Bajaj Allianz General Insurance company Limited - Opp.Party(s)
D. Ravi Kiran
24 Jul 2013
ORDER
Complaint Case No. CC/27/2013
1. N. Nishikanth
Narra Nishikanth, S/o. Sriram Murthy, Hindu, aged about 30 years, Resident of Plot No. 202, Krishna Meadows, Opp: Nelson Mandela Park, LIC Colony, Vijayawada.
BEFORE:
HON'ABLE MR. Sri.A.M.L. Narasmiha Rao PRESIDENT
HONORABLE N TRIPURA SUNDARI Member
PRESENT:
ORDER
Date of filing:20.2.2013.
Date of dispsal:24.7.2013.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
Meadows, Opp:Nelson Mandela Park, LIC Colony, Vijayawada.
….… Complainant.
AND
Bajaj Allianz General Insurance Company Limited, Rep., by its Manager, Door No.40-1- 9, M.G.Road, Labbipet, Vijayawada – 10.
.… Opposite Party.
This complaint coming on before the Forum for final hearing on 9.7.2013 in thepresence of Sri D.Ravi Kiran, Counsel for complainant and of Sri T.Veerabhadra Rao,Counsel for opposite party and upon perusing the material available on record, thisForum delivers the following:
(Delivered by Hon’ble Member Sri S.Sreeram)
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demanding the opposite party to authorize the service center to undertake repairs or
else he will proceed with repairs and the same will be recovered from opposite party.
The opposite party issued a reply with baseless allegations and at that juncture, the
complainant got repaired the vehicle at his cost and also got the assessment of loss
was done through a licensed surveyor who issued a final report on 13.12.2012
assessing the loss of damage at Rs.1,50,000/-. In fact the complainant spent
Rs.1,98,000/- for repairs. The acts and omissions on the part of opposite party amounts
to deficiency in service. Hence, the complaint.
2. After registering the complaint, notices were sent to the opposite party. The
opposite party filed version denying the allegations made in the complaint and
reiterating the contents of reply notice. The opposite party reproduced the clauses in
the policy and submitted that there is a delay of nearly 62 days in intimating to the
opposite party and on scrutiny of documents, the driver at the material time was under
the influence of alcohol and as such the complainant violated the terms of policy. It is
further contended that the complainant did not file report of spot surveyor or the report
of re-inspection and the alleged Motor Survey Report is not true and correct and the
complainant intentionally did not file MVI report as it does not corroborate the alleged
damages and that the complainant has not given any immediate notice to opposite party
to inspect or conduct survey to arrive net loss and that the complainant appointed his
surveyor of his choice without notice to opposite party and finally prayed to dismiss the
complaint.
3. The complainant filed his affidavit reiterating the material averments of his
complaint and got marked Ex.A1 to Ex.A13. The executive – legal of opposite party
filed affidavit and got marked Ex.B1 to Ex.B9.
4. Heard both sides and perused the record.
5. Now the points that arise for consideration in this complaint are:
i) Whether there is any deficiency in service on the part of the opposite party
in repudiating the claim of complainant?
ii) If so is the complainant entitled for the reliefs as prayed for?
POINT NO.1 :-
6. On perusing the material on hand (complaint, affidavit and documents), the
undisputed and admitted facts are that the complainant is the owner of the car bearing
No. AP 16 BM 6679 and the same was insured with opposite party. It is also not in
dispute that the said policy was in force on the date of accident i.e.
31.12.2011/1.1.2012. Ex.A1 policy establishes the same. Further there is no dispute
with regard to the accident that had occurred on the intervening night of 31.12.2011 and
1.1.2012 to the subject vehicle, which was registered as case in Cr.No.2/2012 of
Machavaram PS. Ex.A12 First Information Report and Ex.A13 Final Report/Charge
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sheet establishes the involvement of subject vehicle in the accident. As such the
complainant proved the points that he is the registered owner of car which was involved
in the accident and that the said car is insured with opposite party and the policy is in
force on the date of accident.
7. The case of complainant is that, in the said accident, the car was badly damaged
and that he immediately informed the same to the executive of opposite party by name
Mani Kumar who in turn informed that claim was registered in their records. Later the
complainant though shifted the vehicle to workshop, waited for the approval of opposite
party and in the mean while, the complainant received a letter from opposite party on
19.3.2012 vide Ex.A3 letter repudiating the claim of complainant. But a perusal of
record discloses that the opposite party vide Ex.B2 letter dt.6.3.2012 itself intimated the
complainant that the claim was intimated to them after 62 days of accident and thereby
the complainant committed breach of condition No.1 of policy and under the said letter,
the opposite party also requested to submit D.L and FIR within seven days. The
opposite party after receiving clarification from complainant, repudiated the claim vide
Ex.A3/Ex.B4 letter on the ground that the complainant committed breach of condition
No.1 of policy and also stated that on scrutiny of documents submitted by the
complainant and as per information, they observed that the driver at the time material
time of accident was under influence of alcohol and not authorized to drive the vehicle.
8. In view of the above circumstances, the point that stood for consideration before
this Forum is that whether the grounds taken by opposite party for repudiating the claim
are plausible or not. The first ground for repudiation by opposite party is that the driver
at the time of accident was under the influence of alcohol. Admittedly the accident had
occurred on the intervening night of 31.12.2011 and 1.1.2012 and the same was
registered at Machavaram P.S in Cr.No.2/2012 for the offence under Sec.304-A IPC.
Further as seen from Ex.A13 charge sheet, it is clear that the accused in the said crime
i.e. complainant herein and others themselves surrendered before the Ex-corporator
and gave confession that on 31.12.2011 night on the eve of New Year, they consumed
Liquor and all of them were moving in the streets to greet the people and in that
process, at 2.45 a.m the A1/complainant dashed one motor cyclist and on seeing the
same, they all went to the apartment of A1/complainant etc.,….. As seen from the
above, the arrest of accused was not affected immediately after the accident. It
happened only after 6 days of accident. Further there are no eye witnesses to the
occurrence to prove that the complainant was driving the vehicle at the time of accident.
As the arrest of accused was after six days from the date of accident which is more
particularly on the basis of confession made by accused, it is very hard to ascertain
whether the complainant was under the influence of alcohol at the time of accident or
not. Further the col.No.15 of charge sheet i.e. ‘Result of Laboratory analysis” was left
blank by police as they have also had no opportunity to subject the complainant for
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breathing test. Merely basing on the alleged confession made by accused, the opposite
party cannot come to conclusion that the complainant/driver was under influence of
alcohol and not authorized to drive vehicle as per Section 185 of MV Act. According to
Section 185 of MV Act also, the driver has to be subject to breath analyzer to ascertain
the alcohol in his blood by the concerned police. But as stated supra, as the
complainant himself surrendered after six days of accident, the police had no
opportunity to conduct breath analyzer test. The Hon’ble A.P. State Consumer
Disputes Rederessal Commission in a case between M/s.ICICI Lombard General
Insurance Company Vs. S.Jayalakshmi and another in FA No.1356/2008 observed that
the insurance company shall not assume from the observations made in the record and
they have to investigate and determine the fact independently. But, in the case on
hand, the opposite party repudiated the claim of complainant on the ground that the
complainant himself gave confession that he was under influence of alcohol at the time
of accident, which is not according to Law. The opposite party failed to prove the said
aspect for the reasons mentioned supra. As such, we are of the opinion that the 1
st
ground taken by opposite party in repudiating the claim is not plausible.
9. The other ground for repudiation is that the complainant violated the condition
No.1 of policy in intimating to opposite party about the accident. Admittedly the accident
occurred on 1.1.2012 and the FIR was also registered on the same day. In this regard,
the contention of complainant is that he intimated about accident to the executive of
opposite party by name Mani Kumar who informed that the claim was registered.
Though the opposite party denied the same, has not produced any material before this
Forum whether the said Mani Kumar was working in their organization or not and also
did not choose to file the affidavit of said Mani Kumar that he has not received any
intimation from complainant. In the absence of any such proof, it cannot be said that
the complainant has not intimated to the opposite party about accident. Further it is not
the case of death of insured. In this regard, the complainant placed reliance on the
decision reported in Principal, Govt., Polytechnic for Women Kandaghat Vs. Reliance
General Insurance Ltd., 2013(1) CPR 91 Himachal Pradesh, wherein it was held that
delay in informing the insurer about the date of death, may be a good ground for
repudiation of claim in case of whether there is serious dispute creating reasonable
doubt about the death or the cause of death of insured person, but not in a case like the
present one, where there is no dispute that the insured employee had died and her
death was accidental. The facts and circumstances of the case are squarely applicable
to the case in hand.
10. Further as seen from record, the complainant waited till May, 2012 for the
approval of opposite party to effect repairs to the vehicle. Ex.A4 to Ex.A6 were issued
by Jasper Industries Pvt. Ltd., Vijayawada establishes the same. It is pertinent to
mention here that the Consumer Protection Act is the beneficial legislation and it cannot
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allow the insurance company to escape from the liability on technical grounds to deprive
the consumer’s benefits to which he is entitled. Simply because the complainant failed
to intimate them about the accident, the opposite party cannot escape from the liability.
Further there is no dispute with regard to the damages caused to the said vehicle and
ExA10 requisition by police to MVI and Ex.A11 photographs proves the said damages.
Further according to clause No.10 of Motor Vehicles Manual, if there was some
technical breach of policy conditions, even then the claim of complainant can be settled.
In this case, as per the documents and bunch of photographs and estimation report
clearly shows that the accident was taken place and the car was badly damaged and as
per the policy copy the accident was took place the policy was in force. In such a
situation, the repudiation of claim by opposite party for non-intimation within stipulated
period is not tenable and acceptable.
11. In view of the above circumstances, we are of the opinion that the acts of
opposite party constitutes deficiency in service on their part.
12. With regard to the quantum of amount to be awarded, Ex.A4 invoice discloses
that the complainant has spent Rs.1,98,000/- and Ex.A5 and Ex.A6 bills establishes that
the complainant paid the same for repairs. The complainant vide Ex.A7 notice informed
that in case of failure of opposite party to give authorization to the workshop for repairs,
he will get the repairs and the opposite party is liable to pay the same. Hence, the
stand taken by opposite party that without its notice the complainant himself got the
repairs of car is not correct. Though Ex.A8 Surveyor’s report discloses the estimation
as Rs.1,50,000/-, the bills and invoices issued by Jasper Industries Pvt. Ltd.,
Vijayawada discloses that the complainant paid Rs.1,98,000/-. Ex.A8 surveyors report
is only an assessment. The loss to be assessed by the surveyor will always be less
than the actual expenditure incurred, because of some exclusions and deduction of
depreciations. The complainant failed to show how the surveyor’s report is false. So
the loss assessed by the surveyor has to be taken for giving relief. But in the light of
above circumstances, the complainant is not entitled for any compensation.
POINT No.2:-
13. In the result, the complaint is partly allowed and the opposite party is directed to
pay Rs.1,50,000/- (One lakh and fifty thousand rupees only) with interest @ 9% p.a.
from the date of the complaint till realization and costs of Rs.2,000/- (Two thousand
rupees only) to the complainant. Time for compliance is one month. The other claims of
the complainant are hereby dismissed.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and
pronounced by us in the open Forum, this the 24
th day of July, 2013.
PRESIDENT MEMBER MEMBER
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite party:-
P.W.1 N. Nishikanth D.W.1 G.Chandra Sekhar,
Complainant Executive-Legal
(by affidavit) of the opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the complainant:
Ex.A.1 . . Photocopy of Certificate of Registration.
Ex.A.2 07.12.2011 Photocopy of Certificate cum Policy Schedule.
Ex.A.3 19.03.2012 Letter from the opposite party to the complainant.
Ex.A.4 22.09.2012 Retail invoice issued by Jasper Auto Services Pvt.,Ltd.,
Vijayawada.
Ex.A.5 22.09.2012 Receipt issued by Jasper Auto Services Pvt.,Ltd.,
Vijayawada for Rs.1,58,000/-.
Ex.A.6 17.07.2012 Receipt issued by Jasper Auto Services Pvt.,Ltd.,
Vijayawada for Rs.40,000/-.
Ex.A.7 12.04.2012 Office copy of legal notice.
Ex.A.8 13.12.2012 Photocopy of Motor Survey Report (Final) issued by
A.V.S.CBose Surveyor & Loss Assessor Motor, Marine,
Miscellaneous.
Ex.A.9 30.04.2012 Reply notice from opposite party.
Ex.A.10 . . Photocopy of letter from Station House Officer, Machavarm
P.S. Vijayawada City to the Motor Vehicle Inspector,
Vijayawada.
Ex.A.11 . . Bunch of photographs.
Ex.A.12 . . Photocopy of First Information Report and Statement of
M.D.Jafroolla, A.R. Vijayawada and photocopy of Intimation
to police from Help Hospitals, Vijayawada.
Ex.A.13 . . Photocopy of charge sheet.
For the opposite party:
Ex.B.1 . . Policy Holder’s Manual – Private Car Package.
Ex.B.2 06.03.2012 Photocopy of letter from the opposite party to the
complainant.
Ex.B.3 . . Acknowledgement.
Ex.B.4 19.03.2012 Photocopy of letter from the opposite party to the
complainant.
Ex.B.5 . . Postal acknowledgement.
Ex.B.6 30.04.2012 Office copy of reply notice issued by the opposite party.
Ex.B.7 01.05.2012 Postal receipt.
Ex.B.8 . . Postal acknowledgement.
Ex.B.9 . . C.D.
PRESIDENT
[HON'ABLE MR. Sri.A.M.L. Narasmiha Rao]
PRESIDENT
[HONORABLE N TRIPURA SUNDARI]
Member
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