G.Raghavendra S/o G.Siddappa filed a consumer case on 11 Dec 2009 against ICICI Lombard General Insurance Co.Ltd. in the Raichur Consumer Court. The case no is CC/09/2 and the judgment uploaded on 30 Nov -0001.
Karnataka
Raichur
CC/09/2
G.Raghavendra S/o G.Siddappa - Complainant(s)
Versus
ICICI Lombard General Insurance Co.Ltd. - Opp.Party(s)
ICICI Lombard General Insurance Co.Ltd. ICICI LOMBARD GENERAL INSURANCE CO.LTD.
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed by the complainant G.Raghavendra S/o. G. Siddappa against the Opposite ICICI Lambord General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for direct the opposite to pay a sum of Rs. 2,74,359/- towards damages of the vehicle, Rs. 1,00,000/- towards compensation, mental harassment, financial burden and cost with other reliefs as deems fit to this circumstances of this case. 2. The brief facts of the complainant case are that, the complainant is the owner and possessor of Indica Car bearing No. KA-36/M 4398, which was purchased from Tata Motors & Finance Limited Gulbarga Branch, Gulbarga there is an outstanding balance as on date of Rs. 2,20,000/- and the same was insured with the Respondent company vide policy No. 3001/53978054/00/000 for the period from 29-04-08 to 28-04-09. The said vehicle was met with an accident on 04-11-08 near PLR Check Post Kyadagera village, of Chitradurga District at about 5-30 a.m. when the friend of the complainant was proceeding from Bangalore to Raichur after completion of his personal work at Bangalore. In the said car was completely damaged. In the said accident driver Ameer and friend of the complainant by name Kiran Adoni both were sustained grievous injuries soon after the accident both were shifted to Chitradurga Government Hospital. The friend of the complainant who was injured in the accident lodged a complaint before the Chitradurga Rural Police, then they have registered the case in Crime No. 753/08 against the driver of the said car by name Ameer who was driving the car at the time of accident. Soon after the accident the complainant has informed the Respondent Company by furnishing the relevant documents, claim forms and invoice issued by the Manik Bag Automobiles Pvt., Ltd., Hubli for Rs. 2,74,359/- detailing the spare parts, labour charges, repairs works etc., which was registered and acknowledged by the Respondent under claim number MOTO 0944557. That even inspite of submission of the claim the Respondent neither settled the claim nor made any efforts to make spot inspection of the vehicle. Further it is the case of the complainant that on 20-11-08 the Respondent took the statement of the complainant and even inspite of that they have not settled the claim. Instead of settling the claim they have refused to settle the claim through vide their letter dt. 09-12-08 the intention of the Respondent is very clear that though the policy of the said vehicle was inforce and payment of premium was received by the Respondent without any valid reasons not accepted the claim. This itself is an deficiency in service on the part of the Respondent. Therefore with no alternative remedy approached this Forum for suitable compensation towards damages worth of Rs. 2,74,359.45/-and in addition towards mental torture financial loss interest over due which arise to Rs. 1,00,000/- as compensation. 3. The Respondent Insurance Company appeared in this case through its Advocate and filed written version by contending that the vehicle involved in the present case registered as a private car. The vehicle has been used on the date and time of the alleged accident as a transport vehicle for hire to transport passengers. Further it is contended that the driver of the vehicle was driven at the time of accident was having no valid and effective driving licence to drive the type of the vehicle which is a breach of the policy conditions and also provisions of the MV Act. Therefore he is not entitled for any claim. That soon after the registration of the claim processed the claim and made all necessary inspection and investigation and came to conclusion that, it is not fit case to pay the damage as prayed by the complainant. Hence there is no deficiency on the part of the Respondent. Therefore prayed for dismissal of the complaint with exemplary cost. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his Car bearing No. KA-36/M 4398 insured with Respondent Insurance company met with an accident on 04-11-08 near PLR Check Post Kyadigera village, Chitradurga district, whether the insurance policy was in force, his vehicle badly damaged, he informed the accident to opposite, thereafter he got repaired, filed claim petition with relevancy records but opposite is not settled his claim inspite of repeated oral and written requests, opposite is negligent in settling his claim and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in the complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement and as stated in the final order. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-7 are marked. 7. On the other hand affidavit-evidence of Legal Manager of Opposite Insurance Company was filed, he was noted as RW-1. Documents Ex.R-1 to Ex.R-9 are marked. 8. There is no dispute by the opposite that the complainant is the owner of the Car bearing No. KA-36/M 4398, coverage of insurance policy and its in force, accident of the said vehicle on 04-11-08 near PLR Check Post Kyadegera village, Chitradurga District, damage to the vehicle in the accident. 9. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondent insurance company, it is very clear that, the Respondent insurance company has raised two main points in their defence they are:- 1. Vehicle of the complainant is registered as private car but on the said place, date and time of accident it was used for hire purpose and as such claim was repudiated as it is one of the breach of the conditions of the insurance policy. 2. On the said place, date and time, the driver of the vehicle was not having valid and effective licence to drive the vehicle hence it is also a breach of the conditions of the policy and provisions of Motor Vehicle Act. 10. In order to substantiate the case of opposite and defence as raised under the point No-1, they have mainly depending upon the Ex.R-2 & Ex.R-3 i.e, Surveyor & Loss Assessor, Investigator Report dt. 23-11-08 submitted by one Raghavendara Deshpande surveyor. On perusal of the Ex.R-3 it appears that surveyor has wrongly come to the conclusion that the vehicle was used for hire purpose. In the said Ex.R-3 in his findings from investigation he has noted that the complainant was an accountant in Private Bank in Raichur and drawing a salary of Rs. 8,000/-. The father of the complainant was a retired assistant engineer receiving a pension of Rs. 12,800/-. Under such circumstances how can they pay a salary to the driver to the tune of Rs. 2,000/- and batha of Rs. 50/- daily. Apart from that the complainant is also maintaining his family by spending more than Rs. 7000/- and also paying EMI of car which is purchased on loan. The say of the said surveyor is that, with the help of his salary and his father pension the complainant cannot purchase the vehicle for the purposes of his own use on the other hand in order to meet out all these expenses he is using it for hire purpose. This kind of presumption by the surveyor cannot be accepted unless otherwise proper documents produced in order to show that the vehicle has been used for the purposes of hire. Merely depending upon the statement given by the driver and inmate of the car i.e, Kiran Adoni, the surveyor has come to the conclusion that the complainant is incompetent to use the vehicle for his own and using it for the purpose of hire and on the same report the Respondent Company has repudiated the claim of the complainant which is totally false and baseless. 11. It is worth while to note here that, at the end of his report he has expressed his final view as the claim is fair and same is to be repudiated (payable and repudiation). So this kind of his view will give dual opinion, because in his first view he is saying that the claim is fair the next he saying that the same is to be repudiated. So this kind of opinion needs some explanation by way of evidence or affidavit from the person one who has gave such kind of opinion, in order to clarify his view, but here in this case no such evidence has been led by the Respondent insurance company. In order to prove the said survey report the affidavit of the surveyor is must as per the dictum laid down in 2002 CPJ II Page No. 420 wherein the Karnataka Honble State Commission has held in Aghana Aqua Farms V/s. Divisional Manager, New India Assurance Company Ltd., case, instead of filing his affidavit they have firmly relied upon his uncertain view/report and repudiated the policy. This act itself would goes to show that the claim of the complainant has been repudiated for no proper reason and findings. 12. On perusal of Ex.R-5 the statement given by the driver it is very clear that the complainant has given his vehicle to one of his friend by name Ravi Kiran who was taken it and proceeded to Bangalore, while returning from the Bangalore the said accident was took place. Further it is very clear that at no point of time, the vehicle has been used for hire purpose. The driver of the vehicle has not at all stated anything about receipt of charges in respect of use of the vehicle for rent or hire. Since he is a driver he knows about the vehicle used, if at all the vehicle has been used for hire definitely he could have told about it. This statement filed by the Respondent itself would goes to show that the vehicle has not used for the purpose of hire on the date and time of the accident. 13. The next point is concerned, the Respondent insurance company has written a letter on 09-12-08 to the complainant under Ex.P-5 and repudiated the policy on the ground that the vehicle was used for commercial purpose except this no other ground/grounds has been urged by the Respondent Company. But in the written statement they have raised another point as the driver of the vehicle was not having valid driving licence to drive the category of the vehicle involved in the accident etc., as noted in our Point No-2 as stated supra. This is clearly goes to show that the defence of the Respondent insurance company which is raised in the written version in this regard is a totally new defence. The Ex.P-5 the letter which has been written by the Respondent Insurance Company is after the report received by the surveyor Raghavendra Deshpande under Ex.R-2 & Ex.R-3, the said surveyor in his report he has mentioned the list of document on which he has made his investigation and submitted his report, as the vehicle has been used for hire purpose. In the said report he has not at all mentioned any clarification or note in this regard. Even inspite of that report the Respondent insurance company has not raised this question at the time of writing the letter under Ex.P-5, but raised the objection at the time of filing the written statement which cannot be accepted at this stage. 14. However if we have considered the said point raised by the Respondent in the written version which will not hold any water because on perusal of the Ex.P-6 driving licence of driver one who was driving the vehicle at the time of accident. It is very clear that the driver of the vehicle is having valid driving motor licence. The issuing authority has issued the said driving licence to drive the light motor vehicle and as well as heavy motor vehicle, this fact is very clear in the said driving licence wherein it is clearly mentioned at Page No. 6 and at Page No-9 respectively. The vehicle involved in the case is a car which is a light motor vehicle and accordingly the dirver is having L.M.V. licence. Under the above circumstances the contention of the Respondent Insurance Company regarding the driver of the vehicle holding no valid licence at the time and date of the accident is false and baseless. Hence we have not accepted the same. 15. So in the above circumstances and when the complainant is having valid and in tact policy in favour of his vehicle which was not denied by the insurance company and driver of the vehicle is having valid driving licence mere giving unacceptable reasons, the Respondent cannot repudiate the claim of the complainant. Here in this case they have done so therefore we hold that there is a deficiency in service on the part of the Respondent, accordingly we answered in Point No-1 in affirmative. 16. The complainant has sought for compensation of Rs. 2,74,359.45/- towards damage cost and Rs. 1,00,000/- as compensation for the mental shock, financial burden etc., the complainant has produced Proforma Invoice/ bills in this regard to the tune of Rs. 2,74,359.45/- at Ex.P-3. The Respondent has produced investigation report of surveyor and loss assessor, investigator etc., under Ex.R-2 but in the said report neither there is no mention about the loss assessed by him nor denied the said invoice submitted by the complainant along with his claim form. Therefore we have come to the conclusion to accept the invoice/bill submitted by the complainant and awarded to the tune of Rs. 2,74,359.45/- which is rounded to Rs. 2,74,400/- towards the repair charges of his damaged vehicle. But in respect of mental shock and financial loss is concerned, the claim of the complainant is not accepted as there is no document to show in this regard. 17. We have noticed the deficiency in service on the part of the Opposite Insurance Company as such we have granted an amount of Rs. 3,000/- which is recoverable by the complainant from the Opposite under the head of deficiency in service. 16. As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 2,000/- towards cost from Opposite Insurance Company. POINT NO.3:- 18. In view of our finding on Point No-1 & 2 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total sum of Rs. 2,79,400/- from the Opposite Insurance Company. Opposite Party is hereby given one month time from the date of the judgement for to make payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 11-12-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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