BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 19TH DAY OF DECEMBER 2022

ORDER

SRI.M.SHOBHA, PRESIDENT

1. This  complainant  filed this complaint against the Opposite parties  for reliefs

1. To Direct the OP to pay sum of Rs.93,183/-  jointly or severally with interest of 12% p.a. from 21.05.2012 including damages for mental agony, inconvenience, hardship caused to the complainant   and such other reliefs.

2.  The case of the complainant is that:

It is the case of the complainant that he is the owner of Maruthi Omni bearing registration no.KA-04 MG 5986 and the complainant has obtained insurance for the said vehicle from    OP-1 bearing policy no.600658061. It was valid from 23.10.2011 to 22.10.2012. OP-2 is the service station of Maruthi Car.

It is specific case of the complainant that on 14.03.2012,  the  son of complainant Ramesh.H was driving the vehicle, it was met with an accident at Kengal Kempahalli road turning when the complainant’s family were proceeding towards Averahalli. The son of the complainant has having valid driving license  and it was valid from 07.05.2011 to 06.05.2031 and as on the date of accident, the son of the complainant Ramesh.R. who was having valid license. After the accident, the Dabaspet police station have registered case in Crime No.51/2012  under section 279, 337, 304(A) of IPC. Subsequently filed charge sheet. At the time of filing the FIR the police  have by oversight  shown the name of the  complainant as accused for the reason that the complainant was the owner of the said vehicle,  when actually the son of the complainant was driving the Maruthi Omni van.

It is further case of the complainant that due to accident, the vehicle was completely damaged. The complainant get repaired the vehicle with OP-2. The OP-2 have raised the bill for Rs.93,183/- and the complainant has paid the cost of the repair charges  and submitted the claim to OP-1.

It is further grievance of the complainant that OP-1 had taking the advantage of the FIR filed  against him  refused to reimburse the amount spent by the complainant as the complainant did not have a valid driving license and assumed that the complainant was driving the vehicle, when  the son of the complainant was driving the vehicle.

It is further case of the complainant that he made all efforts to claim the amount spent by him to repair of the vehicle from OP-1 from the date of the accident. Since, OP-1 is insurer of the vehicle, insurance policy was in force on the date of accident. But all his efforts failed. Hence, the complainant got issued legal notice on 27.08.2014 to the OP to reimbursement of the amount paid by him to the OP-2 towards repair of the vehicle involved in the accident. Inspite of service of notice, OP-1 failed to comply the demands made in the legal notice  nor replied. The OP-2 has caused untenable reply.

It is further grievance of the complainant that the OP-1 refused to implement the obligation on the party that OP-1 though the vehicle was covered by comprehensive insurance and all the liabilities covered by the insurance policy issued by OP-1. OP-1 has committed negligence in service.  There is deficiency of service on the part of the OP-1. Hence, the complainant filed this complaint.

3. After service of notice, OP-1 and OP-2 appeared before this commission and filed their version.

4. It is the case of OP-1 that  the complaint filed by the complainant is totally false, frivolous, vexatious and liable to be dismissed by imposing exemplary costs.

5. It is specific contention taken by the OP-1 that there is breach of terms and conditions of the Insurance policy by the complainant. The OP-1 has repudiated the claim made by the complainant on the ground that misrepresentation made by the complainant and same was intimated to the complainant on 25.05.2012. In this case the driver of the vehicle i.e. the complainant not having the valid license at the time  of accident. The rider of the  motor vehicle died in the spot at the time of the accident. The complainant has been shown as  accused in the Police FIR.

6. It is further objections raised by the OP-1 that the terms and conditions of the policy are binding on the insurer and as well as the insured. In this case OP-1 acted as per terms and conditions of the policy, it cannot be termed as deficiency of service, if  there is a violation of terms and conditions of insurance policy, no claim is maintainable. As per driver’s clause mentioned below– Any person including the insured provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding  or obtaining  such a license provided also that person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements Rule 3 of  the Central Motor Vehicles Rules, 1989.

7. It is clearly shown in the policy driver clause thus OP-1 as per terms and conditions of the policy. There is no deficiency of service on the part of the OP-1.

8. It is further case of the OP-1, acted as per terms and conditions of the policy it is clear that the complainant insured has suppressed the material facts and approached this Forum with unclean hands. The complainant himself being at fault cannot approach this Forum and take undue advantage of the Act. In addition to this the claim made by the complainant is also barred by limitation. The complainant has filed this complaint after lapse of two years. Hence, the complaint filed by the complainant is frivolous, vexatious and liable to be dismissed under 26 of the C.P.Act. The complainant has committed offence under the Motor Vehicles Act,1988. Hence, OP-1 prays for dismissal of the complaint.
9. OP-2 has also filed version stating that the complaint is not maintainable either in law or facts and liable to be dismissed.

It is also case of the OP-2 that he is not aware of the any of the averments made in para-3,4,5 of the complaint and he will not admit any one of the averment made by the complainant. It is specific case of OP-2 that the complainant has produced vehicle Maruthi Omni for body repair works to this OP-2 on 26.03.2012. This OP raised a Job card bearing no.JC11053826 dt.26.03.2012. That at that point of time, the complainant also produced a copy of the Insurance policy of the vehicle. The OP after receipt of the vehicle requested ICICI Lombard General Insurance Co-Ltd. There after referred to the insurance company to depute its surveyor for inspection of the vehicle before it takes up the repair  work. Accordingly, the surveyor of the insurance company  surveyed the complainant’s vehicle and since the insurance  policy was in force and gave his clearance to take up the repair work. According to this OP repaired the vehicle and raised an invoice dt.21.05.2012 for Rs.93,183/- and once again requested the insurance company to depute the surveyor  and also to issue liability certificate with a view to collect the difference amount if any from the complainant. The surveyor of the insurance company has surveyed the repaired vehicle for the reasons best known to him, did  not issued liability certificate to this OP. The said aspect was immediately brought to the notice of the complainant. There after the complainant by paying the amount took delivery of his vehicle  on 21.05.2012.

10.      It is further objection raised by OP-2 that he received legal notice issued by the complainant and in turn replied to the legal notice.

11. The OP-2 also prays to dismiss the complaint of this  OP-2 is not liable to pay Rs.93,183/- or any sum with interest at 12% or any per cent to  the complainant and he is not liable to pay any damages to the complainant.

12. In order to prove their contention, the complainant has examined as PW1 and he has relied on 07 documents. The complainant has also filed his affidavit evidence reiterating all the allegations made in the complaint. The Legal Manager of OP-1  filed is affidavit evidence and also relied on 04 documents. The Chief Manager of OP-2 (works and body repair) has filed his affidavit evidence reiterating all the allegations made in the version filed by OP-2.

13. We heard the arguments of the complainant.

14. The following points do arise for our consideration are as under:-

1. Whether the complainant proved deficiency of  service and negligence on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

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

       Point No.1:-Negative

      Point no.2:- Negative.

      Point No.3:-As per the final order.

REASONS

16. Point Nos.1 and 2:. The document no.1 is the insurance policy issued by OP-1 and it clearly discloses that it is valid from 23.10.2012 to 22.10.2013. The IDV value was Rs.1,35,189/. He has paid premium of Rs.4,522/-. The complainant has produced copy of R.C. and bill receipts issued by OP-3 and he also produced copy of acknowledgement  issued by Police dt.10.05.2012 along with  complaint. He also produced charge sheet submitted by Nelamangala Circle Inspector in CR No.51/2012. It is clear from the charge sheet that Nelamangala Circle Rural Police have  registered complaint and have submitted charge sheet against the complainant. After investigation the Police have filed charge sheet for the offences under section 279, 337, 304(A) IPC read with 1988 of IMA Act. The complainant  has further produced copy of the notice issued to OP and postal receipts for having sent notice to OP-1 to 3 with registered post and also produced acknowledgements for having served the notice.  

17. On the other hand, OP-1 produced doc-1 is letter sent to the complainant dt.25.05.2012, Doc-2 is copy of FIR, Doc-3 is copy of the policy. Doc-4 is investigation report.

18.  It is clear from the evidence and documents produced by both the parties that the complainant is the owner of the Maruthi Omni bearing registration no.KA-04-MG-5986 and it was insured with OP-1, it was valid from 23.10.2011 to 22.10.2022. The OP-2 is authorized service station of Maruthi Car.

19.        It is also undisputed fact that on 14.03.2012 the Maruthi Omni vehicle  of the complainant met with accident at Kengal Kempahalli road turning when he was proceeding towards Averahalli. It is specific contention taken by the complainant that complainant’s son was driving the vehicle and he is  having the valid driving license at the time of accident. The Police by oversight have mentioned his name in the complaint as accused as he is the owner of the vehicle.

20.     It is undisputed fact that the complainant has left the vehicle for repair with OP-2. OP-2 after completion of repair works has raised bill for Rs.93,183/- and it was paid by the complainant.

21. After payment of the required charges the complainant raised the claim before OP-1. The OP-1 has rejected the claim of the complainant on the ground that the complainant being the driver of the vehicle at the time of accident was not having valid license for driving the vehicle as per police records and hence he is not entitled for any claim.
22.   It is also clear from the documents produced by the complainant himself that the police have filed charge sheet against this complainant after completion of investigation in CR No.51/2012 for the offence under section 279, 337, 338(A) IPC and under section 181 of IMA Act.

23. It is clear from the police records that the complainant was driving the vehicle at the time of accident and  he was not having valid license to drive the  vehicle at the time of accident. It is also clear from the evidence of the OP-2 that the            OP-1 company surveyor has surveyed the vehicle when the vehicle was produced to repair to the OP-2 company. As per evidence of     OP-2, the surveyor of the OP-1 who has surveyed the vehicle has not issued liability certificate to OP-2. Hence, OP-2 has collected the repair charges of Rs.93,183/- from the complainant himself.

24. It is clear from the letter issued by the OP-1 dt.25.05.2012 for having rejected the claim of the complainant on the ground that on perusal of the documents submitted by him they are unable to settle the claim of the complainant, since driver details are misrepresented at intimation/claim and in actually tried to hide the material facts. The OP-2 have also produced report submitted by the Dabaspet Police station  to JMFC court, Nelamangala in CR No.51/2012 with copy of the complaint filed by the father of the deceased Girish, who was rider of motor bike and he died at the spot. OP-1 also produced investigation report as Doc-4 and it clearly discloses that the police have investigated and submitted the charge sheet against the complainant for the aforesaid offences. It is also clear from the charge sheet submitted the Circle Inspector of Police, Nelamangala that the complainant was driving the vehicle at the time of accident and he was not holding valid driving license to drive the car at the time of accident.

25.  Even though the complainant has taken specific contention that his son namely Ramesh.H was driving the vehicle at the time of accident and has not adduced any reliable documents before this commission to prove his contention. When the police authorities after thorough investigation have submitted charge sheet against the complainant. It is clear that the complainant himself was driving the vehicle at the time of accident, even though he  was not having  valid driving license at the time of accident.  Under these circumstances, OP-1 have rejected the claim of the complainant. The complainant has violated the terms and conditions of the policy and he was driving the vehicle even though he was not having the valid driving license when the vehicle was met with accident causing death of rider of the motor bike. Under these circumstances, the complainant is not entitled for any relief claimed in his complaint. When the complainant himself has violated the terms and conditions of the policy, the question of deficiency of service or negligence in settling the claim on the part of OP-1 does not arise. Hence,  we answer point no.1 and 2 in the negative.  

26. Point no.3:-.  In view of the above discussions, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without cost.
2. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^th  day of December, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :