Karnataka

Chitradurga

CC/150/2022

K.G.Siddanna gowda s/o K.G.Sharanagowda - Complainant(s)

Versus

The Branch Manager,Cholamandalam MR General unit - Opp.Party(s)

Sri.C.M.Shivakumarswamy

28 Jul 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:150/2022

DATED: 28/07/2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                          

…COMPLAINANT/S	Sri K.G. Siddana Gowda S/o K.G. Sharanana Gowda, Aged about 54 Years, Agriculturist, R.C. Owner of Honda Motor Cycle Bearing Regn.No.KA-35-EM-1229, R/o T.Kallahalli Village, Kudligi Taluk. Rep.By Sri.C.M.Shivakumara Swamy, Advocate)
V/S
…OPPOSITE PARTY/S	The Branch Manager, Cholamandalam MS General Insurance Co.Ltd., 1st Floor, Kalburgi Square, Desai Cross, Deshpande Nagar, Hubli.   Rep. by Sri. B.M. Ravichandra, Advocate)

 

:JUDGEMENT:

 

Order Delivered by Hon’ble President, Kum. H.N. MEENA.

 

The complainant has filed this complaint under section 35 of Consumer Protection Act, 2019 for seeking the relief to direct the opposite party to settle the policy declared value. To grant compensation of Rs.50,000/- on account of mental agony, damages and complaint cost and pay @ 18% interest per annum from the date of incident  and such other reliefs, as this Hon’ble Commission may deems fit and proper in the  interest of Justice.  

 

2. The brief facts of the complaint:

The complainant is the R.C. Owner of Honda Motor cycle bearing Regn.No.KA-35-EM-1229, the said Motor cycle policy which is insured in the office of Opponent Company policy was force from 11-08-2020 to 10-08-2021 and policy was coverage all the benefits of complainant.

 

3. Complainant alleged that, on 23-01-2021 at about evening the complainant, his son Janardhan Gowda was taken the said Motor cycle and went to Chitradurga town in order to purchase chemicals and fertilizers, hence on that day parking the said Honda Motor cycle bearing No.KA-35-EM-1229 in front of Reddy Hostel near Green park Hotel and went to Hotel for having, meals, thereafter at about 6.25 p.m. the said Janardhana Gowda was came to the parking place for pick up the motor cycle while he was parking. But the said parking place the Honda Motor cycle bearing No.KA-35-EM-1229 was theft by some body. Thereafter the complainant son Janardhan Gowda was enquired the surrounding places in view of theft the said Motor cycle was not traced out. Thereafter he informed to his friends regarding the theft of the Motor cycle, but no information from his friends. Thereafter for about 10 to 15 days the complainant son seriously searching the Honda Motor cycle bearing No.KA-35-EM-1229 in different places but no trace out regarding the theft of said Motor cycle.

 

4. On 09-02-2021 the complainant son Janardhan Gowda was came to the Town Police station, Chitradurga and lodged a complaint regarding the theft of Honda Motor cycle bearing No.KA-35-EM-1229 on 2301-2021 while parking in front of the Reddy Hotel near Green park Hotel, Chitradurga, hence on the basis of the complaint the concerned police have registered a case in crime No.19/2021 alleged offence under Sec.379 of IPC. Thereafter the Sub Inspector of Town Police, Chitradurga by investigation officer have well investigation regarding trace out the said Motor cycle in so many times, but not trace out the said Motor cycle. Hence the Sub Inspector of Town Police station have submitted final ‘C’ report. the said Motor cycle the policy was in force of Opponent Insurance Company.  The Town police, Chitradurga have registered the case in Crime No.19/2021 alleged offence under Sec. 379 of IPC on 09-02-2021.  The complainant is an uneducated and approached the Opponent Company orally to compensate but the Opponent Company denied to compensate to the complainant. The Opponent Insurance Company have regularly collected the policy amount from the complainant in respect of the said Honda Motor cycle bearing No.KA-35-EM-1229. the said theft vehicle Insurance policy was in force at that time the Insurance Company is held liable to compensate to the RC owner. Hence in this case also at the time of theft of the said Honda Motor cycle bearing No.KA-35-EM-1229 the Insurance policy was in force of Opponent Company. Hence the Opponent Company is held liable to pay compensation to the complainant.  The complainant have issued a legal notice to Opponent company on 4-10-2021,the said notice is duly served to Opponent company but the Opponent company never send the reply notice nor settle the compensation to the complainant. Hence this complaint.

 

8. This commission after registering this complaint ordered for issuance of notice to opponent, wherefore opponent have made their appearance, through their respective counsels.

9. The opponents stated in the version that the allegations of the complaint which are not specifically admitted in this version are all hereby denied as false.  The allegations made in para No.2 to 13 are hereby denied as false. The complainant has not approached the Hon’ble Forum with clean hands as required under consumer protection Act and law of Insurance and also under policy issued by Opponent under M.V. Act for the following grounds, reasons and circumstances.

 

a)  It is true that complainant is the R.C. owner of Motor cycle bearing Reg. No.KA-35-EM-1229 and the said Motor cycle has been insured with opposite party through vide policy No.3397/01479839 for the period 11-08-2020 to 10-08-2021 the said policy is a package policy from 11/08/2020 to 10/08/2021 and liability policy only from 11/08/2022 to 10/08/2025 in the name of one Siddana Gowda K.G S/o K.G.Sarana Gowda to the Motor cycle bearing Reg. No.KA-35-EM-1229 and covering the risk of 3™ party injury and death unlimited, PA to owner cum driver for an amount of Rs.15,00,000/and IDV of the vehicle is Rs.71,449/only for the period 11/08/2020 to 10/08/2021 and also not taken any premium towards PA claim and not given any indemnity to the PA claim and also and not collected any premium towads own damage and also not given any indemnity to the own damage for the period 11/08/2021 to 10/08/2025 and the said policy will be in force as per the terms and conditions of the policy and confirmation of 64 VB and also terms and conditions of M.V. Act.

 

b. That the complainant has intimated the theft of the vehicle in writing to the opponent insurance company on 11/02/2022 stating that his vehicle was stolen on 23/01/2021. And also the complainant has given complaint and lodged an FIR on 09/02/2021 i.e. after lapse of 17 days delay after the theft of the vehicle, it is a violation of condition No.1 of the policy, it shows that the complainant is not diligent in intimating the occurrence of the theft of the vehicle either to the company or to the police well in time, hence it is a violation of policy condition No.1. For that the claim of the complainant is hereby repudiated by the opponent on 07/06/2021 and "the same repudiated notice through RPAD was served on the complainant.

 

c. That the complainant has intimated the theft of the vehicle to the opponent on 11/02/2021 i.e., after lapse of 20 days from the date of occurrence, since the theft of the vehicle is on 23-01-2021 and FIR was lodged on 09-02-2021 and there is a delay of 17 days in intimating to the concerned police station and also the said intimation to opponent company is after lapse of 20 days from the date of theft. “That means complainant has violated the condition No.1 of the said Motor policy which runs as follows.

 d. “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage 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”.

 

10. As per the said condition of the policy that the complainant has approached concerned Chitradurga Town Police, Chitradurga with a delayed (17 days) and lodged a complaint on 09-02-2021 and also intimation to our company on 11/02/2021 which is after lapse of 20 days from the date of theft of the vehicle, thereby complainant has not given any opportunity to the opponent to investigate the theft of the vehicle by the insurer and this as prejudiced possibilities of recovery of the vehicle, this constitutes serious breach of condition No.1 and 8/9 of the insurance policy. Hence it is a violation of policy condition by the complainant and for that opponent insurance company is not responsible for payment of any claim amount.

 

11. Hence for the said reason opponent insurance company has repudiated the claim of the complainant through notice dated 07/06/2021 and opponent insurance Co. has repudiated the above Motor own damage under theft preferred by the complainant.

 

        12. Both complainant and opponent filed their evidence by way of Affidavit, the documents came to be marked as Ex.A-1 to A-4 and
Ex.A-6 to Ex.A-9 and documents produced by Opponent marked as Ex.B-1 to Ex.B-2, Both complainant and OPs filed their written arguments. Heard oral arguments of both side.

 

        13. On the assessment of the above facts, the following points arise for our consideration Viz.

1. Whether the complainant further proves any deficiency of service on the part of OP?
2. Whether the complainant is entitled to reliefs as prayed in the complaint?
3. What order?

14. The findings of this commission on the Points for consideration are as below.

Point No.1: In the affirmative

Point No.2: Partly In the affirmative

Point No.3: As per the final order for the following.

REASONS

15. Point No.1&2: We have gone through the complaint, objection, evidence and documents produced by both the parties. It is clear that the complainant is the owner of Honda Motor cycle bearing Regn.No.KA-35-EM-1229, In respect to his vehicle he had obtained the insurance policy was force from 11-08-2020 to 10-08-2021 and policy was coverage all the benefits of complainant. It is not disputed in above said fact by opponent.

16. On 23-01-2021 at about evening the complainant his son Janardhan Gowda was taken the said Motor cycle and went to Chitradurga town in order to purchase chemicals and fertilizers, on that day parking the said Honda Motor cycle bearing No.KA-35-EM-1229 in front of Reddy Hostel near Green park Hotel and went to Hotel for having, meals, thereafter at about 6.25 p.m. the said Janardhana Gowda was came to the parking place for pick up the motor cycle while he was parking. But the said parking place the Honda Motor cycle bearing No.KA-35-EM-1229 was theft by some body. Thereafter for about 10 to 15 days the complainant son seriously searching the Honda Motor cycle bearing No.KA-35-EM-1229 in different places but no trace out regarding the theft of said Motor cycle Son of complainant Janardhan Gowda was came to the Town Police station, Chitradurga and lodged a complaint regarding the theft of Honda Motor cycle bearing No.KA-35-EM-1229 on 23-01-2021 police have registered a case in crime No.19/2021 alleged offence under Sec.379 of IPC. Thereafter the Sub Inspector of Town Police, Chitradurga by investigation officer have well investigation, but not trace out the said Motor cycle the Sub Inspector of Town Police station have submitted final ‘C’ report. The complainant is approached the Opponent Company orally to compensate but the Opponent Company denied to compensate to the complainant. Opponent insurance company has repudiated the claim of the complainant through notice dated 07/06/2021.

 

17. The opponent has taken the contention that, the complainant has intimated the theft of the vehicle in writing to the opponent insurance company on 11/02/2022 stating that his vehicle was stolen on 23/01/2021 and also the complainant has given complaint and lodged an FIR on 09/02/2022 i.e., after laps of 17 days delay after the theft of the vehicle it is a violation of condition No.1 of the policy. Its shows that the complainant is not diligent in intimating the occurrence of the theft of the vehicle either to the company or to the police well in time, hence, it is a violation of policy condition No.1.

 

18. The opponent has admitted that, complainant is the RC owner of Motor Cycle Regn.No.KA-35-EM-1229 and the said Motor Cycle has been insured with OP through vide policy No.3397/01479839 for the period 11-08-2020 to 10-08-2021 the said policy is a package policy from 11/08/2020 to 10/08/2021 and liability policy only from 11/08/2022 to 10/08/2025 in the name of one Siddana Gowda K.G S/o K.G.Sarana Gowda to the Motor cycle bearing Reg. No.KA-35-EM-1229 and covering the risk of 3™ party injury and death unlimited, PA to owner cum driver for an amount of Rs.15,00,000/- and IDV of the vehicle is Rs.71,449/only for the period 11/08/2020 to 10/08/2021 the said policy will be in force as per the terms and conditions of the policy.

19. In the back ground of above said fact, we perused all the documents produced by the both the parties. The complainant side documents are got marked as annexure A-1 to A-4 and A-6 to A-9 that is complaint copy, Chargesheet, Mahazar, Legal notice, Panchanama, Policy these documents are sustainable fact of the case. The complainant vehicle has theft on 23/01/2022 on the basis of the complaint the concerned police have registered a case in crime No.19/2021 alleged offence under section 379 of I.P.C. it is not disputed, but the opponent has alleged that, as per the said condition of the policy Notice shall be given in writing to the company immediately upon the occurrence of any accident loss or damage in the event of any claim the complainant has intimated the theft of the vehicle to the opponent on 11/02/2021 i.e., after laps of 20 days from the date of occurrence of theft vehicle. The insurance claim cannot be rejected in toto where breach of policy condition is not fundamental in nature…  The insurance company has liable to pay the IDV of the vehicle is Rs.71,449/- for that reasons complainant is entitled to receive the claim amount of Rs.71,449/- of IDV value of vehicle  and opponent company has hereby directed that issue the claim of the complainant IDV coverage amount of Rs.71,449/- the complainant has entitled to receive their IDV amount of Rs.71,449/-

 

20. The complainant has proved deficiency in service on the part of OP. The complainant has entitled for Rs.71,449/- and claim for compensation for mental agony and cost of proceedings of Rs.10,000/- along with interest. Accordingly we answer the Point No.1 and 2 partly in the affirmative.

 

21. Point No.3:  Hence, in the light of above discussion, we proceed to pass the following.

 

 

  

::ORDER::

1. The complaint filed by the complainant U/s.35 of Consumer Protection Act, 2019 is hereby Partly Allowed.

 

2. The OP, shall pay Rs.71,449/- to the complainant along with at the rate of interest 6% p.a. from the date of order till its realization.

 

3. The OP, shall pay Rs.10,000/- to the complainant as compensation for deficiency of service and towards mental agony and also cost of the proceedings.

 

4. In case of non-compliance of the order the entire amount shall carry interest at the rate of 10% p.a. till its realization.

 

 

5. The OP shall pay the above said award amount within 30 days from the date of this order.

 

 

6. Send the free copies to both parties.

 

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 28^th July 2023.)

 

 

 

 

 

 

 

                                                                             Sd/-                                                     Sd/-

LADY MEMBER                                    PRESIDENT

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:- Sri K.G. Siddana Gowda S/o K.G. Sharanana Gowda by way   

           of  affidavit of evidence.

 

Wetness examined behalf of opponents:

DW-1:- Sri G.L. Sagar S/o Gangaraju.A, by way of affidavit of  

            evidence.

 

Documents marked on behalf of Complainant:

01	Annexure-A-1:-	True copy of FIR
02	Annexure-A-2:-	True copy of Complaint
03	Annexure-A-3:-	True copy of Final Charge sheet
04	Annexure-A-4:-	True copy of Panchaname
05	Annexure-A-6:-	Copy of Legal notice
06	Annexure-A-7:-	Postal acknowledgement
07	Annexure-A-8:-	True copy of Notice/summons Panchaname
08	Annexure-A-9:-	Insurance policy copy

 

 

Documents marked on behalf of opponents:

 

01	Annexure-B-1:-	Certified copy of Insurance Policy
02	Annexure-B-2:-	Correspondence letter dated 23/01/2021

 

 

                                                                              Sd/-                                                     Sd/-

LADY MEMBER                                    PRESIDENT

 

 

 

GM*