IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 441/09 DATED 22.01.2010<br /> ORDER<br /> <br /> Complainant Smt. Prema W/o Shivaramaiah, R/oKonasale Village, Koppa Hobli, Maddur Taluk, Mandya District.<br /> <br /> (By Sri. M.H. Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, ICICI Lombard General Insurance Company Ltd., No.204, 2nd Floor, Mythri Arcade, Saraswathipuram, Kantharajurs Road, Mysore-570009.<br /> ( By Sri. R.P.P. Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 27.11.2009<br /> Date of appearance of O.P. : 14.12.2009<br /> Date of order : 22.01.2010<br /> Duration of Proceeding : 1 Month 8 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party, seeking a direction to pay a sum of Rs.2,30,185.68, towards the damage caused to the vehicle in the accident.<br /> <br /> 2. In the complaint it is alleged that, complainant is the owner of the Maruthi Omni bearing No. KA-11-M-2009. It is registered with the opposite party under policy No.3001/55199475/00/000 and the policy was valid from 19-10-2008 to 18-10-2009. On 21-05-2009 unfortunately vehicle met with an accident near A. Nagathihalli village on N.H.48. A crime No.25/2009 was registered with the jurisdictional police. In the accident, the vehicle was badly damaged. The vehicle was left for repairs at car clinic, Maruthi Authorized Service Station, Mysore. The estimated cost was at Rs.2,30,185.68. The accident was intimated to the opposite party. Necessary documents were sent for settlement of the claim. The opposite party by their letter dated 20.09.2009, informed the complainant that, at the time of the accident, occupants in the vehicle were exceeding the seating capacity. Hence, the claim was repudiated. It is not valid ground. The opposite party committed deficiency in service in not settling the claim. Hence, it is prayed to allow the complaint.<br /> <br /> 3. In the version, opposite party has admitted almost all the facts regarding the insurance of the vehicle and accident. However, it is contended that, seating capacity of vehicle was 4+1, where as at the time of accident 8+1 persons were traveling violating the terms of the policy. It is breach of contract and violation of the regulation. Hence, the claim was repudiated. Also, it is stated that, the authorized surveyor inspected the vehicle and assessed the damage at Rs.1,63,733/-. It is prayed to dismiss the complaint. <br /> <br /> 4. In support of the claim made by the complaint, the complainant has filed her affidavit and produced certain documents. On the other hand, concerned officer of the opposite party has filed his affidavit. We have heard the arguments of the learned advocate for the complainant. For the opposite party, written arguments are filed. We have perused the entire material on record. <br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- Repudiation of the claim of the complainant by the opposite party is only on the ground that, at the time of the accident, 8+1 persons were traveling as against the capacity of 4+1. It is breach of contract and violation of the regulation.<br /> <br /> 8. For the complainant, it is submitted that, when breach of terms and conditions of the policy is alleged by the opposite party, it has to prove. In the case on hand, except the fact mentioned in the FIR, there is no cogent evidence to hold that, in fact, 8+1 persons were traveling in the vehicle at the time of the accident. Learned advocate relied on the ruling reported in III (2008) CPJ 421 and submitted that, statement recorded by police during investigation, cannot be read as evidence.<br /> <br /> 9. Advocate for the complainant further submitted that, assuming that, at the time of the accident more persons than the capacity were traveling, that alone cannot be a valid ground to repudiate the claim. He submitted that, the fact that few more persons than the capacity were traveling in the vehicle, must be cause for accident. Then, only repudiation of the claim can be considered. In the case on hand, cause for accident is that, a Lorry coming from opposite direction, dashed against the car of the complainant resulting damage to the vehicle.<br /> <br /> 10. To substantiate the argument advanced, learned advocate pointed out, the ruling sited earlier, wherein with reference to the decision of the Hon’ble Apex Court, it is held that, unless it could be shown that it had contributed to the accident there cannot be an end to the contract. On the same point, another ruling reported in IV 2009 CPJ 381 is relied upon. So also ruling reported in I (2007) CPJ 2006. Considering the facts and the material on record, in the case on hand, assuming that, more number of persons were traveling in the car at the time of the accident than the seating capacity, that is not the cause for the accident. Considering the material on record, prima-facie it is established that, the Lorry coming from opposite direction dashed to the car in question and that is the cause of accident. Hence, considering the law in the ruling cited supra, we are of the opinion that, only on the ground that more persons than the capacity were traveling, cannot be a valid ground to repudiate the claim. As could be seen from the records, that is the only ground on which claim has been repudiated.<br /> <br /> 11. As regards, assessment of the damages, the complainant has claimed the estimation cost of Rs.2,30,185.68. It is only an estimation. Except the estimation, there is no sufficient evidence for the claimant to substantiate the said claim.<br /> <br /> 12. On the other hand, opposite party has contended that, it had appointed a surveyor, who on inspection, has assessed of damage to the tune of Rs.1,63,733/-. Copy of the survey report is on record. That report is not disputed. Hence, under the circumstances, we feel the loss or damage assessed by the said authorized surveyor should be accepted. Accordingly, loss or damage to the vehicle in question is assessed for the said amount.<br /> <br /> 13. Advocate for the complainant relied on the ruling reported in II (2009) CPJ 3 and I (2008) CPJ 188 and submitted that, market value or insured amount, which ever is less may be awarded. But in these cases, the damage was to be assessed with reference to total loss. In the case on hand, the complainant has not proved total loss of the vehicle.<br /> 14. Accordingly, our finding on the point is partly in affirmative.<br /> 15. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.1,63,733/- to the complainant towards the damages along with interest at the rate of 12% p.a. from the date of the claim, till realization. This amount shall be paid by the opposite party to the complainant within a month from the date of the order.<br /> 3. Further, the opposite party shall pay a sum of Rs.2,500/- towards cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 22nd January 2010)<br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />