COMPLAINT FILED: 30-10-2009 <br /> DISPOSED ON: 10-06-2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 10th June 2010<br /> <br /> PRESENT :-SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.2540/2009<br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. K.R. Vyasaraj,<br /> Aged about 45 years,<br /> Son of Ragavendra Rao,<br /> No. 712, 7th ‘C’ Girinagar, <br /> 2nd Phase,<br /> Bangalore-560 085.<br /> <br /> Advocate – S. Vasanth Madhav<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY The Oriental / Insurance Company Ltd.,<br /> No. 22, DVG Road, <br /> VC Plaza, Basavana Gudi,<br /> Bangalore – 560 004.<br /> <br /> Advocate – M.B. Chandra Chooda<br /> <br /> O R D E R<br /> SMT. M. YASHODHAMMA, MEMBER <br /> <br /> This is the complaint filed u/s. 12 of the C.P. Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as OP) to pay Rs. 38,000-00 being the I.D value of the vehicle No. KA 04 EQ-8009, on the allegations of deficiency of service on the part of the OP.<br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> The complainant is a owner of the vehicle Bajaj Pulsar MC 75-300 CC 2006 model bearing Registration No. KA-04, EQ-8009. The said vehicle was being used by the employee of the complainant Mr. Kanakaraj. On 26.12.2008 Mr. Kanakaraj parked the said vehicle in front of the BBMP office at Laggere main road around 1.30 PM; at that time vehicle was stolen. The said vehicle was insured with the Opposite Party. The insurance was valid from 18.09.2008 to 17.09.2009. Complainant lodged the Police complaint at Rajajinagar Police Station in Crime No. 517/08. 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 within 48 hours of theft OP was not intimated & closed the file as no claim. Hence complainant felt deficiency of service. Under the circumstances he is advised to file this complaint for the necessary relief’s.<br /> <br /> 3. On appearance OP filed version mainly contending that there is a delay of two days in lodging the Police Complaint. No explanation is given by the complainant. By the delay there is a serious lapse on the part of the complainant in intimating the theft to the police and to the OP. As per the terms of the Policy within 48 hours theft of the vehicle should be intimated to the OP. There is a breach of the conditions which leads to serious doubt about the theft as alleged by the complainant. The complainant has disclosed the value of the Motor Cycle as Rs. 30,000/- in the Police complaint. The Complainant while taking the policy given false declaration with regard to value of the vehicle and obtained insurance Policy for Rs. 38,000/-. Complainant is negligent in keeping proper watch and ward in respect of the Motor Vehicle; vehicle could have kept under lock so that the alleged theft could not have taken place; the alleged theft is said to have been taken during day time office hours; it cannot be believed that theft has taken place and there is a serious doubt about the theft; Insurance Policy issued is a contractual obligation; There is a breach of terms and conditions in not submitting the claim within 48 hours; Repudiation is in accordance with law; Among these grounds OP prayed for dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments the complainant filed his affidavit evidence and produced copy of the RC book, Insurance Policy Certificate, ‘C’ Report of the Police, Notice to Complainant, FIR, Police Complaint, letter of repudiation of claim by OP dated 31.03.2009. On behalf of OP, Senior Divisional Manager, Divisional Branch, Selvanayagan filed affidavit evidence and produced original Policy Certificate and its terms & conditions. Then heard the arguments of both the parties.<br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant <br /> has proved the deficiency <br /> in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now<br /> claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. 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:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant is the owner of the vehicle Bajaj Pulsor MC 75-300 CC 2006 Model bearing Registration No. KA-04 EQ-8009. The said vehicle was being used by employee of the complainant Mr.Kanakaraj. On 26.12.2008 around 1.30 PM, when Mr. Kanakaraj parked the said vehicle in front of BBMP office at Laggere main road, the theft of the vehicle has been committed. The vehicle was insured with OP Insurance was valid from 18.09.2008 to 17.09.2009. The theft of the said vehicle occurred on 26.12.2008; and on 28.12.2008 complainant lodged complaint to Rajajinagar Police Station, Based on the same crime No. 517/08 came to be registered and FIR has been issued. Inspite of best efforts vehicle could not be traced Police filed ‘C’ report. It is also not in dispute that thereafter complainant made the claim before OP claiming the amount. OP repudiated the claim as per the intimation dated 31.03.2009 on the ground theft not reported to OP within 48 hours of the occurrence. As per the Policy condition claim is not payable. Hence closed the claim as no claim. I.D. Value of the vehicle is Rs.38,000/- as per the policy schedule. <br /> <br /> 8. It is contended by the complainant that the complainant has already lodged the complaint on 28.12.2008 before the jurisdictional Police. Merely because OP was not informed regarding theft within 48 hours; OP is not justified in repudiating the claim. Per contra it is contended for OP that as per the terms of the policy; theft of the vehicle has to be reported within 48 hours to OP, the complainant has not reported the same. Therefore OP is justified in repudiating the claim. 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:<br /> <br /> “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”.<br /> <br /> In I (2009) CPJ 123 ICICI Lombard General Insurance Co. Ltd., & others V/s Radha Devi & another the State Commission, Jaipur held that:<br /> <br /> “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”.<br /> <br /> The observations and principles of the above two citations are aptly applicable to the facts of the case. We have gone through the terms of the policy, though there is clause of reporting theft within 48 hours, but on the basis of the above decided cases even on the basis such a clause, OP is not justified in repudiating the claim of the complainant. Repudiating the claim without any justifiable cause is nothing but deficiency in service on the part of the OP.<br /> <br /> 9. The documents produced by the complainant corroborates the case of the complainant. The complainant has produced all the documents. 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 the Rs.1000/- to the complainant. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to settle insurance claim for Rs.38,000/- and pay the same to the complainant within four weeks from the date of communication of this order and to pay Rs. 1000/- 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.<br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (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 10th day of June 2010.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> gm <br /> <br />