State Consumer Disputes Redressal Commission
Bajaj Alliance Insurance Company vs Pundalik Shivappa Elias on 8 March, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal No. 29 of 2021 in Consumer
Complaint 13 of 2020.
Before: Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna A. M. Gonsalves, Member
Bajaj Alliance Insurance Company,
Through its Branch Manager,
Office at G-E Plaza, Airport Road,
Yerwada, Pune. 411006. ......Appellant
V.
Shri Pundalik Shivappa Elias,
s/o Shri Shivappa,
H. No. 1030, Comti Wado,
Candolim, Bardez-Goa. ......Respondent
Adv. Shri P. Shirodkar present for Appellant at the time of
Final Arguments.
Adv. Shri K. T. Sawant present for Respondent at the
time of Final Arguments.
Date: 08/03/2023
1
JUDGMENT
[per Dr. Nagesh S. Colvalkar, Member] By this Judgment and Order we shall dispose of the Appeal filed under the Consumer Protection Act, 2019 against the Judgment and Order dated 07/04/2021 passed in Complaint No. 13/2020 by the District Consumer Disputes Redressal Commission, North Goa at Porvorim.
The brief facts of the case are as under:-
1. The Respondent is the owner of Bullet Royal Enfield class-C350 having engine number U3S5C1GL327337 bearing registration number GA-03-AE-4619 which was registered at Mapusa on 28/10/2016 under M.V. Act.
2. The said Bullet bike of the Respondent was insured with the Opposite Party on 28/10/2016 bearing policy number OG17-1718-1843-00000026 and the same were valid till 27/10/2019.
3. It is the case of the Respondent that on 01/06/2019 he parked his Bullet at Panaji Bus Stand and went to Karnataka by bus to meet his sister as he had an urgent work.
4. On 03/06/2019 the Respondent returned back to Goa by bus from Karnataka in the morning and proceeds to the parking lot where he has parked the Bullet bike.
The Respondent was shocked to know that his Bullet bike was missing.
25. The Respondent began to search for his Bullet bike and on 15/06/2019 he complained to the Panaji Town Police Station and lodged a missing complaint.
6. The Respondent informed the Appellant about the missing of his Bullet bike which was insured with the Appellant. In mean time the First Information Report (FIR) stands registered before the Panaji Town Police Station vide FIR No. 214/2019 dated 12/09/2019.
7. On 03/10/2019, the Respondent has applied for his claim of Rupees 86,787/- towards the theft of his Bullet bike before the Appellant and submitted the relevant documents pertaining to the said insurance claim.
8. On 20/11/2019, the Appellant has repudiated the claim of the Respondent on the grounds that the Respondent has violated the policy condition No.1 i.e. the Respondent has failed to report the said incident to the police and the Appellant immediately and there is a delay in filing the FIR.
9. L.d Advocate Shri K. T. Sawant for the Respondent submitted that the Respondent has reported the said incident of theft of his Bullet bike registration No. GA- 03-AE-4619 to the Police on 15/06/2019 after due search of his said Bullet bike. Further the Advocate for the Respondent has submitted that the copy of FIR also submitted to the Appellant which was registered at Panaji Town Police Station vide FIR No. 214/2019 dated 12/09/2019. And there is no delay in persuading the matter. The Respondent has followed 3 each and every legal path way to trace his Bullet bike and accordingly informed to the Appellant and there was absolutely no delay on the part of the Respondent informing the Appellant about the theft of the Bullet Bike.
10. The said Bullet bike of the Complainant was insured with the Opposite Party on 28/10/2016 bearing policy No. OG17-1718-1843-00000026 and the same were valid till 27/10/2019.
11. It is the case of the Complainant that on 01/06/2019 he parked his Bullet at Panaji Bus Stand and went to Karnataka by bus to meet his sister as he had an urgent work.
12. On 03/06/2019 the Complainant returned back to Goa by bus from Karnataka in the morning and proceeded to the parking lot where he has parked the Bullet bike. The Complainant was shocked to know that his Bullet bike was missing.
13. The Complainant began to search for his Bullet Bike and on 15/06/2019 he complained to the Panaji Town Police Station and lodged a missing complaint.
14. The brief facts submitted by the Appellant:-
a. The Appellant at the outset states that the Hon'ble District Consumer Forum has done a grave error in passing the impugned judgment and award without considering the grounds raised in the written statement and written arguments before the Hon'ble District forum.4
b. The Appellant has rightly repudiated the claim of the respondent on grounds of violation of terms and conditions of the insurance policy.
c. The contract of insurance is based on the terms and conditions which were agreed by the respondent at the time of entering into the said contract of insurance. The said insurance contract clearly mentions that in the event violation of any of the terms and conditions laid down in the Contract of insurance, the insurance claim is liable to be rejected.
d. Violation of Condition No. 1: The Condition No. 1 reads as, " 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 Respondent have caused a delay of 12 days in intimating the Police and FIR in this regards was registered after a delay of 101 days and the Appellants were informed after a delay 124 days, hence there is a clear violation of condition No. 1 of the policy.
e. Object of Condition No. 1- The purpose of inserting this condition is to test the genuineness of the criminal act or theft and to initiate the machinery of Police in action or to detect the crime or instantly trace/investigate the object/vehicle. But if the owner of the vehicle is negligent and does not take the reasonable step which a prudent man would have taken in such circumstances then he shall be held liable for the result of his negligence.5
f. Had the Respondent intimated to the Police on the day of the alleged theft then the Police would have immediately investigated the case and located the vehicle. Hence the blame for the alleged theft of bike due to negligence of the Respondent cannot be saddled on the Appellant.
g. The Hon'ble forum failed to consider the ground of delay of 12 days in intimating the police. The case of Gurshinder Singh (supra) which speaks about delay in intimating the insurance company and immediately lodging the FIR.
h. The Appellant further states that the Respondent did not take the necessary measures and left the bike unattended in an open place for 3 days and left for Karnataka thus leaving it vulnerable to theft. Hence the Respondent is liable for negligently leaving the bike in an unattended position without any safeguards or precautions. Hence the Appellants were justified in repudiating the claim. The insured is liable for blatantly violating the condition no. 5 of the policy and the appellant was correct in repudiating the claim of the Respondent.
i. As per the Condition the liability of the insurance company arises only on the event of the observance and fulfilment of terms and conditions of the policy by the insured and for ascertaining the veracity of the statements made by the insured the answers from the insured is also an important condition precedent to any liability of the company. Hence the Respondent's claim has been denied for non 6 observance and non fulfilment of the terms and conditions laid down in the Policy, also this significant fact seems to be Impugned Judgment and Order.
15. The Complainant informed the Opposite Party about the missing of his Bullet bike which was insured with the Opposite party. In mean time the First Information Report (FIR) stands registered before the Panaji Town Police Station vide FIR No. 214/2019 dated 12/09/2019.
16. On 03/10/2019, the Complainant has applied for his claim of Rupees 86,787/- towards the theft of his Bullet bike before the Opposite Party and submitted the relevant documents pertaining to the said insurance claim.
17. On going through the documents relied by the Complainant such as Missing Report dated 15/06/2019 filed by the Complainant, First Information Report (FIR) No. 214/2019 dated 12/09/2019, Motor Insurance Claim Form and the claim repudiated letter of the Opposite party dated 20/11/2019 and Intimation to the Complainant/Informant under section 173 (2) (ii) of Cr.P.C. of Panaji Police Station dated 15/01/2020. The Affidavit-In-Evidence of the Complainant, written version and the Affidavit-In-Evidence of the Opposite Party and the written arguments of both the parties.
18. We find that, the facts stated by the Complainant are genuine and valid in nature that the Complainant's Bullet Bike registration No. GA-03-AE-4619 gone 7 missing on 03/06/2019 from the parking place of Kadamba Bus Terminal where he parked his bullet bike and gone to his native place at Karnataka to see his sister as he had some urgent work. This is an admitted fact that the theft was committed by an unknown person/s of the Complainant's Bullet bike. Further we find that the Complainant has placed on record the copy of the letter dated 15/06/2019 address to the Police Inspector of Panaji Town Police Station about informing the missing of his Bullet Bike and the copy of the First Information Report (FIR) dated 12/09/2019. The Complainant has also placed on record the Intimation to the Complainant under section 173(2) (ii) of Cr. P.C dated 15/01/2020 issued by the Panaji Town Police Station, mentioning the offence of theft was registered in Crime No. 214/2019 under section 379 IPC on 12/09/2019.
19. Delay in intimating the Opposite party about the occurrence of the alleged theft, but at the same time we find that the Complainant had made efforts in tracing his Bullet Bike. This fact is clear from the letter dated 15/06/2019 addressed to Inspector of Panaji Town Police. This is sufficient evidence to allow the complaint of the Complainant.
20. We can see that he was not in a position to lodge a Complaint or FIR immediately because after finding out that the Motor cycle was missing, he was mentally disturbed, suffered a shock and he was under mental stress obviously at that point of time we did not deemed it necessary to lodge the Complaint or FIR.
821. Further it can be noted that instead of going through the police procedures of filing Complaint or FIR, the Complainant felt that we should first make an attempt to check the important and crucial places and cities all over Goa to try and locate the missing Motor Cycle.
22. As mentioned here in above, a concerted stand has been taken by the Complainant right from the beginning till the lodging of the FIR. The chronological events narrated herein above inspire confidence and it does not smack of a concocted case which has been filed only with a intension to get compensation. Had the motorcycle has been sold to any person, the RTO would have been able to track the same at time of transfer of the title of the motorcycle in the name of 3rd person.
23. We have perused all these evidence placed on record by the Respondent. In our opinion the case of the Respondent is genuine. The investigating Officer has stated in its report that the "case of the Respondent is true and the investigation is shelved for the present as there are no immediate chances of detection of the case".
24. We are of the considered opinion that there is indeed a deficiency in service on the part of the Appellant, for repudiating the claim of the Respondent on flimsy grounds of mere delay. We find that the Respondent is entitled for the relief prayed and accordingly we pass the following Order.
9ORDER A. The Appeal is dismissed.
B. The Judgment of District Commission, North dated 07/04/2021 in the Complaint No. CC/13/2020 is upheld.
C. There is no Order as to costs.
Pronounced in Open Court.
Proceedings Closed.
[Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna A. M. Gonsalves] Member sn 10