Complaint No. 24/2019 Date of Filing: 29.03.2019 Date of Disposal : 25.10.2019 

BEFORE THE DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, MADIKERI-571201 

CONSUMER COMPLAINT NO.24/2019 

DATED ON THIS THE 24th October, 2019 

Present: 1) Sri. C.V.Maragoor 

B.Com., L.L.M., - PRESIDENT 2) Sri. Devakumar.M.C. 

B.E., LLB., PGDCLP - MEMBER 

COMPLAINANT/S 

U.M.Basavaraju, 

S/o Mallikajunappa, 38 years, R/o Basaveswara Badawane, Nera Balmuri Temple, Mullusoge, Kushalnagar, Somwarpet 

Taluk, Kodagu District. 

(Sri P.Pundarika, Adv.) 

V/S 

OPPOSITE PARTY/S 

: 1. HDFC ERGO General Insurance 

Co.Ltd., 6th Floor, Leela Business Park, Andheri, Kurla Road, Andheri (E), Mumbai 

400059. 2. HDFC ERGO General Insurance 

Co.Ltd., 2nd Floor, Mysore Trade Centre, Opp: KSRTC Bus Stand, B.N.Road, Mysore 570001 (Rep. by its Manager). 

(Sri B.S.Lakshman, Adv.) 

Nature of complaint 

| Deficiency in service 

Date of filing of complaint : 29.03.2019 Date of Issue notice 

: 30.03.2019 Date of order 

24.10.2019 Duration of Proceeding : 6 MONTHS 25 DAYS 

This complaint has filed by U.M.Basavaraju S/o Mallikarjunappa resident of Mullusoge, Kushalanagar, Somwarpet Taluk, Kodagu District challenging the repudiation of motor vehicle claim of Rs.1,21,488/-. Further the complainant sought compensation of Rs.25,000/- and cost of the litigation from the opposite party No.1 HDFC ERGO General Insurance Company Ltd., Mumbai and its branch office opposite party No.2 at Mysuru. The opposite parties have repudiated the claim of the complainant on the ground that the damage was not caused to the vehicle as on 03.01.2019, but it was earlier to that date. 

The opposite party Nos. 1 and 2 appeared through their learned counsel and filed written version admitting that they have issued insurance policy to the vehicle bearing No.KA-12-MA-1767 registered in the name of complainant vide policy No.2311201914767600000 for the period from 29.12.2018 to 28.12.2019. The surveyor of the opposite parties when inspected the vehicle came to know that the damaged claimed in the accident are unrelated to the alleged date of accident. The damages do not commensurate with the cause of loss and in fact, are pre-existing damages. The damages claimed by the complainant were in existence at the time of pre inspection of the vehicle conducted by the opposite party before the inception of the present policy. Therefore, the 

claim of the complainant is based on mis representation of facts. The surveyor conducted survey and assessed the damage to the extent of Rs.1,22,503/ The claim of the complainant is in admissible and the opposite parties have not committed any deficiency in service as alleged by the complainant, 

The complainant filed his affidavit in lieu of evidence and got marked exhibits P. I to P.6 documents. That one Ameesh Bhaskaran, Manager Legal Claims, Kochin filed affidavit evidence on behalf of opposite parties and got marked exhibits R. 1 to R.9 documents. 

We have heard the arguments advanced by the learned counsel for the complainant and opposite parties in addition to written brief submitted by them and the points that would arise for determination are as under 

1. Whether the complainant proves that 

repudiation of claim made by the opposite 

parties is not justifiable? 2. Is complainant entitled to the reliefs sought for? 

Our findings on the aforesaid points are as follows: Point No.1 :- In the affirmative. Point No.2 : Partly in the affirmative for the below 

:: REASONS:: 

Point Nos.1 and 2:. The learned counsel for the complainant submits that the opposite parties though admitted damages to the vehicle, but it has come up with false contention that damage caused to the vehicle wax pra, 

existing As against this, the opposite parties contention is that the complainant has suppressed the fact of pre-existing damages to the vehicle prior to the inception of policy. The opposite parties have not disputed the fact that the policy was in force on the date of alleged accident i.e. 03.01.2019 on Madekeri Mysuru Road, Near Ilwala. Mysuru. 

The complainant has insured his Mercedes-Benz vehicle bearing registration No. KA-12-MA-1767 with the opposite party vide Ex.P3 policy for the period from 18.09.2017 to 17.09.2018 Further, the complainant has renewed the earlier policy for the subsequent period vide Ex.P.2 policy for the period from 29.12.2018 to 28.12.2019. The complainant has made allegations against the opposite parties that though he has sent premium amount of Rs.80,000/= {wo days prior to expiry of the earlier policy i.e. on 17.09.2018, but the opposite parties in spite of repeated requests and demand not renewed the policy and it has renewed only on 29.12 2018. Ex R2 policy issued by the opposite parties reveals that the complainant has transferred fund through his account on 15.09.2018. It shows that two days prior to 

expiry of earlier Ex.P.3 policy, the complainant has sent - amount through bank account ExP.4, the opposite parties 

did not renew it immediately but, it has renewed the policy three months later ie on 29.12.2018. According to the complainant, the alleged accident took place on 03.01.2019 When the policy was in force for the period from 29.12.2018 to 28. 12. 2019, 

The opposite parties surveyor has assessed the damages of the vehicle vide Ex.R.1. The surveyor has estimated the damage to the tune of Rs.1,22,500/- on 07.01.2019. The complainant got repaired the vehicle with Advaith Motors Pvt. Ltd., and it has issued Ex.P.5 tax invoice for Rs.1,21,488/- which is less than the estimate niade by the surveyor of opposite parties. The opposite parties have produced Ex.R.4 pre-order of Advaith Motors Workshop, Mysuru and according to this, date of receipt of delivery of vehicle on 03.01.2019 at 11.02 AM. It has noted outside inventory i.e. damages on the body of the vehicle. The opposite parties have produced vehicle history along with Ex.R.4 issued by Mercedes Benz workshop and it contained the date on which they have serviced the vehicle on various dates 13.09.2017, 11.11.2017, 16.01.2018, 09.03.2018, 27.06.2018, 01.08.2018, 05.10.2018 and 03.11.2018. Only two times the complainant has paid charges a sum of Rs.428/- + Rs.39,700/- on 27.06.2018 and Rs.1,81,090; - on 16.01.2018. Huge amount was paid by the complainant to the workshop a sum of Rs.1,78,675/- for steering gear. This payment has been made prior to insuring the vehicle by the complainant with the opposite parties. The surveyor has not mentioned damage to the steering gear in his report Ex.R.1. Ex.P.5 tax invoice shows that Advaith Motors has replaced inter cooler radiator, cover bumper area, support air duct and spreader rivet. The complainant's vehicle steering gear was not damaged on the date of accident i.e. 03.01.2019. Therefore, there is no force in the contention of 

claimed opposite parties that the complainant has compensation in respect of pre-existing damages, 

The learned counsel for the opposite parties relied upon the case of Oriental Insurance Co.Ltd., Vs Mahendra Construction 2019 ACJ 1582 (SC) - wherein insurance company repudiated the claim on the ground that insured - respondent did not disclose details of claims lodged during preceding three years which was required under the proposal form. The facts of the above citation are not at all applicable to the case on hand. Further, the opposite parties have relied upon case of Reliance Life Insurance Company Ltd., and another Vs Rekhaben Nareshbat Rathod Civil Appeat No.4261/2019 dated 24.04.2019 - wherein the Hon'ble State Consumer Commissioner held that suppression of taking earlier policy with the subsequent insurance company is mis-statement of material fact as such, it dismissed the claim of complainant - respondent. In the above case the respondent couple had took policy of life insurance from Max New York Life Insurance Co Ltd, on 10,07 2009 for Rs. 11,00,000/- Two months thereafter on 16.09 2009 the husband of complainant has insured his life with the appellants Reliance Life Insurance for Rs.10,00,000/-. In the proposal form he has not disclosed with regard to taking hfe insurance policy with Max Newark Life Insurance Company Lid, thought there was column for that within a span of nine months from the date of taking policy the insurer was expired and the opposite parties have repudiated the claim since the deceased has suppressed the 

fact of taking policy of life insurance with Max Newyork Life Insurance Co.Ltd., which is settled the claim. Therefore, the above facts are not applicable to the present case. 

Lastly, the opposites parties relied upon the case of Inder Pal Rana Vs National Insurance Co.Ltd., Revision Petition No.4470/2014 dated 02.01.2015 - wherein the Hon'ble National Commission, New Delhi held that suppressing the fact of taking claim from the previous insurer amounts to playing fraud on the subsequent insured company as such it upheld the order of dismissing the complaint. The above citation is also not in any way helps the opposite parties. 

In the case on the hand, the opposite parties have failed to place any convincing material to show that the vehicle of the complainant had met with an accident and sustained damages prior to 03.01.2019. It is not the case of opposite parties that the complainant had taken claim from the opposite parties with regard to the alleged pre-existing damages from it since the complainant had insured his vehicle with the opposite parties since from 18.09.2017. Therefore, repudiating the claim by the opposite parties is not justifiable. The opposite parties has not disputed the damages caused to the vehicle of complainant since its assessor has assessed the damage more than the claim amount of complainant which is supported by Ex.P.5 in tax invoice bill issued by Advaith Motors Pvt. Ltd., Mysuru. Though the policy was in existence on the date of acciderit, the opposite parties have illegally repudiated the claim and 

thereby cause to suffer the complainant mentally. On this count, the opposite parties shall liable to pay compensation of Rs. 15,000/- to the complainant in addition to litigation cost of Rs. 10,000/-. Accordingly, we proceed to pass the following 

:: ORDER :: 

1. The complaint filed by U.M.Basavaraju is partly allowed 

directing the opposite party Nos. 1 and 2 to pay a sum of Rs.1,21,488/- with interest at the rate of 10% p.a. 

from 12.01.2019 till the date of payment. 2. It is further ordered that the opposite party Nos. 1 and 

2 shall pay a sum of Rs. 15,000/- as compensation + litigation cost of Rs.10,000/- to the complainant within 45 days from the date of order. Otherwise, it carries interest at the rate of 10% p.a. from the date of 

filing complaint till realization. 3. Furnish the copy of order to the complainant and 

opposite parties at free of cost. 

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 24 October, 2019) 

(C.V.MARAGOOR) 

PRESIDENT 

(DEVAKUMAR.M.C.) 

MEMBER