PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The facts give rise to file this complaint under Sec.12(1) of the Consumer Protection Act, 1986 in short are as under - 

The Complainant alleged that on 18/12/09, he purchased a brand new Bolero Sport 7 Star vehicle from Global Gallarie for Rs.4,86,549/-.  The copy of purchased receipt is Annexure ‘C-1’.  On the day of purchase the Complainant took the private car policy for the said vehicle for the period 18/12/2009 to 17/12/2010.  According to the Complainant, the Opposite Party promised to send the papers of insurance policy to the Complainant within 15 days through Post/Courier. The copy of Insurance Policy is Annexure ‘C-2’. The Complainant did the registration of vehicle from RTO on 24/12/09 as per Annexure ‘C-3’.   

2)        It is the case of the Complainant that on 08/01/2010 at about 11.30 p.m. when the Complainant saw his vehicle lastly it was locked properly and parked at Complainant’s place.  On 09/01/2010 at about 9.30 a.m. the Complainant found that the said vehicle was not available at the parked place.  The Complainant tried to search his vehicle. However, it was realized that his vehicle was stolen. The Complainant immediately informed the police about the theft of his vehicle and the police lodged the FIR to that effect on 09/01/2010.  The copy of said FIR is marked as Annexure ‘C-4’. 

 3)        According to the Complainant, he telephonically informed the Opposite Party that his brand new vehicle has been stolen and the Complainant wants to file claim under the insurance policy.  The Opposite Party asked the Complainant to visit its office alongwith all documents of vehicle.  The Complainant informed to the Opposite Party that since the vehicle was new he does not have papers with him and he has to collect the same from the purchasers of the vehicle and RTO Office.  The Opposite Party telephonically advised the Complainant to first collect the vehicle papers and RTO registration papers and then come to its office for filing the claim form.   It is alleged that the Opposite Party never informed to the Complainant that there is time limit to submit the papers/claim form.  It is the case of the Complainant that the Opposite Party suppressed the fact from the Complainant that the Complainant is supposed to submit the claim form within the period of 48 hours.  It is alleged that the Opposite Party had ill advised the Complainant to firstly collect the papers of vehicle and thereafter approached to the Opposite Party.  It is contended that at the time of filing of the proposal form it was not informed to the Complainant about any mandatory terms and conditions or time limit to submit the claim form within 48 hrs. 

 4)        It is submitted by the Complainant that to collect the vehicle papers from whom he purchased the vehicle and documents from RTO, time consumed and thereafter on 25/03/2010 the Complainant filed the claim form alongwith all requisite documents of vehicle as demanded by Opposite Party which are Annexure ‘C-5’ (collectively).   

 5)        The Opposite Party vide letter dtd.09/07/2010 repudiated the genuine claim of the Complainant under the lame excuse that the claim was not intimated within 48 hrs.  The said letter is Annexure ‘C-6’.

 6)        According to the Complainant, at the time of submitting the proposal forms no such terms and condition of intimation within 48 hours were provided or informed to the Complainant therefore, such unilateral and arbitrary terms and conditions are not applicable to the Complainant, the Opposite Party is therefore, guilty of deficiency in service and unfair trade practice under the Consumer Protection Act, 1986.  It is submitted that if the relief as prayed for would not be granted to the Complainant grave loss, harm and prejudice will be caused to the Complainant.  The Complainant therefore, prayed that the Opposite Party be directed to pay Rs.4,86,549/- being the cost of the vehicle on the date of theft alongwith interest @ 21% p.a. from 09/07/2010 i.e. the date of repudiation of claim till its realization.  The Complainant has also prayed for compensation of Rs.2 Lacs for mental and physical harassment, inconvenience caused to the Complainant. He has also prayed Rs.30,000/- towards legal charges of this proceeding.

 7)        The Opposite Party by written statement contested the claim on the ground that the claim of the Complainant has been repudiated in view of the express warranty appearing on the second page of the policy schedule which reads as “Claim for theft of vehicle is not payable if theft not reported to the Complainant within 48 hours of its occurrence”  It is contended that as per general condition No.1 of “The Motor Package Policy” “The loss has to be intimated immediately upon the occurrence of any accidental loss or damage”.  It is contended that in the present case according to the Complainant theft had taken place on 08/01/2010 and the intimation was given to the Opposite Party on 06/04/2010 i.e. almost after 3 months.  It is contended that as such, there is breach of the policy warranty and therefore, the claim for theft of vehicle was repudiated by letter 09/07/2010.  It is submitted that there is no deficiency in service.  It is submitted that the claim of the Complainant for theft of vehicle has been repudiated after due application of mind and the complaint be dismissed with cost.  It is contended that the policy was taken by the Complainant through dealer against the cover note of the Opposite Party from the agent, he was informed about the terms and conditions.  It is contended that by letter dtd.03/04/2010, the Complainant informed to the Manager of the Opposite Party that on 08/01/2010 he had parked his vehicle at Mulund but on 09/01/2010 in the morning he found that the vehicle was not on the place where it was parked and searched for it around the place.  It was stated that he had rushed to Mulund Police Station and register FIR and also intimated to RTO.  However, he had received RC Book only thereafter the copy of the said intimation is marked as Annexure ‘O-2’.  Thereafter, he filed claim form on 06/04/2010, which is Annexure ‘O-3’. 

 8)        It is contended that the Opposite Party then appointed an Investigator, who submitted his report on 14/05/2010.  He recorded the statement of the Complainant on 02/05/2010. The copy of the said statement is marked at Annexure ‘O-4’. The Investigator stated that there is delay of 2 months and 25 days.  It is contended that the Opposite Party craves leave to refer and rely on the report of the Investigator dtd.14/05/2010 when required.  It is submitted that after received the report of the investigator the Incharge of Motor Dept., Claim Service Centre applied his mid and after considering the matter, found that the Complainant in his letter dtd.21/07/2010 had stated that when he noticed the theft of his vehicle, he went to the police station on 09/01/2010 and he was asked by the officer on duty all documents of the vehicle.  The Complainant therefore, contacted the sales person Mr. Sachin Mahajan and himself had been to receive Kamothe to receive the papers.  It is contended that however, in the statement given to the Investigator he has not mentioned of the intimation to Mr.Sachin Mahajan for visit to Kamothe and directly reported the matter to Mulund Police Station.  It is contended that it is also noticed that the matter was reported to Vashi RTO on 11/01/2010.  It is contended that when the matter was reported to the police and RTO, it is not clear why the Complainant has not reported the matter to the Opposite Party and it was found that there was breach of policy, warranty and terms and condition as mentioned above.  It is contended that the contention of the Complainant that only after receiving the smart card, he has to intimate the claim and the claim form was not acceptable.  The Incharge Motor Department, Claim Service Centre accordingly by letter dtd.09/07/2010 repudiated that claim of the Complainant on the ground of breach of policy warranty/general condition No.1 which is marked at Annexure ‘O-5’.     

 9)        It is denied that the Opposite Party is guilty of deficiency in service and unfair trade practice. The Opposite Party has denied the total claim made by the Complainant.  It is submitted that the Complainant has made a false statement on oath in as much as the Complainant had filed a complaint before the Insurance Ombudsman, notice of which received by the Opposite Party which is marked at Annexure ‘O-6’.  It is thus, submitted that the complaint may be dismissed with cost.

 10)      The Complainant has filed affidavit of evidence.  The Opposite Party has also filed affidavit of Mr.Gautam Chaudhari, Divisional Manager of Opposite Party.  Both the parties have filed their written arguments. We heard Shri.G. Nalawala, Ld.Advocate on behalf of Ld.Adv. Shri.Wavikar for the Complainant and Shri. Pravin Shewale, Ld.Adv. on behalf of Ld.Adv. Chandnani, for the Opposite Party.  The Adv. for the Complainant submitted that though in the policy there is condition of giving intimation to the Company within 48 hrs. in case of theft after its occurrence.  The said condition or time limit is not mandatory but it is directory in support of his submission he relied the observation in the case of New India Assurance Co. Ltd. V/s. Nanasaheb Jadhav, 2005(2) CPR 24 and Mr.Santosh Umakant Jawadba V/s. Tata AIG General Insurance Co. Ltd., the decision given by the Hon’ble State Commission, Maharashtra, dtd.08/04/2013.  He submitted that in view of the observation of the aforesaid cases in the present case even assuming that the Complainant has not reported the incident of theft of his vehicle within 48 hrs. to the Opposite Party, then also the Opposite Party ought to have allowed the claim submitted by the Complainant.  He thus, submitted that there is deficiency in service and therefore, the claim made by the Complainant may be allowed. The Ld.Advocate for the Opposite Party furnished that the Opposite Party has rightly repudiated the claim lodged by the Complainant in view of the specific clause of the policy.  It is submitted that there is much delay in submitting the claim on the part of the Complainant and there is also breach of condition of policy on the part of the Complainant that he has not reported the incident of theft of his vehicle to the Opposite Party within 48 hrs.  He thus, submitted that the complaint is liable to be dismissed in view of non compliance of the condition on the part of the Complainant.

 11)      While considering the rival contention of both the parties it is necessary to be taken into consideration that the Complainant had purchased the vehicle in question on 18/12/2009 and he took the Private Car Package Policy from the Opposite Party from the period 18/12/09 to 17/12/2010.  It is undisputed that the incident of theft occurred within 1 month from purchase of vehicle by the Complainant. It is also undisputed that the Complainant lodged First Information Report to Mulund Police Station on 09/01/2010.  The Complainant had also reported the incident of theft to RTO, Navi Mumbai on 11/01/2010.  As per Annexure ‘C-3’ the Complainant received RC Book from RTO, Navi Mumbai on 25/02/2010. It is true that the Complainant lodged his claim of loss on 06/04/2010 with the Opposite Party.  According to the Complainant, he has reported the incident of theft of his vehicle telephonically to the Opposite Party and after lodging report to the Opposite Party, Opposite Party advised him to come alongwith all documents of the stolen vehicle.  The Complainant has come out with the case that as the vehicle was newly purchased he was not having RTO documents and therefore, the claim of loss could not be lodged immediately.  While considering the point as regards justification of repudiation on the part of Opposite Party it is necessary to be taken into consideration that the very purpose of giving intimation within a stipulated time is noted in the policy to have sufficient time for making scrutiny of the claim to avoid delay.  The Hon’ble State Commission in the case relied by the Adv. for the Complainant 2005(2)CPR 24 (Cited Supra) has laid down certain observations and guidelines for deciding such controversy, if raised by the parties as under –

             “The very purpose of giving intimation within 1 calendar month is to have sufficient time for making scrutiny of the claim to avoid delay.  The full particulars are insisted for effective scrutiny of the claim.  The phraseology used in the above clause would also give some latitude provided there is sufficient reason for late reporting.  There is no penalty clause provided in the above clause in case claim is not intimated within 1 calendar month.  Therefore, we hold that condition with regard to the time limit is not mandatory it is directory.  This clause meant for the interest of the Insured in order to facilitate from scrutiny of the claim. This clause therefore, cannot be used in determent to the interest of the insurer.  Therefore, the action of repudiation on the part of Insurance Company is not at all justify.”   

             Furthermore, in the other case relied by the Advocate for the Complainant cited Supra the Hon’ble State Commission held that –

             “It was pointed out by the Complainant that this State Commission in its Appeal No.A/11/284 (The Oriental Insurance Co. Ltd. V/s. Managing Director, Shri. Vithhal Sahakari Sakhar Karkhana Ltd. & Anr.) it was held that stipulation as to notifying the cause of action and filing the claim within the stipulating time of the policy are not mandatory condition but they are director in the nature   and breach of these conditions does not empower insurance Company to forfeit or foreclose of the insurance claim is duly settled as per the provision of law. Submissions of the Ld.Advocate of the Complainant on the point of submissions of claim are sustainable as this commission has bee constantly holding time limit to file insurance claim is not mandatory condition but these are mere directions in nature.  On failure to do there is no provision to forfeit or foreclose the insurance claim required to be settled as per the provisions of law.”

 In view of the above observations we hold if the vehicle was stolen the breach of condition is not germane and the insurance company is liable to indemnify the owner of the vehicle under the policy.  Furthermore, in the preset case the Opposite Party has not filed the report of the Investigator dtd.14/05/2010 on which the Opposite Party relying and repudiated the claim lodged by the Complainant.  In the present case the Complainant has specifically come out with that he was not having RC Book and other relevant documents immediately when the theft of his vehicle occurred.  Under such facts and circumstances we hold that the repudiation on the part of the Opposite Party as per Annexure ‘C-6’ is not justifiable.  We therefore, hold that the Opposite Party cannot repudiate the genuine claim of the Insured simply on the ground that there was no communication within the stipulated point of time.  We therefore, hold that the Complainant is entitled for the amount of Rs.4,86,594/- i.e. cost of the vehicle which was stolen away alongwith interest @ 9% p.a. from 09/07/2010 till its realization.  In our view, an amount of Rs.20,000/- would be just and proper by way of compensation for mental agony, inconvenience caused to the Complainant. The Complainant is entitled for the cost of Rs.3,000/- towards this proceeding.  In the result we pass following order -       

O R D E R

i.                    Complaint No.236/2010is partly allowed.

ii.                 The Opposite Party do pay an amount of Rs.4,86,594/- (Rs. Four  Lacs Eighty Six Thousand Five Hundred Ninety Four Only) to the Complainant together with interest @ 9% p.a. from 09/07/2010 till its realization.

iii.               The Opposite Party do pay an amount of Rs.20,000/- (Rs. Twenty Thousand Only) to the Complainant towards mental agony and inconvenience caused to the Complainant by following unfair trade practice.

iv.               The Opposite Party do pay an amount of Rs.3,000/- (Rs. Three Thousand Only) towards this proceeding to the Complainant.  

v.                  The Opposite Party shall comply with the aforesaid order within 1 month from the receipt of the copy of this order.

vi.               Certified copies of this order be furnished to the parties.