(Per Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member)
(1) Being aggrieved by the inadequate compensation granted by the District Forum, Pune (‘forum below’ in short) in Consumer Complaint No. 220/07 decided on 04/05/2009 whereby while allowing the complaint partly it directed opponent insurance company to pay to the complainant an amount of `2,00,000/- along with interest @ 9% p.a. from 16/07/2007 till its realization, original complainant has filed this appeal seeking claims which are negatived by forum below.
(2) The facts in brief may be stated as below:
Appellant was complainant in the forum below. He filed consumer complaint against the Insurance Company. He was owner of the ‘Tata Sumo’ vehicle bearing RTO registration No.MH-14-3430. He purchased the vehicle in the month of October 2005 and it was insured with the opponent insurance company for the period from 18/10/2006 to 17/10/2007. At the time of taking insurance, vehicle was valued at `3,67,792/-. The said vehicle met with an accident on 25/05/2007, while the complainant’s family was going to Tuljapur & Pandharpur. The place of accident was about 10-15 km away from Pandharpur on Pandhurpur-Pune Road. There were 09 family members in the insured vehicle at the relevant time who sustained grievous injuries. They were admitted in the Intensive Care Unit in Pandharpur Hospital. According to the complainant, the accident in question had occurred on account of rash & negligent driving by the vehicle coming from opposite side namely – Tempo. A FIR was accordingly registered by Pandharpur Police Station against the driver of the Tempo. The insured vehicle was brought to Pune for the purpose of repairs. The complainant paid an amount of `5,000/- towards the crane charges. On 30/05/2007, an authorized service agency of Sumo vehicle gave an estimate of `3,46,000/- towards the repairs to the insured vehicle. Necessary documents were submitted before the opponent insurance company with the claim on 28/05/2007. The opponent insurance company failed to take any appropriate decision and since the payment was not made by the opponent insurance company, the complainant had no other option but to bring back the insured vehicle at his place of residence. The opponent insurance company repudiated the claim by sending letter dated 16/07/2007 on the ground that there was breach of terms & conditions of the policy. He had taken far more passengers in the insured vehicle than prescribed limit and that the complainant had used the vehicle for commercial purpose. These were basic grounds on the claim was repudiated and hence he filed consumer complaint.
(3) The opponent insurance company contested the complaint by filing written version. According to the opponent insurance company, insured vehicle was used for commercial purpose and there were more passengers than prescribed limit. It pleaded that insurance cover was limited to the extent of `2,00,000/-. The opponent insurance company had appointed investigator, who had gone to the spot. He has submitted investigation report dated 12/06/2007. Therefore, the opponent pleaded that the complaint should be dismissed with costs.
(4) Upon hearing both the parties and perusing documents on record, the forum below held that there was no breach of conditions on the part of the complainant and forum below determined liability of the opponent insurance company to the extent of `2,00,000/- only. The forum below relied upon the report of investigator, who mentioned that the vehicle was of the made of October 2005 and accident occurred on 25/05/2007 and within that limited span, the vehicle was driven for 1,00,000 k.m. The complainant required to spend `5,500/- per month towards the fuel expenses and maintenance charges as per the submission made by the opponent insurance company. The forum below turned down the submissions of the opponent that the vehicle was driver for commercial purpose. The forum below in Para 10 of the judgement held that the liability of the opponent was prescribed to the tune of `2,00,000/-. Therefore, the forum below awarded `2,00,000/- along with interest @9% p.a. from 16/07/2007 after holding deficiency in service on the part of the opponent insurance company. Rest of the claims of the complainant were rejected. Aggrieved by rejection of other claims, the complainant has come up in appeal.
(5) We heard submissions Adv.Sandeep Koregave for the appellant and Adv.Nikhil Mehta for the respondent. Adv.Nikhil Mehta for the respondent clearly pointed out that as liability of the insurance company in respect of the personal accident of the complainant is prescribed to the extent of `2,00,000/- only. He submitted that the award `2,00,000/- by the forum below by allowing consumer complaint partly is just and proper and that is why the insurance company has not preferred an appeal challenging the award. Adv.Koregave brought to our notice that declared value of the insured vehicle was `3,67,792/-. The forum below should have awarded that much amount, but the forum awarded partly amount of `2,00,000/-. However, what is important to note that the fact that after the accident, vehicle was brought to Pune for repairs by the complainant by paying toeing charges of `5,000/-. The vehicle was liable to be repaired that is why the appellant incurred expenses of `5,000/- to get it toed from the place of accident to the garage at Pune. He had taken the vehicle to M/s.B.U.Bhandari Auto Pvt. Ltd.. On inspection of the vehicle, M/s.B.U.Bhandari Auto Pvt. Ltd. gave quotation for an amount of `2,84,005.04. In terms of this quotation, the complainant had not got the vehicle repaired from M/s.B.U.Bhandari Auto Pvt.Ltd. He kept the vehicle in the garage of the M/s.B.U.Bhandari Auto Pvt.Ltd. and ultimately brought back the vehicle to the residence, as M/s.B.U.Bhandari Auto Pvt.Ltd. was asking for parking charges. He was required to pay parking charges of `16,500/-. What is pertinent to note that the appellant has produced cash/credit memo dated 01/04/2010 and allegedly paid car parking rent `16,500/- @ 1,500/- per month from 01/06/2007 to 31/03/2010 to Virat Motors, Sonawane Vasti Road, Chikhali, Pune. Whereas estimate produced on record was issued by M/s.B.U.Bhandari Auto Pvt.Ltd. So we do not know where actually the vehicle was sent for repairs by the appellant, whether at the service centre of M/s.B.U.Bhandari Auto Pvt.Ltd. or he had given the vehicle for repairs to Virat Motors, Pune, since he had paid parking charges to Virat Motors. He should have produced estimate of Virat Motors, Chikhali, Pune. That apart, insurance is a contract wherein company undertakes to reimburse the policy holder in the event he sustained damage, loss to the vehicle or he is required to repair the vehicle, if involved in accident. This was the vehicle involved in accident; the complainant should have repaired the vehicle and then should have submitted bills to the insurance company. Instead of doing so, estimate of repairs issued by M/s.B.U.Bhandari Auto Pvt.Ltd. was claimed. Estimate is not equivalent to tax invoice. It is not proof of payment made by the garage owner. So on the basis of estimate, no insurance company would pay insurance claim to the person like appellant herein. He had not paid single paisa towards the repairs of Tata Sumo and ultimately he sold the vehicle to one Shri Vilas Pokhale on 09/04/2011. We are, therefore, of the view that since appellant had not repaired the vehicle, on the basis of estimate, he was not entitled to get any amount by way of reimbursement under policy issued by ICICI Lombard General Insurance Co.Ltd., respondent herein. We have perused in course of hearing of the appeal, the survey report. The claim was preferred by the complainant vide claim No.36994. Claim amount mentioned by the surveyor is `1,50,000/- and claim was made on 12/06/2007. In the detailed investigation report, it has been mentioned by the investigator that front portion of vehicle IV was damaged. It means that vehicle was not such which was damaged totally and completely so that insurance claim on total loss basis could be claimed. It was repairable and therefore it was brought from the place of accident to the Service Centre of M/s.B.U.Bhandari Auto Pvt.Ltd. at Pune. Estimate was given by the said garage, but the complainant had not got it repaired and brought back the vehicle without repairs to the residence. When only front portion of the vehicle was damaged, the claim on total loss basis would not have been claimed by the appellant and payable by the insurance company. We are of the view that in the light of these facts, the forum below has rightly awarded `2,00,000/- which was maximum amount payable to the complainant as per maximum liability amount payable under personal/driver accident head, because that is only thing the forum below could validly do in those circumstances. Rest of the claims was rightly negatived. We do not know what was the claim actually lodged by the appellant with the insurance company. On the basis of documents on record, we could see the claim amount claimed `1,50,000/- whereas it was contention of the Adv.Sandeep Koregave for the appellant that he had claimed `3,67,792/- from the insurance company, but this vehicle was not damaged beyond repairs, so claim on total loss basis was not payable by the respondent, insurance company. In any view, we find that the order passed by the forum below partly allowing the complaint is just and proper and since there is no evidence adduced by the complainant in respect of expenditure of repairs carried out by him, the forum below has rightly negatived the other claims of the complainant. Thus, there appears to be no merit in the appeal. Hence, the order.
ORDER
(1) Appeal stands dismissed.
(2) No order as to costs.
(3) Inform the parties accordingly.
Pronounced on 4th May, 2012.
