Tamil Nadu

North Chennai

CC/377/2018

R.Dhanasekaran - Complainant(s)

Versus

TTATA-AIG General Insurance Company ltd - Opp.Party(s)

Pandi & Nambi Associates

24 Apr 2023

ORDER

                                                               Complaint presented on :13.06.2012                                                                

                                                                 Date of disposal            :24.04.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                              THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

C.C. No.377/2018

 

DATED MONDAY THE 24^th DAY OF APRIL 2023

R.Dhanasekaran,

Residing at,

No.21, Velmurugan Nagar,

Hasthinapuram,

Chormpet, Chennai-600 042.                                                                                                                                                                                 …..Complainant

 ..Vs..

1. The Assistant Manager(Claims)

Tata-AIG General Insurance Company Ltd.,

Operating at No.1, Ethiraj Salai,

Egmore, Chennai-600 008.

 

2. The Manager,

Tata-AIG General Insurance Company Ltd.,

A-501, 5^th Floor,

Building No.4, Infinity Park,

Gen.A.K.Vaidya Marg,

Dindoshi, Malad(East)

Mumbai-400 097.                                                          …..Opposite Parties

 

Counsel for Complainant                          : M/s.Pandi & Nambi Associates

 

Counsel for 1^st & 2^nd opposite party           : M/s. M.B.Gopalan

 

ORDER

BY PRESENT:TMT. KAVITHA KANNAN, M.E.,  : MEMBER-I

 

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to directing the opposite parties to pay the insurance claim amount for the loss of the vehicle together with the interest at the rate of 18% from the date of complaint and to pay a sum of Rs.200000/- as compensation and damages for the deficiency in service caused by the opposite parties to the complainant in indulging in the act of arrival of awarding only 50% of the insurance amount and subjecting the complainant to immense mental agony and hardship and costs.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.134/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.377/2018.

1.THE COMPLAINT IN BRIEF:

The complainant submitted that he is the owner Bajaj Motorcycle Pulser 150 cc bearing register number TN 22 AL 8697, and the bike had been insured with the First Opposite Party and the policy number 0151161797, the premium amount was Rs.972/- the coverage period of the insurance policy is between 16.02.2011 and 15.02.2012. The Complainant states that the Complainant along with his son had come down to Adampakkam by his motorcycle to meet his son-in-law who is the owner of Rajarani Textiles 08.03.2011 at 4:00 PM. The Complainant states that the insured motorcycle mentioned above had been parked in front of the shop of his son-in-law a locked. The Complainant states that when he came out from the shop at about 9:00 P.M. The insured motorcycle was found missing and the Complainant enquired about the motorcycle in and around the place but he was not able to find the motorcycle. The Complainant states that he had lodged a complaint regarding missing of his insured motorcycle before S 8 Adampakkam Police Station on 13.03.2011 and requested them to take necessary action. The Complainant states that based upon the Complainant the Police had registered a case regarding theft of the insured motorcycle of the Complainant and the crime number is 192 of 2011.  The Complainant states that the police informed him that the insured motorcycle could not be traced and had issued a non-traceable certificate dated 14.06.2011. The Complainant states that he had approached the First Opposite Party on 30.06.2011 and applied for the claim of the insurance amount. The Complainant states the claim was primarily rejected by the First Opposite Party by vide letter dated 09.07.2011 stating that there was a delay of 114 days to inform about the theft and after that a legal notice dated 29.07.2011 had been issued to both of the Opposite Parties calling upon them to entertain the claim since the case had been registered by the Police and the Police had issued a non-traceable certificate. The Complainant states that the First Opposite Party had accepted to entertain the claim and had called upon the Complainant to produce all relevant documents in support of the claim submitted by the Complainant by vide letter dated 05.08.2011, which included the final report submitted by the Inspector of the Police before the Judicial Magistrate Court at Alandur. The Complainant states that he had taken hectic efforts to get the final report with the proceedings of the Judicial Magistrate from the Judicial Magistrate Court at Alandur and in the meantime the Complainant was called upon to produce all documents including the final report. The Complainant states that he had received a letter dated 12.11.2011 from the First Opposite Party stating that unless the Complainant produces all documents including the final report on or before 30.11.2011, the claim of the Complainant will be closed. The Complainant states that the Complainant after receiving the final report with the proceedings of the Judicial Magistrate had immediately approached the First Opposite Party and furnished all required documents including the final report with the proceedings of the Judicial Magistrate Court at Alandur. The Complainant states that the First Opposite Party had received all the documents after scrutiny, requested the Complainant to produce a letter of subrogation. Further complainant waited for days after submitting the documents on the belief that his claim would be entertained while on a day when the complainant approached the 1st opposite party regarding the claim he was orally informed by the 1st opposite party that only 50% of the insured amount  would be awarded without assigning any valid reason for the same, later which was informed that it was a considered opinion of the 1st and 2nd opposite party which the complainant alleges as Deficiency of service hence the receipt of the complaint.

2.WRITTEN VERSION FILED BY THE 1^st and 2^nd OPPOSITE PARTY  IN BRIEF:

          The  opposite parties denies all the averments and allegations made in the complaint except those that are specifically admitted and put the complainant strict proof of each and every averment averred in the complaint. The opposite parties submitted that the Complainant had insured his motorcycle bearing Reg.No.TN 22 AL 8697 Policy No.0151161797 for the period from 16.02.2011 to 15.02.2012 with the opposite parties subject to terms and conditions. Thus in the event of theft or loss Complainant was bound to give immediate notice in writing to the Opp Parties besides lodging complaint with Police, which is an important requirement to enable them to verify and take necessary action before irretrievable loss of vehicle. The Complainant who alleges theft of vehicle on 8/3/2011 failed to inform the Opp Party of the same admittedly until 30/6/2011, after 114 days. The Complainant thus miserably failed to comply with the crucial requirement of Condition Nos.1 and 8 of the Policy. The Opposite Parties submit that even after obtaining Non Traceable Certificate, intimation is delayed by further two weeks. Thus there has been a gross violation of Condition No. 1 of the Policy. The Opposite Parties submit that the coverage of the vehicle is subject to terms and conditions of the contract. In as much as the Complainant committed gross violation of the same and failed to comply with the condition precedent, the Opposite Parties are relieved of their obligations under the Policy, not only for violation of Condition No.1, but also in accordance with Condition No.8. The Opp.Parties rejected the claim and communicated by their letter dated 9/7/2011. However on representation received from the Complainant through legal notice, besides sending a reply dated 5/8/2011 the Opposite Parties called for documents as per letters dated 4/8/2011 18/10/2011 and 12/11/2011. However, the Complainant neither submitted the documents at the time but provided some documents on 21/2/2012. Further, Investigation revealed serious discrepancy as to who had custody and use of the vehicle prior to the alleged theft. While Complainant claimed that he had taken the vehicle and parked the same before theft, it was informed to the Investigator that another person claiming to be his son-in-law had used the vehicle. Thus the circumstances surrounding the theft were also doubtful. The Opposite Parties to submit records or produce documents in support of the claim cannot be relied upon by the Complainant to sustain the claim. The Opp.Parties, in their reply to the legal notice dated 5/8/2011. He breach of Policy having been confirmed by the documents and investigation also having revealed the discrepancies in the circumstances of theft, the Opp.Parties were entitled to repudiate the claim which they informed by letter dated 12/7/2012. There is no deficiency in service on the part of this opposite parties.

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency in service and unfair trade practice on the part opposite parties 1 and 2 as alleged in the complaint?

2. Whether the complainant is entitled for the reliefs prayed in the

    complaint.  If, so to what extent?

The complainant had filed proof affidavit, written arguments and documents Ex.A1 to A9 are marked on their side.  The opposite parties 1 and 2 had filed written version, proof affidavit, and Ex.B1 to B14 documents were marked.

4. POINT NO :1:-

          As per complaint, the complainant who had insured two wheeler bearing Reg.No.TN 22 AL8697 with the 1st opposite party under policy no.0151161797, the premium amount being-Rs.972/-,the coverage period being 16-02-2011 to 15-02-2012 had drown the bike accompanied by his son from his residence at chrompet to his son -in-law’s textile shop at Adambakkam went missing between 4.30pm and 9.30pm on 08-03-2011 the same day when he had parked it in front of his son-in law’s shop. After searching for the said bike in neighborhood the complainant is said to have filed an FIR before the S8 Adambakkam police station on 13-03-2011. A theft case was recorded in the police station under crime number 192 of 2011. After continuous search the police issued Non-Traceable Certificate dated 14-06-2011. While following investigation the theft of the motor cycle the complainant had applied for insurance claim with the 1st opposite party on 30-06-2011. The complainant alleges that his claim which was repudiated initially due to delay in 114 days to claim the insurance vide letter dated 09-07-2011 and the same had been called upon by the opposite party to entertain the claim since an FIR regarding the same was filed in response to a legal notice filed by the complainant on both the opposite parties. The complainant submits that he was  called upon to produce certain documents for the processing of the claim vide letter dated 05-08-2011 which also included the final report submitted by the Inspector to the Judicial Magistrate Adambakkam. The complainant alleges that he was called upon by opposite party  vide letter dated 12-11-2011 which stated that the complainants claim would be entertained only after the specified documents were furnished on or before them by 30-11-2011. meanwhile the proceedings on the lost vehicle was still pending before the Judical magistrate -Alandur which was rightly communicated to the 1st opposite party vide letter dated 30-11-2011 and hence his inability to furnish the required documents. The complainant alleged that On later days after receiving all documents after scrutiny from the complainant the 1st opposite party orally requested for a letter of subrogation and letter of undertaking and they were also duly submitted to the 1st opposite party. It is alleged by the complainant waited for days after submitting the documents on the belief that his claim would be entertained while on a day when the complainant approached the 1st opposite party regarding the claim he was orally informed by the 1st opposite party that only 50% of the insured amount  would be awarded without assigning any valid reason for the same, later which was informed that it was a considered opinion of the 1st and 2nd opposite party which the complainant alleges as Deficiency of service.

          5. While the opposite parties had contended that the vehicle being lost on      08-3-2011 and the First Information Report was filed on the said vehicle only on 13-03-2011 and was intimation was given to the opposite party only on 30-06-2011 after 114 days delay. They further contend that the complainant failed to comply with condition no.1 and no.8  of the terms and conditions of the policy. The opposite parties also contended that on the reception of legal notice from the complainant besides replying for the same, they had called on the complainant for submission of certain documents as per letter dated 04-08-2011, 18-10-2011 and 12-11-2011 for which the complainant neither replied nor responded but submitted some documents on 21-02-2012. The opposite party states the fact that the mere submission of documents would not amount to admission of liability of the claim. The opposite parties states that the said vehicle was in the custody of the son-in-law of the complainant and the complainant had wrongfully averred in the complaint that he drove the vehicle from his residence to the  location of incident.

6. The complainant owned a 2 wheeler PULSAR bearing  Reg.no.TN 22 AL 8697 and had insured the vehicle with the opposite party for the period 16-02-2011 to 15-02-2012 vide policy no. 0151161797 with the opposite parties paying a premium of Rs.972/  insurance Policy dated 16-02-2011 in Ex.A2. The complainant's vehicle went missing from where it was parked on 08-03-2011,the location being the parking in front of the shop owned by the complainant’s Son-in-Law and an FIR vide FIR no.192/2011 was  filed  in S8 Police station, Adambakkam on 13-03-2011 and the complainant had stated that he had tried tracing out his vehicle and failed and hence filed the FIR on 13-03-2011 though the said vehicle went missing on 08-03-2011. As found in ExA3.A Non Traceaable Certificate was issued to the complainant on 14-06-2011 from the S8 Police station as found in ExA4. As per call log recorded intimation regarding theft of the vehicle was intimated to the opposite party on 30.06.2011 after delay of 114 days as found in Ex.B2. The opposite parties repudiated the claims of the complainant stating the delay in 114 days where the theft took place on 08-03-2011 and the opposite parties were intimated only on 30-06-2011, the terms and conditions of the policies opposite parties being violated as per condition 1 which states that “ Notice shall be given in writing to the company immediately upon occurrence of any accident or 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”  as per Ex.B3 dated 09-07-2011 and on other hand the opposite parties also contended stating the condition 8 of the policy “The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under the insurance company cannot repudiate the bonafide claims on technical grounds like delay in intimation and submission of some required documents. The Opposite parties have relied upon  Hon’ble National Consumer Dispute Redressal Commission New Delhi’s  decision reported in  FA no.321 of 2005 New India Assurance Company Limited vs Trilochan Jane which states that the word ‘immediately’ has not been defined under the Act. Hence Resort has to be made to the dictionary meaning assigned to it and as per the dictionary meaning the word immediately shall refer to a reasonable time having due regard to the nature of circumstances of the case.

7. In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, whereas the complainant had filed a complaint with the Police Station only on the 6th day from theft of the vehicle, wherein the  valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 117 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.

8. Also as per the written argument of the opposite parties there had been a serious discrepancy in the complaint as to who had the custody and user of the vehicle prior to the alleged theft. While the complainant has stated in para 1 of his complaint that he drove the vehicle from his residence to his son in law's shop at 4.30pm on 08-03-2011, it is found as per Ex.B13 letter by Gopi during investigation by the investigator dated 27-8-2011 the son-in law had parked the vehicle in front of his shop prior to the theft.   Further this commission observes that the delay of 6 days in informing the Police and 114 days in intimating the same to the Insurance company could be fatal, since the delay curtails the right of the insurance company and police to investigate and trace out the stolen vehicle. The opposite parties relied upon a decisions reported in Oriental Insurance Company Ltd. Vs Parvesh Chander Chadha, (2018)9 SCC 708, New India Assurance Co. Ltd., Vs Trilochan Jade, 2009 SCC online NCDRC 201. (2009) NCDRC 200: (2012) 4 CPJ 441 (NC), Reliance General Insurance Co. Ltd V. Jai Prakash, 2016 1 CPR(NC) 767, New India Assurance Co. Ltd., Vs Ram Avtar, 2013 4 CPR (NC) 449, Oriental Insurance Co. Ltd., Vs Brahmanand Javvadi, 2020 SCC Online NCDRC 456 and contended that when there is delay in lodging FIR and intimating to the Insurance company there is breach of policy condition and hence the insurance company cannot be held liable to pay compensation to the insured. There is no force in the contention of the complainant  that the opposite party by sending letter marked as Ex.B5,B6 and B7after receiving legal notice of the complainant has sought for certain documents which amounts to admission of liability. There is no explanation submitted by the complainant for the alleged delay of 114 days in intimating to the company. Though it is alleged by the complainant that the opposite party orally agreed to pay only 50% of the value of the vehicle there is no proof for the same.  The complainant failed to prove the deficiency in service or unfair trade practice. Point No.1 is answered accordingly.

9. POINT NO :2 :-

Based on findings given in Point No.1 the complainant failed to prove the deficiency in service and unfair trade practice on the part of the opposite parties and hence the complainant is not entitled for insured amount and compensation as claimed in the complaint. Point No.2 is answered accordingly.

          In the result, the complaint is dismissed. No costs.

Dictated by the Member-I to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 24^th day of  April 2023.

 

MEMBER – I                MEMBER – II                                 PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	16.11.2005	Registration certificate of the insured vehicle.
Ex.A2	16.02.2011	Policy of insurance of the vehicle.
Ex.A3	13.03.2011	FIR for the missing of the vehicle.
Ex.A4	14.06.2011	Non traceable certificate issued by police.
Ex.A5	09.07.2011	Letter of 1st opposite party.
Ex.A6	29.07.2011	Legal notice issued by the complainant to the opposite parties.
Ex.A7	05.08.2011	Letter of 1st opposite party.
Ex.A8	12.11.2011	Letter of 1st opposite party showing the acknowledgements.
Ex.A9	30.11.2011	Copy of telegram sent by the complainant.

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTIES:

Ex.B1		Certificate of insurance policy.
Ex.B2		Call centre log.
Ex.B3	09.07.2011	Repudiation letter
Ex.B4		Notice sent by complainant.
Ex.B5	05.08.2011	Reply from the opposite party.
Ex.B6	26.09.2011	Letter from the opposite party.
Ex.B7	10.10.2011	Letter from the opposite party.
Ex.B8	12.11.2011	Letter from the opposite party.
Ex.B9	21.02.2012	Letter from the opposite party.
Ex.B10		Claim form.
Ex.B11		Complainant’s statement.
Ex.B12		FIR
Ex.B13		Statement of Gopi.
Ex.B14	12.07.2012	Letter of the opposite parties.

 

MEMBER  I                MEMBER II                                 PRESIDENT