BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 21st January 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 263/2015
Complainant/s: Ashok Dundappa Savakar, Age: 50 years, Occ: Farmer, R/o. Rajeshwari Colony, Jamakhandi, Tq. Jamakhandi, Dist.Bagalkot.
(By Sri.K.V.Badiger, Adv.)
v/s
Respondent/s: Iffico Tokio General Insurance Co. Ltd., Opp: Shri Laxmi Temple, Dajiban Peth, Hubli 580029, Karnataka, R/by its Authorized Signatory.
(By Sri.N.C.Kolloori, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.9 lakhs towards the damages with interest @ 18% P.A. from the date of accident till realization, Rs.50,000/- as compensation towards harassment and financial loss and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is the owner of Fiat Linea Activa car bearing registration No.KA 48 M 1918. The said car is insured with the respondent under private car package policy 85970483 covering the risk for the period 03.12.2013 to 02.12.2014 for IDV value of Rs.7 lakhs with annual premium of Rs.22,000/-. The said car is of 2012 make. On 06.02.2014 by about 9 PM after the works and while returning to Jamakhandi from Athani near Hippargi bridge the said car punctured by about 10.30 PM. Hence the complainant parked the said car on the extreme left edge of the road side and went to his home. By about 11 PM on the same day some unknown person dashed his car. Due to it, the car fell into a deep ditch by and turmoiled. In the said impact the entire car got damaged severely. Immediately on 07.02.2014 the complainant lodged complaint before Athani police station under Crime # 46/14 for an offence U/s.279 of IPC. Immediately the same was intimated to the respondent through their toll free number. In turn the respondents executive assured complaint will be registered and surveyor will be appointed for inspection & report. But the surveyor did not come to the spot & inspect the vehicle. Then complainant approached the RTO & gave letter to inspect the vehicle. Thereafter the complainant approached the respondent through e-mail on 07.02.2014, but not replied even after several continuous correspondences were made. Thereafter the complainant sent claim letter with all documents to the respondent, respondent received the same on 19.06.2014. Thereafter the complainant decided to send the car for repair to the authorized service center M/s. Chigadani Motors, Bijapur. There at service center they have estimates the loss with labour and tax amounting to Rs.5,74,448/-. On 12.01.2014 the respondent sent offer letter through e-mail to the complainant to do settlement of the claim and called the complainant to approach their Bangalore office and to discuss. Accordingly the complainant approached the respondent with all necessary documents. During that time the respondents told, they are ready to settle the claim for Rs.4,95,000/- only. Since the complainant had spent huge amount for repair and as the complainant had insured the vehicle for Rs.7 lakhs the complainant did not agreed to offer claim amount. The non settlement of the claim amount by the respondent amounts to deficiency in service. Hence the complainant approached this Forum. Further grievance of the complainant is that, inspite of repeated approaches, requests through e-mails & issuance of legal notice on 20.07.2015 the respondent did not chosen to reply or to settle the claim. Hence issuance of legal notice gave raise to cause of action. Due to non settlement of the claim the complainant subjected to mental agony and harassment. Hence the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared and filed the written version in detail & taken contention that the complaint is false, frivolous, vexatious, not maintainable either in law or on facts, & by denying the cause of action, complainant is a consumer, jurisdiction of the Forum to adjudicate the dispute, deficiency in service and other facts of the complaint averments & puts the complainant to strict proof of the facts averred in the complaint. While the respondent admits the issuance of the policy, coverage of the policy. Further the answering respondent averred, immediately after intimation from the complainant surveyor was appointed and accordingly the surveyor by visiting the spot, assessed damages and submits report assessing loss in accordance with the terms and conditions of the policy taking depreciation in accordance with the IRDA norms contending that the surveyor is of opinion that the vehicle is reparable one. Further taken contention that as per the surveyor report considering the claim of the complainant the respondent prepared to settle the claim and gave offer but, the complainant did not respond nor refused the settlement. Hence there does not arise question of committing deficiency in service as alleged by averring the respondent is ever ready to settle the claim in accordance with the surveyor report & further averred since there be no repudiation nor disclaim there is no cause of action for the present complaint and prays for dismissal of the complaint with cost.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit, relied on documents. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- As per order
R E A S O N S
P O I N T S 1 & 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant’s vehicle is covered with the policy risk of the respondent and the said vehicle met with the accident in the course of and while the policy is in force.
6. Since the facts have been revealed in detail which requires no repetition.
7. Now the question to be determined is, whether the respondent committed deficiency in service, if so, for what relief the complainant is entitled.
8. On looking into the Ex.C6 e-mail correspondence it is evident that the complainant had repeatedly approached the respondent claiming to settle the claim. At the same time by looking into the Ex.R1 and R2 it is evident that the respondents have sent offer to the complainant towards settlement of the claim. Further perusal of Ex.R3 is the intimation sent by the surveyor of the respondent company to the garage person to carryout repair & after completion of the repair work to submit tax invoice. Perusal of the Ex.C7 reveals the respondent had sent proposal agreeing to settle the claim for Rs.4.95 lakhs with an offer to retain salvage by the complainant/ insured. But there is no evidence on record the complainant had replied to it either he accepted it or not. But on going through the pleadings and evidence, the claim of the complainant is only based on the estimation Ex.C9 given by the garage person. By perusal of the complaint as well as the evidence of the PW 1 except estimation the complainant did not got it repaired. So also in support of his claim based on Ex.C9 the complainant did not led evidence of garage person or mechanics except examining himself as PW 1. Further it is also not the case of the complainant that he is claiming his claim to a tune of Rs.9 lakhs either based on total loss or to treat his claim to be a total loss and thereby he is entitled for such a claim. But there is no any such pleadings or evidence to substantiate or cogent evidence to arrive and to award Rs.9 lakhs as claimed by the complainant. In support of offered claim settlement by the respondent, the respondent relied on Ex.R4 the report given by the IRDA licensed surveyor, wherein it is assessed the net amount to a tune of Rs.4,10,505-51. By looking into the Ex.C9 estimate and also Ex.R4 surveyor report it do not reveals the vehicle is not in reparable condition. This fact further fortified by Ex.R3 whereas in the said e-mail correspondence the surveyor informed the garage person to carryout repair and to submit tax invoice. But the complainant did not proceed and got repaired the vehicle and submit the tax invoice to settle the claim by the respondent on repair basis or otherwise on salvage loss basis. In the absence of the evidence of mechanic and in the absence of non carrying repair works & in the absence of rebuttal evidence to the surveyor report Ex.R4 it is not proper to consider Ex.C9 estimation in total and to allow the claim as per it. Under those circumstances this Forum has no other option but to accept Ex.R4 surveyor report and to allow the claim accordingly. Interalia the complainant has failed to establish his case that he is entitled for claim of Rs.9 lakhs & other compensation. However as the respondent has given offer to the complainant to accept the settlement as per Ex.C7 to a tune of Rs.4.95 lakhs and accordingly if it is ordered to pay by the respondent it will not prejudice the surveyor report Ex.R4 because the said proposal is given by the respondent subsequent to the Ex.R4 submitted by surveyor.
9. In view of the above discussions we have arrived and inclined to answer issue.1 in affirmatively and issue.2 accordingly.
10. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is partly allowed. The respondent is directed to pay Rs.4,95,000/- to the complainant along with Rs.3,000/- towards compensation and Rs.2,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order. Failing to comply the same within stipulated period the said amount shall carry interest @9% P.A. from the date of order till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 21st day of January 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR