COMPLAINT FILED:30.05.2009 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 28th OCTOBER 2009<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.1244/2009<br /> <br /> <br /> COMPLAINANT Sri. B.N. Premnath,<br /> S/o Late Narasimaiah,<br /> Aged about 36 years,<br /> #12, ,16, 50 Ft Road,<br /> Near Muneshwara Temple,<br /> Sri Ranga nagar,<br /> Bangalore – 560 085.<br /> <br /> Advocate: Sri A.G. Sridhar<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY Bajaj Allianz General <br /> Insurance Co., <br /> # 31, Ground Floor,<br /> TBR Towers,<br /> 1st Cross, New Mission Road,<br /> Next to Bangalore Stock Exchange,<br /> Bangalore – 560 024.<br /> <br /> Represented by its Manager.<br /> <br /> Advocate: Sri Ravi S.Sampathi <br /> <br /> O R D E R<br /> SRI. B.S. REDDY,PRESIDENT<br /> <br /> The complainant filed this complaint U/s 12 of the Consumer Protection Act of 1986, seeking direction to the Opposite Party (herein after called as O.P) to pay Rs.75,000/- towards full and final settlement on net of Salvage basis with interest at 18% p.a. and damages to the extent of Rs.20,000/- on the allegations for deficiency in service on the part of the OP. <br /> <br /> 2. The case of the complainant to be stated in brief: He is the owner of Scorpio Car bearing registration No.KA-05 MB-3165; the same was insured with OP for the period 29.12.2008 to 28.12.2009. The said vehicle met with an accident on 28.01.2009. On the same day at 5-30 pm complaint was lodged before Bidadi Police, on the same case was registered in Crime No.42/2009. Charge sheet was filed in connection with the said accident. Senior Inspector of Motor Vehicle has inspected the vehicle and issued his report on 29.01.2009 in respect of the vehicle. The said vehicle was completely damaged, hence the complainant sold the said salvage car to one Ziauddin Khan for total sum of Rs.2,10,000/- as per agreement dated 16.03.2009. The complainant discussed with OP before the sale of the said salvage vehicle and complainant agreed to receive a sum of Rs.75,000/- from the OP as full and final settlement on net of salvage basis subject to cancellation of policy from the date of loss. Affidavit was also taken from the complainant in which he had agreed to receive a sum of Rs.75,000/- only from the OP and he will not raise an issue or litigation. OP refused to pay the said amount by letter dated 01.04.2009. In the said letter is alleged the damaged car for which the complainant has made the claim was a different than the car which the photos were taken at the time of pre-inspection and the name plate of the damaged car was fraudulently fixed to some other Mahindra Scorpio Car and then taken photo and have fraudulently claimed the insurance amount. It is also alleged in the said notice that the complainant has played fraud with one of a staff by name Kuruba Shiva Kumar and had got the insurance policy. The OP issues the policy only after physically verifying the vehicles. Now it cannot say that the said vehicle was insured fraudulently. The action of the OP in not paying the agreed insured amount of Rs.75,000/- is unfair trade practice and unscrupulous exploitation of the consumer. Thus the complainant has sought for the relief stated above. <br /> <br /> 3. After appearance, OP filed version contending that the complaint is not maintainable; the complainant has not approached this Forum with clean hands. OP on misrepresentation of the complainant and without knowledge of the same issued a policy in respect of the vehicle. On realizing the fraud played by the complainant OP declared the policy void-ab-intio and informed the complainant vide letter dated 01.04.2009. On receipt of the claim from the complainant OP arranged for survey of the damaged vehicle and appointed Mr. Vijay an independent surveyor to examine the damages and assess the loss thereon. The surveyor after detailed examination of the damaged vehicle has prepared a report and surveyor has assessed the loss to the tune of Rs.75,000/-. During the scrutiny of the claim and the pre-inspection photos taken by the staff of the OP at the time of entering the insurance contract; it was noticed that this Scorpio which was brought at the time of taking insurance coverage was different one but it was fitted with the registration number plate of the vehicle bearing No.KA-05 MB-3165. The insurance cover was obtained by fraudulent act and by suppressing the true facts. The vehicle Scorpio bearing No.KA-05 MB-3165 has sustained damages in an accident prior to the insurance coverage sought for and it had no insurance coverage at the time of accident; the complainant in order to gain wrongfully and causing wrongful loss to the OP by misrepresentation obtained insurance coverage and sought claim for damages. The policy itself is declared as void-ab-intio; there remains no question of entertaining any claim under such policy. The complainant has not replied for the letter dated 01.04.2009 wherein his explanation was sought. There is no deficiency of service; OP is not liable to pay any amount. Hence it is prayed to dismiss the complaint. <br /> <br /> 4. The complainant filed affidavit to substantiate the complaint allegations. The Senior Executive legal officer filed affidavit in support of the version filed by the OP and filed written arguments. <br /> <br /> 5. After perusing the pleadings, the documents produced and affidavit evidence and hearing both sides, the following points that arise for our consideration: <br /> <br /> Point No.1 :- Whether dispute arisen between the <br /> parties can be adjudicated by this Forum?<br /> <br /> Point No.2 :- To what Order?<br /> <br /> 6. Our findings to the above points:<br /> <br /> Point No.1:- In Negative.<br /> <br /> Point No.2:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. The complainant claims that he being the registered owner of Scorpio Car bearing registered No.KA-05 MB-3165 got insured the same with OP for the period 29.12.08 to 28.12.09 and the said vehicle met with an accident on 28.01.2009 and the vehicle was completely damaged. That damaged vehicle was sold for Rs.2,10,000/- to one Ziauddin Khan as per agreement dated 16.03.2009. The OP was consulted before the sale of the vehicle and OP agreed to pay sum of Rs.75,000/- as full and final settlement of net salvage. When the claim was put forward; OP has repudiated the claim on the ground that at the time of taking the policy the complainant has played fraud and by misrepresentation the policy was obtained in collusion with the official of the OP. Thus the complainant claims as once the policy was issued after examining in detail the vehicle and insured; the OP is not justified in repudiating the claim. <br /> <br /> 8. The version of the OP is, at the time of obtaining the policy the complainant has played fraud by fixing the number plate of this vehicle which was earlier damaged to some other vehicle of the same brand and got insured in collusion with the official of the OP. The number plate of this vehicle was fixed to the other vehicle, at the time of taking pre-inspection photos. The complainant in order to claim the insurance has played this fraud; OP came to know all these facts on the report of the surveyor appointed to assess the damage of the vehicle, thereafter OP has declared the policy taken by the complainant as void-ab-initio. Thus the complainant is not entitled for any amount. <br /> <br /> 9. In our view the questions involved in this dispute are of complicated in nature; as policy has been declared void-ab-initio by the OP on the ground; the complainant by playing fraud has obtained the policy by fixing the number plate of his already damaged vehicle to another good condition vehicle of the same brand; at the time of taking the policy. All these matters involves determination of detailed facts which cannot be established except on a detailed evidence both oral and documentary as to how fraud was played by the complainant while obtaining the policy. Such disputes wherein fraud, forgery etc., were alleged by the OP the same cannot be heard and disposed of in a summary fashion within the limited time specified by the CPA 1986. This Forum is not competent to declare the act of OP declaring policy void-ab-initio is bad in law and the same is unsustainable. Without declaring that the act of OP declaring policy void-ab-initio is unsustainable; the relief sought by the complainant in this proceedings cannot be granted. The complainant could seek his remedy in a Civil Court. Accordingly we are of the view that the dispute arisen between the parties cannot be adjudicated by this Forum and the complainant is at liberty to approach the Civil Court to get necessary reliefs if so advised. Accordingly we proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed as not maintainable. The complainant is at liberty to approach the Civil Court to get necessary reliefs if so advised. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of October 2009.) <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> s.n.m. <br />