State Consumer Disputes Redressal Commission
Mr. Mohammed Yasin Abdul Hashmi vs The Icici Lombard General Insurance Co ... on 7 June, 2024
1 (CC/16/909)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/16/909
Mr. Mohammed Yasin Abdul Hashmi
R/o Asgar Ali Building
Plot No.969, 2nd floor,
R/3, Shamsher Baug,
New Gauri Pada,
Bhiwandi.
Dist. Thane 421 302. Complainant
versus
The ICICI Lombard General
Insurance Co. Ltd.
Thro' its Manager
O/at- ICICI Lombard House,
414, Veer Sawarkar Marg,
Near Siddhivinayak Temple,
Prabhadevi,
Mumbai 400 025. Opposite Party
BEFORE :
Dr. Satish A. Munde Presiding Member
Mr. Vijay C. Premchandani, Member
PRESENT:
For the Advocate More
Complainants(s):
For the
Opponent(s): Advocate Kanojia
2 (CC/16/909)
-:JUDGMENT-:
Dated : 7th June, 2024
Per: Hon'ble Mr. Vijay C. Premchandani, Member
1] Complainant has filed is complaint under section 12 of the Consumer Protection Act, 1986. The gist of the complaint as under-
2] The Complainant is having transportation business for his livelihood as self employment purpose. The Complainant is the owner of the vehicle bearing No.MH-04/FU/9100. The Complainant has obtained insurance policy from the Opposite Party for the said vehicle. The said policy was valid for the period from 17th September 2013 to 16th September 2014. The Complainant further submitted in the complaint that total sum assured value of the vehicle is Rs.21,05,263/- The Complainant's driver as on 28th July 2014 parked the said vehicle at about 10 p.m. near vegetable market, MHADA Colony ground, Bhivandi, District Thane and locked the door of the vehicle and handed over keys to the Complainant. The driver went for Eid festival at native place. The Complainant as on 31st July 2014 at about 10:30 p.m. confirmed that the vehicle is parked on the same place. The next day in the morning that is on 1st August 2014 at about 10 a.m., the Complainant learnt that the parked vehicle is not there. The Complainant took search in the local area but it was not traced. Therefore, the complaint has been made at the concerned police station at Nizampura police station, Bhivandi. The concerned police constable- Mr. Anil C Shirsat, with the simple complaint and 3 (CC/16/909) reported to the local Toll Naka for getting CC TV footage for the period first 1st August 2014 to 2nd August 2014. The Complainant submitted that he has intimated the said information to the Opposite party on their toll free number. The Complainant submitted that for the period from 5th August 2014 to 20th August 2014 he was hospitalised for the medical treatment and Complainant was advised for 15 days rest. Thereafter the Complainant registered the FIR as on 24th August 2014 and the same was submitted on 25th August 2014 with the Opposite party. The Hon'ble JMFC Court has given vehicle report of police 'A' summary that the accused and the vehicle is not traceable. Therefore, for getting the claim they approached to the Opposite party. However, the Opposite Party failed to sanction the claim of the Complainant and hence Complainant is compelled to file the present complaint. The Complainant has prayed that the Opposite party may be directed to pay the Insurance claim of Rs.21,05,263/- and also may be directed to pay sum of Rs.2,00,000/- for mental harassment, legal expenses and miscellaneous expenses.
3] The Complainant's complaint was admitted and notice was issue to the Opposite Party. The Opposite Party appeared and filed written version. The Opposite Party submitted in the written version that the complainant is not a 'consumer' as defined under section 2(1)(d) of the Consumer Protection Act, 1986, since the complainant has purchased the said vehicle for the commercial purpose. It is also admitted by the complainant in the FIR that the complainant is the owner of two vehicles. The Opposite Party has 4 (CC/16/909) further contended in the written version that during their investigation it has been transpired that due to the overload of the vehicle, RTO seized the vehicle, documents and keys of the vehicle. Therefore, the concerned driver used to directly start the vehicle without having the keys. The said act on the part of the complainant was to avoid to pay the penalty. Thereby the vehicle was stolen. There was delay in filing the FIR. It is further submitted by the Opposite Party that Complainant has failed to produce any documentary evidence pertaining to the illness i.e. hospital documents, medical bills during medical treatment. There was unexplained delay of 4 days in filing the FIR. It is further contended by the Opposite Party that the complainant has delayed in informing the Opposite Party and also lodging the claim with the Opposite party. The complainant has breached the terms and conditions of the policy. Therefore, the present complaint is not maintainable in law and deserves to be dismissed with costs.
4] Perused the complaint, documents, annexures, reply, evidence of both the parties, written arguments. Heard both the sides. Following points arise for our determination and we have recorded for findings for the reasons given below :-
Sr. No. Points FINDINGS
1. Whether the Complainant is a In the affirmative
Consumer of the Opponents as per
section 2(1) (d) of The Consumer
Protection Act, 1986?
5 (CC/16/909)
2. Whether there is deficiency of service In the affirmative on the part of Opposite Party towards the Complainant?
3. Whether the Complainant is entitled In the affirmative for the relief claimed?
5. What is order? As per Final Order :- R E A S O N S :-
As to the Point No.1 :
5] The Complainant has obtained policy for the vehicle bearing No.MH-04/FU/9100 from the Opposite Party. The validity period for the aforesaid Policy was 17th September 2013 to 16th September 2014. For that the Complainant has paid premium to the opposite party in the sum of Rs.46,928/- including all taxes. The said fact has been admitted by both the parties. There is contract between the Complainant and the Opposite Party pertaining to the indemnity of the loss. The Complainant himself submitted in the complaint that the Complainant is holding said vehicle or doing transportation business for his livelihood purpose. Hence, it is proved that the Complainant is the 'consumer' of the Opposite Party as per section 2(1)(d) of the Consumer Protection Act, 1986. Therefore, we answer point No.1 in the affirmative.
As to the Point No.2 :
6. The Opposite party has taken a defence that the complainant has lodged the FIR delayed and also intimation about the theft to 6 (CC/16/909) the Opposite Party delayed. Hence, rightly repudiated the claim of the Complainant. Perused the record. It shows that immediately after having the information of the theft of the vehicle, the Complainant has went to the concerned police station at Nizampura, Bhiwandi and concerned constable Anil C. Shirsat has issued report pertaining to the Toll for getting the CC TV footage information for tracing out the vehicle. The said report is annexed alongwith the complaint. From these documents it reveals that the Complainant has made efforts to inform the concerned police station immediately and try to register the FIR. Thereafter the Complainant was on the medical treatment and advised to have bed rest for 15 days. The Medical Certificate is also annexed with the complaint at C-31. The concerned police station has registered the FIR of Complainant pertaining to the theft of the vehicle as on 24th August 2014 and 'A' summary report has been filed pertaining to the said offence. Hence, the delay for registration in the FIR is explained by the Complainant by way of filing documents as well as filing affidavit in examination in chief. The Opposite Party has taken a defence that during the investigation it has been noticed that the driver has took overloaded vehicle thereby concerned RTO imposed heavy penalty and documents and keys of the vehicles were seized. The vehicle was used to start without keys. Hence, there is negligence on the part of the Complainant. Other count, the Complainant has filed affidavit of his driver wherein it is stated that when the vehicle was parked and locked the keys have been handed over to the owner of the vehicle. It is also denied by the driver that the vehicle was used to start without keys or any document has been seized by the RTO Nagpur etc. Pursuance to 7 (CC/16/909) that, the Opposite Party has failed to produce any evidence on record. Further, the Opposite Party has failed to file evidence of Surveyor in that scenario. The Opposite Party has failed to prove that the Complainant was negligent to park his vehicle. The counsel for the Complainant, at the time of argument has referred to the citation of the Hon'ble Supreme Court of India in the case of Om Prakash versus Reliance General Insurance Co. Ltd. wherein it has been held that-
"11. It is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been
8 (CC/16/909) otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act."
Hence, the Complainant has succeeded to prove the fact that the Opposite Party by closing 'no claim' of the complainant by letter dated 10th February, 2015 amounts to deficiency of service towards the complainant. Therefore, the answer point No.2 is in the affirmative.
As to the Point No. 3- 7] The Complainant has obtained policy for the period from 17/09/2023 to 16/09/2024 vide its Insurance cover Note No.GR 11012687. The total ID Value of the said vehicle was shown as Rs.21,05,263/-. The same vehicle was stolen. According to the 'A' summary, stolen vehicle was not recovered. From the above discussion, it has been proved that the Opposite Party has failed to allow the claim of the Complainant as well as shown deficiency of service towards the complainant thereby the Complainant was compelled to file the present complaint. It causes mental harassment as well as inconvenient and incurred legal expenses to the Complainant. Therefore, in our view, the Complainant is entitled to have sum assured amount as per the policy and compensation for deficiency of service. Hence, we pass the following order-
9 (CC/16/909) :- ORDER :-
[1] The complaint is partly allowed.
[2] The Opposite Party is directed to pay ID Value of Rs. 21,05,263/- alongwith interest @ 7% p.a. from the date of 10th February, 2015 till iis realised by the Complainant.
[3] The Opposite Party is directed to pay sum of Rs.1,00,000/- towards compensation for mental and physical harassment.
[4] The Opposite Party is directed to pay sum of Rs.20,000/- towards costs.
[5] The Opposite Party is directed to comply with the aforesaid order within a period of 30 days from the date of receipt of copy of this order.
[6] Copy of this order be supplied to both the parties free of costs.
[Vijay C. Premchandani] [Dr. Satish A. Munde]
Member Presiding Member
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