Tamil Nadu

StateCommission

A/288/2017

V.Munusamy - Complainant(s)

Versus

United India Insurance Comapny Ltd., Rep by its Branch Manager & anr - Opp.Party(s)

Girish Babu

13 Jun 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble THIRU  JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL         :      MEMBER

 

F.A. No. 288 of 2017

[Against the order passed in C.C. No.64 of 2014 dated 28.04.2017 on the file of the D.C.D.R.F., Chennai (North)].

 

Tuesday, the 13^th day of June 2023

 

V. Munusamy

S/o. Veerasamy Pillai

No.1/3, Srinivasa Cross Street

Perambur, Chennai – 11.                                   .. Appellant/  Complainant

 

- Vs –

 

 

1.  United India Insurance Co. Ltd.

     Rep. by its Branch Manager

     Branch Office :  010804

     No.70, N.S.C Bose Road

     III Floor,  Sowcarpet

     Chennai- 600 079

 

2.  The Inspector of Police

     M-1 Madavaram Police Station

     Madavaram, Chennai – 110.                           .. Respondents/      Opposite parties

 

Counsel for the Appellant/Complainant   : M/s. Girish Babu

 Counsel for the 1^st Respondent/  1^st Opposite Party    : M/s.M.B.Gopalan Associates

    2^nd Respondent/ 2^nd Opposite party     :  Absent

                                                 

        This appeal came before us for final hearing on 09.02.2023, and on hearing the arguments of the counsel for the appellant and 1^st Respondent and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 28.04.2017 passed by the District Consumer Disputes Redressal Forum, Chennai (North) in C.C. No.64 of 2014, dismissing the complaint filed by the appellant herein. 

 

        2.   The case of the complainant before the District Forum is that he is the 2^nd owner of Ashok Leyland 2214/IS Tanker lorry, bearing Registration No. TN 02 S 8406.  He had purchased the said vehicle by availing loan from ICICI Finance Ltd.  The complainant used the said vehicle for supply of fuel and for the said purpose he had entered into an Agreement with Hindustan Petroleum Corporation Ltd.  As per the Agreement the complainant has been supplying fuel to ATF, Meenambakkam. The complainant normally used to park his lorry in Manchambakkam at Omakkalamedu.  He was using the said place for parking his vehicle for a period of 6 years.  Whileso, on 04.09.2012, the driver of the lorry namely, A.Venkatesan, had parked the vehicle at about 8 p.m., as usual in Manchambakkam at Omakkalamedu and went to his home.  When the driver came back there on 07.09.2012 at 6.00 a.m, he was shocked and surprised to see the Tanker Lorry bearing Registration No.TN02 S 8406 was missing.  Hence, the same was informed to the complainant.  Immediately, the complainant approached M-1 Police Station to lodge a complaint.  But the police officials refused to register his complaint and advised the complainant to search for the vehicle.  All the efforts taken by the complainant to trace the vehicle went in vain.  Hence, he again went to M-1 Madhavaram Police Station and requested to register his complaint.  The police also registered a complaint on 25.09.2013.  Apart from lodging a police complaint, the complainant also sent a representation to the 1^st opposite party.  The 1^st opposite party had sent a reply on 07.10.2013 stating that the claim of the complainant is not admissible, assigning the following reasons, to reject the claim of the complainant:-

1. As per FIR the vehicle was parked on 03.09.2012 and found missing on 07.09.2012 when the driver returned but the loan challan shows use of the vehicle on 04.09.2012.  The circumstances of loss itself has become doubtful and not acceptable;
2. Delay in notice of loss is more than 15 days (violation of condition No.1);
3. Reasonable care not taken to safe guard the vehicle, by parking the vehicle in a public place (violation of condition No.5);
4. The claim was registered as missing and not theft in the FIR.

 

The rejection made by the 1^st opposite party is against the principles of natural justice and hence the complainant had filed the complaint seeking the following directions to the opposite parties:-

1. To pay a sum of Rs.6,00,000/- being the value of the insurance together with interest @ 18% p.a.;
2. To pay a sum of Rs.3,25,000/- towards mental agony, irreparable hardship and loss suffered by the complainant in view of deficiency of service committed by the 1^st opposite party.

 

       

        3.  The said complaint was resisted by the 1^st opposite party by filing a version stating that the 1^st opposite party has not committed any deficiency of service as alleged in the complaint.  Hence, the complaint is liable to be dismissed in limine.  Nowhere in the complaint, the complainant has specified any particulars of the policy under which the claim was made or which is sought to be enforced in the present complaint.  The complainant had insured lorry bearing Registration No.TN 02 S 8406 with the 1^st opposite party, under Policy No.0108043111P101434761, for a period from  07.09.2011 to 06.09.2012.  The complainant had lodged a claim for theft of the vehicle under the above policy, alleging that the vehicle was stolen between 03.09.2012 to 07.09.2012.  The theft was noticed by the driver of the complainant only on 07.09.2012, but the policy had expired on 06.09.2012.  Without specific information about the exact date and time of loss, it cannot be presumed that the loss had taken place before the expiry of policy on 06.09.2012.  For this reason, the complaint is liable to be dismissed.  The 1^st opposite party had provided the insurance coverage subject to terms and conditions as stipulated in the policy, which are required to be observed and fulfilled by the complainant as a condition precedent for enforcing the same.  Condition Nos. 1 and 5 read as follows :-

             “1.  Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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.......In case of theft or other 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. ....

 

             5.  The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured.  In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.” ......

 

In the present case, the vehicle was parked at a public place during the said period, as is revealed by the fact that even the exact date or time of theft was not known.  Based on the complaint given by the complainant, the 2^nd opposite party had registered an FIR, wherein it is recorded that the occurrence had taken place between 03.09.2012 to 07.09.2012 and that the same was noticed only on 07.09.2012. Moreover, even in the claim form the complainant had mentioned the date of loss as 03.09.2012 to 07.09.2012.  Therefore, it is clear that the vehicle has been left parked without any care or attention and only after 4 days it was found missing.  The complainant had grossly failed to take reasonable care of the vehicle, which is breach of condition No.5 of the policy.  Further, condition No.1 of the policy requires immediate intimation of loss, but in this case the FIR was lodged only on 25.09.2012, which is more than 15 days after the vehicle was missing.  The opposite party also found that the FIR was registered only as a case of vehicle missing and not under Section 379 IPC for theft, whereas the policy covers only theft as a peril and does not cover missing vehicles.  Since the missing vehicle was noticed only on 07.09.2012 after the expiry of the policy, the exact date and time of loss is not known, due to the negligent act of the complainant, there can be no presumption of loss before expiry of policy on 06.09.2012.  Hence, there is no deficiency of service on the part of the opposite party and sought for dismissal of the complaint.

 

                4.  Though notice was served on the 2^nd opposite party, there is no representation and hence called absent.   Treating the 2^nd opposite party as an unnecessary party to this complaint, the 2^nd opposite party was set ex-parte by the District Forum. 

 

                5.  In order to prove the case, on the side of the complainant, along with proof affidavit 13 documents were filed and the same were marked as Ex.A1 to A13.  On the side of the opposite parties, proof affidavit was filed along with 3 documents and the same were marked as Ex.B1 to Ex.B3.

 

        6.  The District Forum, on analyzing the entire evidence and records, had observed that the policy provides that in case of theft, the matter should be reported ‘immediately’.  In the context of a theft of the car, the word ‘immediately’ has to be construed strictly to make the Insurance Company liable to pay the compensation.  In the case on hand also the first condition of the policy term is that the case of theft should be reported to the police immediately.  However, the complainant had reported only after 15 days.  Furthermore, the complainant had parked the vehicle on 04.09.2012 in a public place and only after 3 days on 07.09.2012 at 6.00 pm he had seen that the vehicle was missing, which leads to a conclusion that the complainant had not taken care to safeguard the vehicle.  Therefore, there is breach of conditions of policy by the complainant and hence there is no deficiency of service on the part of the 1^st opposite party in rejecting the claim.  Thus, dismissed the complaint.  Aggrieved over the same, the present appeal has been filed by the complainant.

 

 

        7.  It is the specific submission of the appellant/ complainant that the District Forum had dismissed the complaint mainly on the reasoning that as per the policy condition the theft of the vehicle should have been reported immediately, whereas, the complainant had reported the same with a delay of 15 days.  Yet another reason assigned by the District Forum is that the vehicle was parked in a public place, which would show that the complainant had not taken care of the vehicle, which is also one of the violations of the policy condition.  Assailing the said findings, counsel for the appellant/ complainant submitted that in the complaint it has been very clearly stated that as soon as the driver of the lorry came to know about missing of the lorry on 07.09.2012 at 6.00 pm, immediately he informed the same to the owner of the lorry and the owner of the lorry also approached the police station immediately.  But the police refused to register the complaint and directed the complainant to search for the vehicle.  Hence, the complainant took all efforts to search the vehicle but it ended in vain.  Again the complainant approached the police station for registering the complaint.  But this aspect was not considered by the District Forum.  With regard to the other reason assigned by the District Forum, the vehicle was parked in a public place for a period of 3 days and as such the complainant has not taken care of the lorry, in violation to Policy Condition No.5, it is the reply of the counsel for the complainant that the complainant has been parking the lorry for the past 6 years in the same place, where others also used to park their vehicle.  Therefore, it is incorrect to state that the complainant had parked his vehicle in a public place without proper care and caution.  This aspect was also not considered by the District Forum.  Therefore, the order passed by the District Forum dismissing the complaint is liable to be set aside. 

 

        8.   Countering the same, it is argued by the counsel for the insurance company that as per Condition No.1 of the policy, notice should have been given immediately upon occurrence of any accidental 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.  In case of theft or other criminal act, which is the subject matter of a claim under this policy, the insured should have given immediate notice to the police and co-operate with the company in securing the conviction of the offender.  But in the instant case, the complainant has not only delayed in registering the FIR but he has also delayed in intimating the same to the insurance company.  Though the complainant had stated that the vehicle was parked on 03.09.2012 at 8.00 pm and found missing on 07.09.2012, it was found that the said vehicle was actually operated on 04.09.2012.  When the complainant was confronted with regard to the discrepancy in the date of occurrence, he had casually stated that the date of theft was wrongly stated and it should be 04.09.2012 to 07.09.2012.  Furthermore, as per Condition No.5 of the policy, the complainant ought to have taken a reasonable care to prevent the loss.  But the vehicle was left unattended for 4 days without any security.  Though the complainant had stated that the place of parking is a private place where many vehicles are parked, he has not produced any proof for the same.  Therefore, the order of the District Forum dismissing the complaint, cannot be found fault with.

 

 

        9.  Keeping in mind the submissions made by the counsel for the appellant/ complainant and the counsel for the 1^st respondent/ 1^st opposite party, we have carefully gone through the entire material available on record. 

 

 

        10.  Though the complainant had stated that he approached the police to lodge a complaint immediately after the vehicle was found missing and the police advised him to search for the vehicle, he has not produced any proof to substantiate the said contention.  On the contrary, it was found that there was inordinate delay of 20 days in lodging the complaint.  Furthermore, a clear reading of the complaint would show that no exact details or particulars have been given by the complainant, in this regard.  The entire complaint contains only bald and vague statements, that the same do not even suggest any proper cause of action against the opposite parties.  In fact, this complainant was not drafted in an expected level. Though the complainant had stated that he had parked the vehicle in a private place, normally where he used to park the vehicle, again he has not produced any document to show that he has parked the lorry in a secured place.   Therefore, it is highly unsafe to entertain this kind of complaints, which has been filed without any exact particulars.  It would be appropriate to rely upon the judgment cited by the counsel for the 1^st opposite party, in the case of Kanwarjit Singh Kang Vs. M/s.ICICI Lombard General Insurance Co.Ltd & anr.,  wherein the Supreme Court had observed as follows:-

          “It is at once clear that so far as the requirement of immediately lodging of the FIR is concerned, in the decision in Gurshinder Singh (supra), this Court has endorsed the view taken by   2-Judge Bench of this Court in Om Prakash vs. Reliance General Insurance: (2017) 9 SCC 74. Thus, it remains beyond cavil that on occurrence of such an event like theft of the vehicle, the owner of the vehicle (the insured), cannot avoid his responsibility to immediately lodge the FIR. In both the aforesaid decisions in Gurshinder Singh and Dharamender, the repudiation only on the ground of delay in informing the insured has not been approved on the given set of facts. The present one is a case of unexplained and inordinate delay of eight days in lodging the FIR. The said decisions do not make out a case for interference.

          In any case, the necessity of giving immediate notice to the police cannot be gainsaid and if that had not been done, the entire claim would come under a thick cloud of suspicion and the onus is then heavy on the insured to justify the delay. In the present case, towards such justification, the submission on behalf of the petitioner is that it took him longer time in travelling from Ludhiana in the State of Punjab to Vardhaman in the State of West Bengal and therefore, the FIR was lodged after a delay of eight days. The three fora have observed, and rightly so, that with the means of faster communications available, delay of eight days in lodging the FIR remains unexplained and does not stand in conformity with the requirement of immediate action.”

 

The dictum laid down in the above cited case, is squarely applicable to the facts of this case also.  The delay in lodging the complaint remains unexplained and does not stand in conformity with the requirement of immediate action.  Therefore, we do not find any infirmity in the order passed by the District Forum, in dismissing the complaint. 

 

                       11.  In the result, the Appeal is dismissed and the order dated 28.04.2017 passed by the District Consumer Disputes Redressal Forum, Chennai (North) in C.C. No.64 of 2014, is confirmed.  No costs.

 

 

R   VENKATESAPERUMAL                                                                                                                R.SUBBIAH

         MEMBER                                                                                                                                       PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/June/2023