Date of Filing: 03/08/2015
Date of Order: 12/09/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed under Section 12 of the C.P. Act 1986 against the O.Ps to pay a sum of Rs. 38,018/- towards repair cost of the vehicle insured, Rs.50,700/- towards expenses incurred and Rs.50,000/- towards litigation cost and for mental agony.
2. The facts of the complaint in brief are that, the complainant is a firm running in the Name of Silicon Facility Management Represented through its proprietor Sri. Ganesh.C. It is stated that complainant had purchased the vehicle best LMV motor car bearing reg.No.KA-51-MD-4752 Model Renault Duster RXZ DCI in the year of 2013 and having a valid Insurance policy No.OG-15-1701-1801-00058136 from the O.P Company. It is stated that on 24.03.2015 when the said vehicle was parked at New Bishop Cotton School, Singasandra at about 10.30 am., the said vehicle was scratched all around by the school children and damaged. Immediately complainant had approached jurisdictional police station and lodged the complaint and received an acknowledgment with respect to the above incident. It is stated that subsequent lodging of the police complaint and the complainant intimated to the O.Ps officials at Bangalore and handed over the said motor car to the Renault show room at Whitefield to process the claim. The estimation cost for the repair of the said vehicle was given. Further the O.Ps company surveyor inspected the vehicle and rejected the claim. Hence complainant incurred expenditure of Rs.38,015/- and the insurance company repeated the claim on the ground that normal wear and tear as it is contrary to the terms of the policy. Thereafter complainant got issued the legal notice and the O.P also replied without honoring the claim of the complainant. Hence this complaint.
3. Upon issuance of notice to the O.P, O.P appeared through its counsel filed its version. In the version O.P contended that complainant is not a consumer and hence contended that the complaint is not maintainable before this Forum. The policy issued is subject to various terms and condition, by exception, limitation thereof and the complaint is false and frivolous and the O.P is the custodian of public funds. It is contended that complainant by suppressing material fact filed this complaint. It is admitted that the Renault Duster car bearing No.KA-51-MD-4752 model 2012 was insured with the O.Ps for the period from 01.01.2015 to 31.12.2015 vide policy bearing No.OG-15-1701-180100058136 for Rs.9,00,000/- being the total insured declared value. The policy issued is subject to various terms and conditions, exception, limitation thereof. It is contended that is not in the knowledge in the O.Ps that the duster car was parked near the Bishop Cotton School and the children damaged the car by scratching around. It is contended that the O.Ps have received the claim form only on 26.03.2015 about vehicle having sustained damages along with vehicle documents, photo copy of complaints. It is denied as false and incorrect that the complainant intimated the said incident to the O.Ps officials at Bangalore and handed over the car to Renault Show room. It is contended that complainant did not intimated to the call center of the O.Ps and that had submitted the claim form with related documents belatedly only on 26.03.2015. It is contended that after receiving information by way of claim form the O.Ps having deputed an IRDA approved licensed surveyor had so surveyed the vehicle immediately thereof. It is contended that the vehicle met with an alleged damages on 24.03.2015 resulting in causing damages and that complainant intimated to the same to the O.Ps on 26.03.2015 and that had so failed to intimate to call center of O.Ps, though he had so lodged the complaint to the nearest police station on 24.03.2015 and that left the vehicle at repairers garage at Whitefield and all this facts denied by the O.Ps as the documents does not specified the time of lodging the FIR. It is also contended that O.Ps are not provided an opportunity to examine the vehicle on the spot of reported accident to assess the circumstance and loss caused, necessary to determine the admissibility of the claim. It is also contended that complainant failed to give satisfactory reply to this letter of O.Ps. Further contended that there is no deficiency in service from their part. On other grounds O.Ps prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments and the parties have also filed the written arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
6. Our answers to the above points are:-
POINT (A): In the Affirmative
POINT (B): In the partly affirmative
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
7. On perusing the pleadings of the parties, it is an undisputed fact that, the complainant is the owner of the Renault Duster LMV Motor car bearing reg.No.KA-51MD-4752 and the same is insured with the O.Ps. It is also not in dispute that the validity of the insurance policy is from the period 01.01.2015 to 01.12.2015.
8. On looking into the evidence placed on record the complainant has handed over to the Renault Duster Car to the show room against the damages to the car.
9. It is also not in dispute the O.Ps repudiated the claim as the complainant belatedly intimated to the O.Ps and the O.Ps denied the claim on ground that as a result of normal use, wear and tear in the car.
10. The crux of the matter is to consider that whether the complainant being the consumer of O.Ps and entitled for the claim as sought in the complaint.
11. It is note worthy to mention that when O.Ps by taking the suitable consideration insured the vehicle of the complainant and the dispute between the insured and the insurer occurred and the said dispute obviously comes under the domain of the Consumer Protection Act. Hence the contention of the O.P that the complainant is not a consumer holds no water.
12. In order to prove the case of the parties and both parties filed their affidavit evidence along with documentary evidence. On perusal of affidavit evidence of both parties and both parties reiterated the averments made in their pleadings. On perusal of copy of the police complaint i.e. Annexure-C it discloses that when the complainant parked the vehicle near Bishop Cotton school at about 10.30 a.m on 24.3.2015 and the pupil of the said school scratched the car on bonnet right side of the front panel, left side of the front penal right side of the front door, right side of the rear door, right side back quarter panel, back side of the bumper. Also on perusing Annexure-D the endorsement issued by the jurisdictional police and these documents clearly discloses that it cannot be disbelieved that the complainant lodged the complaint, whereas it clearly reveals that only against damages to the car done by the pupils of the Bishop Cotton School complainant lodged the complaint and we find no fault with the complainant. Further on perusal of job sheet dated 24.03.2015 at ink page No.30 issued by the Renault Whitefield garage it discloses that on the day of incident complainant took his vehicle to the Renault Show Room for suitable repairs. Further on perusal of Annexure-E it also discloses the estimation of repair cost relating to the vehicle.
13. It is worth to note that, inspite due estimation when there is no major accident the car usually taken to the service garage and after the thorough inspection the concerned garage people will intimate to the concerned insurance company. Accordingly they have submitted the claim papers on 26.3.2015. However, the O.P alleges that they have not given any opportunity to visit the spot in order to assess the accidental circumstances and on going through entire version and their evidence, their only allegation is denial of opportunity to inspect the vehicle at the spot. It is pertinent to note that, the vehicle damaged was not due to the road accident or nor due to the collusion between the vehicles in order to assess the circumstances of the accident. It is the case of the complainant the school children scratched the Renault Duster Car which is insured with the O.Ps and the same is evident by the lodging of the police complaint and its endorsement. In our view there are no serious things to be considered and also we are of the considered opinion that the complainant did not acted contrary to the terms of the policy.
14. It is pertinent to note that, when the vehicle is insured with the O.Ps and the same is damaged due to scratches made by the school children and there is no dispute about the scratches and the complainant obviously entitled to claim from the insurance as the damages does not fall under general wear and tear. On looking in to the defence put forth by the O.Ps insurance company it clearly establishes that, they have taken the technical defence for which no prudent man will accept and there is no force in their defence and the same is contrary to the spirit and object of the insurance. Therefore, the O.P insurance company cannot exonerate their liability on the flimsy grounds. On the basis of material evidence placed on record, the complainant proved that he is entitled for the claim but the O.Ps denied the claim without any justifiable caused which amounts to deficiency in service and also attract the unfair trade practice. Therefore, complainant is entitled to Rs.38,018/- along with interest at the rate of 9% per annum from the date of complaint till its realization also pay Rs.2,000/- towards the cost of the proceedings and it will meets the ends of justice. However, complainant did not produce any cogent evidence that he is incurred expenditure of Rs.50,700/- towards hiring of Private Taxi and suffering of mental agony. Accordingly we answered the point (A) in the affirmative and (B) in the partly affirmative.
POINT (C):
13. On the basis of findings given while answering the Points (A) & (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby allowed in part with cost.
- The O.P No.1 and 2 are jointly and severally liable to pay a sum of Rs.38,018/- along with interest at the rate of 9% per annum from the date of complaint till its realization to the complainant.
- Further O.Ps are directed to pay a sum of Rs.2,000/- to the complainant towards cost of the proceedings.
04. The O.P No.1 and 2 are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days.
05. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 12th Day of September 2017)
MEMBER MEMBER PRESIDENT
*SG
