Sri B.NARAYANAPPA,

     President

1.      This is a remanded matter remanded by the Hon’ble State Commission in Appeal No.1861/2018 vide order dated 11.12.2019   by setting aside  the order passed by this Commission in CC-162/2017 dated 12.10.2018 and for fresh disposal.

2.      The complainant Sri. Surendra .D resident of Mysuru has filed this complaint against opposite party the Manager, Banaj Alliance General Insurance Company Limited, Mysuru praying to direct the opposite party to pay car repair expenses of Rs.5,51,665/- forthwith and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony caused to complainant and Rs.25,000/- towards cost of the litigation.

3.     The brief facts are that:-

The complainant is the owner of Volkswagen car bearing registration No.KA-09, MC-5600 having purchased the same from KPR Car Private Limited, Mysuru in the month of October-2016 and obtained insurance policy bearing No.OG-17-1705-1801-00005259 from the opposite party on 29.11.2016 valid from 06.10.2016 to 05.10.2017 and the complainant having driving license valid till 07.09.2018. On 29.11.2016, the complainant was returning from H.D. Kote to Mysuru after finishing his work near Hommaragahalli at about 11.45-12.00 p.m. the car involved in an accident and dashed against a steel bridge at that time the complainant was driving the car and he was alone in the car the complainant sustained some simple injuries on coming to know about the accident one of his relative by name Sri. Srinivas shifted him to H.D. Kote Government Hospital for treatment, the car in question was badly damaged and it was not in a running condition.Therefore it was towed to KPR Cars Private Limited for repair and immediately he informed the occurrence of the accident to opposite party company, the opposite party company obtained the signature of the complainant on the claim form and also sent the estimate of repair charges to opposite party company.As the complainant suffered some minor injuries he took some rest and went to Bangalore passport office as per pre-fixed schedule.On 04.12.2016 he informed the factum of accident to opposite party. On 06.12.2016 the opposite party officials informed to inspect the vehicle.Accordingly they inspected and took the signature of the complainant on the claim form and asked the authorized service centre to furnish estimate of repair.On 12.12.2016 concerned repair centre issued estimate of Rs.6,40,308.34/- after correspondence with the opposite party the officials of insurance company finally agreed to pay Rs.5,51,665/- towards repair charges.Accordingly the car was completely repaired, but in order to escape from payment of repair charges the opposite party on 23.03.2017 sent a letter stating that on the date of the accident the complainant was not driving the car instead his son was driving and asked the complainant to furnish the documents in this regard, but the complainant sent objections stating that his son was not driving the car the allegation made by the opposite party is baseless and on 30.03.2017 the opposite party sent a letter stating that the opposite party company not liable to pay the repair charges.Therefore on 20.04.2017 the complainant got issued legal notice to opposite party calling upon the opposite party to pay the repair charges.The opposite party sent evasive reply, therefore the complainant alleged deficiency in service and unfair trade practice against opposite party and further contended that the complainant purchased the car by raising loan and he was paying EMI of Rs.19,125/-.Therefore this complaint.

4. After registration of this complaint notice was ordered to be issued to opposite party.  In response to notice opposite party appeared through its counsel and has filed version contending that there is no deficiency in service and unfair trade practice on the part of the opposite party.  The case in hand involves intricate questions of facts and law which require voluminous evidence and documents.  In the claim form there is a false declaration, hence this complaint is liable to be dismissed.  The complainant has breached the terms of the contract of insurance by misrepresentation with intent to deceive the opposite party for wrongful gain.  As per the terms and conditions of the policy, it is the duty of the insured  of the vehicle to intimate about accident to insurance company immediately whereas the intimation was given to opposite party after six days on 07.12.2016 and admitted that the complainant had taken motor insurance policy to his car bearing No.KA-09-5600 vide policy No.OG-17-1705-1801-00005259 valid from 06.10.2016 to 05.10.2017, the liability of the opposite party is as per the terms and conditions of the policy.  On 07.12.2016 the complainant preferred claim for damages as the car met with an accident on 29.11.2016 on receipt of the intimation opposite party engaged IRDA licensed surveyor  and loss assessor Sri. G. Lakshmi Chaitanya to conduct the survey and assess the loss.  The surveyor assessed the loss and damage to the extent of Rs.5,11,039/- the liability of the opposite party will not be more than Rs.5,11,039/-, if the claim is admissible.  The opposite party appointed M/s Nquire and investigator to find the veracity of the incident and submitted report on 26.06.2016, the report reveals that there is misrepresentation of facts by the insured/complainant and the investigator found that insured Surendra was not driving the vehicle at the time of accident.  The investigator made enquiry of locals at the spot, they have stated that the son of the insured Supreeth was driving the vehicle.  Therefore on 23.07.2017 the opposite party sent a letter informing the complainant that he was not driving the vehicle, but his son was driving the same there is a misrepresentation of facts, therefore the opposite party by its letter dated 04.04.2017 repudiated the claim, the opposite party is not liable to pay Rs.5,51,665/- towards repair bill and Rs.1,00,000/- towards mental agony and Rs.25,000/- towards cost.  Hence, prays to dismiss the complaint.

5.      The complainant has filed his affidavit by way of examination in chief same was taken as PW.1 and got marked certain documents.  On the other hand opposite party has filed its affidavit by way of examination in chief same was taken as RW.1 and got marked certain documents.  In support of the case of opposite party it  had examined its witnesses namely Lakshmi Chaitanya as RW.2 and Ravi Kumar as RW.3 by filing their affidavits. 

6.       We have heard the arguments of both sides.  Opposite party and counsel were not present and not addressed arguments.

7.      The points that would arise for our consideration are as under:-  

1. Whether the complainant proves the alleged deficiency in service  and unfair trade practice on the part of opposite party regarding non-settlement of claim in respect of his car which was met with an accident and suffered damages?
2. What order?

8.          Our findings on the aforesaid points are as follows:

       Point No.1 :- Partly in the affirmative.

       Point No.2 :- As per final order for the following

:: R E A S O N S ::

9. Point No.1:-    It is pertinent to note that at the first instance this Commission after hearing the arguments of both sides and perusing the materials placed on record by both the parties dismissed the complaint on 12.10.2018 relying on the report submitted by licensed surveyor and investigator that the complainant has misrepresented himself  as the driver even though the car was driving by his son at the time of occurrence of the accident which ultimately lead to repudiation of the claim for misrepresentation.

10.  The Hon’ble State Commission while disposing off the Appeal No.1861/2018 preferred by the complainant  challenging the orders passed by this Commission in CC-162/2017 dated 12.10.2018 dismissing the complaint has observed that according to the learned counsel for the complainant without examining and without conducting any evidence to establish that the vehicle was used by the complainant only and not by others, simply believing on the survey report without there being any evidence dismissed the complaint.  Hence, under the circumstances it is just and proper to remand the matter to the District Forum to reconsider the above issue.

11.     It is relevant to mention here that the opposite party has repudiated the claim of the complainant vide its letter dated 30.03.2017 only on the ground that the complainant misrepresented the facts stating that he was driving the car on the date of accident, but as per the report of investigator on the date of alleged accident the complainant was not driving the car instead his son Supreeth was driving the vehicle.  Therefore the claim of the complainant has been repudiated by the opposite party.

12.      It is not in dispute that the complainant is the owner of Volkswagen car bearing registration No. KA-09, MC-5600 and insured the same with opposite party vide insurance policy No.OG-17-1705-1801-00005259 valid from 06.10.2016 to 05.10.2017 and it is also not in dispute that the complainant was having DL valid till 07.09.2018.  Further it is also not in dispute that on 29.11.2016 at about 11.45-12 p.m. the car of the complainant met with an accident at Hommarahalli and dashed to steel bridge causing damages to the car and simple injuries to complainant.  It is the specific contention of the complainant that the accident occurred while he was driving the car and immediately after the accident as he was pre-fixed date to attend passport office at Bangalore, he went to passport office at Bangalore, therefore on 04.12.2016 he informed the factum of accident to opposite party. On 06.12.2016 the opposite party inspected the car at KPR Cars Private Limited, Mysore and the opposite party company officials estimated the damages/repair charges of the car at Rs.5,51,665/- and it is also not in dispute that the opposite party company specifically stated  that it is  not liable to pay more than Rs.5,51,665/-, but the opposite party company basing on the report of the investigator M/s Nquire that as per the report on the date of alleged accident the complainant was not driving the car instead his son Supreeth was driving the same.  Therefore it is alleged that the complainant misrepresented the facts, hence on the basis of investigation report repudiated the claim of the complainant.

13.      The opposite party examined its witness Sri. Ravi Kumar as RW.3 by filing affidavit. In his cross-examination led by learned counsel for the complainant he has stated that he is a BSc graduate, the distance between Hombragahally and the place of accident may be about 4 to 5 kilometers, he came to know the accident was at mid night he enquired the locals, but he has not mentioned their names and address in his affidavit, he denied the suggestion that nobody has given information about the driver of the vehicle at the time of accident and he denied the suggestion that with an intention to help the opposite party he deposing falsely.  He has not enquired the son of the complainant.   Though RW.3 in his affidavit has stated that as per conclusion from the investigation the complainant was not a driver at the time of alleged accident his son Supreeth was actually driving the vehicle.  Whereas in his cross-examination he has not stated that he has not enquired the son of the complainant and he has also not mentioned the names and address of the locals whom he enquired about the driver on the date of accident.  Under such circumstances the contention of the opposite party basing on the report of the investigator that on the date of  alleged accident the complainant was not driving the car instead his son was driving the car cannot be believed and accepted.  The said contention of the opposite party is baseless without any proof.  As we have already stated above, it is also not in dispute that the complainant having DL to drive LMV vehicle which is valid till 07.09.2018, the complainant produced the copy of DL which shows that he is having DL to drive LMV vehicle and the same is valid till 07.09.2018.  Therefore it is crystal clear that on the date of accident the complainant was having valid DL to drive the LMV i.e., car and according to the specific contention of the complainant that on the date of accident he was returning from HD Kote to Mysore after finishing his work by driving the car himself and he was alone in the car which met with an accident at about 11.45-12 p.m.  The said contention of the complainant is appears to be true, since the opposite party has failed to prove that on the date of accident the complainant was not driving the car instead  his son was driving the car by producing cogent, convincing and believable evidence.  Therefore the repudiation of the claim of the complainant towards repair charges by the opposite party is not justified on the ground that on the date of accident the complainant was not driving the car instead his son was driving the car.  The reasons assigned by the opposite party in repudiation of the claim appears that only with an intention to escape from its liability of payment of claim of the complainant.  Therefore we are of the opinion that since the insurance policy issued by the opposite party in the name of the complainant in respect of the vehicle in question was valid from 06.10.2016 to 05.10.2017 that  to on the date of alleged accident and in view of the complainant was driving the car himself on the date of accident and he was having valid license to drive the LMV vehicle till 07.09.2018, it is the duty of the opposite party to pay the insurance claim made by the complainant towards the repair charges of the car, but the opposite party instead of payment of claim of the repair charges of the car of the complainant repudiated the claim on the basis of  baseless investigation report of the investigator stating that on the date of the accident the complainant was not driving the car instead  his son was driving the car without producing the relevant and proper materials to show that on the date of the accident the son of the complainant was driving the car and the act of the opposite party in repudiating the claim is absolutely incorrect.  Therefore, we are of the opinion that as per the terms and conditions of the policy issued by opposite party in favour of the complainant in respect of the vehicle in question the opposite party is liable to pay the repair charges of Rs.5,51,665/- as assessed by the surveyor of the opposite party to the complainant.  Therefore, we  answer point No.1 partly in the affirmative.

14.    Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

     The complaint of the complainant is allowed in part.

     The opposite party is hereby directed to pay the damages of Rs.5,51,665/- towards repair of the car in question as assessed by its surveyor to the complainant with interest at 6% p.a. from 30.03.2017 the date on which the opposite party repudiated the claim within 45 days from the date of this order till payment.

     And further opposite party is hereby directed to pay Rs.10,000/- towards mental agony caused to complainant and Rs.5,000/- towards cost of the litigation.

Furnish the copy of order to both the parties at free of cost.

 (Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 30^th   September, 2021)