DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 15^th day of May  2012

Present : Smt.Seena H, President

            : Smt. Preetha.G. Nair, Member

            : Smt. Bhanumathi.A.K, Member           Date of filing: 10/1/2012

(C.C.No.12/2012)

C.N.Rajendran,

9/521, Kizhakkekalam,

Chanthiruthi,

Koduvayur Post,

Pin – 678 501

Palakkad                                                       -        Complainant

(By Adv.P.C.Sivadas)

V/s

1.The Manager,

   Bajaj Alianz General Insurance Co.Ltd,.

   1^st Floor, Mangalam Towers,

   Opp.Town Bus Stand,

   T.B.Road, Palakkad – 678 001

(By Adv.Ullas Sudhakaran)

2.General Manager,

   Bajaj Allianz General Insurance Co.Ltd.

   GE Plaza, Airport Road,

   Yerwada, Pune – 411 006                            -        Opposite parties

(By Adv.Ullas Sudhakaran)

O R D E R

By Smt.PREETHA G NAIR, MEMBER

          Complainant  had insured his vehicle registration No.KL-09-J-1680 motor cycle with gear, make Hero Honda manufacturing year 2001 with 2^nd opposite party through 1^st opposite party. The insurance of the vehicle renewed on 13/10/08 vide policy No.OG-09 1513 1802 00000298, which is valid for the period of one year from the date of issue. The complainant parked and locked his motorcycle inside the Palakkad town bus stand complex on 22/2/09 at around 11 AM and went for purchase and on returns at around 2 pm, it was shocked to notice that the motor cycle was missing. The complainant made  all efforts, but are become effortless and the incident was intimated to the beat police on duty at bus stand and the 1^st opposite party. On advise of 1^st opposite party, complainant lodged the complaint with the police for further investigation. Complainant has lodged a complaint with the Sub Inspector of Police and registered FIR vide FIR No.263/2009 and a copy of the FIR also been furnished to 1^st opposite party on 19/5/2009, who assured that in the event  the vehicle is not traceable  the insured amount will be settled after arriving the depreciation value by their survivor.

On 1/10/10, the complainant issued a letter to 1^st opposite party alongwith court order copy, FIR copy, RC book copy and insurance copy  for settlement of loss of vehicle lost due to theft. But the complainant was surprised to receive a repudiated letter  dated 22/10/10 from 1^st opposite party on the ground of belated notification of loss. On 23/4/11 the complainant sent a lawyer notice to opposite parties to settle the loss. But the opposite parties not settled the claim. The act of opposite parties and their failure of giving intimation and repudiation of claim will be held negligence and deficiency of service. The act on the part of opposite parties amounts to deficiency of service, restrictive trade practice and unfair trade practice under the Consumer Protection Act. Hence the complainant prays an order directing the opposite parties to

1. Pay Rs.16,100/- as the amount of insurance value of vehicle and
2. Pay Rs.16,100/- for negligence and deficiency of service and
3. Pay Rs.5,000/- as mental agony and
4. Pay Rs.2,000/- as cost of the proceedings.

Opposite parties filed version stating the following contentions. The opposite parties admitted that the motor cycle bearing registration No.KL-9J-1680 was having a valid insurance policy for the period 13/10/08 to 12/10/09. The contention of the complainant that the incident was immediately informed to the 1^st opposite party telephonically and on advice he lodged complaint with the policy for further investigation is not correct. Complainant had reported the theft to the police only on 18/5/09 i.e. almost 3 months after the alleged theft. On 1/10/10 the complainant submitted the claim form with relevant documents to the opposite party. Opposite parties denied the claim of the complainant that the copy of the FIR was furnished to the 1^st opposite party on 19/5/2009 and  the 1^st opposite party had informed the complainant that his claim would be settled if the vehicle is not traceable and that the insured amount would be settled after arriving at the depreciation value by the surveyor. As per the  policy condition No.1 the insured should intimate the insurer regarding the loss and should prefer the claim immediately after the incident and if there is a delay in intimating the loss  immediately, the insurer can legally repudiate the claim put forward by the insured. The mandatory policy condition regarding immediate intimation of the incident is incorporated for the purpose of detection and prevention of bogus claims.

Complainant is not entitled for any compensation as no inconvenience, mental agony, damages or loss is suffered by the complainant. The opposite parties  denied the value of the vehicle and the value of the vehicle is subject to depreciation  to be calculated based on the model and year of manufacture of vehicle. Hence the opposite parties prayed that dismiss the complaint with cost.

Complainant filed affidavit and documents. Ext.A1 to A5 marked.  Opposite parties also  filed their affidavit and documents. Ext.B1 marked on the side of opposite parties. Matter heard.

Issues to be considered are

1.    Whether there is any deficiency in service on the part of opposite parties ?

2.    If so what is the relief and cost ?

Issue No1 & 2

Heard the matter and perused the relevant documents on record. Admittedly there was a valid insurance policy of the vehicle for the period  13/10/08 to 12/10/09 from the opposite parties. The opposite parties stated that complainant had submitted the relevant documents only on 1/10/10 and as there was in ordinate delay in reporting the incident. According to the complainant, he intimated the incident to 1^st opposite party by telephonically and on advise lodged a complaint with the police for further investigation. In Ext.A1 dated 18/5/09 shows that the vehicle stolen on 27/2/09. In the statement of the complainant attached to Ext.A1 omitted the date of incident. In Ext.A5 the lawyer notice mentioned that on 27/4/09 parked and locked his motorcycle  and on return at around 2 pm on 22/2/09, the motorcycle was missing. The complainant has not produced evidence to prove the date of theft. But the opposite parties not raised objection to marking  of these documents. According to the opposite parties  the complainant had intimated the theft to the police after 3 months from the date of alleged  theft. The opposite parties  filed affidavit and documents. The complainant stated that intimation given to 1^st opposite party through telephonically. No contradictory evidence produced by the opposite parties. Ext.A4 shows that the complainant is the registered owner of the vehicle. Admittedly there is a valid insurance policy at the time of theft.

On hearing both sides in details we are of the view that the theft of the vehicle took place during the subsistence  of policy and there is no dispute regarding whether the policy is valid or not. The only dispute is with regard to the violation of the terms of the insurance policy. The law is well settled by the Apex court in Amalendu Sahoo V. Oriental Insurance Company where in it is held that the repudiation of claim in toto is unjustified in a case of violation of terms of policy and ordered settlement of claim  on non standard basis. Based on the decisions of the Supreme Court in the aforesaid cases we are of the view that the insurance company cannot repudiate the claim in toto. In Ext.A3 the period of insurance from 13/10/2008 to 12/10/2009. So the vehicle has a valid policy on the date of theft.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result complaint allowed. We direct both opposite parties jointly and severally  liable to pay the complainant an amount of 50% of the amount of insurance value of the vehicle (50% of Rs.16,100 = Rs.8,050/-) with 10% of interest from the date of repudiation to date of order and pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum  for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 15^th day of May 2012.

                                                                              Sd/-

Seena H

President

                                                                                Sd/-

Preetha G Nair

Member

                                                                                Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Certified copy of FIR & FIS of Town South Police Station Crime No.263/09 dated 18/5/09

Ext.A2 –   Certified copy of  Scene Mahazar dated 19/5/09

Ext.A3 –  Policy certificate issued by opposite party dated 13/10/08

Ext.A4 –   Registration certificate issued by RTO, Palakkad dated 20/3/01

Ext.A5 –   Photocopy of lawyer notice issued by counsel for petitioner to the opposite parties dated 23/4/11

Exhibits marked on the side of the opposite party

Ext.B1 – Policy copy

Cost Allowed

Rs.1,000/- allowed as cost of the proceedings.