COMPLAINT FILED: 23.12.2011

   DISPOSED ON: 12.12.2011

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

12^th  DAY OF DECEMBER 2011

  PRESENT :- SRI. B.S. REDDY                    PRESIDENT

                     SMT. M. YASHODHAMMA             MEMBER                   

                     SRI.M.MUNIYAPPA                       MEMBER

 COMPLAINT NO. 3065/2009

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 pay Rs.2,60,000/- being the claim of the complainant (J.D.Value of the vehicle) with interest at 18% p.a. from the date of the complainant till realization, damages of Rs.20,000/- and cost of Rs.5,000/- on  the allegations of deficiency in service on the part of the OPs.

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

         Complainant being the R.C. owner of the vehicle Toyota Maxi Cab bearing No.KA-03-B-7014, having purchased the same on 25-7-2007 by availing finance from Sriram Transport Finance Company Limited. Complainant had obtained insurance policy in respect of the said Toyota Maxi cab bearing No: KA-03-B-7014 from OP vide policy No:1401372323102959.  The said policy was valid from 6-10-2007 to 5-10-2008.  On 26-3-2008 the said vehicle was stolen from the place where it was parked and the same was  informed to the jurisdictional police FIR came to be registered by Mahalakshmi layout police in crime No:93/2008.  Complainant intimated the said incident to OP.  Complainant made the claim with OP by furnishing necessary details in support of his claim.  In spite of repeated requests OP failed to settle the claim.  Complainant got issued legal notice dated  22-2-2009 calling upon O.P. to Pay Rs.4,50,000/- being the Insurance Declared Value of the vehicle, along with interest at 18% p.a. Immediately OP sent a cheque on 23-09-2009 for a sum  of Rs.1,90,000/- dated 12-08-2009.  Since OP failed to settle the entire claim amount, complainant sent another legal notice dated 16-11-2009 calling upon  O.P. to pay  I. D. value of  the vehicle Rs.4,50,000/- i.e. balance amount of Rs.2,60,000/-.  Inspite of receipt of the notice OP failed to settle the claim of the complainant.  OP in its reply letter stated that claim is settled based on the consent letter given by the complainant.  Complainant is un-educated person borrowed loan from Financial Institutions to purchase the said vehicle.  The said financier demanding for repayment of loan, by   issuing notice to the complainant.  OP has failed to settle  entire claim amount as per  the policy conditions.  The act of OP  in not settling the entire insurance claim amount as per policy conditions is unjustified  and illegal.  Inspite of repeated  requests OP failed to pay the balance amount.  Hence Complainant felt deficiency in service. Under these circumstances he is advised to file this complaint against OP for appropriate reliefs.

3. On appearance OP 1 & 2 filed the version admitting issuance of comprehensive Insurance policy infavour of complainant in respect of Toyota Maxi cab KA-13-B-7014. The liability of OP under the policy is subject to terms and condition of the policy.  Complainant informed OP about the theft of the vehicle after a lapse of 47 days. The vehicle in question having been stolen on 26-3-2008.  On receipt of claim petition OP immediately  settled the claim by paying sum of Rs.1,90,000/- as full and final settlement.  Complainant having received the amount towards full and final settlement of the claim is barred from approaching any Forum/Court.  Complainant’s counsel also intimated of the settlement of the claim of its letter dated 19-11-2009 stating settlement have been arrived with the consent of the complainant.  Copy of the letter and consent letter are produced.  There is no cause of action for the complaint. OP is not liable to pay a sum of Rs.2,60,000/.- difference of declared value of the vehicle along with interest and damages.  There is no deficiency in service on the part of OP. Among other grounds OPs prayed for dismissal of the complaint.

4. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy  of the R.C. book, Insurance policy, copy of the  insurance schedule  and  certificate of insurance, copy of the legal notice, reply notice, postal acknowledgement and receipts. On behalf of OP Chandrashekhar M.Hosamani, Deputy  Manager  filed affidavit evidence in support of the defence version and produced copy of the  letter    dated19-11-2009 and consent letter of the complainant dated 6-2-2009.  Complainant submitted written arguments.   Heard oral argument from complainant side and taken as heard from OP side.

5. In view of the above said facts the points now that arises 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 OPs?

     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 Negative.

Point No.2:- In Negative.

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 complainant is the owner of the vehicle Toyota Maxi Cab bearing No.KA-03-B-7014.  We have perused the copy of the R.C.book produced by the complainant.  The complainant has availed comprehensive Insurance policy bearing No. 1401372323102959 from OP. The said policy valid   for a period from 6-10-2007 to mid night 5-10-2008.  The copy of the policy is produced.  It is also not in dispute that on 26-3-2008 the said vehicle Toyota Maxi Cab was stolen from the place.  Where it was parked.  Complaint came to be registered before jurisdictional police. Mahalakshmi Layout Police registered FIR in Cr.No.93/2008.  Complainant made the claim to OP and furnished the necessary documents in support of his claim.  When there was no response from OP on 22-09-2009,  Complainant caused legal notice calling upon OP to pay the I.D. value of the vehicle i.e. Rs.4,50,000/- with interest at 18% p.a.  It is also not in dispute that OP sent a cheque on 23-09-2009 for a sum of Rs.1,90,000/- dated 12-08-2009 to the complainant.  Since OP failed to settle the entire claim of Rs.4,50,000/-, once again on 16-11-2009 complainant sent another notice calling upon OP to pay  the differential amount of Rs.2,60,000/- OP wrote a letter informing the complainant that the claim is settled based on the consent letter given by the complainant.  Aggrieved by the same complainant approached this Forum for appropriate relief.

8.   As against the case of the complainant, the defence of the OP is that complainant informed OP about the theft of the Toyota Maxi Cab bearing No.KA-03-B-7014 after lapse of 47 days of theft of the vehicle. This fact is not denied by the complainant. The complainant has not produced any material as to when he informed the OP about the theft of the vehicle.  

9.   We have gone through the judgment in Civil Appeal 3409/2009 National Insurance Company Limited V/s Nitin Khandelwal reported in (2008) 11SCCC 256 produced by complainant. The said decision, has been referred to in first Appeal No.321/2005 D.D.09.12.2009 New India Assurance Company Limited V/s Trilochan Jane holding that the said judgment was in a totally different context. In the said case, the Plea taken by the Insurance Company was that the vehicle though insured for personal use was being used as a taxi in violation of the terms of the policy. The plea raised by the Insurance Company was rejected and it was observed that in the case of theft breach of condition is not Germane. Further observed that in the present case, the respondent did not care to inform the Insurance Company about the theft for a period of 9 days, which could be fatal to the investigation. The Hon’ble National Commission further observed that the Delay in lodging the F.I.R. after 2 days of the coming to know of the theft and 9 days to the Insurance Company, can be fatal as, in the meantime, the car could have traveled a long distance or may have been dismantled by that time and sold to Kabaadi (scrap dealer). Thus the appeal was allowed setting aside order of State Commission allowing the complaint. As in this case, there is delay of 47 days in informing the OP regarding theft of vehicle which is fatal to investigation.

10.   Further it is contended by OP that immediately after receipt of the claim, OP has settled the claim of the complainant by paying a cheque dt.12.08.2009 for a sum of Rs.1,90,000/- towards full and final settlement and the complainant has accepted the same, hence he is barred from approaching this Forum. In support of that OP has produced the consent letter dt.06.02.2009 duly signed by the complainant and reply notice sent to the Advocate of the complainant informing about the mode of settlement. We have gone through the consent letter given by the complainant, the contents of the said letter clearly goes to show that the complainant after understanding the mode of settlement of the claim and also agreeing to the condition that his policy will stand cancelled immediately upon the settlement, and he will not raise any dispute against settlement of the claim, he has given that consent letter. Hence complainant having given consent for one time settlement and after having accepted the cheque for Rs.1,90,000/- towards one time settlement, is estopped from filing this complaint against OP, in respect of the matter which has been settled once for all. Under these circumstances, we are of the considered view that complainant failed to prove deficiency in service on the part of the OP and complaint is devoid of merits, the same is liable to be dismissed. Accordingly we proceed to pass the following

O R D E R

        The complaint filed by the complainant is dismissed. Considering the nature of dispute there is no order as to cost.

   (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 12^th day of December 2011.)

MEMBER                     MEMBER                  PRESIDENT                   

Cs.