BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE URBAN

    27^th DAY OF OCTOBER 2021

CC 1592/2018                                            

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay the claim amount of Rs.10,04,500/-  (IDV value) with interest at 24%; to pay Rs.23,375/- per month being the EMI paid; to pay Rs.1,50,000/- towards inconvenience, mental agony and grant such other relief as this forum deems fit in the interest of justice and equity.

 2. The brief facts of the complaint are as under:

The Complainant submits that, he is the owner of Motor car bearing no.KA02MN4194 (herein after referred as said vehicle) Hyundai make. He got insured the said vehicle vide policy no…0083 valid up to 02.04.19 by paying prescribed premium to the OP. IDV value of the said vehicle is Rs.10,04,500/-. The Complainant further submits that, one Ramesh.K.R driving the car on 30.04.18 from Kunigal to Bengaluru. When they reached Soluru around 11.00pm, the front left side tire of the vehicle had burst and was taken to left hand side and the driver of the car could not control the car and it went to the small ditch and dashed against a honge tree, thereby causing damage to the car and within no time the said car was in flames. Driver Ramesh immediately after the said accident lodged the police complaint in jurisdictional police station and got registered the case and also complained to the Dept., of Fire Emergency Services. Thereafter he also informed about the accident to the OP along with required documents and sought for claim amount. OP after receiving the claim statement, appointed M/s.ICS Assure Services Pvt., Ltd., to investigate regarding the said accident and submit their report. One Harikumar, the personnel of the said ICS Assure has conducted the spot inspection, recorded the statements of the occupants who were travelling in the said car for processing the claim and submits his report to OP. The Complainant furnished the details as sought by the OP on 26.06.18. OP vide his letter dtd.06.08.18 repudiated the claim assigning vague and trivial reasons which is unjust and oppose to the principal of natural justice and also opposed to the IRDA Rules. Since the Complainant purchased the said car by availing finance from Mahindra and Mahindra he constrained to pay the EMI of Rs.23,375/- for no fault of him. Hence he issued legal notice dtd.24.08.18 for which no response from OP. The act and attitude of the OP amounts unfair trade practice and deficiency of service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version. OP in its version submits that, the Complainant is the owner of the said car and got insured it with OP. The policy issued is subject to various terms, conditions, exceptions and limitations thereof. The Complainant has taken the financial assistance from Mahindra finance, but not made him as a necessary party. Hence the complaint suffers from non-joinder of necessary party. The Complainant suppressed the material facts as he failed to provide relevant information as well documents in regard to journey having happened twice and that the insured vehicle having already damaged from rear sides, that having continued to drive the damaged insured vehicle in damage condition, thus having failed to take reasonable care as per condition no.5 of policy terms and conditions, thus based on the documents, surveyor as well technical and forensic report repudiated the claim vide letter dtd.06.08.18. OP further submits that, the cause of accident stated as per call center intimation does not co-relate with the nature and extent of damages to the insured vehicle. Though the said alleged driver/Ramesh at the material time of accident, having been able to intimate about the alleged incident of damages to the concerned jurisdictional police and that Complainant having so obtained a general diary (GD) entry record which does indicate as to that the entire vehicle is since burnt. Wherein as per the said GD entry record of jurisdiction police station does indicate the description of insured vehicle, as to that ‘front left side tire of the motor car had burst and was taken to left hand side. Such being the case, the Complainant having so entrusted the insured vehicle to the driver and that the incident of alleged burnt of the insured vehicle being front left side tire burst, the Complainant ought to have pursued his remedy against the manufacture of the car or as against the tire manufacturer. Neither the Complainant nor the driver of the car failed to lodge an FIR to the jurisdictional police station. The fire report dtd.05.05.18 issued by the Dept., of Fire indicated that the said car partially burnt due to fire. But as per the driver the said vehicle is fully burnt. OP further submits that, since the intimation was given belatedly in regard to the alleged incident of fire caused, OP so thus deprived of appointing an IRDA licensed approved surveyor so as to submit a spot survey report and as well to ascertain the genuiness of the claim. The Complainant made delay in lodging a complaint before jurisdiction police also. The OP asked the Complainant to give the clarification with documentary evidence  through letter dtd.13.06.18; owner of the vehicle is the Complainant but at the time of accident it is under the possession of Anantha Kumar, in what capacity he handed over the car to him; from the technical evaluation of the surveyor the vehicle was already damaged heavily from rear left & right hand side before the accident; as per the fire brigade report the vehicle was partially burnt however during the visit to the spot it is observed that the vehicle is fully burnt; the vehicle crossed the toll on 29.04.18 however the accident occurred on 30.04.18; only submitted GD report not submitted proper FIR and exact cause of loss; DL of Ramesh, Devraju, Ananthkumar. To this, the Complainant replied on 26.06.18. Except giving DL of Ramesh, failed to give satisfactory reply. Hence left with no other option, OP repudiated the claim of the Complainant which cannot be termed as gross failure and negligent act of the OP. The whole complaint is suppression of material facts. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents which are marked. OP filed affidavit evidence and produced the documents which are marked. Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative.

Point No.2:- As per final order

REASONS

8. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP. It is not in dispute that the said vehicle in question was insured with Op and it was in valid on the alleged date of accident.

9. According to the case of the complainant, the said accident was took place on 30.04.18 around 11 PM.  How the said accident was took place is concerned, the complainant has explained it at para 4 of the complaint reads thus:-

The complainant submits that, on 30.04.2018 at around 11.00 PM, when the said motor car was driven by one Ramesh.K.R. from Kunigal to Bengaluru through NH 75 Road, when they reached near M.R.R. Hospital, Solur, the front left side tire of the motor car had burst and was taken to left hand side and the driver of the car could not control the car and it went to the small ditch and dashed against a Honge tree, thereby causing damage to the car.  The occupants inside the car had somehow alighted from the damaged car and within no time the said motor car was in flames.

10. Whether the said accident was did occurred as explained as per the contention given in para No.4 of the complaint, we get it referred to the contention of the motor survey report marked as Ex.B.26.  The relevant paragraphs is found at ink page No.43 wherein the note/remarks/observations reads thus:

1. Cause of accident stated as per call center intimation does not co-relate with the nature and extent of damages to the insured vehicle.

2. During our survey and inspection of the vehicle at spot, the following observations were made:-

(a) Insured-vehicle was found burnt completely.

(b) Vehicle was inspected based on the cause of accident stated as per call center intimation.

© As per call center intimation it is understood that due to tyre burst insured vehicle got capsized and caught fire, but we did not observe damages on the following parts due to overturning of the vehicle, which is bound to happen if the vehicle topples from that height.

. Front and center pillars.

. Doors and roof panel.

. Wheel dises.

. Front and rear suspension parts.

. Under chasis parts.

(d) We are of the opinion that any vehicle with a burst tyre traversing from that height does not come to stand still without overturning and we do not observe any overturning damages to the vehicle.

3. Minor damages on the front right portion of the vehicle was noted.  If the insured vehicle went out control due to tyre burst, vehicle should be in a good speed.  Any vehicle in a good speed traversing from that height and hitting a tree cannot sustain minor damagegs.

4. In view of the above observations, we are of the opinion that cause of accident stated in the call center intimation does not co-relate with the nature and extent of damages in the insured vehicle.

5. Insurers are requested to verify the investigation and forensic reports if any and examine the liability, as per policy terms and conditions.

6. Chassis number has been physically verified at the time of survey, Digital photograph enclosed.

7. Photographs taken at the time of vehicle inspection are enclosed in CD.

8. The assessment is arrived at “without prejudice” and the admissibility of claim is subject to terms, conditions, exceptions, warrants as applicable under the policy issued on the vehicle.

This report is issued “without prejudice”.

11. With reference to Ex.B.26, we place reliance on the motor fire accident reconstruction report marked Ex.B.27 wherein the colour photographs of the said vehicle has been produced.  In the conclusion arrived at in the said report which is page found at in page No.90 reads thus:-

CONCLUSION

Based on the scientific analysis of the burnt IV, damages of the IV, fire pattern forensic and accident site scenario analysis, it is in our opinion that:

. The IV caught fire due to the external source of fire.

. In accordance with the mentioned scenario, the moving IV cannot reach at the final seen position.

. The impact damages present on the quarter panels are not in accordance with the mentioned accident scenario.

Hence, we are of the final opinion that there are misrepresentations about the actual facts of the accident.  Insurer should take final call.

12. On going through the above contents of para No.4 of the complaint with reference to the contents of Ex.B.26 and Ex.B.27, it is evident that the said vehicle was not met with an accident. The damaged portion after the accident of the said vehicle are totally contrary.  If the contention of the complainant is taken as correct as one of the left tyre was burst and he was taken to left hand side and he could not control the same and it went to the small ditch and dashed against a Honge tree, thereby causing damage to the car, but looking to the colour photographs of the said vehicle, the said vehicle back portion was fully damaged. At this stage, this Commission has no other go except to apply the theory of  RES-Ipsa Loquitur that means the things speaks for itself.  The theory of accident as set out by the complainant is contrary to the survey report as well as the motor fire accident reconstruction report marked as Ex.B.26 and Ex.B.27 respectively. In this context, applying the RES-Ipsa Loquitur theory, we come to the conclusion that this case filed by the complainant is just to get redress his remedy by way of dubious methods.  Such type of complaint and claims cannot be considered by this Commission and liable to be dismissed devoid of any merits.  Accordingly we answered point No.1 in the negative.

  13. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is dismissed devoid of merits.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 27^th day of October, 2021)

Witnesses examined on behalf of the Complainant dated.12.12.19 Sri.Hemanth.N.G, the Complainant

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.03.05.19 and 06.06.19Sri.N.Ashok Kumar, authorized signatory of the OP.  

Copies of Documents produced by OP

Witnesses examined on behalf of the OP dated.07.06.19

1. Sri.D.Raghotham, Insurance Surveyor and Loss Assessor, Motor, Marine and Miscellaneous
2. Sri.Ravikumar.K.S, Investigator, Investigation, Security and Allied Services, authorized signatory, Nquire Associates
3. Sri.Suraj Matondkar, Automobile Engineer
4. Sri.Saurabh Sheety, Senior Mechanical Engineer