Tamil Nadu

North Chennai

CC/22/2018

Mrs.Noorjehan Fathima ,W/o.Veeramuthu - Complainant(s)

Versus

Bajaj alliance general insurance company Ltd Rep by its Branch manager - Opp.Party(s)

M/s.S.venugopalraj

28 Sep 2022

ORDER

Complaint presented on  :23.11.2017         

Date of disposal             :28.09.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai -600003.

 

PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

                  TMT. KAVITHA KANNAN,M.E.,                            : MEMBER-I

                                 THIRU V. RAMAMURTHY, B.A.B.L., PGDLA    : MEMBER II

 

C.C. No.22/2018

 

DATED THIS WEDNESDAY THE 28^th  DAY OF SEPTEMBER 2022

NoorjehanFathima,

W/o.Veeramuthu,

Plot No.13, Vaigai street,

EVP Rajeshwari Avenue,

Madhanandapuram, Porur,

Kanchipuram District-600 125.

                                                                                               .. Complainant.                                                               ..Vs..

 

Baja Alliance General Insurance Company Ltd.,

Rep. by its Branch Manager,

Old No.276 & 277, New No.497 & 498,

‘Isanakattima Building’,

5^th floor, Poonamallee High Road,

Arumbakkam, Chennai-600 106.                                            ..  Opposite party.

 

Counsel for the complainant                      : M/s. S.Venugopalraj and K.R.Arun

                                                                         Shabrai

Counsel for  opposite party                           : M/s.K.Kumaran

ORDER

THIRU. G.VINOBHA, M.A., B.L.       : PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite party to settle complainant claim of Rs.6,74,211/- based on the motor insurance claim forms submitted on 16.03.2017 and 23.06.2017 along with an interest at the rate of 12% p.a. and to direct the opposite party to pay a sum of Rs.45,500/- with interest at 12% towards estimation and rental charges for parking of the complainant vehicle and to pay a sum of Rs.10,00,000/- for mental agony.

1.THE COMPLAINT IN BRIEF:

The complainant submitted that on 04.05.2016 taken an insurance from the opposite party for her car bearing reg no. TN 10 AW 1113 on payment of total premium Rs.24895/-under ‘Private care packaging policy’ in policy no.FBA/16000003213 from 04.05.2016 to 03.05.2017.  Further submitted that 29.01.2016 the complainant’s husband was travelling in her car, Mr.R.Rajesh kumar drove the vehicle from Chennai to Thindivanam.  The car met with an accident near Karunkuzhi Petrol Bunk due to rash and negligent driving of a motorcycle bearing reg.no.TN 16 B 9159 by a third party namely Mr.Yoganathan. It is further submitted that due to the accident the vehicle no. TN 10 AW 1113 had sustained severe damage and completely inoperable. Hence the vehicle was parked at Hans Ford for service center at Iyyappanthangal chennai. The complainant submitted the motor insurance claim on 16.03.2017 and one Rajesh Khanna surveyed her vehicle on 16.03.2017. The surveyor had submitted his report, the opposite party had not taken steps to settle the claim. The complainant submitted another claim form dated 23.06.2017 with all necessary documents. Further submitted that complainant received a letter dated 30.06.2017 the opposite party had sought for document, in addition to submitted the require documents. Further submitted that Hans ford service center was being charged of Rs.350/- per day for parked his vehicle in commercial space.  The complainant constrained to pay a sum of Rs.10,500/- the said vehicle was parked for more than 30 days as rental charges. Hence the complainant sent a legal notice on 08.07.2017. But the opposite party has not sent any reply. The complainant’s husband sustained severe injuries in the said accident and the vehicle was surveyed by one Rajesh Khanna on 16.03.2017 but even seven months after submission of his report the claim amount not paid by the opposite party and on 30.06.2017 the opposite party required additional documents namely copy of driving license of Rajesh kumar with original for verification and return and also medico legal certificate of driver Rajeshkumar and further contended that those documents are not relevant for processing the claim and further stated that on receipt of legal notice issued by the complainant on 20.07.2017 the opposite party sent a letter on 01.08.2017 asking the complainant to send her driver to the opposite party office and since he was a call driver inspite of best efforts he could not be traced out which was conveyed to the opposite party and inspite of several request made by the complainant the opposite party closed the claim as ‘No Claim’ by letter dated 11.07.2017 and therefore the complainant prayed to settle entire claim along with rental charges for parking the vehicle and compensation.

2.WRITTEN VERSION OF  OPPOSITE PARTY IN BRIEF:

The opposite party deny each and every averments made by the complainant as false and put the complainant in to strict proof of the same. The opposite party submitted that the complainant’s car TN 10 AW 1113 was insured with this opposite party for the period 04.05.2016 to 03.05.2017 under private car package policy no. FBA/1600003213 for IDV of RS.6,74,211/-.  The complainant suppressed the terms and conditions of the policy schedule.  It is a fundamental conditions that the opposite party would have no liability unless the vehicle is driven by a driver with a valid driving licence.  Unless it is clearly established that the driver had valid DL claim under the policy will not be admissible.  Identity of the driver and proof that he was in fact driving the vehicle is crucial. The complainant’s vehicle reportedly suffered damage in accident on 29.01.2017 involving 3^rd party motor cycle TN 16 B 9159.  The opposite party appointed a surveyor and was inspected the vehicle, which was found that the damaged to the vehicle was mainly to the driver’s said on the front in which circumstances the actual driver could not have escaped without injury. The FIR was delayed by two days and also intimation of this opposite party was not immediately given. The opposite party had arranged Mrs.Sujaini for investigation, further who was found that complainant’s husband who was reportedly a passenger in the car had suffered severe injuries whereas  there was no record of any injury being sustained by the alleged driver Mr.Rajesh Kumar. Enquiry over phone by investigators with Mr.Rajesh kumar indicated that he was not driving the vehicle which was also indicated by the absence of record for injuries being suffered by him whereas it was only complainant’s husband who was alleged a passenger who had reportedly suffered grievous injuries.  The nature of damage being mainly on the front right side of the vehicle there could be no possibility of the driver escaping without injury.  It was thus obvious that the alleged driver Mr.Rajesh kumar was not the driver and attempt was being made to cover up the actual driver of the vehicle so that breach of policy was not exposed. The opposite party called upon the complainant to produce the original Medico Legal certificate of the alleged driver Mr.Rajesh kumar apart from his production for further enquires. The complainant failed to submit the crucial document.  Hence the opposite party declined to settle the claim. The opposite party has not committed any deficiency in service.

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint. If, so to what extent?

The complainant had filed proof affidavit and documents Ex.A1 to Ex.A17 were marked on his side.The opposite party had filed proof affidavit and Ex.B1 to B4 documents was marked on their side.

4. Point No.1:-

          The complainant had taken insurance policy from the opposite party on 04.05.2016 by paying premium of Rs.24895/- for the period from 04.05.2016 to 03.05.2017 for her car bearing Reg. TN 10 AW 1113 on 29.01.2017 while the complainant husband travelling the car along the call driver Mr. R.Rajeshkumar from Chennai to Thindivanam and due to the rash and negligent driving of another motor cycle by a third party yoganathan the car met with an accident and completely damaged which is parked at service centre at Iyyappanthangal and the complainant’s husband sustained severe injuries in the said accident and the vehicle was surveyed by one Rajesh Khanna on 16.03.2017 but even seven months after submission of his report the claim amount not paid by the opposite party and on 30.06.2017 the opposite party required additional documents namely copy of driving license of Rajesh kumar with original for verification and return and also medico legal certificate of driver Rajeshkumar and further contended that those documents are not relevant for processing the claim and further stated that on receipt of legal notice issued by the complainant on 20.07.2017 the opposite party sent a letter on 01.08.2017 asking the complainant to send her driver to the opposite party office and since he was a call driver inspite of best efforts he could not be traced out which was conveyed to the opposite party and inspite of several request made by the complainant the opposite party closed the claim as ‘No Claim’ by letter dated 11.07.2017 and therefore the complainant prayed to settle entire claim along with rental charges for parking the vehicle and compensation.

5. But the opposite party contended that as per the terms and conditions of the policy the owner of the vehicle has to intimate about the accident without any delay but the intimation was given after 36 days of accident which amounted to violation of policy and further stated that the complainant has suppressed the terms and conditions of the policy and not filed the same and further the damage to the vehicle was mainly in the front driver’s side and hence the driver could not have escaped without injury and further there is a delay of two days in the FIR and during the investigation by the company the complainant’s husband who travelled in the car sustained injuries but, there is no record of any injury to the driver Rajeshkumar and enquiry by the investigator revealed that the said Rajeshkumar was not driving the vehicle and hence the complainant to made attempt to  cover up actual driver of the vehicle in order to avoid breach of policy, hence the complainant was called upon to produce original medico legal certificate of driver apart from his production for further enquires. But the complainant failed to provide the same and not cooperated with the enquiry and therefore the opposite party contended that the complainant failed to produce the driver who has  actually driven the vehicle and fail to produce original DL  and as per the surveyor report enquiry revealed that there was no such driver in the address furnished by the complainant which prove that the complainant attempted to substitute another person as driver and attempted to claim the amount and therefore contended that the opposite party has closed the claim as the same is inadmissible as for the terms and conditions of the policy.

6.  The complainant’s vehicle being insured with the opposite party during the relevant period of accident and the fact of accident is not disputed by both the parties. It is found from Ex.A3 that the accident happened on 29.01.2017 but the report was given on 30.01.2017 the name of the driver of the car was not found in Ex.A3, it is found from Ex.A4 in the report of the MV inspector it is found that the inspection was done one month after accident on 28.02.2017 the name of the driver is shown as R.Rajesh kumar and the details of his driving licence were also shown in Ex.A4 , it is found from Ex.A5 that intimation about the accident was given to the opposite party only 16.03.2017 there is no explanation by the complainant for the delay in intimation. In Ex.A8 claim form the complainant has stated that the name of one Rajeshkumar as call driver having valid licence under Ex.A9 on 30.06.2017 the complainant was called upon to produce driving licence of Rajeshkumar with original for verification and return along with medico legal certificate which was not produced by the complainant instead the complainant has issued a legal notice to the opposite party under Ex.A11.  The opposite party sent a letter on 11.07.2017 by stating that if the required documents were not produced by the complainant the claim will be closed as ‘No Claim’ and by letter dated 21.07.2017 the opposite party closed the claim. It is found from Ex.B4 survey report that the surveyor has assessed the value of the damages to the vehicle and given a report, it is found from Ex.B3 investigation report when an attempt was made by the investigator to meet the driver in the address mentioned in the DL no such person was available in the house and he was informed no such person stayed in the premises and the enquiry revealed that the neighbors have not seen such a person. The investigation report further state that the details of driver was not mentioned at the time of registration of FIR and further it is understood that the surrender before concerned police station on 28.02.2017 and confessed that he was driver at the time of accident and he was arrested and his DL was sent for cancellation to RTO Maduranthagam  and further stated in the report that looking into the damages sustained by the vehicle the driver should have sustained severe injuries and have undergone treatment but no records were shared by the owner of the vehicle and driver was arrested one month from the accident and only after that the claim was registered with insurer and therefore stated that the claim would be decided only after obtaining detailed narration from the driver and after validating the injuries sustained by him. It is  found from the above said documents filed by both the parties that the complainant is not able to produce the said call driver who has driven the vehicle at the time of accident to the opposite party and further the complainant has not submitted the original DL for verification and return and has also not produced the Medico legal certificate of the driver Rajeshkumar and hence for want of those documents the opposite party was not able to process the claim of the complainant which will not amounted to deficiency in service on the part of opposite party. The complainant relied upon the decision of Supreme Court in Civil Appeal NO.4071/2022 dated 20.05.2022  but in that case the appellant  produced a photo copy of registration certificate of the vehicle instead of original registration certificate and hence it was held that the non settlement of claim can be said to deficiency in service. But in the present case the complainant was not able to produce the original DL for verification and return and also not able to trace out the said driver and produce him before the opposite party and hence the facts is totally different.  The opposite party relied upon a decision reported in (2006) 7 SCC 655 and also a decision reported in (2010) SCC online NCDRC 285 and contended that the cleaner was driving the vehicle when the accident occured since he was hospitalized with serious leg injuries in the above said case and therefore contended that in the present case that the complainant has attempted to substitute a driver to get insurance claim but, he was not able to produce the required documents by the opposite party and therefore the claim was rightly closed by the opposite party for violation of policy condition and it is found that the same will not amount to deficiency in service as alleged in the complaint. Point No.1 is answered accordingly.

7. Point No.2.

            Based on findings given to the Point.No.1 since there is  violation of terms and conditions of the policy as discussed above the insurance claim was rightly closed by the opposite party for non production of required documents which cannot be alleged as deficiency in service on the part of Opposite party and further the opposite party is not responsible in any way in respect of parking of the complainant’s vehicle with the Hans Ford service centre at Iyyappanthangal and not liable to pay the rental charges for parking as claimed in the complaint and further the complainant is not entitled for the relief of settlement of her claim with compensation as claimed in the complaint. Point no.2 answered accordingly.

               In the result the Complaint is dismissed. No cost. 

Dictated  by President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28^th day of September 2022.

 

MEMBER I                                  MEMBER – II                           PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	04.05.2016	Copy of insurance policy.
Ex.A2	06.05.2016	Copy of certificate of registration.
Ex.A3	30.01.2017	Copy of FIR.
Ex.A4	28.02.2017	Copy of Form Air.
Ex.A5	25.03.2017	Copy of letter from the opposite party.
Ex.A6	30.03.2017	Copy of parking and estimation bill.
Ex.A7	09.06.2017	Copy of letter from the opposite party.
Ex.A8	23.06.2017	Copy of 2nd motor insurance claim form submitted by the complainant.
Ex.A9	30.06.2017	Copy of letter from the opposite party.
Ex.10	05.07.2017	Copy of e-mail sent by hans ford.
Ex.A11	08.07.2017	Copy of legal notice sent by the complainant.
Ex.A12	11.07.2017	Copy of letter from the opposite party.
Ex.A13	21.07.2017	Copy of letter from the opposite party.
Ex.A14	26.07.2017	Copy of legal notice sent by the complainant.
Ex.A15	01.08.2017	Copy of letter from the opposite party.
Ex.A16		Copy of e-mail conversations between the complainant and the opposite party.
Ex.A17		Proof of service of legal notices.

 

 

 

LIST OF DOCUMENTS FILED BY THE   OPPOSITE PARTY:

 

Ex.B1		Insurance policy with terms and conditions.
Ex.B2	18.03.2017	Survey report.
Ex.B3	13.06.2017	Investigation report.
Ex.B4	28.02.2017	MVI report of car.

                  

MEMER – I                           MEMBER – II                       PRESIDENT