ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not paying the insurance claim in respect of theft of his vehicle and for direction to OP to pay Rs.6,30,000/- being the insured value of the stolen tractor and trailer along with interest at 24% on the said amount from the date of theft and for other reliefs as the Commission deems fit .

2.      The brief facts of the complaint are that;

He is the RC owner of tractor KA 06 TB 2611 and trailer KA 06 TB 2612. The same was insured with OP under package policy valid for the period 17.06.2014 to 16.06.2015. On 13.12.2014 when he had parked the said tractor and trailer near his house and when he saw in the morning on 14.12.2014 the same was not found.  Immediately he searched for the same and could not find the same and intimated to the jurisdictional police at Peenya on 31.12.2014 who registered an FIR. The total value of the tractor and trailer is Rs.4,80,000/- and Rs.1,50,000/- respectively.  The fact of theft of the tractor and trailer was intimated to OP and a claim form was submitted along with necessary documents. OP in order to consider the claim requested to submit documents by its letter dated 02.11.2015.  Without any valid reasons OP did not settle the claim which is gross deficiency in service due to which he has to suffer, mentally, physically and financially.  OP demanded to hand over the ignition key and diesel keys of the stolen vehicle which he complied on 18.04.2016.  

3.      Though all the documents were submitted to the OP to settle the claim and requested many a time to pay the ID value of the vehicle, OP did not settle the claim and illegally without any reasons with held the settlement of the claim.  He is a consumer under the act and has also given reason for delay in informing the OP.  Inspite of it, OP failed to pay the ID value of the tractor and trailer which is insured with OP and hence there is deficiency in service on the part of the OP and prayed the commission to allow the complaint.

4.      He has also filed an application under sec 5 of the limitation act to condone the delay in filing the complaint, which is accompanied with an affidavit wherein, he has stated that he intimated the police regarding the theft of the vehicle on 31.12.2014 though the said vehicle was stolen on 13/14.12.2014.  OP did not consider his claim though he has submitted all the documents. OP willfully did not settle the claim and no valid reasons have been assigned at the earliest. Not settling the claim amounts to deficiency in service.  The matter was discussed several times with the officials of the OP, whereas they rejected the claim. The delay in communication by the OP has resulted in filing the complaint belatedly which is not intentional and there is bonafide delay in the complaint.  Further no hardship would be caused to the OP if the delay is condoned. On the other hand, if the same is dismissed or not condoned, he would be put to great hardship and loss and prayed the commission to allow the complaint and the IA.

5.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts and has violated the terms and conditions and procedures prescribed in the policy and he was totally negligent and irresponsible in maintaining the said vehicle and has now come up with the claim and the complaint, which is wholly unacceptable and the complaint is filed only to make illegal gains.  Since there is delay in filing the complaint before the commission also the complaint has to be dismissed. OP has repudiated the claim on 10.05.2016, whereas complainant is claiming that OP has agreed to make the payment, which is a cooked up story to cover up the delay in filing the complaint.  

6.      It is contended that the said vehicle was being used for commercial purpose and the vehicle insurance was obtained from Mahindra Tractor which is manufacturing commercial vehicle.  It is not pleaded in the complaint that the said vehicle was being used to earn his livelihood. Hence the same is being used to gain profit.  OP is not liable to pay any amount or claim made by the complainant as firstly there is delay of 30 days from the date of occurrence of the incident to report the same which is violation of condition No.1 of the policy.  In case of theft of the vehicle or other criminal act, which may be subject of a claim under this policy, the insured shall give immediate notice to the police.  Further complainant has failed to take necessary steps to safeguard the vehicle and also failed to provide the second ignition key of the vehicle which is violative of condition No.4 of the claim.  Even the complaint lodged before the police is after 15 days of the alleged theft. Complainant has failed to abide by the terms and conditions of the insurance policy, hence the claim could not be considered.  It has denied that it has withheld taking decision of the claim of the complainant willfully, illegally which is misleading.

7.      It is contended that OP was informed regarding the theft of the vehicle 30 days after the incident and 15 days to the police after the incident.  Complainant did not hand over the two sets of keys, whereas he only handed over the one set of key and hence when demanded for the second set of key complainant addressed a letter dated 18.04.2016 stating that he took only one set of key from the dealer and requested the dealer to provide the second set. The said contention is wholly false, misrepresenting the same which cannot be accepted. They repudiated the claim on 10.05.2015 by informing through a letter.  The insurance policy between the insurer and insured is a contract between them and both should abide by the terms and conditions of the same.  Denying all the allegations made against it in each and every para of the complaint prayed the commission to dismiss the same on the ground that it has acted in terms of the policy conditions and that there is no deficiency in service.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant filed is within time and the reasons assigned in the application to condone the delay is acceptable and the delay in filing the complaint is to be condoned?

2) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

3) Whether the complainants are entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1, 2 AND 3     :               In the Affirmative

for the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is the owner of tractor and trailor bearing No. KA 06 TB 2611 and 2612(Ex.P2) and the same insured with OP for the period from 17.06.2014 to 16.06.2015(Ex.P3 and 6).  It is also not in dispute that the said vehicle which was parked in front of his house was stolen as per Ex.P4 the FIR on 13/14.12.2014 which was reported to the police at Peenya on 31.12.2014. 

11.   Ex.P1 is the letter written by the complainant by providing the details of the documents to one Sharavanan belonging to insurance company.  A letter has also been sent by OP dated 02.11.2015 to the complainant seeking more particular documents, which is marked as Ex.P7.  P8 is the letter dated 18.04.2016 from the complainant regarding handing over the second set of keys. Ex.P10 is again a letter dated 04.02.2016 regarding the theft of the tractor and trailer. Ex.P11 is the letter dated 20.01.2015 regarding steps to be taken to make the claim and their intention to appoint an investigator. Ex.P12 are the documents wherein the said vehicle which was hypothecated to Sundaram Finance was requested by the said finance company to the RTO to remove the hypothecation.

12.   On perusing the documents filed as above by the complainant it is to be seen that some of the documents were asked to be submitted by OP in order to take the decision on the claim.  OP has not at all placed any material to show that it has rejected the claim of the complainant. Even not placed any material before the Commission for having rejected the claim of the complainant.  Though there is delay in informing OP and the police regarding the theft of the vehicle, as per various decision of the supreme court and the National commission, that itself shall not be a ground for rejecting the valid and genuine claim. In this regarding we relay on the decision reported in The Supreme Court of India has relied on the decision in 2022(1) CPR 353 (SC) Jaina Construction Company –vs- The oriental insurance company Ltd., in Civil Appeal No.1069/2022 as hereunder;

        Consumer Protection Act, 1986 – Section 23(Consumer Protection Act, 2019 – section 67) – Insurance – Theft of insured vehicle – Repudiation of claim on the ground of delay in informing the insurance company regarding theft of vehicle – Untraceable report filed by police – There was delay of about five months on part of complainant in informing and lodging its claim before Insurance company, nonetheless, Insurance company has not repudiated claim on the ground that it was not genuine – It has repudiated only on the ground of delay – When complainant had lodged FIR immediately after theft of vehicle and when police after investigation had arrested accused and also filed challan before concerned court and when claim of insured was not found to be not genuine, Insurance company could not have repudiated claim merely on the ground that there was delay in intimating Insurance company about occurrence of theft – NCDRC should not have set aside orders to District Forum and State Commission by holding that repudiation of insurance claim by insurance company was justified – Impugned order being erroneous and against settled position of law, deserves to be set aside, and is set aside, accordingly – Appeal allowed, affirming order of State Commission.

13.   In view of OP not placing any materials before the Commission having repudiated/rejecting the claim of the complainant, we are of the opinion that until and unless OP informs its decision regarding the claim of the complainant the cause of action continues one. Hence the IA filed to condone the delay though not required in this case, is allowed and hence we answer point No.1 in the affirmative.

14.   In the result not taking any decision regarding the claim of the complainant amounts to deficiency in service and hence we answer point No.1 in the affirmative.

15.   In the result on perusing the insurance document it becomes clear that the tractor and trailer belonging to the complainant is under insurance with OP.  The ID value of the tractor is Rs.4,80,000/- and of the tractor is Rs.1,50,000/-.  Since the said vehicle is stolen it has to be considered as total loss to the complainant and hence a  sum of Rs.6,30,000/- has to be paid by OP to the complainant along with interest at 12% p.a., from 31.12.2014 the day on which the theft of the vehicle was reported to the concerned police.  The act of OP in not taking any decision on the claim of the complainant put the complainant into untold hardship, misery, financial loss and mental and physical strain for which he has to be compensated and we direct OPs to pay a sum of Rs.25,000/- towards the same and Rs.10,000/- towards litigation and other miscellaneous expenses. Hence we answer point No.2 in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay the ID value of the vehicle i.e., Rs.6,30,000/- along with interest at 12% p.a., from 31.12.2014 to till the date of payment.
3. OPPOSITE PARTY is further directed to pay a sum of Rs.25,000/- towards the damages and Rs.10,000/- towards litigation expenses to the complainant.
4. OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^TH DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the letter to OP

Ex P2: Copy of the RC

Ex. P3: Copy of the policy

Ex P4: Copy of the FIR

Ex P5: Copy of the complaint

Es P6: Policy schedule

Ex P7: Final Reminder

Ex P8: Letter written by me to OPPOSITE PARTY

Ex P9: Invoice

Ex P10: Letter written by me to RTO, Tumkur

Ex P11: Letter issued by OPPOSITE PARTY to me

Ex P12: NOC issued by OPPOSITE PARTY to me

Ex P13: Motor vehicle cover note

Ex P14: Invoice

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Sudhakara H., State Head, Legal and TP claims,

Copies of Documents produced on behalf of Opposite Party/s

• NIL   –

MEMBER                 MEMBER                PRESIDENT

HAV*