BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 17th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
SMT. SHARADAMMA H.G : HON’BLE MEMBER
ORDER IN
C.C.No.304/2013
(Admitted on 02.12.2013)
Mr. Aloysius Rodrigues,
S/o Peter Rodrigues,
Aged about 55 years,
Residing at Vailankani House,
Anganemar, Neermarga, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Smt. MNA)
VERSUS
1. ICICI Lombard General Insurance Co. Ltd.,
ICICI Lombard House,
414, Veer Savarkar Marg,
Near Siddhi Vinayaka Temple,
Prabhadevi, Mumbai 400 025.
2. ICICI Lombard General Insurance Co. Ltd,
Section C II, II Floor,
Maximum Complex,
Light House Hill Road,
Mangalore 575 001.
…....OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 & No.2: Sri. MVSB)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against opposite party claiming certain relief. Opposite party to pay Rs.57,000/ along with interest at the rate of 18% per annum on Rs.57,000/ from 04.03.2012 till 30.9.2013 of Rs. 16,149/, to pay interest at 18% p.a. on Rs. 57,000/ from 01.10.2013 till realization, to pay towards damages for mental agony, stress and inconvenience of Rs.50,000/ and towards the cost of the proceedings Rs.1,000/.
2. In support of the above complainant Mr. Aloysius Rodrigues filed evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C4 detailed in the annexure here below. On behalf of the opposite parties Mr. Pradeep D.S (Rw1) Manager Legal and Mr. Rajeshekar Vastrad (RW2) Surveyor also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked as Ex.R1 to R3 as detailed in the annexure here below.
The brief facts of the case are as under:
We have perused the complaint and the version averments. We understood the dispute as the repudiation of the own damage claim by the Opposite party insurance company. The complainant alleges that he had obtained an insurance policy for his vehicle and the said vehicle collided with another motor cycle and caused damage. After informing the opposite party the vehicle was repaired and on lodging of the claim, the opposite party neither settled the claim nor repudiated even after a long time of submitting claim form with documents. Hence there is deficiency in service and this complainant. The opposite party no 1 and 2 together filed their version and contested the allegation stating that, the Opposite parties have on receiving the information conducted the survey and assessed the loss of Rs 26828/. Later asked the complainant to produce the charge sheet/final report for settling the claim. But the complainant till date not provided the said document hence the Opposite parties could not settled the claim. The Opposite parties also contested that they have not repudiated the claim till day and the complaint is premature. There is no deficiency in service from their part. These being the facts of dispute, we deem fit consider the following
POINTS FOR ADJUDICATION
On considering the facts and evidence on record the admitted facts are, the issue of policy by the Opposite party and during the subsistence of the policy the alleged accident taken place. It is also admitted that the survey is being conducted on information of complainant. It is also admitted that the complainant informed immediately about the accident and submitted the claim form and the required documents except charge sheet/ police final report. The opposite party not pleaded the disputing of the accident in their version and not denied specifically. It is also admitted that the opposite party have not repudiated the claim or settled the claim till the date of legal notice on 20.10.2012. The complainant denies the correctness of the survey report. On taking into account the admissions and denials we are of the opinion the following points will have to be adjudicated in resolving this dispute.
- Whether the complainant is a consumer as per Consumer Protection Act 1986?
- Whether the opposite party proves there is no deficiency in service on their part?
- Whether the complainant is entitled to get the relief prayed for?
- What order?
We have examined the evidence produced and considered the documents produced. Taken note of the notes of arguments and submissions and answered the above points as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: The complainant has produced the EX C3 the policy document which is in the name of the complainant. The issue of the policy is not in dispute. Hence there is relation of consumer and the service provider between the complainant and the Opposite parties. So the point no 1 is in the affirmative.
POINT NO 2: The complainant had produced the policy documents and it is admitted that during the subsistence of the policy the alleged accident took place and vehicle got damaged as per survey report. The Opposite parties have not taken any specific contention disputing the happening of the accident in their version or to a suggestion in the complainant interrogatories in
Q 18: Do you or your surveyor dispute the accident...
Ans: We have no personal knowledge.
2. The reading of this answer and taking into consideration that there is no denial of accident in the version by the opposite party we infer the accident is not disputed. However in the RW 1 evidence the opposite party stating that they have sent the letters to produce the charge sheet/ police final report as it is an important piece of evidence to show that the accident occurred. In our opinion when there is no specific contention in the version disputing the happening of the accident the statement in the evidence to be ignored. Hence we have taken the point no 2 for adjudication as the burden shifted on the Opposite parties to prove there is no deficiency in service.
3. The Opposite parties specific contention is the complainant not produced the charge sheet/police final report in spite of requested for the same through two letters EX R1dated 23.01.2012 and the EX R2 dated 11.05.2012. Because of which the claim not processed. The complainant disputed having received those two letters and claims he had submitted the FIR copy. The above two exhibits do not contain the opposite party is asking for the FIR report. Also in interrogatories of the complainant in
Q no: 5 Do you admit that immediately after the accident the complainant informed about the mishap and submitted the claim form and required documents to you?
Ans: Yes it is true.
4. It is clear two things first; the complainant informed about the accident immediately, secondly the complainant also submitted the claim from and the required documents except the Charge sheet/police final report. Because the opposite party asked to submit only the Charge sheet/police final report but not FIR. We infer the complainant had submitted the FIR copy as he claimed. The opposite party’s denial of the receipt of the FIR copy is only an afterthought. It also prompt us to infer the opposite party received the FIR copy and that is why no specific contention taken in their version disputing the accident. After coming to this conclusion the point is whether the document Charge sheet/police final report is it so important to prove that the accident has occurred. We also closely observed in evidence of the RW 2 the surveyor evidence. Nowhere in the report the surveyor has expressed a faint of doubt about the not happening of the accident. Also in our opinion a prudent surveyor after examining the vehicle damaged, can be able to make out whether there occurred collision of the vehicles as it is stated to be a collision with a motor cycle accident happened. We are of the opinion that the Charge sheet/police final report is not an inevitable document to prove the accident. There are other opportunities to the Opposite parties to investigate about the happening of the accident as the complainant has provided the Registration Number of the Motor cycle collided with and informed immediately after the accident. The FIR also deemed to be having been produced and also the accident is not disputed by the Opposite parties.
5. The opposite party contention that, the complaint is premature is not acceptable. From the file it is made out that the complainant immediately after the accident and the repair submitted the claim form with the documents which is admitted through the interrogatories in Q no 5 as stated supra. It is also admitted fact that the Opposite parties have not either repudiated or settled the claim till date of legal notice dated 20.10.2012. Needless to say the Opposite parties have taken unreasonable time on the unacceptable ground of the documents not furnished. We already hold the document called for is not so important in settling the claim. The complainant had no alternative except the knocking of our door. The complainant also solicited our attention towards the section 9 of the IRDA regulation 2001. The section states that the claim shall be settled within 30 days from the date of submission of the claim or in special circumstances shall not take more than six months in either settling or repudiation. It is also settled principle that after the survey report if the claim is not repudiated within said time one month or six months as the case may be it is inferred as settled since not repudiated. In the instant case the opposite party neither repudiated nor settled on the ground in admissible. There is no record produced by the Opposite parties to show that the Charge sheet/police final report shall be submitted for settling the claim. Also the complainant relied on the I (2004) CPJ 263 Andra Pradesh State Commission wherein it is stated that the company is not justified in insisting on the production of final investigation report amounts to deficiency in service. It is only to confirm the accident to own liability by the Opposite parties. When the Opposite parties not acted upon where they ought to act upon within stipulated time gives cause of action to the complainant. In M/S.Jyoti Impex vs New India Assurance Co. Ltd. on 29 April, 2013 the State Commission of Maharstra after detailed discussion referring to IRDA regulation 2002 held that, the claim must either settled or repudiated within six months. It is a duty to speak by the Opposite parties. If they would not speak the inference is the claim is allowed and the opposite party insurance company must pay. With these explanations we hold the complaint is not premature and we also hold the Opposite parties not proved that there is no deficiency in service from their part as keeping quiet in responding to claim submitted on flimsy ground amounts to deficiency in service and hence we hold the point no 2 in the negative.
POINT NO 3: We hold the Opposite parties are liable for deficiency in service as they kept quiet on unacceptable ground unnecessarily for long time without settling the claim of the complainant and the complainant is entitled for the relief. The complainant prayed for an amount of Rs 57000/ as repair expenses and an amount of Rs 50000/ as compensation. The complainant not produced any documents for substantiating the amount paid by him and claimed. However the Opposite parties admitted in the survey report assessment sheet that the invoice amount is Rs 46609/ which is the admission of the invoice amounting to Rs 46609/. And Rs 26828/ as payable to the complainant. since the Opposite parties admitted Rs 26868/ as admissible and the complainant not taken any specific objection about the irregularity in survey except not serving of notice and about the not mentioning of details in the report. We examined the Assessment report. There is bifurcation of parts and the material i.e. plastic, rubber, nylon, metal etc. the report also detailed the depreciation amount and the salvage amount which we presume it is as per policy conditions (no documents produced) Complainant not shown any disparity in the calculations or bifurcation of expenses. We have no constraint to decline the complainant contention that the survey report is not in order. Hence we are not inclined to brush away the survey report. As such we consider the complainant is entitled to get an amount of Rs 26828/ as per survey report with an interest 10% per annum from the date of complaint till the date of payment. We see the negligence on the part of the Opposite parties in not appreciating the claim and the documents produced with the claim form and keep mum in settling the claim of the complainant. We also consider an amount of Rs 20000/ as sub serving for the mental agony and hardship. An amount of Rs 7500/ towards litigation the complainant is entitled.
POINT NO 4: In the light of the above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is partly allowed. The Opposite parties shall pay jointly and severally the complainant an amount of Rs 26,828/ (Rupees Twenty Six thousand Eight hundred Twenty Eight only) with an interest of 10 % per annum from the date of complaint till the date of payment and an amount of Rs 20,000/ (Rupees Twenty thousand only) towards compensation and an amount of Rs 7,500/ (Rupees Seven thousand Five hundred only) towards costs within 30 days from the date of the copy of this order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly typed by member revised and pronounced in the open court on this the 17th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
MEMBER
(SMT. SHARADAMMA H.G)
D.K. District Consumer Forum
Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Aloysius Rodrigues
Documents marked on behalf of the Complainant:
Ex C1: : Copy of the Registration Certificate
Ex C2: : Copy of the Policy
Ex C3: 20.10.2012 : Office copy of the legal notice
Ex.C4: : Postal Acknowledgement
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Pradeep D.S, Manager-Legal
RW2: Mr. Rajeshekar Vastrad (RW2) Surveyor
Documents produced on behalf of the Opposite Parties:
Ex.R1: Letter dated 23.04.2012 of opposite party written to Insured
Ex.R2: Letter dated 11.05.2012 of opposite party written to Insured
Ex.R3: 09.07.2012 Insurance Surveyor’s Report with enclosure
Dated: 17.01.2017 MEMBER
