1. Heard Mr. Shekhar G. Devasa, Advocate, for the complainant, Mr. Anshul Kumar, Advocate, for opposite party-1 and Mr. Suvin Kumaran, Advocate, for the opposite party-2. 2. Dr. V.K. Abdul Basheer (the Insured) has filed above complaint for directing Cholamandalam MS General Insurance Company Limited (the Insurer) to pay (i) Rs.11131348/-, as the insurance claim; (ii) Rs.20/- lacs, as compensation for mental agony and harassment; (iii) Rs.one/- lac, as costs of litigation; and (iv) any other relief which is deemed fit and proper, in the facts and circumstances of the case. 3. The complainant stated that he was doctor by profession, established Janpriya Hospital at Simpige Road, 2nd Crossing, K.R. Puram, Hassan-573201 and earned an impeccable reputation in this locality. The complainant took loan of Rs.7998332/- from HDFC Bank Ltd. and purchased a Mercedes Benz Car, Model GLS350d4M- GLS350d 4MATIC, registration No. KA 13 P7009 through the dealer T V Sundram Iyengar & Sons Pvt. Ltd. (opposite party-2) on 16.09.2016. The complainant took “Comprehensive Insurance Policy” of the above car, for the period of 16.09.2016 to 15.09.2017, from Cholamandalam MS General Insurance Company Limited (opposite party-1), under Policy Cover Note No.97883002 dated 16.09.2016. The complainant along with his wife Mrs. Nasreen Basheer and his nephew Dr. Abdulla Kirash was coming back in the above car from Puttur to Hassan in the night of 25/26.06.2017 and Mr. Manoj Kumar M.R. (a licensed driver) was driving the car. As soon as they reached near Yagachi Vidyapeeta, Kandali, Hassan Taluk (near to Hassan city), around at 3:05 hours, due to rash and negligent driving, the driver lost his control and the car was fallen down in right side of the road. In this accident, the complainant and his wife Mrs. Nasreen Basheer received grievous injuries. They took immediate medical attention and thereafter admitted to his Janpriya Hospital, where they get treatment for a long time. The incident was reported to Police Station Hassan Traffic by his nephew Dr. Abdulla Kirash, where it was registered as Crime No.0183/2017, under Section 279, 337 I.P.C. against the driver Manoj Kumar S/o Rajesh on 26.06.2017 at 14:45 hours. Information was given to T V Sundram Iyengar & Sons Pvt. Ltd. (opposite party-2), an authorised service centre of Mercedes Benz, regarding damage in the car, then opposite party-2 towed the car to its garage. Opposite party-2 sent a letter dated 06.11.2017 informing that as the damage was caused due to accident as such the company would not take responsibility of repair although it was within warrantee period and the complainant had to claim the cost of repairs from insurance company. After detail inspection of the car, opposite party-2 prepared estimate for repair of the car for Rs.11131348.19 dated 18.07.2017. The complainant submitted insurance claim before opposite party-1 along with quotation of repair as supplied by opposite party-2. The opposite party-1 referred the matter for investigation. From the investigation report, opposite party-1 vide letter dated 06.11.2017, repudiated the claim holding that it had come on record that the complainant wilfully misrepresented regarding the driver at the time of accident. The investigator collected the mobile call details of the driver Manoj Kumar at the time of accident and found that his location was far away from the place of accident at that time. Allegation that the car was driven by Manoj Kumar was not correct. According to the complainant, the complainant and his wife Mrs. Nasreen Basheer were sitting at the rear seat at the time of accident and they received grievous injury while the driver Manoj Kumar did not receive any injury nor received any treatment in respect of injury. Although it is alleged that Mr. Abdul Basheer was also sitting in the car, but he also did not receive any injury. It was not proved that the car was driven by a licenced driver at the time of accident. Apart from it, from own allegation of the complainant it is proved that the car was rashly and negligently driven at the time of accident; it was duty of the complainant to stop driving rashly and negligently as he was present there but he had failed to discharge his duties. On these findings, the claim has been repudiated by opposite party-1. The complainant gave a legal notice dated 08.12.2017 to opposite party-1 for reimbursing his insurance claim within 15 days. Opposite party -1 replied the above notice, through legal notice dated 23.12.2017 and repeated allegations as made in the repudiation letter. The complainant gave another legal notice dated 07.02.2018 to opposite party-1, which was again replied by legal notice dated 14.02.2018 denying the claim of the complainant. Then, this complaint was filed on 10.07.2018 alleging deficiency in service. 4. Cholamandalam MS General Insurance Company Ltd. (opposite party-1) filed its written reply on 20.09.2018 and contested the case, in which, the facts relating to insurance policy of the car and the accident as stated by the complainant, have not been disputed. Opposite party-1 has stated that as soon as the claim of the complainant was received, opposite party-1 appointed Nquire Associates, Bangalore for investigation in the claim, who after investigation submitted his report dated 25.07.2017 in which the presence of the driver Manoj Kumar in the car at the time of accident has been doubted. Thereafter, the matter was examined by the competent authority of opposite party-1 who in repudiation letter dated 06.11.2017 has found that mobile locations of Manoj Kumar at the time of accident was far away from the place of accident and his presence at the place of accident was not proved. Two inmates of the car i.e. Dr. V.K. Abdul Basheer and his wife Fatima Nasreen Basheer received grievous injuries, but the driver Manoj Kumar and Dr. Abdulla Kirash, the other two inmates of the car, did not receive any injury. From the above fact, it was clear that vehicle was not being driven by a driver, having valid driving licence at the time of accident. The complainant misrepresented that it was being driven by Manoj Kumar, a licenced driver and the claim was therefore, repudiated. There is no illegality in the repudiation letter nor there is any deficiency in service on the part of opposite party. 5. The complainant filed a rejoinder reply in which the allegations of the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Dr. V.K. Abdul Basheer and documentary evidence. Separate affidavits of Dr. V.K. Abdul Basheer, Dr. Abdulla Kirash and Manoj Kumar, the driver, were also filed. Opposite party-1 filed Affidavit of Evidence of Vikas Kumar Goyal, Deputy Manager Legal and Affidavit of Evidence of Ravi Kumar, the investigator. Both the parties have filed their written synopsis of arguments. 6. We have considered the arguments of the counsel for the parties and examined the record. Repairing estimate as submitted by the complainant was of Rs.11131348.19 while the car was purchased for Rs.8292733.27, nine months before the accident. The damages as occurred in the car shows it was a very serious accident in which Dr. V.K. Abdul Basheer and his wife Mrs. Nasreen Basheer received grievous injuries. Although it is alleged that Manoj Kumar was driving the car and Dr. Abdulla Kirash, nephew of the complainant, was also present in the car at the time of accident, but they did not receive any injury. These facts raise serious doubt in respect of presence of Manoj Kumar and Dr. Abdulla Kirash in the car at the time of accident, looking to the damages caused to the car and gravity of the accident. 7. The complainant took plea that Manoj Kumar was driving the car, therefore this fact has to be proved by the complainant. The Investigator in his investigation report as relied by opposite party-1 in the repudiation letter, on the basis location of mobile phone of Manoj Kumar, has drawn a conclusion that at the time of accident, presence of Manoj Kumar at the place of accident was not proved rather his location was far away from the place of accident. There was no independent witness of the accident. Manoj Kumar did not sustain any injury in the accident also creates a doubt in respect of his presence. 8. The complainant has filed the record of his own hospital i.e. Janpriya Hospital, which shows that in Medico Legal Register, Annexure-P-7 & P-8, in the column “brought by” “Public People” has been mentioned for both the injured namely, Mrs. Nasreen Basheer and Dr. V.K. Abdul Basheer. It is highly improbable that own hospital of the complainant will commit any mistake in this respect, inasmuch as Manoj Kumar was driver of the complainant and Dr. Abdulla Kirash, was nephew of the complainant and residing with him, were not known to the hospital staff. In case these two persons were present on the spot in the car at the time of accident, there could be no reason for not bringing these two injured persons to the hospital by them. Although in the police complaint Dr. Abdulla Kirash has stated that after accident, he had arranged for another car and shifted the injured to Janpriya Hospital for treatment. Presence of Manoj Kumar in the car at the time of accident is doubted from this evidence. As such finding of opposite party-1 that the complainant has misrepresented in respect of driver of the car at the time of accident, does not suffer from any illegality. 9. Section 3 of the Motor Vehicles Act, 1988 requires that the car shall be driven by a person having valid driving licence. Therefore, violation of mandatory provision of law is, proved. Supreme Court in Pradeep Kumar Jain Vs. Citibank & Anr. (1999) 6 SCC 361, HDFC Vs. Kumari Reshma, (2015) 3 SCC 679, Central Bank of India Vs. Jagbir Singh, (2015) 14 SCC 788 and United India Insurance Company Ltd. Vs. Sushil Kumar Godara, 2021 SCC OnLine 844, held that in case of violation of Motor Vehicle Act, 1988 the insurer is absolved from its liability under the insurance policy. The impugned repudiation letter does not suffer from any illegality. The complaint is liable to be dismissed. O R D E R In view of aforementioned discussion, the complaint is dismissed. |
