Mrs.Brinda, filed a consumer case on 23 Jun 2016 against The United India Co. Ltd, rep. by Manager, in the North Chennai Consumer Court. The case no is 163/2013 and the judgment uploaded on 13 Jul 2016.
Complaint presented on: 27.08.2013
Order pronounced on: 23.06.2016
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., PRESIDENT
TMT.T.KALAIYARASI, B.A.B.L., MEMBER II
THURSDAY THE 23rd DAY OF JUNE 2016
C.C.NO.163/2013
Mrs. Brindha,
Wife of Mr.Mahesh,
No.3/2B, Kavarai Street,
Kaladipet, Tiruvottriyur,
Chennai – 600 019.
..... Complainant
..Vs.
1.The United India Insurance Company Limited,
Rep.by its Managing Director,
No.14, Whites Road,
II Floor, Sundaresan Building,
Chennai – 600 014.
2.The United India Insurance Company Limited,
Rep. by its Branch Manager,
No.19, Andiappa Gramini Street,
Royapuram, Chennai – 600 013.
3Mr.R.Velu,
No.40, Kavarai Street,
Kaladipet, Tiruvottriyur, Chennai – 600 019.
...Opposite Parties
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Date of complaint : 03.09.2013
Counsel for Complainant : Mr.M.Palani
Counsel for 1st & 2nd Opposite party :M.B.Gopalan
Counsel for 3rd Opposite Party : Mr.D.Kumaralingam
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF
The Complainant is the owner of the container Lorry bearing registration no. TN AE 0069 and the cost of the vehicle is Rs.11,80,000/-. The Complainant being a lady she entrusted the vehicle with the 3rd Opposite Party by entering a rental agreement dated 25.01.2012 with him on a monthly rent of Rs.31,500/-. The 3rd Opposite Party is running a transport business in the name and style of RPG Transport. The vehicle was insured with the 2nd Opposite Party for the period from 11.11.2011 to 10.11.2012. The 3rd Opposite Party driver left the vehicle on 03.03.2012 night at Sathankadu Shed and handed over the key to the 3rd Opposite Party and also informed him. On 04.03.2012 at about 5.45 a.m found that the vehicle was missing and after such the vehicle was not traceable and he lodged a Complainant at Sathankadu Police Station. However the police advised the 3rd Opposite Party to search the vehicle some more time and if not traceable then lodge the Complaint. The Complainant also searched the vehicle for 3 days with his father and unable to trace the same and accordingly on 21.12.2012 the Complaint was lodged and FIR was registered. On the date of theft the Complainant with her father and the 3rd Opposite Party went to the office of the 2nd Opposite Party and informed the theft. However, the 2nd Opposite Party refused to receive the statement from the 3rd Opposite Party that the same should be accompanied by the FIR. Thereafter, after registration of FIR a representation with FIR, Insurance Certificate and one key submitted to the 2nd Opposite Party. On 04.08.2012 a surveyor by name Mr.Selvaraj came and enquired about the theft of the vehicle and submitted his report. Surprisingly on 16.02.2013 the 2nd Opposite Party sent a letter of repudiation that the keys of the vehicle left in the vehicle as a result the vehicle was stolen and the intimation of theft was not given immediately. The 2nd Opposite Party obtained a letter written in English that one key left in the stolen vehicle and obtained the signature 3rd Opposite Party and who subscribed his signature in Tamil. Immediate to the theft, the same was informed to police and police only refused to receive the Complaint. Therefore the repudiation of claim made by the 2nd Opposite Party is not sustainable. Hence the Complainant filed this Complaint to direct the Opposite Parties 1st & 2nd to settle the amount of Rs.11,00,000/- and also compensation for mental agony besides cost of the proceedings.
2.WRITTEN VERSION OF THE 1st & 2nd OPPOSITE PARTIES IN BRIEF:
The Complainant insured the vehicle with the 2nd Opposite Party is admitted. The 1st Opposite Party is an unnecessary party to the Complainant. As per the condition of the policy notice shall be given in writing to the company immediately and in the case of theft shall give notice immediately to the police. The theft was on 04.03.2012 and it was intimated to the 2nd Opposite Party on 26.03.2012 and to the police on 21.03.2012. During investigation it was found that the driver had left one key in the vehicle itself which has facilitated the theft. Leaving the vehicle with key inside, is gross violation of policy condition. The other allegations averred in the Complaint is denied and there is no cause of action for this Complaint and prays to dismiss the same with cost.
3. WRITTEN VERSION OF THE 3rd OPPOSITE PARTY IN BRIEF:
This Opposite Party entered an agreement with the Complainant for the container Lorry bearing registration No.TN4AE0069 dated 25.01.2010 for operation on rental basis. On 03.03.2012 night this Opposite Party stationed the vehicle at Sathankadu Shed and from where the vehicle was stolen on 04.03.2012 he found at 5.45 a.m that the vehicle was stolen.Thereafter himself and the father of the Complainant searched various place and unable to trace the vehicle. Then this Opposite Party lodged a Complainant at Sathankadu Police immediately and they did not receive and received the Complaint only on 21.03.2012 and registered a case. On 04.08.2012 a surveyor came to the spot and enquired about theft of the vehicle. On 30.11.2012 the 2nd Opposite Party advised the Complainant to give the letter of subrogation and indemnity, in the event of the vehicle being traced out to indemnify the insurance company. Accordingly on 11.12.2012 the Complainant submitted the letter of subrogation and indemnity. Thereafter the 2nd Opposite Party rejected the claim on 16.02.2013 for the reason that one of the keys of the vehicle left in the vehicle at the time of theft which caused the theft and also there is a delay in preferring Complaint to the police. The claim made by the Complainant is not sustainable and prays to dismiss the Complaint.
4.POINTS FOR CONSIDERATION:
1. Whether there is deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled to any relief? If so to what relief?
5.POINT NO :1
The admitted facts are that the Complainant is the owner of the vehicle bearing registration No.TN 04 AE 0069 container Lorry and the said vehicle was insured with the 2nd Opposite Party and the 2nd Opposite Party insured Ex.A6 & B1 policy for the period 11.11.2011 to 10.11.2012 and the said lorry was entrusted with the 3rd Opposite Party by the Complainant on rental agreement and on 03.03.2012 night the 3rd Opposite Party driver left the vehicle at Sathankadu shed and handed over the key to the Complainant and on 04.03.2012 at about 5.45 a.m. the Complainant found that the vehicle was missing and was stolen by somebody.
6. The vehicle was committed theft on 03.03.2012/04.03.2012 during night hours and an FIR was registered in Sathankadu Police Station on 21.03.2012 and the copy of the FIR is marked as Ex.A7. The Complainant made Ex.A3 claim form to the 2nd Opposite Party on 26.03.2012. The incident came to light on 04.03.2012 at about 5.45 a.m. Thereafter, after 16 days the FIR was registered in the police and after 22 days the claim was made to the Insurance Company.
7. The Complainant contended that immediate to the occurance the 3rd Opposite Party preferred Complaint to the Sathankadu Police Station and they directed him to search the vehicle for 2 weeks and after that he can prefer the Complaint, if the vehicle is not traced and accordingly the Complaint was given on 21.03.2012 and hence as such there is no delay on the part of the Complainant in preferring Complaint to the police and likewise the Complainant also informed the incident to the 2nd Opposite Party insurance and however he replied him that he can give statement only with the FIR copy and hence after receipt of FIR copy the Complainant made claim and hence as such there is no delay in making claim to the Insurance Company.
8. The 1st and 2nd Opposite Party contended that the driver who had left one key in the vehicle itself and that had facilitated to commit the theft of the vehicle and further there is a delay of 16 days in preferring Complaint to the police and there Complaint to the police and also 20 days intimating to the Insurance Company and such a delay and leading key in the vehicle or violation of the conditions of the policy and hence the repudiation made by the Complainant is sustainable.
9. The contention of the Complainant that the police refused to receive the Complaint and advised him to prefer Complaint after 2 weeks after making diligent search is not sustainable. Because when the police refused to receive the Complaint as per the established procedure that the Complainant would have preferred Complaint to the Higher Police Officials or sent the Complaint through post to the police as well as to the Insurance Company. Therefore the refusal made by the police and the Insurance Company to prefer Complaint after 2 weeks is not accepted.
10. The counsel for the Complainant specifically argued that the delay in preferring Complaint to the police is not a criteria to reject the claim and in support of his contention he relied on Ex.A5 circular issued by the Insurance Regulatory Development Authority and judgment of the Supreme Court reported in (2014) 4 SCC 657 para (58) ( SUHAS H. POPHALE Vs. ORINTAL INSURANCE COMPANY LIMITED AND ITS ESTATE OFFICER) and also on another judgment reported in (2011) 4 SCC 693 (RAVI Vs. BADRINARAYAN AND OTHERS). The fact in judgment reported in 2011 SCC 693 relates to claim made under the Motor Vehicle Acts relates to an accident case. Whereas the present case is relates to theft. In the case of theft to enable the police to trace the offender and the property, it is necessary to prefer Complaint immediately. Therefore the ratio laid down by the Supreme Court does not apply to the facts of the case in hand.
11. Ex.A5 circular very much particular about the fact that the condition imposed in policy should not prevent settlement of genuine claims particularly when there is delay in intimation or in submission due unavoidable circumstances in prefer the intimation to the police and to the Insurance Company. Nowhere in Ex.A5 circular was the theft referred. Therefore in this view Ex.A5 circular and the judgment of the Supreme Court (2014) 4 SCC para (52) do not apply to the facts of the case in hand. Therefore the request of the Complainant to set-aside the repudiation of the claim made by the Complainant is not accepted.
12. The Opposite Party argued that if the condition of the policy is violated and the theft was also intimated with a delay of 20 days to the Insurance Company, the rejection of the claim made by the Opposite Party is justifiable and further to his contention he relied on judgments reported in (i) IV (2012) CPJ 441 (NC) NEW INDIA ASSURANCE COMPANY LTD. VS. TRILOCHAN JANE AND II and (ii) (2015) CPJ 262 (NC) RAMESH CHANDRA MEGHWANSHI VS. ORIENTAL INS. CO LTD and therefore prays to dismiss the Complaint.
13. The National Commission in its order in the 1st referred, the judgment of the Supreme Court of India in para 10 relied on as follows:
Hon’ble Supreme Court of India in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal, reported in IV (2004) CPJ 15 (SC) = V (2004) SLT 876=JT 2004 (8) SC 8 has held that the terms of policy have to be construed as it is and nothing can be added or subtracted from the same. The policy provides that in the case of theft, the matter should be reported ‘immediately’. In the context of a theft of the car, word ‘immediately’ has to be construed strictly to make the Insurance Company liable to pay the compensation.
As per the above ratio of the Hon’bles Supreme Court of India the terms of the policy cannot be ordered or subtracted from the same and further policy provides to report the theft immediately to the Insurance Company. In the case in hand the policy provides to report the theft immediate of the occurrence. However after 16 days of occurrence only the theft was intimated to the Opposite Party which is in violation to Ex.B1 policy and as against the ratio of the Supreme Court. The National Commission also held that delaying in reporting theft of the car for 16 days would be a violation of condition of the policy and deprives the right of the insurer. Therefore in view of the above ratio of the Supreme Court and National Commission, the order of the Chhattisgarh State Commission referred by the Complainant is not applicable to the facts of the case in hand. Therefore the Opposite Party has not committed any Deficiency in Service in rejecting the claim made by the Complainant after 16 days of the theft and accordingly this point is answered.
14. POINT NO :2
Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief in this Complaint and the Complaint is liable to be dismissed without cost.
In the result the Complaint is dismissed. No costs.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 21st day of June2016.
MEMBER – II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 29.10.2009 | Copy of the invoice received from the Sundaram Motors |
Ex.A2 dated 20.11.2009 | Copy of the bill received from body building company M/s.Easwaran Motors, Tiruchengode |
Ex.A3 dated 30.11.2009 | Copy of the Registration Certificate in respect of the stolen vehicle |
Ex.A4 dated 25.01.2010 | Copy of the rental agreement entered in between Complainant and 3rd Opposite Party |
Ex.A5 dated 20.09.2011 | Copy of the circular issued by the Insurance Regulatory Development Authority |
Ex.A6 dated 11.11.2011 | Copy of the Insurance Policy |
Ex.A7 dated 21.03.2012 | Copy of the FIR |
Ex.A8 dated 04.08.2012 | Copy of the Surveyor Report |
Ex.A9 dated 30.11.2012 | Copy of the letter of subrogation and indemnity |
Ex.A10 dated 03.12.2012 | Copy of the statement obtained from the 3rd Opposite Party by the 2nd respondent |
Ex.A11 dated 03.12.2012 | Letter sent by the 3rd Opposite Party to the sub inspector of police, M-8 sathankadu police station, Chennai |
Ex.A12 dated 16.02.2013 | Copy of the letter repudiating the claim of the Complainant
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LIST OF DOCUMENTS FILED BY THE 1ST & 2ND OPPOSITE PARTIES:
Ex.B1 dated NIL Copy of Policy
Ex.B2 dated NIL FIR
Ex.B3 dated 26.03.2012 Claim Form
Ex.B4 dated 03.12.2012 Letter confirming loss of key with vehicle
LIST OF DOCUMENTS FILED BY THE 3rd OPPOSITE PARTY:
…… NIL…….
MEMBER – II PRESIDENT
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