COMPLAINT FILED ON: 27.10.2009
DISPOSED ON: 16.05.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
16TH MAY 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
COMPLAINT NO.2504/2009
Complainant | Akram Basha S/o Mohamed Gouse Aged about 36 years, No.907, 3rd cross, K.G.Halli, Bengaluru-560 045. Advocate: Anuradha N.G. V/s. |
OPPOSITE PARTY | The Managing Director Reliance General Insurance Co., Ltd., No.28/5, Centenary Building, East wing, M.G.Road, Bengaluru. Advocate: Ravi S. Samprathi |
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 OP (herein after called as O.P) to pay compensation of Rs.6 lakhs along with interest at 12% p.a. on the allegations of deficiency in service on the part of the OP.
2. The brief averments made in the complaint are as follows:
Complainant is the owner of the vehicle Lorry Model 2001, make-Ashok lay land bearing Registration No. KA 01 A-6877, having purchased the same from Mr.Syed Mueed Ahmed in November 2006. The said Lorry was driven by his driver Mr. Babu. Recently one Mr. Raju from Holenarasipura, Hassan District, joined as a cleaner. On 08.04.2008 after unloading the goods at palmaner they reached Bangalore at 12 p.m. driver parked the said lorry Near Hombegowdanagar slum next to rope way bridge in a vacant place; cleaner Mr. Raju was sleeping in the lorry itself. Driver Babu went to his house. When the driver returned in the morning he found the lorry along with cleaner was missing. Immediately complainant lodged the police complaint with jurisdictional police station, Siddapura Police. Based on the same on 12.04.2008 police crime No.119/08 came to be registered and FIR has been issued. The said vehicle was insured with OP having policy bearing No.1401372334100092. Insurance was valid from 07.11.2007 to 06.11.2008. 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 OP; the complainant after five months of theft requested OP to settle the claim. OP rejected the claim on the ground that there is an inordinate delay in informing incident to Insurance Company. Hence complainant felt deficiency in service under the circumstances he is advised to file this complaint for the necessary reliefs.
3. On appearance OP filed the version mainly contending that complaint is not maintainable against OP and complainant not approached this Forum with clean hands. Complainant is a R.C. owner of the Lorry bearing No. KA 01 A-6877 is a matter of record OP denied the fact that complainant purchased the said lorry from one. Mr.Mueed Ahmed and Lorry was driven by one Mr.Babu; Mr.Raju who was a resident of Holenarsipura Joined as a cleaner and on 08.04.2008 the said vehicle was parked near Hombegowdanagar slum, Bangalore; Complainant searched for lorry and did not find it; complainant stopped paying monthly loan instalments after informing Sri Ram Finance. OP denied all these allegations as not aware of the same. Further it is contended by the OP that as per the terms and conditions of the motor policy the first condition itself reads as follows:
“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. Notice shall also be given in 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 be the subject of a claim under this policy, insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
4. Further it is contended by the OP that the complainant complained of theft to the jurisdictional police on 12.04.2008 after lapse of four days and informed OP after lapse of 5 months for which complainant has no justification:
In appeal No.321/2005 in the matter of New India Assurance Company V/s. Trilochan Jane. The National Consumer Disputes Redressal Commission held that delay in informing Insurance Company about the theft of the vehicle is a fatal to investigation and clear violation of the terms and conditions of the Insurance Policy and such complaints are liable to be dismissed. It is the duty of the insured to inform OP immediately in writing by providing all necessary documents for processing the claim effectively complainant has gravely breached the contract of insurance and intimated OP after lapse of 5 months without any just reasoning as such claim was repudiated. OP is not liable to pay compensation of Rs.6 lakhs and interest at 12% p.a. as claimed by the complainant. Among other grounds OP prayed for dismissal of the complaint.
5. To substantiate the complaint averments, complainant filed his affidavit evidence and produced the correspondence with OP, letter of repudiation, certified copy of the FIR, RTO endorsement statement of the complainant to police, dated 12.04.2008 copy of the complainant to OP dated nil and dated 24.11.2008, correspondence copy of the policy, Insurance certificate, Final ‘C’ report of police, notice to complainant dated 30.09.2009. On behalf of OP Sri Chandrashekar Hosamani, Deputy Manager filed affidavit evidence in support of the defence version. OP has not produced any documents. Complainant filed written arguments and submitted citations. Heard arguments from complainant side and taken as heard from OP side.
6. In view of the above said facts, the points now that arises for our consideration in this complaint is 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 now claimed?
Point No.3:- To what Order?
7. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Negative.
Point No.2:- Negative in part.
Point No.3:- As per final Order.
R E A S O N S
8. At the outset it is not in dispute that the complainant is the owner of the Lorry-Model 2001 make-Ashok Leyland-bearing registration No. KA-01 A-6877. The complainant claims that the said lorry was driven by his driver Mr. Babu. Recently one Mr. Raju from Holenarsipura, Hassan District joined as a cleaner. On 08.04.2008 driver Babu around 12 p.m. after unloading the goods parked the said lorry near; Hombegowda nagar slum next to rope way Bridge in a vacant place. Cleaner Raju was sleeping inside the lorry itself. When the driver Babu returned back in the morning he found that the lorry along with cleaner was missing. Complainant came to know about the said incident and lodged the police complaint on 12.04.2008 with Siddapura police. Based on the same the crime No.119/08 came to be registered and FIR has been issued. Inspite of best effort Lorry could not be traced. Hence police filed ‘C’ report. It is also not in dispute that the said lorry was insured with OP and insurance was valid as on the date of theft. The complainant informed the OP after five months as per complaint averments. Thereafter complainant made the claim with the OP. OP repudiated the claim on the ground of breach of terms of the policy i.e. delay of five months in reporting to OP. As per the policy condition claim is not payable. Hence complainant approached this forum.
9. As against the case of the complainant the defence of the OP is that as per the motor policy first conditions itself reads as follows:
“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. Notice shall also be given in 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 be the subject of a claim under this policy, insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”.
There is a force in the say of the OP. In case of theft or criminal act complainant ought to have given complaint to police and to OP immediately. The word “Shall’’ is a mandatory act on the part of the complainant.
10. It is further contended by the OP that the complainant has approached the jurisdictional police after lapse of four days and informed the OP after lapse of five months. No justification or sufficient reason is given by the complainant for an inordinate delay in informing the OP. All the documents and correspondences produced by he complainant support the defence of the OP. At para-2 of the complaint complainant himself admits he informed OP after five months. What prevented complainant from reporting to his insurer is not known. Complainant failed to explain the justifiable reasons for delay. Due to inordinate delay in reporting to OP police were unable to trace the vehicle. Accordingly ‘C’ report came to be filed by the police on 29.09.2009. We have perused the report. The decisions submitted by the complainant in support of his arguments are not helpful to the complainant. The facts of the case are entirely different. Hence OP is justified in repudiating the claims of the complainant.
11. In support of the defence version OP has cited the decision of Hon’ble National Commission, Delhi reported in Appeal No.321/2005 in New India Assurance Company V/s. Trilochan Jane wherein it was observed that “delay by the complainant in informing the insurance company about the theft of the vehicle is a fatal to the investigation and clear violation of the terms and conditions of the insurance policy and complaint is liable to be dismissed”. There was a delay of 9 days in reporting the theft to OP Insurance Company. OP repudiated the claim on the ground delay in reporting the theft. Complainant did not take adequate steps to safeguard the vehicle in violation of clause 5 of the Insurance policy. Aggrieved by the letter of repudiation, complainant filed complaint before the State Commission. The complaint came to be allowed by the Hon’ble State Commission on the ground complainant reported the matter to OP within a reasonable time and complainant not kept the vehicle in a lonely place which could facilitate commission of theft and directed the OP to pay the insured amount of Rs.3,40,000/- with interest at 6% p.a. from the date of filing the complaint till payment.
12. Aggrieved by the order of the state commission. OP preferred an Appeal before the National Commission. The commission held that as per the terms of the policy complainant was required to inform the Appellant/OP about the theft of the vehicle immediately say within 24 hours to the police. Since complainant did not inform; he violated the terms of the policy and deprived the rights of OP to investigate the matter immediately after the theft. Valuable time would be lost in tracing the vehicle. Similarly insurer should also be informed within a day or two, so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. Appeal accepted order under challenge is set aside and complaint is ordered to be dismissed.
13. In the present complaint facts are similar to the above case and also delay in reporting to the insurer about the theft of the lorry for about five months. As per the documents produced, complainant has reported the theft of the vehicle on 11.09.2008 to OP after lapse of five months. Which would be violation of condition of the policy as it deprives the insurer of a valuable right to investigate as to the commission of the theft and to trace the vehicle. Hence we are of the considered view that complaint is devoid of merits and complainant has failed to prove the deficiency in service on the part of the OP. Under these circumstances we proceed to pass the following:
ORDER
The complaint is dismissed. Considering the nature of dispute; there is no order as to the costs.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 16th day of May 2011.)
MEMBER PRESIDENT
gm.
