BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 39 / 2004 TUESDAY THE 9th DAY OF NOVEMBER 2010. Thiru. V.M. Gandhi, S/o. Venugopal, Door No.102, Govindarajan Street, Amburpet, Vaniyambadi, Vellore District. … Complainant. - Vs – 1. The Senior Branch Manager, M/s. Oriental Insurance Company Ltd., Branch Office, 12 Katpadi Road, 2nd Floor, Gudiyatham 632 602. Vellore District. 2. The Divisional Manager, M/s. Oriental Insurance Company Ltd., Divisional Office, Katpadi Road, Vellore – 632 004. Vellore District. … Opposite parties. . . . . . This petition coming on for final hearing before us on 27.10.2010, in the presence of Thiru. T.A.Md.Akbar Basha, Advocate for the complainant and Thiru. M. Sampath Kumar, Advocate for the opposite parties and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is the owner of the vehicle TVS 50 XL bearing registration No.TN23 R 0408 and he had insured the vehicle with the 1st opposite party and the 2nd opposite party is the Divisional Office of the 1st opposite party under Motor Cycle Policy “B” Comprehensive No.1681 of 2002 for the period from 19.6.01 to 18.6.02 for the value of Rs.10,000/-. He had lost the said vehicle TVS 50 XL bearing registration No.TN23 R. 0408 on 6.5.02 which is insured with the 1st opposite party and he had filed a complaint before Town Police Station, Vaniyambadi on 6.5.02 and FIR was registered under Crime NO.386/2002 under section 379 I.P.C. The Sub Inspector of Police Law and Order, Vaniyambadi Town Police Station had issued a Certificate that the case is treated as undeducated on 30.12.02 vide RCS No.118 of 2002 but by hand mistake it was written as 30.12.01. The complainant had obtained the certified copy of the RCS 184/03 order dt. 17.4.03 on the file of Judicial Magistrate Vaniyambadi. He had filed the claim form on 29.9.03 along with letter of undertaking affidavit and subrogation form and the same is returned with covering letter mentioned that at the time of informing about the theft of the vehicle, the theft date is mentioned as 6.5.03 but in FIR it is mentioned 6.5.02 that for the reason his claim form is unable to entertain. The mistake is typographic mistake it is not wanton, actual date of theft is 6.5.02 and the same is complaint before police station and FIR also on 6.5.02. Undeducted Certificate is issued on 30.12.02 and RCS order issued on 17.4.03 and the theft is intimated to the 1st opposite party herein and claim form furnished in time but the 1st opposite party herein without taking into the fact returned the claim form is deficiency of his service to his customer. The complainant sent a legal notice to the 1st opposite party on 4.10.03 and 1st opposite party issued reply notice to the complainant on 17.10.03. Hence, the opposite parties are to be to pay the comprehensive compensation amount of Rs.10,000/- with interest at the rate of 12% p.a., compensation for a sum of Rs.75,000/- towards mental agony and mental strain caused to the complainant by the 1st opposite party and Rs.5000/- towards litigation expenses. 2. The averments in the counter filed by the opposite parties are as follows: The opposite parties does not admit any of the allegations made in the complaint save those that are specifically admitted herein and puts the complainant to strict proof of the same. The complainant had insured his moped TVS 50 bearing No.TN-23-R-0408 with the opposite parties during the period from 19.6.01 to 18.6.02. On 29.9.03 the complainant lodged the claim before the 1st opposite party for loss of his TVS 50 moped bearing No.TN-23-R-0408 which was stolen on 6.5.02. Since the complainant had intimated the loss / theft of his moped immediately as per policy conditions the opposite party had not processed the complainant’s claim. The complainant himself admitted the above fact in the first para of the complaint that on 29.9.03 only he intimated the loss of moped to the 1st opposite party The liability of the opposite parties is limited and subject to the policy conditions. In the event of any accidental loss / theft or damage to the insured vehicle, one of the policy conditions that the insured must give notice in writing to the insurance company immediately and thereafter the insured shall give all assistance as the company require. The complainant had intimated the theft of his moped nearly a lapse of 16 months from the date of occurrence. If the complainant had intimated the loss immediately the opposite party would have appointed some independent investigation to find out the genuiness and settled the complainant’s claim based on the report by the investigator and criminal records. On receipt of the claim papers from the complainant, the 1st opposite party replied through a letter dt. 29.9.03 informing the complainant about the non registering of his claim and the reason for reputation of his claim under the said policy. The complainant had given the date of theft as 6.5.03 in the letters sent to R.T.O. Vaniyambadi and inspect of police, Vaniambadi and in the Non Tracing Certificate produced by the complainant also dt. 30.12.01. The documents submitted by the complainant contain various dates regarding actual date of loss of the moped had given a room for suspicion about the genuiness of his claim. Though there is explanation regarding the change in the years but it could not be acceptable as typographical errors. The opposite parties issued reply notice through their advocate explaining the reasons for non settlement claim to the complainant on 17.10.03. In spite of that reply the complainant come forwarded the application shows the complainant’s ulterior motives. The complainant claim is barred by limitation. The complainant had insured his moped for a sum of Rs.10,000/- as sum insured he is not entitled for the full amount. In the event of any loss or total damage to vehicle the claim would be settled on the basis of market value of vehicle or sum insured whichever is less. In this case, the complainant himself had given the value of his moped as Rs.6000/- in the FIR. Hence the loss may be less than the Rs.6000/-. For the reasons stated about in the event of any award the complainant is not entitled for full sum insured of Rs.10,000/-. It is false to allege that complainant was put to great mental agony claiming at Rs.75,000/- and Rs.5,0000/- as litigation expenses are totally false and baseless. The allegations made against the 2nd opposite party is not admitted and the 2nd opposite party has nothing do with the transaction of between the 1st opposite party and the complainant except the introducing the complaint to the 1st opposite party. Hence the complaint may be dismissed with exemplary costs. 3. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite parties? (b) Whether the complainant is entitled to the reliefs asked for?. 4. Ex.A1 to Ex.13 were marked on the side of the complainant and Ex.B1 & Ex.B2 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 5. POINT NO. (a):- It is admitted case of the parties that the complainant is the owner of the vehicle TVS 50 XL bearing registration No.TN 23 R 0408 and he had insured under Motorcycle Policy “B” comprehensive No.1681 of 2002 with the 1st opposite party insurance company for the period from 19.6.01 to 18.6.02 for the value of Rs.10,000/- the 2nd opposite party is the Divisional office of the 1st opposite party. 6. The complainant contended that he had lost the vehicle TVS 50 XL bearing No.TN23 R.0408 on 6.5.02 and he had filed a complaint before Town Police Station Vaniyambadi on the same day and FIR was registered under Crime No.386/02 under section 379 I.P.C. Subsequently the Sub Inspector of Police, Vaniyambadi Town Police Station had issued a certificate that the case is treated as undeducted on 30.12.02 vide RCS No.118 of 2002 but by hand mistake it was written as 30.12.01. The complainant had obtained the certified copy of the RCS 184/03 order dt.174.03 on the file of Judicial Magistrate Vaniyambadi. Thereafter the complainant had filed the claim form on 29.9.03 along with letter of undertaking affidavit and subrogation form to the opposite party and the same is returned with covering letter mentioned that at the time of informing about the theft of the vehicle, the theft date is mentioned as 6.5.03 but in FIR it is mentioned 6.5.02 and intimated the theft nearly after lapse of 16 months i.e. undue delay in intimating the lost of the vehicle for the reason his claim form is unable to entertain. Therefore the opposite parties is committed deficiency in service. 7. The opposite parties contended that the liability of the opposite parties is limited and subject to the policy conditions. In the event of any accidental loss or theft or damage to the insured vehicle, one of the policy conditions that the insured must give notice in writing to the insurance company immediately and thereafter the insured shall give all assistance as the company require. But the complainant had intimated the theft of his moped nearly a lapse of 16 months from the date of occurrence. If the complainant had intimated the loss immediately the opposite party would have appointed some independent investigation to find out the genuiness and settled the complainant’s claim based on the report by the investigator and criminal records. It is further contended that the documents submitted by the complainant contain various dates regarding actual date of loss of the moped had given a room for suspicion about the genuiness of his claim. Therefore the claim was repudiated. Hence there is no deficiency in service on the part of the opposite parties. 8. From the perusal of Ex.A2 dt. 6.5.02 FIR in Crime No.386 Under Sec.379 IPC registered by the Sub Inspector of Police Vaniyambadi Town Police Station Officer stating that the moped vehicle TVS 50 XL TN23 R 0408 stolen by somebody else. The Sub Inspector of Police, Vaniyambadi Town Crime Branch issued an undeducted certificate Ex.A3, dt. 30.12.01, RCS FR No.118/02 stated that the above said case was undeducted. The above said Sub-Inspector of Police has also issued a certificate Ex.A4, dt. 30.3.04 stated that the above said case was treated as undeducted on 30.12.02. But by hand mistake it was written as treated as undeducted on 30.12.01. Thereafter the complainant had submitted Ex.A6. Motor Claim Form along with the documents of theft with the opposite party on 29.9.03. 9. From the perusal of Ex.A9, dt. 29.9.03 letter sent by the 1st opposite party to the complainant it is mentioned that while go through the complainant claim papers they observed that as per FIR and claim form the date of theft mentioned as 6.5.02 but the complainant intimation letter to the Sub Inspector of Police, Vaniyambadi and RTO, Vaniyambadi carries the date of theft as 6.5.03. Further for any loss or damage to the vehicle should be immediately intimated to the Insurance Company. But in the complainant’s case the complainant intimated the theft after a lapse of 16 months i.e. undue delay in intimating the loss of the vehicle. Hence they are unable to entertain the complainant claim and not able to register it, so the complainant papers are returned. In the FIR and the Claim Form the date of theft is mentioned as 6.5.02. From the perusal of Ex.A3, dt.30.12.01 it is mentioned that RC 118/02 Crime No.386/02 Under Sec.379 IPC treated as undeducted on 30.12.01, but in Ex.A4 dt. 30.12.04 a certificate issued by Sub Inspector of Police, Vaniyambadi Town Police Station, it is mentioned that Cr. NO.386/02 U/S 379 IPC was registered and investigated. No clue, Case treated as undeducted on 30.12.02 vide RCS No.118/02 but by hand mistake it was written as treated as undeducted on 30.12.01. In Ex.A5 dt. 17.4.03 the copy of the Proceedings of the District Munsif Cum Judicial Magistrate Court, Vaniyambadi mentioned that Vaniyambadi Town Police Station Cr.No.386/02 U/s.379 IPC, RCS.184/2003 registered by the Registrar on 17.4.03. According to the complainant the Sub Inspector of Police Vaniyambadi Town Police Station had issued a certificate that the case is treated as undeducted on 30.12.02 vide RCS No.118/02 but by hand mistake it was written as 30.12.01. But the opposite parties have not accepted the contention of the complainant that explanation regarding the change in the years as typographical errors and stated that the documents submitted by the complainant contain various dates regarding actual date of loss of the moped had given a room for suspicion about the genuiness of his claim. 10. The opposite parties contended that after lapse of 16 months the complainant lodged the intimation about the theft of his moped bearing No.TN-23-R-0408 on 6.5.02 along with the records to the 1st opposite party, since the complainant was not intimated the loss of vehicle by wary of theft to the opposite parties as per the policy conditions which is very essential while issuing the insurance policy the 1st opposite party did not repudiated the claim on account of belated delay of intimation of loss of the vehicle. From the perusal of Ex.B2 the Oriental Insurance Company’s the insurance policy conditions No.1 stated as follows: “1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and / or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge on any impending prosecution inquest or Fatal Inquiry in respect of any occurrences 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 the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. “ Therefore it is clear that the essential conditions of the policy is that in the event of any accidental loss or theft or damage to the insured vehicle, one of the policy conditions that the insured must give notice in writing to the insurance company immediately and thereafter the insured shall give all assistance as the insurance company to intimate the loss. In the present case the complainant had intimated the theft of his moped nearly a lapse of 16 months from the date of occurrence i.e. 6.5.02. According to the opposite parties that if the complainant had intimated the loss immediately the opposite party would have appointed some independent investigation to find out the genuiness and settled the complainant’s claim based on the report by the investigator and criminal records to the 1st opposite partly. On receipt of the claim papers from the complainant the 1st opposite partly replied through a letter dt. 29.9.03 informing the complainant about the non registering of his claim and the reason for repudiation of his claim under the said policy. Therefore it is clear that the complainant had violated the policy conditions mentioned in Ex.B2 that the complainant had not intimated the loss of theft of his moped immediately. So as per the policy conditions the opposite parties repudiated the claim on account of belated delay of intimation of loss of the vehicle. Hence the contention of the complainant that undeducted certificate is issued on 30.12.02 and RCS order issued on 17.4.03 and the theft is intimated to the 1st opposite party and claim form furnished in time but the 1st opposite partly without taking into the fact returned the claim form is deficiency of service to his customer is not acceptable. 11. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A13 and Ex.B1 & B2, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. Hence we answer this point (a) as against the complainant herein. 12. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 13. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 9th day of November 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1 - Opposite parties’ Exhibits: Ex.B1 - MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
