd Additional District Consumer Forum, Bangalore. Dismissal of the complaint is not on merit and further observed that complainant can bring a fresh action on the same cause of action if she choose to do so. Hence complainant has filed this complaint on the same cause of action and hence complaint is maintainable. The contention of the OP that complaint is not maintainable is not cannot accepted. 

10.    The documents produced by the complainant corroborates the case of the complainant. Taking into consideration of all the facts and circumstances we are of the considered view that justice would be met by allowing the complaint with a direction to OP to settle the claim within four weeks and to pay litigation cost of Rs.1,000/- to the complainant. Accordingly we proceed to pass the following:

                                      O R D E R

The complaint is allowed in part.  OP is directed to settle insurance claim for Rs.28,000/- and pay the same to the complainant within four weeks from the date of communication of this order and to pay Rs.1,000/- litigation costs. The rights of OP are kept open to take possession of the said vehicle in question if traced by the concerned Police and proceed in accordance with law.

          Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 7^th day of January 2011.)

                        PRESIDENT

                   MEMBER                                       MEMBER

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