BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.317/2018

DATED ON THIS THE 20^th October 2022

Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT  

                 2) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri MARUTHI VADDAR,

MEMBER

1.         This is a complaint under Section 12 of the erstwhile Consumer Protection Act 1986 filed by the complainant Sri Manjunath, resident of Mysuru alleging deficiency in service against the opposite party directing the opposite party to pay Rs.13,90,700/- with 18% interest p.a. by allowing the complaint in the interest of justice and equity.   
2. The brief facts of the complaint in a nutshell is as here under:-

It is alleged in the complaint that the complainant has purchased one Mahindra Bolero pickup vehicle on 2016 for Rs.8 lakhs and obtained loan of Rs.4,60,000/- from erstwhile SBM (now SBI).The said vehicle was registered as KA-09-C-4749 and the complainant became the RC owner of the said vehicle. The said vehicle was insured with opposite party for Rs.4,30,700/- valid from 25.05.2017 to 24.04.2018 and it was a package policy bearing No.4366912-01.

It is further alleged in the complaint that on 16.06.2017 when the complainant went to Yalandur to unload the cement and returned towards Mysuru after unloading the cement, one Canter vehicle bearing No.KA-10-5913 came from opposite side and dashed to the complainant’s vehicle at 7.30 PM near Haalagudu Bore from which the complainant sustained grievous injuries on his head and leg and fell unconscious, suddenly some unknown person have shifted him to T.Narasipura Government Hospital and informed the duty doctor that the complainant may be the driver of the vehicle and the said doctor treated the complainant and the same mentioned in the MLC records and referred the complainant for higher treatment to Apollo Hospital, Mysuru.

It is further alleged that on 17.06.2017 the relatives of the complainant have informed the said incident to opposite party and the opposite party has given No.387954 surveyed the vehicle through the Surveyor duly approved by IRDA.Asking about the claim to the opposite party, the opposite party has used to given one or other pretext and after 11 months the opposite party repudiated the claim stating that the complainant himself was the driver at the time of the incident.But, on 16.06.2017 one G.N.Raghavendra drove the complainant’s vehicle and some unknown persons have shifted the complainant to the Hospital through 108 Ambulance, thereafter the said driver has shifted the complainant to Apollo Hospital for treatment and gave a complaint to the T.Narasipura Police Station on 17.06.2017.As per the statement of the driver and the complainant, the police have filed charge sheet against the driver of the vehicle bearing No.KA-10/55913.The driver of the said vehicle of the complainant by name Raghavendra has a valid driving license No.KA-09-20140008388, valid from 13.07.2016 to 12.07.2019.Without considering the above fact, the opposite party repudiated the claim and hence, it is an alleged deficiency in service and hence the complainant has filed this complaint.

3. After the registration of the complaint, notice was ordered to be issued to opposite party and in response to the notice, opposite party appeared through its counsel and has not filed the version within the statutory time and later the opposite party has filed its version along with an application under Section 13(3)(B) of C.P.Act R/w Section 151 of CPC seeking permission to file written version and the I.A. was allowed and the version was taken on record and in its version, opposite party contended that a claim was lodged in the above policy on 17.06.2017 alleging accidental damage to the insured vehicle on the previous day i.e. 16.06.2017.  The opposite party engaged a statutory surveyor A.C.Mahesh, license No.SLA73282 to assess the loss as required under Section 64 UM of the Insurance Act 1986.  The Surveyor vide the report dated 14.07.2017 assessed the loss to the tune of Rs.3,25,000/- dated 06.07.2017 wherein they have mentioned that the vehicle was driven by Mr.Raghavendra.G.N. having license No.KA-09-20140008388.  To ascertain the claim, opposite party engaged M/s Nquire Associates to verify the facts and collect certain documents, that, prima-facie from the accident photographs forming apart of the survey report it could be obviously note that the relevant impact damage to the vehicle is at the driver side and certainly the driver should have sustained grievous injuries as compared to the co-driver occupant.  The Medico Legal Document and the discharge summary of the insured expressly read that the injured was driving the vehicle which are contrary to the claim of the complainant. Instead, they inserted the name Mr.Raghavendra.G.N. as the driver in the claim form and the police records. 

It is further contended that on the very next day of accident i.e. 17.06.2017 Mr.Raghavendra (alleged driver) went to the police station at T.Narasipura and lodged a complaint regarding the accident, wherein he had stated that he had only light injury whereas the owner was injured severally, the impact of the damage to the driver side of the vehicle.Apparently it is not possible for alleged driver to go and give a complaint at the police station on the very next day of the accident.It is evident that the driver could not have escaped with minor injuries and co-driver seriously injured.Whereas denying all the logic a fictitious claim was lodged alleging concocted facts.The insurance is a contract built on the pivotal principle of utmost good faith (Ubberrima Fides), any misrepresentation shall amount to disqualify the right to claim under the policy.Thus, the claim of the complainant is void ab initio and hence prayed to dismiss the complaint with costs.

4. The complainant has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and got marked certain documents as Ex.P.1 to Ex.P.12.  On the other hand, the opposite party has not filed its affidavit towards the chief examination but has produced some documents.   
5. Heard the arguments of the complainant and perused the records placed along with the complaint.
6. The points that would arise for our consideration are as here under:-  

1. Whether the complainant proves the alleged deficiency in service on the part of the opposite party and thereby she is entitled to the reliefs as sought for?
2.  What order?

7.       Our findings on the aforesaid points are as follows:

      Point No.1 :- In the negative

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.       Point No.1:- To demonstrate the case of the complainant, the complainant has been examined himself as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.12.  The complainant has reiterated the averments of the complaint in his chief affidavit.  Ex.P.1 is the registration certificate of the vehicle which involved in the accident.  Ex.P.2 is the copy of the driving license of the driver G.N.Raghavendra.  Ex.P.3 is the copy of the insurance policy. Ex.P.4 is the repudiation letter issued by opposite party.  Ex.P.5 is the FIR copy.  Ex.P.6 is the copy of the complaint.  Ex.P.7 is the copy of mahazar report.  Ex.P.8 is the IMV report.  Ex.P.9 and 10 are the statement of witness.  Ex.P.11 the copy of the order of the Senior Civil Judge, Court T.Narasipura, Mysuru. Ex.P.12 is the charge sheet copy.  After the testimony of the complainant, the opposite party did not choose to file any affidavit but has produced 6 documents.  Document No.1 is the policy copy with terms and conditions.  Document No.2 is the survey report. Document No.3 is the claim form.  Document No.4 is the MLC.  Document No.5 is the discharge summary. Document No.6 is the repudiation letter.  After the affidavit of the complainant, both the complainant and the opposite party have not addressed any arguments in support of their case. After carefully perusing the pleadings and the documents produced by both parties, it is noticed that the complainant purchased Mahindra Bolero pickup vehicle and was insured with opposite party for Rs.4,30,700/- from 25.05.2017 to 24.04.2018 and on 16.06.2017 complainant’s vehicle was met with an accident with a canter vehicle bearing registration No.KA-10/5913 and from which the complainant sustained grievous injuries to his leg as well as the head and immediately he was shifted to T.Narasipura Government Hospital and the doctors treated him and then he was shifted to Apollo Hospital, Mysuru for further treatment.  But, it is further contention of the complainant that at the time of admitting him to T.Naasipura Government Hospital, some unknown persons have informed the duty doctors about the complainant may be the driver and the same was entered in the MLC register.  The complainant further submitted that on 16.06.2017 the said vehicle was driven by one G.N.Raghavendra who was a valid driving license bearing No.KA-09-20140008388 valid from 13.07.2016 to 12.07.2019.  But, it is the contention of the opposite party that the relevant impact damage is at the driver side and certainly the driver should have sustained grievous injuries as compared to the co-driver occupant and the discharge summary of the insured Manjunath expressly read that injured was driving the vehicle which are contrary to the claim of the complainant.  Instead, they inserted the name Mr.Raghavendra.G.N. as the driver in the claim form and the police records.  The opposite party further contended that on the very next day of accident i.e. 17.06.2017 Mr.Raghavendra.G.N. (alleged driver) went to the T.Narasipura police station and lodged a complaint regarding the incident and had stated that he had only light injury whereas the owner (Manjunath) was injured severally.  It is not possible for the alleged driver to go and give a complaint at the police station on the very next day of the accident and it is evident that the driver could not have escaped with minor injuries and co-driver seriously injured.  But, the complainant said that the T.Narasipura police have registered the FIR and filed charge sheet against the driver of KA-10/5913 and further they take the statements of the witnesses also. 
9. Based on the rival contention of both parties, there is a presumption arises into the cause of the accident.  As per the complainant, one G.N.Raghavendra the driver drove the vehicle but as per the opposite party, the impact damage of the accident is to the driver side of the vehicle and hence, it is not possible for alleged driver to go and give a complaint at the police station on the very next day of the accident and produced the photo copies of the accident and further said relying all the logic a fictitious claim was lodged on concocted facts.  On seeing the photo copies of the vehicle, the nature of impact damage is to the driver side of the vehicle.  But, the driver has not produced any iota of document to show that he took treatment for the injuries.  After perusing all this, it is noticed that the complainant created a story to claim the insurance amount from opposite party.  Hence, he failed to prove the case against the opposite party for alleged deficiency in service within the meaning of Section 2(11) of C.P.Act,2019, the opposite party is lightly repudiated the claim of the complainant, hence the complainant case is devoid of merits and it is a sans merit and deserved to be dismissed.  Hence, we answered this point No.1 in the negative.  

10. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint filed by complainant is hereby dismissed.
2. Both parties shall bear their own costs.
3. Pending applications if any shall stand disposed off in terms of the final order.
4. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 20^th October, 2022)