JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed by the complainant Siddalingayya Swamy Hiremath, against the Opposite ICICI Lombard General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for direct the opposite to pay a sum of Rs. 99,930/- with interest towards damages of the vehicle, Rs. 25,000/- towards, shock and mental agony, and cost. 2. The brief facts of the complainant case are that, the complainant is the registered owner and possessor of the vehicle Tempo Trax bearing Reg No. KA-36/M 4339, and the same was insured with the Respondent Company under comprehensive policy No. 3001/53559943/00/000 dated 23-02-08 for the period from 19-02-08 to 18-02-09, which covers own damage of the vehicle and other risks. The said vehicle met with an accident on 26-01-09, near Degree College, Manvi Town of Raichur District at about 03-00 am. In the said accident the vehicle was completely damaged. Complaint has been lodged before the Manvi Police, then they have registered the case in Crime No. 4/09. Soon after the accident the complainant has informed the Respondent Company. Thereafter the surveyor of the Respondent Company came and assessed the damage of the vehicle and advised to get repaired the vehicle, accordingly complainant got repaired the vehicle by spending Rs. 99,930/- and sent relevant documents to Respondent No-1. The Respondent No-1s office registered as a claim No. MOTO 108796. After that, the Respondent No-1 sent a letter dt. 19-03-09 to the complainant to submit the original invoices with payment receipts. Accordingly the complainant submitted the original bills, payment receipts and other necessary documents with covering letter dt. 01-04-09. Further it is the case of the complainant that, even in-spite of his approach to the Respondent Nos-1 & 2 to get settled the claim, of the Respondents have went on postponing the dates on one or the other pretext. Finally he got issued legal notice on 24-04-09 to Respondent No-1. In reply the Respondent No-1 through letter dt. 26-06-09 informed the complainant that, the claim has been processed for an amount of Rs. 28,936/- and a cheque bearing No. 476842, dated 28-4-09 sent to him and there by his claim petition has been closed. Further complainant case is that, he did not receive any cheque from the Respondent No-1 as stated in his letter dated 26-06-09. That even in-spite of his repeated requests the Respondents not settled the claim and un-necessarily reduced insured amount without any reasonable cause. So there is deficiency in service on the part of Respondent for not settling the loss and without paying any amount Respondent No-1 falsely written a letter dt. 26-06-09 as it paid amount, for this act of the respondents the complainant suffered huge loss, mental torture, and exceed the financial burden to pay interest to the lenders. Hence he claimed for damages of Rs. 25,000/- and Rs. 99,930/- towards vehicle damage with interest and cost of litigation against the Respondents. 3. The Respondents Insurance Company appeared in this case through its Advocate and filed written version by contending that, after the receipt of the claim form of the complainant the Respondent company immediately processed the same and appointed the surveyor to assess the actual loss and on the basis of surveyors report processed the claim for an amount of Rs. 28,936/- and for the payment of processed amount, the Respondent company sent a cheque to the address of the complainant available on record, but the same was returned to the company. The Respondents have made all efforts to contact the complainant but their efforts went in vain. That, immediately after returning of undelivered cheque, the Respondent sent the same to the Head Office for its re-validation with a bonafied intention to pay the complainant. Non delivery of cheque is not due to fault of Respondents. There is no loss of Rs. 99,970/- to the vehicle of the complainant in an accident as alleged by the complainant. Hence there is no deficiency on the part of the Respondent. Therefore it 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 Tempo Trax Toofan bearing No. KA-36/M 4339 insured with Respondent Insurance company met with an accident on 26-10-09 Near Government Collage, Manvi Town, Raichur district, while the insurance policy was in force, his vehicle badly damaged, he informed the accident to opposite, thereafter he got repaired, filed claim petition with relevent records but opposite not settled his claim in-spite 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-ev idence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-10 are marked. 7. On the other hand affidavit-evidence of Legal Manager of Opposite Insurance Company was filed. He was noted as RW-1 no documents were filed on behalf of Respondents. 8. There is no dispute by the respondents that, the complainant is the owner of the Tempo Trax Toofan bearing No. KA-36/M 4339 coverage of Insurance Policy and its in force, as on the date, time and place of accident. It is also undisputed fact that the said vehicle met with an accident on 26-01-09 near Government Decree Collage Manvi Town, Raichur District and 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. That, immediately after the receipt of the claim form by the complainant the Respondents processed the same and appointed the surveyor to assess the actual loss and on the basis of his report it processed the claim for an amount Rs. 28,936/-. And in this regard the cheque has been sent to the complainants address available on record but, the same was returned. Immediately after its return the said cheque has been sent to the Head Office for its revalidation with a bonafide intention to pay to the complainant. 2. That there is no loss of Rs. 99,970/- to the vehicle of the complainant due to damage to vehicle an accident as alleged in his complaint. 10. In order to substantiate the case of opposite and defence as raised under the point No-1, the Respondent have not produced any documents before this Forum. In their written version, the Respondents have contended that, immediately after the receipt of the claim form it appointed the surveyor and in-turn the surveyor has assessed the loss to the tune of Rs. 28,936/- and in this regard cheque has been sent to the complainant through post, with the available address with them. But, except this contention no documents submitted to show about the appointment of surveyor, surveyors report regarding assessment of the damage to the vehicle and sending of the cheque to the address of the complainant and return of the same and in term the said cheque has been sent to Head Office for its re-validation. Under such circumstances in our view the contention of the respondents holds no value and same cannot be accepted. No doubt the Respondent has written a letter dated 26-06-09 under Ex-P-9 in reply to the legal notice of the complainant counsel stating that, the cheque has been sent to the tune of Rs. 28,936/- and claim has been settled to that extent, But, the same thing has been denied by the complainant as he was not received any cheque. The same was also admitted by the Respondent in their written version saying that, the cheque was returned and same has been sent for re-validation. Therefore, in our view settlement of the claim on the basis of surveyors report and sending of the cheque to the complainant not at all correct and later as admitted by the Respondent, cheque was not received by the complainant too. Under such circumstances stand of Respondent regarding settlement of the claim of the vehicle damage holds no water. The Respondent utterly failed to discharge its duty in this regard, hence it is nothing but a deficiency in service on the part of the Respondents. 11. Secondly the Respondents in their written versions contended that, the loss to the vehicle in-question due to the accident is only to the tune of Rs. 28,936/- but not Rs. 99,970/- in order to substantiate this contention, the Respondents have not produced any document or any surveyor report which is alleged to be assessed by the surveyors. On the other hand complainant has produced (4) receipts under Ex-P-6 to Ex-P-7(2) for the value of Rs. 97,730/- and also claimed Rs. 2,200/- towards shifting charges of the vehicle (The same was mentioned at Ex-P-5.) in all Rs. 99,930/- he claimed and same was requested to pay to the Respondent Company through letter dt. 01-04-2009 under Ex-P-5. These documents are clearly speaks that, the complainant has spent in all Rs. 99,930/-. Under such circumstances the defence taken under Point No-2 holds no value, hence we have rejected the defence of the Respondents under Point No-2. 12. 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 Receipts for having spent for the repair of the vehicle and in not producing any documents by the Respondent in order to show about the surveyors assessment the Respondent cannot reject the claim of the complainant without any proper reason and without any documents. Here in this case they have done so, therefore we hold that there is a deficiency in service on the part of the Respondents, accordingly we answered in Point No-1 in affirmative. 13. The complainant has sought for compensation of Rs. 99,930/- towards damage of vehicle along with interest and Rs. 25,000/- as compensation for the shock, and mental agony and cost of this complaint. The complainant has produced bills under Ex-P 6 to Ex-P-7(2) to the tune of Rs. 97,730/- and also claimed Rs. 2,200/- towards shifting charges of the vehicle as per Ex-P-5. The Respondent during the pendency of the case filed a memo dt. 10-12-09 and paid an amount of Rs. 28,936/- through cheque bearing No. 706173 towards the amount sent as repair charges of the vehicle to the complainant. But, in order to substantiate their case regarding the settlement of the claim to the tune of Rs. 28,936/- not produced neither any documents nor they are submitted surveyors report. Under such circumstances we are of the opinion that, the claim of the complainant under the complaint is proper one. Hence we have deducted the amount of Rs. 28,936/- (which is already paid during the pending of the case on 10-12-09) from Rs. 99,930/- (99,930-28,936) and ordered to pay balance amount of Rs. 70,994/- which is rounded to Rs. 71,000/- towards damage of the vehicle. 14. We have noticed the deficiency in service on the part of the Opposite Insurance Company as such we have granted lumpsum amount of Rs. 3,000/- which is recoverable by the complainant from the Opposite under the head of deficiency in service. 15. As regards to the cost of litigation is concerned, the complainant is entitled to recover lumpsum amount of Rs. 2,000/- towards cost from Opposite Insurance Company. 16. The complainant is entitled to recover future interest at the rate of 9% p.m. on the total sum of Rs. 76,000/- from the date of this complaint till realization of the full amount, accordingly we answered Point Nos. 1 & 2. POINT NO.3:- 17. In view of our findings on Point Nos-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. 76,000/- with interest 9% from the date of this complaint till realization of full amount from the Opposite insurance company Nos. 1 & 2 jointly and severally. Opposite Parties are hereby given one month time from the date of the judgment for to make payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-12-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur.
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