IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 57/09 DATED 28.04.2009<br /> ORDER<br /> <br /> Complainant P.Prabhuram, Managing Director, M/s Ekadantha Hotels Pvt.Ltd., No.1, 17, Chandraguptha Road, Lashkar Mohalla, Mysore-570001.<br /> (By Sri.K.Ishwar Bhat., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. ICICI Lombard General Insurance Company Ltd., SVR Complex, 2nd Floor, No.89, Hosur Road, Bangalore-560068. having Branch Office at ICICI Lombard General Insurance Co. Ltd., No.204, 2nd Floor, Kantharajurs Road, Saraswathipuram, Mysore-9.<br /> (By Sri.R.P.Poornachandra, Advocate for O.P.1)<br /> 2. Dakshin Honda, Elite Auto Mobiles Pvt.Ltd., Katha No.2/97, Sy.No.97/1A, Singasandra Village, Hosur Road, Bangalore.<br /> (EXPARTE)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 18.02.2009<br /> Date of appearance of O.P.1 : 18.03.2009<br /> Date of order : 28.04.2009<br /> Duration of Proceeding : 1 MONTH 10 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant who has filed this complaint against the opposite parties is, that he is the owner of a Car bearing No.KA-09, N-9383, which was insured with the first opposite party for a period from 05.09.2008 to 04.09.2009. On 14.09.2008 at 5.30 am the said vehicle met with an accident, which was shifted to second opposite party who estimated the repair cost at Rs.12,96,000/-, this was informed to the first opposite party who in turn came forward to pay Rs.4,00,000/- on O.D. settlement as full and final discharge of their liability, for which he did not agree and claimed for payment of insurance amount of Rs.8,17,740/- and also got issued a legal notice in this regard on 03.01.2009 and 02.02.2009, but the opposite parties have not responded. He is a businessmen has suffered loss of Rs.50,000/- and therefore has prayed for a direction to the opposite parties to pay the insured amount of Rs.8,17,740/-, damages of Rs.50,000/- and legal expenditure of Rs.2,000/-.<br /> <br /> 2. The second opposite party after service of notice has remained absent, as such is set exparte. The first opposite party has filed version through his advocate admitting that the vehicle in question had been insured with them for a value of Rs.8,17,000/-. It is further contended that estimation given by the second opposite party at Rs.12,96,000/- is on very much higher side, as such they got the damage surveyed by an independent surveyor who has estimated the damage at Rs.4,67,753/-, which is less than 75% of the insured value, as such they have to consider actual expenditure of repair and cannot pay the entire cost of the vehicle as the damage had not exceeded 75% of the total value. That by getting the vehicle repaired that can be made road worthy, therefore denying any deficiency at their end has further contended that the complainant has not made any claim as per rules with them to consider his claim for reimbursement, as such in the absence of a valid and proper claim made by the complainant they are under no obligation to meet the claim of the complainant and therefore stated that the complaint is not maintainable and to dismiss the same.<br /> <br /> 3. In the course of enquiry into the complaint, the Managing Director of the complainant and the Area Manager of the first opposite party have filed their affidavit evidence. The complainant has produced a copy of the policy and estimation prepared by the second opposite party with a copy of the legal notice he got issued to the first opposite party and reply given by the first opposite party. The first opposite party has also produced copy of the policy and report of the surveyor. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that he had made a valid claim with the first opposite party for reimbursement of the damages he has suffered and that first opposite party had repudiated his claim, which has resulted in deficiency in their service?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- As evident from the claim of the complainant and admission of the first opposite party, there is no dispute in that complainant owning a car having got a valid insurance policy as on 14.09.2008 when that vehicle met with an accident. The claim of the complainant that he got the damage assessed through second opposite party at Rs.12,96,000/- is questioned by the first opposite party calling it as on very much higher side and relied upon an independent surveyor report and stated that the vehicle suffered damage to the tune of Rs.4,67,753/- and as the damage to the vehicle has not exceeded 75%, the complainant is entitled for the value of the vehicle. The complainant has contended that first opposite party has offered to pay only Rs.4,00,000/- that is far below than the estimation prepared by the second opposite party. Whereas the first opposite party has struck to his stand of offering to pay the damages as assessed by the surveyor. But, it emerges, these developments have taken place during the oral offers made by the parties in between them and the first opposite party has categorically contended in their version and also in the affidavit evidence that the complainant has not at all made a valid claim for reimbursing the damages by furnishing necessary requirements. This contention of the first opposite party has not been controverted by the complainant, as such it is manifest that the complainant after his vehicle met with the accident has not made a legal and valid claim by submitting a claim by enclosing necessary documents. As such, the question of first opposite party meeting the demand of the complainant do not arise at all. Therefore when the complainant has not made claim with the first opposite party in accordance with law in the prescribed manner, and when the opposite party has not repudiated his claim then the complainant cannot complain about deficiency in the service of the first opposite party. The complainant would get cause of action to file a complaint only if he had made a claim for relief with the first opposite party and on the first opposite party refusing to honour his claim and not otherwise. As the result, we find that there is no repudiation of the claim of the complainant by the first opposite party and there is no cause of action for the complainant to file this complaint. Hence, the complaint is liable to be dismissed. However, we find it necessary to make an observation here, that on the complainant making a valid claim with the first opposite party with required information and documents for reimbursement of the loss he has suffered an account of damage to his vehicle, the opposite party shall take appropriate decision in the matter. With this observation, we hold that the complaint is liable to be dismissed and we answer point no.1 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 28th April 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />