Tamil Nadu

North Chennai

163/2013

Mrs.Brinda, - Complainant(s)

Versus

The United India Co. Ltd, rep. by Manager, - Opp.Party(s)

M.Palani

23 Jun 2016

ORDER

 

                                                              Complaint presented on:  27.08.2013

                                                                Order pronounced on: 23.06.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd 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 23^rd   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

Date of complaint                                   : 03.09.2013

Counsel for Complainant                       : Mr.M.Palani

Counsel for 1^st & 2^nd   Opposite party     :M.B.Gopalan

 

Counsel for 3^rd 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 3^rd Opposite Party by entering a rental agreement dated 25.01.2012 with him on a monthly rent of  Rs.31,500/-. The 3^rd Opposite Party is running a transport business in the name and style of RPG Transport. The vehicle was insured with the 2^nd Opposite Party for the period from 11.11.2011 to 10.11.2012. The 3^rd Opposite Party driver left the vehicle on 03.03.2012 night at Sathankadu Shed and handed over the key to the 3^rd 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 3^rd 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 3^rd Opposite Party went to the office of the 2^nd Opposite Party and informed the theft. However, the 2^nd Opposite Party refused to receive the statement from the 3^rd 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 2^nd 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 2^nd 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 2^nd Opposite Party obtained a letter written in English that one key left in  the stolen vehicle and obtained the signature 3^rd 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 2^nd Opposite Party is not sustainable.  Hence the Complainant filed this Complaint to direct the Opposite Parties 1^st & 2^nd 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 1^st & 2^nd  OPPOSITE PARTIES IN BRIEF:

          The Complainant insured the vehicle with the 2^nd Opposite Party is admitted. The 1^st 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 2^nd 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 3^rd  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 2^nd 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 2^nd 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 2^nd Opposite Party and the 2^nd 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 3^rd Opposite Party by the Complainant on rental agreement and on 03.03.2012 night the 3^rd 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 2^nd 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 3^rd 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 2^nd 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 1^st and 2^nd 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 1^st 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 21^st 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

LIST OF DOCUMENTS FILED BY THE 1^ST & 2^ND 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 3^rd  OPPOSITE PARTY:

                                      …… NIL…….                                 

 

MEMBER – II                                                               PRESIDENT