Tamil Nadu

North Chennai

CC/75/2015

D.Krishnamurthy - Complainant(s)

Versus

M/s.Bajaj Allianz General Insurance Co ltd., - Opp.Party(s)

G.Vijayakumar

27 Nov 2018

ORDER

                                                             Complaint presented on:  24.04.2015

                                                                Order pronounced on:  27.11.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

 PRESENT: TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL  : PRESIDENT

              THIRU. D.BABU VARADHARAJAN B.Sc.,B.L.,  :    MEMBER - I

 

TUESDAY THE  27^th  DAY OF NOVEMBER 2018

 

C.C.NO.75/2015

 

Mr.D.Krishnamurthy,

S/o. Mr.M.Dhanapal,

No.2/48, New Boag Road,

Corporation Colony 4^th Street,

Chennai – 600 017.

                                                                                           ….. Complainant

 

..Vs..

M/s. Bajaj Allianz General Insurance Co. Ltd.,

Represented by its Authorised Signatory,

Old Nos. 276 & 277, New Nos. 497 & 498,

5.  

Isana Kattima Bldg.

Chennai – 600 106.

….Opposite Party

Date of complaint                                 : 08.05.2015

Counsel for Complainant                      : M/s. G.Vijayakumar, P.Ravikumar,

                                                                    B.Rajesh, V.Sundarraman

 

Counsel for  opposite party                     : M.B.Gopalan, N.Vijayaraghavan,

                                                                   M.B.Raghavan

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM,B.Sc.,B.L.,DTL.,DCL.,DL &AL

          This complaint is filed by the complainant to direct the opposite party to pay a sum of Rs.4,00,000/- as compensation for the deficiency in service  and mental agony, physical stress plus interest at the rate of 12% till date  and cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased one Nissan Micra XV Premium Diesel closed type car from M/s. Jain Jubilant Cars Pvt. Ltd., vide Proforma Invoice No.452 dated 07.06.2013 and registered by the RTO vide Registration No.TN 09 BT 4901. This car was insured by the opposite party vide policy No.OG-14-1501-1801-00009717 (NBA/00010537). The complainant submits that this policy was issued as recommended and arranged by the dealer of the car (i.e). M/s. Jain Jubilan Cars Pvt. Ltd at the time of purchase and the car was insured for a sum of Rs.6,19,876/- and a total premium of Rs.19,709/- was paid by the complainant through the said delaer. The policy was valid for the period from 12.06.2013 to 11.06.2014 midnight. The  complainant  was using  the car for the complainant’s personal use right from date of such purchase. When the car was parked in front of the complainant’s house on 25.05.2014 around 10.00 p.m. The complainant was shocked to see that the car was parked missing on 26.05.2014. The complainant submits that when the vehicle was parked before the complainant’s residence, the vehicle was stolen by somebody.  The complainant had immediately made extensive enquiries in the area and could not trace the vehicle or its whereabouts. Owing to the reason that the complainant’s daughter marriage was scheduled on 02.06.2014 the complainant had a sentimental feeling not to publicize the matter further as it may send a wrong  signal and will be treated as a bad omen by her in laws and other  relatives  when a marriage had to take place immediately thereafter. On 05.06.2014 the complainant lodged a complaint to R1 police Station, Crime Branch, T.Nagar,  Chennai – 600 017. The police authorities immediately issued a C.S.R. No.245/CSR/R1/2014 2014 on 05.06.2014. Subsequently an FIR was also registered vide Crime No. 600 of 2014. After detailed investigation the police authorities have issued a communication to the complainant vide R.C.No. 75 of 2014 dated 10.10.2014 stating that the vehicle is undetectable. After the issuance of FIR by police, the complainant had communicated the theft to the opposite party seeking a claim. The complainant was shocked and surpised to receive a letter dated 16.07.2014 from the opposite party stating that belated intimation to the Insurance Company is violative of policy condition and keeping the key in the car is also another violation of the policy condition and states that the complainant  has not surrendered the second key of the car. The complainant was not aware of these conditions and the complainant was not informed about these prior to making payment of premium amount as the policy was arranged by the Dealer, thus, keeping such conditions out of the complainant’s knowledge. None of such conditions were explained to the complainant prior to receiving the policy premium. The second key of the vehicle  was handed over to office of the opposite party during the time of submission of the claim form in claim No.OC-15-1501-1801-00004228. However, the opposite party have informed the complainant that the same was not handed over which is factually incorrect. The complainant further submit that this particular car type is such  that keeping the key in the car is immaterial as the car can be switched on by pressing the ignition key irrespective of whether the key is kept or not. Finally the opposite party sent another communication stating that the claim has been repudiated. Rejecting the complainant’s claim on the flimsy ground, when the fact remains that the complainant lost his car for which the complainant had insured the same with the opposite party by paying a hefty premium of Rs.19,709/- amounts to deficiency in service, resulting mental agony and physical stress to the complainant.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The complainant’s vehicle TN 09 BT 4901 was admittedly insured with them under Motor Policy No.00010537 for the period from 12.06.2013 to 11.06.2014. The policy is issued subjects to terms and conditions which  govern the liability of this opposite party for any claim and in the event of any breach of the said terms, the opposite party is not liable to admit such claim. The complainant is found to have not only suppressed the terms and conditions of the policy but also falsely alleged for the first time in the present complaint that he was not aware of the terms. The opposite party submits there is no denial in the complaint of receipt of terms and conditions but it is cleverly alleged that they were not informed before payment of premium. The plea of being unaware of the terms and conditions is false and self serving as a ruse to overcome the breaches committed by the complainant in  complying with the conditions of the policy.

CONDITION NO:1

Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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 Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or 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.

          3. The opposite party submit shat its decision taken in accordance with the terms of the contract cannot be considered as deficiency in service or unfair trade practice. The complaint is wholly misconceived and unsustainable. The complainant has suppressed the terms and conditions of the policy which govern the contract of insurance. For this very reason the complaint is liable to be rejected. Complainant is put to strict proof of the circumstances of the theft of vehicle as alleged in paragraph 4 in view of the inordinate delay in intimatin/police complaint which has not only prejudiced verification but also recovery of the vehicle. Further the complainant has suppressed the fact that the vehicle was left parked with key inside which a crucial aspect of the loss and the claim. The reasons given by the complainant for the gross delay in police complaint in paragraph 5 of marriage in the family or that he did not want to publicize the theft, are neither acceptable as genuine reasons nor legally valid grounds for the delay. The belated intimation to the opposite party is also inexcusable. After issuance of FIR the theft was reported to the opposite party does not even provide any semblance of excuse for the delay in intimation of claim. Hence the claim was found not payable due to failure of the complainant to comply with fundamental requirement of the policy in case of theft. The vehicle was also found to have been parked with keys inside facilitating theft whereby the complainant has failed to take reasonable care to prevent loss of the vehicle in violation of condition No.4 of the policy. The allegation of the complainant was not aware of the terms of the policy is raised for the first time after the loss and rejection of the claim. If the complainant was not acquainted with the terms and conditions of the policy he would have raised the same as soon as the policy schedule was received without the terms. There was no such complaint from the complainant at any time. Hence the plea of not receiving the terms and conditions is false. The fact remains that the complainant by his own conduct contributed in no limited  measure to the loss of vehicle and thereafter failed to take steps to immediately lodge police complaint and inform the opposite party. These are not small lapses as alleged conveniently but go to the root of the claim. Hence the repudiation of claim is valid. It is denied that there are any genuine reasons for the breach of policy conditions or that the opposite party has committed any deficiency in service.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

05. POINT NO :1

          The complainant’s vehicle  bearing no. TN 09 BT 4901 was admittedly insured with the opposite party  under the policy No.OG-14-1501-1801-00009717 (NBA/00010537) for the period from 12.06.2013 to 11.06.2014 and the claim is within the  coverage period of Policy. Certificate of registration is Ex.A1 and policy is Ex.A2. The complainant parked the car infront of his house on 25.05.2014 around 10p.m.The next day morning i.e. on 26.05.2014, the car was found missing. The Complainant approached the R1 police station, T.Nagar, to lodge a complaint on 05.06.2014  and  CSR was issued  on the same day vide Ex.A4, based on the complaint Ex.A3. FIR is Ex.A5. Admittedly FIR was registered  on 05.06.2014, after 10days delay.  There is an endorsement on the RC that it was hypothecated in SBI, T.Nagar Branch, Chennai and the letter from the said bank was received by the complainant and  produced in EX.A6 as the vehicle was not seized by them. The loss of vehicle has become an Undetectable by the  concerned police as per Ex.A7. Then the  complainant is said to have reported the matter to the opposite party  and it is replied in Ex.A8 after  making  the observations   in EX.A9. Ex.A10 is the reply given by the complainant, wherein the complainant  has mentioned  that by mistake  he left the key in the car itself and the second key is handed over to the opposite party . The opposite party  has denied the receipt of the second key and there is no proof of handing over the second key to opposite party  by the complainant. The Correspondences between the parties and the acknowledgement are marked as Ex.A11 to Ex.A14. Terms and conditions of the Insurance policy is exhibited in Ex.B1 by the opposite party.

          06.  So far as the  above said  complaints are concerned the opposite party  would contend that  the  complainant has not followed the essential  conditions subject to  which the complainant’s vehicle was insured. Condition No.1 and condition  No.4 & 8 of the policy and it reads as follows;-

          Notice shall be given in writing to the company immediately upon the occurrence of any accidental 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 Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or 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.

          “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”.     

As  incorporated  in the above said  conditions, the police complaint was  given on 05.06.2014 when the  theft  allegedly occurred on 25.06.2014 i.e. after 10 days delay and the reason stated by the complainant for the delay is that the marriage of the complainant was scheduled on 02.06.2014, and the complainant  had a sentiment feeling of not to publicize the matter thinking that it was a bad omen. The said reason is not  acceptable  as genuine and lawful  one as protested by the opposite party. It is unbelievable that loser of a vehicle would simply ignore the loss of a valuable car and avoided immediate complaint to the police due to simple reason of the scheduled marriage of his daughter and to avoid to publicize the theft. It is not a sufficient  and lawful cause to be acceptable one.  So far as the intimation to the complaint to the opposite party  is concerned , there is a delay of 17 days.  As per the contention of the complainant, after the issuance of FIR to the police, the complainant had communicated the theft to opposite party, whereas it is required to be given immediately   as per the terms of the contract.  Therefore it is also not a valid reason to be accepted  and condition No.1 is thereby violated.  

          07.  Complainant is admitted to have left the key  in the car itself  at the time of the alleged theft, thereby he has failed to take  reasonable care of his vehicle and invited the loss. But the learned counsel for the complainant  has pointed out that the car is of the type even to start by using start button without the key but the key serves to keep the vehicle locked,  and the safety is very important criteria, therefore the key plays an important role to keep the vehicle locked .  Therefore the complainant has invited the loss by himself by not following the terms and conditions of the policy thereby violating the terms of condition No.4.

08. The  registering of FIR   and intimation of the claim to opposite party  immediately and reasonable care to  safeguard the vehicle to avoid loss or damage was not followed by the complainant  and it would amount to fundamental breach of the terms and conditions of the policy.  Catena of various citations of Hon’ble Supreme court and National Commission have been submitted by the learned counsel for the opposite party  for the appreciation of immediate intimation to the police and also to the Insurer  and  it is all applicable to this case. The claim rejected because of the violation of conditions  of 1 and 4 are concerned the opposite party  had not committed any deficiency  in service.

           09.  Condition No 8 reads as follows:- 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 this policy”. The requirement of immediate police complaint, intimation of claim and taking reasonable care to safeguard vehicle are all fundamental  conditions subject to which the complainant has agreed to insure the vehicle  with the opposite party.  Breach of the policy would have resulted in denial of claim  by the opposite party. The claim rejected because of all these reasons such as violation of conditions 1, 4, and 8 and  opposite party  is right in rejecting the claim and therefore  the decision taken  by the opposite party  in accordance with terms and conditions of policy cannot be considered as deficiency in service and the complainant’s contention  is not sustainable.

10. Complainant’s  other  contention as he is not aware of the terms of the  policy  since none of its conditions were explained to the complainant and was not informed by the dealer prior to making payment of premium amount as the policy was arranged by dealer. The complainant cannot expect the dealer to read each and every line of the contents of the policy. If the complainant had not received the terms  of the policy or else if he is unaware of any of the terms , he would have clarified with  anyone including the dealer. If he is not  aware of English also ,he could have asked for explanation in Tamil then and there. It is very pertinent to note that  the complaint is drafted in English, but there is no statement by the complainant that the contents  are translated in Tamil and read over to him. It is also not a legal and valid ground to say excuses, when the complainant had  raised  only after the loss or rejection of the claim, not at the early stage.  Hence it is considered a lame excuse and  expressed by the complainant as an   afterthought to save himself from the clutches.

          11.  The complainant cannot bypass the terms and conditions of the policy. Both parties are bound by the terms of the policy. Various reasons stated by the complainant for the deviations of policy are unsustainable. The opposite party  has repudiated the claim  in accordance  with the terms of the contract and there is no deficiency on the part of the opposite party  as alleged by the complainant as discussed  in earlier paragraphs.

12. POINT NO:2

          In view of the discussions held as above, the complainant is not entitled to get any relief against the opposite party  as prayed for and the complaint is dismissed accordingly.

          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 27^th  day of November 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 12.06.2013                   Certificate Cum Policy Schedule

Ex.A2 dated 14.06.2013                   Certificate of Registration

Ex.A3 dated 05.06.2014                   Police complaint given by the complainant

Ex.A4 dated 05.06.2014                   C.S.R.No.245/CSR/R1/2014

Ex.A5 dated 05.06.2014                   First Information Report

Ex.A6 dated 09.06.2014                   Letter given by the State Bank of India

Ex.A7 dated 10.10.2014                   Non Traceable Certificate

Ex.A8 dated 16.07.2014                   Letter sent by the opposite party to the

                                                    complainant

 

Ex.A9 dated 21.07.2014                   Notice sent by the complainant to the opposite

                                                    party

 

Ex.A10 dated 29.07.2014                 Reminder sent by the opposite party to the

                                                    complainant

 

Ex.A11 dated 12.08.2014                 Reply notice sent by the opposite party to the

                                                     complainant

 

Ex.A12 dated 22.11.2014                 Legal Notice sent by the complainant

Ex.A13 dated 24.11.2014                 Acknowledgement Card

Ex.A14 dated  10.12.2014      Reply Notice sent by the opposite party   

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated NIL                     Insurance Policy terms and conditions

 

 

 

MEMBER – I                                                                PRESIDENT