Complaint filed on:15-02-2021

                                                      Disposed on: 22-02-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

CC.No.18/2021

DATED THIS THE 22^nd DAY OF FEBRUARY, 2022

PRESENT

SRI.KUMARA.N, B.Sc., MBA, L.L.B, PRESIDENT (I/c)

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

Complainant: -

Smt.Vijayalakshmi.H.J,

W/o S.D.Kemparaju,

Aged about 48 years,

Residing at Anugraha,

Behind at UCO Bank,

Valmiki Nagara,

Tumakuru city

(By Sri.Narasimha Murthy, Advocate)

V/s

Opposite party:-       

The Branch Manager,

HDFC ERGO General Insurance Co. Ltd,

Shankaranarayana Building, 2^nd Floor, New Block,

MG Road, Bengaluru–560 001

(By Sri.B.K.Chandrashekharaiah, Advocate)

ORDER

SRI.KUMARA.N, PRESIDENT (I/c)

        This complaint was filed under Section 35 of the Consumer Protection Act, 2019 to direct the Opposite party (hereinafter called as OP) to pay the insured declared value amount of Rs.36,300-00 with interest from the date of incident along with a sum of Rs.50,000-00 caused mental pain, agony and litigation cost etc. with 12% interest per annum.    

          2. It is the case of complainant that, the complainant is the R.C. Owner of Honda Activa 3G two wheeler vehicle bearing Reg.No.KA-06-EV-2206 and documents of the said vehicle stands in her name. Further the complainant insured the said vehicle with the OP Company under comprehensive insurance policy bearing no. 2312202596093300000 and policy was valid from 23-01-2019 to 22-01-2020. Further submitted that, the complainant’s daughter by name Varsha.S.K is studying at Mysore, J.C. Engineering college in 5^th Semester of Civil Engineering, for her necessary travel purpose to attend college, tuition, and for CAD Training, the complainant handed over the said vehicle in favour of her daughter and she was using the same at Mysore and also she is possessing valid D.L. to drive the said vehicle. On 04-10-2019 the complainant’s daughter had been to Premier Cad Training Center situated at 16^th Main, Saraswathipuram, Mysore in her two wheeler and said vehicle parked in front of the Training Center and locked the vehicle. Further the complainant submitted that she came to know that the said vehicle was not tracing in the parked area as informed by her daughter, in turn the complainant advised her daughter to register missing complaint in the Saraswathipuram police station, Mysore accordingly the complainant daughter visited the said police station but the official of police station not registered FIR and replied that we will trace the vehicle by taking oral complaint of complainant’s daughter. Further the complainant submitted that on the same day informed to the OP that not tracing the vehicle further the OP suggested the complainant file written complaint along with police FIR. The complainant daughter being a student, many time visited the Saraswathipuram police station they prolonged in registering the complaint from the complainant’s daughter, finally on 31-10-2019 the police registered FIR as CR No.120/2019 and given C-report before the court on 1-12-2020 stating that the vehicle was un-detected. Further the complainant submitted that on 4-10-2019 when the said vehicle not traced, immediately after getting the message from her daughter the complainant orally informed the OP in turn the OP sent repudiation letter dated 16-12-2019 and stated that there is a delay in intimation to the police by 27 days and intimation to the insurer by 41 days. However the complainant being house wife she unable to reach the OP company to lodge written complaint. Thereafter the complainant visited the OP office personally and the entire facts and filed claim application seeking claim amount towards theft of her vehicle.  The complainant further submitted that the OP without considering my claim given repudiation letter, thereby the OP shown negligence in handing the matter properly. Hence, this complaint.

          3. After the service of notice, the OP has appeared through its learned counsel and filed version contending that the complaint is not maintainable either in law on facts and the same is liable to be dismissed in limine  and denies all allegations made in the complaint except which were expressly admitted that Two wheeler comprehensive Motor Policy was issued with respect to the Honda Active 3G Two wheeler bearing No.KA-06-EV-2206 vide under policy No.2312202596093300000 and the policy issued was valid from 23-01-2019 to 22-01-2020 for an IDV of Rs 36,300-00 and although the policy issued was valid this opponent is not liable to pay the claim or any compensation to the complainant as the claim is one being belated and not submitted the claim as contemplated under the provisions of the IMV Act as well as under the terms and conditions of the policy not submitted the claim within the time prescribed, as such the complainant is liable to be rejected. The OP further submitted that, without prejudice to the  above, the OP denies the allegation made in the complaint  in para No.4 to 7 and submits that the OP was not aware of the facts stated and the complainant is put to strict proof of the same to the satisfaction of this Hon’ble Court by producing the documentary proof and cogent evidence and further emphatically denies the manner of alleged occurrence, theft of the insured vehicle, place and time, the complaint lodged to the police and the documents produced by the complainant and the cause of action to the alleged incident. The OP further submitted that, neither the complainant nor anybody, on behalf of the complainant not lodged the complaint in the jurisdictional police immediately, which leads to violations of the policy terms and conditions, wherein the complainant filed false complaint after the 27 days delay in the police station, the complainant has not submitted the claim application within the prescribed time limit of 30 days.  The OP further submitted that, the policy of Insurance is a contract between the Insured and the Insurer and neither of the party can traverse beyond the scope and ambit of the policy conditions.  The policy conditions are sacramental to both and too abided.  The subject policy condition no.1 clearly spells out that notice should be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in that event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. The OP further submitted that, the OP has appointed investigator in turn investigator submitted report that the complainant daughter not properly by taking care parked the said vehicle and not reported the police station and insurance company. Hence the OP prays to dismiss the complaint with exemplary cost.  

4. The complainant filed affidavit evidence and produced Exs.P1 to P8 documents. On behalf of OP one Aneesh Bhaskaran, Sr.Manager legal claim has filed affidavit evidence and produced Ex.R1 to R3 documents.  

5. We have heard the oral arguments of complainant and OP and in addition to complainant and OP submitted written brief and the points that would arise for determination are as under:

1)      Whether the complainant proves that there is deficiency in service on the part of OP?

2)      Is complainant entitled to the reliefs sought for?  

6. Our findings on the aforesaid points are as follows:

Point No.1: In the affirmative  

Point No.2: In the partly affirmative for the

below

REASONS

7. Point No.1 and 2: The learned counsel for the complainant argued that, the complainant orally informed the OP regarding theft of the said vehicle and efforts were made to file written complaint in jurisdictional police station. The complainant daughter being a student in spite of the repeated visits to the police station concerned police officials not registered the theft complaint, finally on 31-10-2019 police registered the complaint and issued C-report on 1-12-2020. The OP in spite of complainant having comprehensive insurance policy and after the theft incident the complainant informed the OP orally on the same day and later visited personally the OP office and filed claim form along with all necessary documents. In spite of that the OP repudiated the claim on 26-12-2019 which is against the policy terms and conditions. The complainant is eligible for claim amount/VDI i.e. Rs.36,300-00.

          8. The OP counsel argued that as per the policy terms and conditions the complainant not filed claim form along with necessary documents within stipulated time. The complainant fails to lodge the complaint in the police station immediately after the theft, and not inform the OP. Due to negligence of complainant/complainant’s daughter act said vehicle misplaced. The complainant’s complaint is a concocted/created story without evidence.

9. The complainant counsel produced Ex.P1 which was copy of FIR, Ex.P2 complainant’s daughter, complaint in the police station, Ex.P3 C-report, Ex.P6 RC which was in the name of complainant, EX.P7 copy of valid driving licence which was in the name of complainant’s daughter.

10. The complainant and OP produced Ex.P4, Ex.R2 were repudiation letters dated 26-12-2019 and Ex.P5, Ex.R1 copies of comprehensive insurance policy for the vehicle KA-06-EV-2206, which was in the name of complainant issued by the OP, policy bearing no.2312202596093300000 for the period from 23-1-2019 to 22-1-2020 wherein VID was Rs.36,300-00 respectively.

11. Documents produced by complainant proves that the said policy was comprehensive insurance policy which was issued by OP. When incidence of theft happened the policy is in force and driver of the vehicle had valid DL.

12. In this case the OP Company repudiated the claim by giving following two reasons 1) There is delay in intimation to the police by 27 days and 2) There is delay in intimation to the insurer by 41 days.

13. C-report by police:- C-summary report is filed in cases where the FIR is found to be based on a mistake of fact. It is a summary it means that evidence was not sufficient, but offence was there. Accordingly in this case the police issued C-report, stating that un-detected.

14. The Hon’ble National Consumer Commission, New Delhi has given judgment in the case of National Insurance Co. Ltd, V/s Tarlok Singh on 19 June, 2019 by considering following two judgments of the Hon’ble Supreme Court.

1. Om Praksh  V/s Reliance General Insurance and another, clearly emphasises that the delay is to be explained, in this case the complainant explained delay in filing complaint at police station and intimation to OP company. The complainant was resident of Tumkur and staying in Tumkur whereas incidence happened at Mysore wherein the complainant daughter was studying, as a student the police delayed in registering the complaint.
2. Amalendu Sahoo V/s Oriental Insurance Co. Ltd , II (2010) CPJ 9 (SC) has opined that even in case where there is any breach of warranty/conditions of policy, an amount upto 75% of the admissible claim can be agreed to.

Accordingly the Hon’ble National Consumer Commission, New Delhi passed the judgment as two important conditions of the policy have been breached in the present case, I deem to allow only 50% of the insurance claim in the facts and circumstances of the case.          

          15. In view of the above judgments cited above and by considering evidences, this Commission is in the opinion of in this case the complainant breached two conditions of the insurance policy, i.e. 1) There is delay in intimation to the police by 27 days and 2) There is delay in intimation to the insurer by 41 days and the complainant having comprehensive insurance policy which is in force. As per the above discussion, we deemed it appropriate to allow only 50% of insurance claim. i.e. IDV of the vehicle as per the policy Rs.36,300-00, therefore the OP is directed to pay an amount of Rs.18,150-00 to the complainant. Accordingly, we proceed to pass the following;

ORDER

The complaint filed by complainant is partly allowed.

The OP is directed to pay Rs.18,150-00 to the complainant within 30 days from the date of this order, along with 6% interest per annum on the said amount from the date of institution of complaint i.e. 15-2-2021, otherwise it carries interest @ 10% per annum from the date of complaint till its payment.

Furnish the copy of order to the complainant and opposite party at free of cost.

          (Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 22^nd day of February, 2022).

LADY MEMBER                               PRESIDENT (I/c)