State Consumer Disputes Redressal Commission
Dandeti Srinivas Reddy vs The Oriental Insurance Co. Ltd., on 6 February, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
CC.No.71 OF 2019
Between:
Dandeti Srinivas Reddy, S/o.Laxma Reddy,
Aged about 45 years, Indian,
Occ:Lorry Owner,
R/o.H.No.3-39, Elkalapalli(V),
Palakurthi(M), Peddapalli District,
Telangana State. ... Complainant
And
The Oriental Insurance Co.Ltd.,
Divisional Office, represented through its
Divisional Manager, APFSC Building,
Opposite Collectorate Complex,
P.B.No.5, Karimnagar, Telangana State,
PIN - 505 001. ... Opposite Party.
Counsel for the Complainant : M/s.Gundu Ramulu
Counsel for the Opposite Parties : M/s.K.N.V.Radha Krishna
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
& HON'BLE SMT R.S. RAJESHREE, M EMBER TUESDAY, THE SIXTH DAY OF FEBRUARY, TW O THOUSAND TWENTY FOUR Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember-
Non -Judicial).
******
01). This is a complaint filed by the Complainant under Section 17(1) (a) (i) of Consumer Protection Act to direct the opposite party as under:
i. To pay the complainant the insured sum of
Rs.22,90,000/- along with interest @ 12% per
annum from the date of complaint till realization;
ii. To pay Rs.4,40,000/- towards the loss of net income
suffered till date; and
iii. To pay Rs.1,00,000/- towards costs, mental agony,
inconvenience and hardship caused to the
complainant
02). Briefly stated facts of the case are that the complainant
had purchased a lorry bearing number AP-15-TC-3789, Chassis 2 No. MAT466420D3D07964, Engine No. 31D63321203, for eking out his livelihood and the same was insured with the opposite party and the period of Insurance was from 31.05.2016 to 30.05.2017 and the vehicle also had a permit from the competent authority to transport all goods (except prohibited) throughout the territory of India (except on prohibited routes) Thus by operating said Lorry, the complainant was earning about 20,000/- per month; that on 07.05.2017 at about 12.00 hours his driver by name Malreddy Sai Krishna Reddy, after returning from Karimnagar to Peddapalli had parked the empty insured Lorry in Indian Oil Petrol Pump premises Shanti Nagar, Peddapalli and had gone for meals and next morning when he returned at about 7.00 hours i.e. on 08.05.2017 the said Lorry was missing and the same was informed to the complainant and the driver started searching for the Lorry. When they could not find the Lorry, on 09.05.2017 the complainant lodged a police complaint of theft by unknown offenders and the police Peddapalli had registered a crime no. 151/2017 and after investigation filed a final report on 9.1.2019; that the complainant had also made a claim before the opposite party vide Claim no.433590/31/2017/98 by submitting all the relevant documents. To his utter dismay and surprise, he received a letter on 01.11.2017 from the opposite party repudiating his claim for the reason that the claim is not maintainable as per condition no.5 of the policy which is as follows "The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain in efficient condition." In fact the vehicle was properly parked in petrol pump premises and was locked properly, in spite of the same, the opposite party had repudiated the claim, which amounts to deficiency of service. Having no other alternative, the present complaint is filed seeking insurance amount of Rs 22,90,000/- with 12% interest, compensation and costs.
03). The opposite party filed its written version while admitting the issuance of policy and its subsistence but had taken a preliminary objection that the claim was not maintainable since the complainant had not purchased the lorry for eking out livelihood, in view of the fact that the insured had hired a driver and was not driving the Lorry himself. The opposite party further 3 opposed the complaint on the ground that the claim of the complainant is not admissible as per policy condition no. 5 an d that after receiving a complaint, an investigator was appointed who had reported that the driver had locked the engine and the ignition key was kept in the dash board of the cabin, which amounts to gross negligence on the part of the driver. Since the ignition key is supposed to be kept in safe custody always and violation of this condition disentitles the insured from reimbursement of the loss. Apart from that the complainant had violated the condition no.1 according to which the insured is bound to inform the incident immediately so that it will be easy to secure the offender, whereas the complainant had informed this opposite party with a delay of 24 hours. Due to such negligence of the insured, he is not entitled for any reliefs and prayed that the complaint be dismissed with costs.
04). The Complainant filed evidence affidavit and got marked Exs.A1 to A7 Mr.T.Balagopal , Regional Manager of opposite party filed evidence affidavit and got marked Exs.B1 to B6.
05). Heard both sides and perused the entire material on record.
06). Now the points for consideration are :
i. Whether there is any deficiency in service on the part
of the opposite party?
ii. Whether the complainant is entitled for the reliefs as
prayed for in the complaint?
iii. To what relief?
07). The specific case of the complainant is that he had
purchased a lorry for eking out his livelihood and the same was insured with the opposite party and that on 07.05,2017 at around 12.00 hrs when his driver had parked the vehicle at petrol pump premises at Peddapalli and returned on the next morning, the Lorry was missing; that after a search for one day as the same was not traced out, the complainant had lodged a police complaint and also preferred a claim before the opposite party but to his utter dismay and shock the opposite party had repudiated the claim on the ground that the claim is not admissible under Condition No.5 4 of the terms of insurance, and in support of his case the complainant got marked Exs. A1 to A7.
Issuance of policy, subsistence of policy, and IDV are not in dispute. The only ground on which the opposite party had opposed the complaint is that, the claim is not maintainable as per Condition No.5 of the policy. For the sake of clarity the said Condition no. 5 is being reproduced here under:
"The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain in efficient condition".
It is the contention of the opposite party that since the driver had left the keys on the dash board of the car, it is due to such negligent act the car was stolen. To substantiate this contention, the opposite party relied on Ex. B3- investigator report. A perusal of Ex B3 re veals that under the column 'driver version' it is noted that 'so he locked the engine and kept the keys in the dash board of the cabin', this is noted by the investigator. It is not a signed statement given by the driver nor the opposite party had filed any affidavit of the driver; that apart except the driver, none other had supported such statement of the driver. In the absence any supporting affidavit or document to the investigator's report, it cannot be concluded that the key was left by the driver in the car i.e. on the dash board.
The second objection raised by the opposite party is the violation of condition no.1 i.e. delay of 24 hrs. in intimating the theft of Lorry. It is to be observed that on night of 07.05.2017 at 12.00 the vehicle was parked by the driver at Indian Oil Petrol Pump premises, Peddapalli, next morning i.e. on 08.05.2017 the driver had noticed that the car was missing and on 09.05.2017 the police complaint was lodged and the opposite party was also intimated which is a fact borne by record.
In a catena of the judgments, the Hon'ble Supreme Court has made clear that in case of a theft, the aggrieved person would rush to the police to intimate the same, since it is the police who would conduct the search and investigation. As such, an intimation to police immediately is sufficient. Very recently in Trilok Singh vs. Manager, Cholamandalam MS General Insurance Co. Ltd. & others in Civil Appeal No.4530 of 2003, the Hon'ble Supreme Court relying on their earlier judgment i.e. 5 Omprakash vs. Reliance General Insurance and another; Gurshinder Singh vs. Shriram General Insurance Co.Ltd and Jaina Construction Company vs. Oriental Insurance Company Ltd. and another had once again reaffirmed that " If immediately action is taken informing the police and some delay is caused to submit the insurance claim, it cannot be repudiated on the ground of belated information to insurance company indicating violation of condition no.1 of the policy".
Both these issues have been dealt by the Hon'ble Apex Court. In a very recent Judgment, the Hon'ble Supreme Court has once again reiterated it in Ashok Kumar Vs New India Assurance Co. Ltd, Civil Appeal No. 4758/2023 decided on 31.07.2023 reported in [2023(3) CCC 206(SC)]. By relying on its earlier judgement Amalendu Sahoo vs. Oriental Insurance Company Limited [ (2010) 4 SCC 536] and National Insurance Company Limited Vs Nitin Khandelwal, [(2008) 11 SCC 259] and held "that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct" and had allowed the Appeal of the insured by setting aside the order of the NCDRC and had restored the order of the District Forum which was affirmed by the State Commission; wherein the District Commission had ordered for settlement on the basis of guidelines issued in Amalendu Sahoo case i.e. on non- standard basis. The Ashok Kumar vs. New India Assurance Co. judgement squarely applies on the case in hand.
08). Having said that we make it clear that the insurance is a contract agreed between the Insured and Insurance Company and every policy is specifically designed to suit the requirements of the particular customers and each type of policy has different terms and conditions and the parties are bound by such terms. In the instant case, the policy issued to the complainant is Commercial Vehicle Package Policy and under Section -I, Item-4, 'Sum Insured--Insured's Declared Value (IDV)', The Schedule of Depreciation For Fixing IDV of the Vehicle' is given in a tabular form and as per the said table, the depreciation value of the IDV for vehicle exceeding 3 years but not exceeding 4 years is given as 40%. Since the complainant had agreed to the terms of the policy and availed it, he is bound by the same. Therefore, in the instant 6 case, the vehicle was registered on 26.6.2013 and lost on 8.5.2017 i.e. within 4 years. As such, the complainant is entitled for 60% of IDV which comes upto Rs.13,20,000/-
09). Based on the above discussion and settled legal position, we are of the emphatic view that it was unfair on the part of the opposite party to repudiate the claim of the complainant on the ground of breach of conditions, rather the opposite party should have settled the claim either based on non-standard basis i.e. by settling 75% of the claim or based on the terms of the policy, instead the opposite party had compelled the complainant to knock the doors of this Commission, thereby causing him to incur expenditure by hiring the advocates and he had to waste his time and energy by running around the Courts which might have certainly caused inconvenience and hardship. Therefore, we feel that the complainant is entitled for reasonable compensation apart from costs of litigation.
10). Orders pronounced vide separate orders. In the result, complaint is allowed in part directing the opposite party as follows:
i). to pay 60% of the IDV amount which comes up to Rs.13,20,000/- with interest @ 9% p.a. from the date of repudiation i.e. 1.11.2017;
ii). to pay compensation of Rs.1 lakh for the inconvenience and hardship caused; and
iii) to pay a sum of Rs.25,000/- towards costs.
Time for compliance is 30 days from the date of receipt of the order.
Sd/- Sd/-
M EMBER(J) MEMBER(NJ)
--------------------------------------------
Dated: 6.2.2024
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite party
Complainant filed evidence aff. Mr.T.Balagopal, Regional
Manager of opp. party
filed evidence
7
Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of First Information Report 9.5.2017. Ex.A2 : Photostat copy of Registration Certification issued by Govt. of A.P. , Transport Dept. for vehicle reg.no. AP15TC3789.
Ex.A3 : Photostat copy of Authorisation Certificate of NP goods issued by Govt. of Telangana , Tansport Dept. for vehicle reg.no. AP15TC3789.
Ex.A4 : Photostat copy of National Permit for public carrier issued by Govt. of A.P. Ex.A5 : Photostat copy of Form 38 - Certificate of Fitness issued by Transport Department, Govt. of Telangana. Ex.A6 : Photostat copy of Hire purchase/Lessor Agreement dt.18.5.2016.
Ex.A7 : Photostat copy of Motor Insurance Certificate cum policy schedule along with final report dt.9.1.2019.
Exhibits marked on behalf of the opposite party:
Ex.B1 : Photostat copy of Motor Insurance Certiticate cum Policy Schedule for policy no.433590/31/2017/98. Ex.B2 : Copy of Commercial Vehicles Pacakage Policy terms & Conditions.
Ex.B3 : Photostat copy of Investigator's report dt.24.5.2017. Ex.B4 : Photostat copy of letter dt.1.11.2017 from opp.party to complainant.
Ex.B5 : Photostat copy of First Information Report dt.9.5.2017.
Ex.B6 : Copy of letter dt.18.5.2017 from Mr.Malreddy Sai Krishna Reddy to opp.party.
Sd/- Sd/-
M EMBER(J) M EMBER(NJ)
--------------------------------------------
Dated: 6.2.2024