S/o Hanumantha Kama,
Aged about years,
Residing at No.3,
Near DSFS Hostel, Kammasandra,
Electronic City Post,
Bangalore – 560 100.
ICICI Lombard GIC Ltd.,
Represented by its Manager,
…. Opposite Party
This complaint is filed claiming Rs.67,746/- from the Opposite Party on the following grounds:-
The complainant had purchased Hero-Honda Passion bearing No.KA-01-EE-9805 of 2007 manufacturing from Nidhi Motors. For Rs.48,565/-. He had got the said vehicle insured with Opposite Party for the period from 15/06/2007 to 14/06/2008 with declared value as Rs.40,746/-. On 12/09/2007 at about 11.30 p.m. he parked the vehicle in front of his house, but the same was found missing at 6.00 a.m. on 13/09/2007. He made all the efforts to trace the vehicle and also informed Nidhi Motors. On the advise of Nidhi motors he also filed a complaint with Hebbagodi police station and thereupon a case in crime No.371/2007 was registered on 15/09/2007.
The police filed ‘C' report on 03/10/2008 and the copy of the report was provided to him on 20/10/2008. Immediately thereafter he made claim with the Opposite Party on 28/10/2008. By the letter dated 30/01/2009, the Opposite Party informed that due to the delay in intimation, they are unable to honor the claim. The complainant had not caused any delay as he was awaiting the result of investigation by police on his complaint and only when police filed ‘C' report he made claim with the Opposite Party. As on the date of theft, the insurance policy was in force and as such the Opposite Party is liable to pay the insured amount in terms of the policy. The Opposite Party is intentionally avoiding payment of the insured amount on the lame reasons and the same amounts to deficiency in service. He also issued legal notice dated 21/02/2009, but the same is also of no avail. Hence the complaint.
2. The claim for Rs.67,746/- includes the insurance amount of Rs.40,746/-, traveling expenses of Rs.2,000/-, mental harassment Rs.10,000/- expenses of filing the case Rs.5,000/- and loss of pay Rs.10,000/-.
3. In the version the contention of the Opposite Party is as under:-
The Opposite Party had insured the vehicle belonging to the complainant for the period from 15/06/2007 to 14/06/2008, for the first time since it was a new vehicle. The policy issued is subject to various terms, conditions, exceptions and limitations and the legal liability of the insurer is governed by the provisions of the policy of insurance. The Opposite Party has no knowledge that the vehicle in question was stolen between 11.30 p.m. on 12/09/2007 and 6.00 a.m. on 13/09/2007 as the intimation about the alleged loss was given only on 28/10/2008 nearly one year and 42 days from the date of the alleged theft. Nidhi Motors – the authorized dealer of Hero-Honda has nothing to do with the theft of the vehicle or abut the settlement of the claim. The claim made by the complainant was registered as No.MOT 00927525 dated 25/10/2008 and immediately the claim form was issued and an investigator was appointed who submitted the report on 25/12/2008. On scrutiny of records and investigation report, they repudiated the claim as per the letter dated 30/01/2009 on the ground of delay in intimation to the insurer as per condition No.1 of the terms and conditions.
There is no delay or negligence in attending to the claim of the complainant. Though the complainant claims that he received the copy of “C" report on 20/10/2008 he informed Opposite Party about the theft of the vehicle only on 25/10/2008 and submitted the claim form on 28/10/2008 after the expiry of the insurance policy which expired on 14/06/2008. The complainant has failed to act with utmost good faith attracting condition No.1 of the terms and conditions of the policy. The explanation offered by the complainant regarding delay in intimating the Opposite Party about the theft clearly shows that the complainant has not stated true facts. On these grounds, the Opposite Party has prayed for dismissal of the complaint.
4. In support of the respective contentions, both parties have filed affidavits. We have heard arguments on both side.
5. The points for consideration are:-
1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?
2. Whether the complainant entitled to the relief prayed for in the complaint?
6. Our findings are:-
Point No.1 : In the Affirmative
Point No.2 : As per final order,
for the following:-
7. The fact that the complainant was the owner of Hero-Honda Passion bearing registration No.KA-07 EE-9805 and the said vehicle was insured with the Opposite Party for the period from 15/06/2007 to 14/06/2008 is admitted. From the copy of the FIR and the ‘C” report it is also seen that on 15/09/2007, the complainant gave complaint to policy alleging theft of the vehicle in question in the intervening night of 12/09/2007 & 13/09/2007. After investigation police filed “C" report on 03/10/2008 stating that in spite of all efforts, the accused as well as stolen property could not be traced. Thus, after investigation police submitted report that in spite of all efforts, the accused and the stolen property could not be traced. It is not the finding of the concerned policy that the complainant has given a false complaint.
Therefore we have no reason to disbelieve the contention of the complainant that during intervening night of 12/09/2007 & 13/09/2007 the vehicle which was parked in front of the house was stolen. The claim with regard to theft of a vehicle is also covered under the insurance policy. When the insurance policy was in force for the period from 15/06/2007 to 14/06/2008 it goes without saying that the theft of the vehicle during the intervening the night of 12/09/2007 & 13/09/2007 was within the period when the policy was in force. The only ground on which the Opposite Party repudiated the claim is the delay in intimating the loss of the vehicle namely the theft. No doubt the complainant intimated the insurance company about the theft of the vehicle on 25/10/2008 namely after police filed ‘C' report stating that in spite of efforts the accused as well as stolen property could not be traced, and more than one year had lapsed by the time complainant informed the insurance company about the theft of the vehicle on 25/10/2008. It may be that he wanted to make claim with insurance company only after the police investigated into the matter and hoping that the police may recover his vehicle.
But since police filed “C" report stating that the vehicle could not be traced, the complainant made claim with the insurance company. When the complainant had right to make claim under the insurance policy, it appears to us that the delay in giving intimation about the theft itself cannot be a ground for repudiating or denying the claim. The Opposite Party relies upon condition No.1 of the terms and conditions of the insurance policy to justify its action in repudiating the claim. The Opposite Party has also produced the copy of the terms and conditions governing the policy in respect of Two Wheeler. No doubt condition No.1 provides as under:-
“Notice shall be given in writing to the company immediately upon the 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. Every letter claim writ summons and/or process 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 of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. 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”.
From the above condition it is seen that the insured is required to give immediate intimation in writing about the occurrence enabling the insured to make claim. But no period within which the intimation is to be given is not provided in the above condition. That being so when the fact that the vehicle belonging to the complainant was stolen is not denied in our opinion the delay in making claim itself could not have been made a ground to repudiate the claim.
Therefore in our opinion, the act of the Opposite Party in repudiating the claim of the complainant amounts to deficiency in service and therefore as per the terms of the policy, the complainant is entitled for the declared value of the vehicle. In the insurance policy the declared value of the vehicle is given as Rs.40,746/-. Therefore, the complainant is entitled to receive the said amount from the Opposite Party. However, having regard to the facts and circumstances of the case and having regard to the terms and conditions of the policy we hold that the complainant is not entitled to the other amounts claimed by him. In the result, we pass the following:-
1. The complaint is allowed in part.
2. The Opposite Party is directed to pay Rs.40,746/- (Rupees Forty Thousand Seven Hundred and Forty Six Only) to the complainant towards the declared value of the vehicle. We direct both parties to bear their own costs. Compliance of this order shall be made within 08 (eight) weeks from the date of order.