BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GADAG. Basaveshwar Nagar, Opp: Tahasildar Office, Gadag COMPLAINT NO.15/2021 DATED 30th DAY OF JULY-2022 |
BEFORE: | | | HON'BLE MR. D.Y. BASAPUR B.Com, L.L.B(Spl.,) PRESIDENT | | HON'BLE Mrs. YASHODA BHASKAR PATIL, B.Com, L.L.B(Spl.,) M.Ed., WOMAN MEMBER HON'BLE Mr. RAJU. N. METRI, B.Com, L.L.B(Spl.,) MEMBER |
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Complainant/s: 1) Ningaraj S/o Rammurthi Uppar
Age: about 30 Yrs, Occ:Business,
R/o Hamagi Tq:Mundaragi Dist:Gadag.
(Rep. by Sri. M.N.Aravatagi, Advocate)
V/s
Respondents :- | 1) | The Manager, Chola M.S.General Insurance Co,. Ltd., 1st Floor, Kalburgi Square Deshpande Nagar, Hubli-580029. (Rep. by Sri. A.S.Shetty, Advocate) |
JUDGEMENT
JUDGEMENT DELIVERED BY SRI. D.Y. BASAPUR, PRESIDENT
The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019, seeking relief against the OP to pay damages caused to insured lorry for a sum of Rs.6,25,574/- along with interest @ 18% p.a. as per trade usage of business from the date of accident till realization of amount and any other relief deems fit by Commission.
1. The brief facts of the complaint are as under:
The contention of the complainant is that, the complainant is owner of lorry bearing No.KA-26 A-2076, the said lorry was purchased from the Chola MS Finance for carrying business for his livelihood. The said lorry/vehicle was insured with the OP Company. The complainant was insured with OP under the policy No.3379/02826892/000/00 for the period from 04.12.2020 to 03.12.2021 for a sum assured Rs.6,00,000/- (IDV). on 25.04.2021 at about 02.00 hours the complainant’s authorized driver by name Rasulbdasha S/o Rahimsab Harogeri drove the lorry in moderate speed and went towards Hubli at that time on Gadag-Hubli Road near Dundur village Cross in Gadag Taluka, unfortunately the Dog came in the middle of the road and to save the life of dog and to avoid the accident, the driver turned the lorry and unfortunately met with an accident to the parked lorry bearing No.AP 39 TS 1189 and the complainant’s lorry was completely damaged. After the accident complainant intimated to the Gadag Rural police about the accident, the Gadag Rural Police came over to spot and enquired about the accident. Thereafter intimated about the accident to the OP office. The authorized officer of the OP came to spot inspected the lorry and made necessary enquiries and advised to shift the lorry to Garage. As per the direction of the authorized officer of the OP the complainant shifted lorry to Fatesha Garage Hubli for repairs. The Fatesha Garage Hubli issued estimate for the damaged insured vehicle a sum of Rs.6,25,574/-. Though the vehicle was fully damaged and all the necessary documents being furnished to the OP they have not settled the claim. Even after repeated request they have refused to settle the claim. The OP has replied through notice dtd:05.07.2021 to furnish the documents to the OP office. The complainant personally approached and submitted the documents to settled claim. The complainant sent a notice to OP to settle the claim along with necessary documents through registered post. Even after receipt of notice they have not replied to the notice and settled the claim. After furnishing the necessary documents to avoid the claim OP orally submitted that at the time of accident permit was not in the name of complainant. At the time of making the policy the Registration Certificate of vehicle was standing in the name of complainant and permit was standing in the name of Sanaullakhan Bastwad for the period 11.07.2017 to 10.07.2022 which was valid and existing. While issuing the policy the OP has not raised any question regarding the name of the permit holder and now at the time of claim to escape the liability the OP is coming up with all false contentions to repudiate the claim of the complainant. Therefore, the complainant has not violated the terms and conditions of the policy. Hence, filed this complaint.
2. After registering the complaint, in pursuance of service of notice, the OP appeared through their counsel and filed the written version.
3. The brief facts of the written version of the OP are as under:
OP denied the various averments made in the complaint. OP No.1 contended that, the complainant on scrutiny of documents found that as on the alleged date of accident, the complainant was not holding valid permit, as permit is not in the name of complainant at the time of making policy the R.C. of the vehicle was standing in the name of complainant and permit is standing in the name of Sanaullakhan Bastwad for the period 11.07.2017 to 10.07.2022. The vehicle was transferred on 15.04.2019 and permit in the name of complainant is valid from 17.06.2021 to 16.06.2026 which is after accident. Since the complainant has failed to reply to the notice dtd:05.07.2021 issued to him, the claim was repudiated as complainant has breached policy conditions, their exist no consumer dispute and no cause of action exists against the OP. As per surveyor report, who inspected the vehicle and made assessment the loss assessed to the extent of Rs.3,30,463/-. Hence, prays for dismiss the complaint.
4. To prove the case, the complainant has filed affidavit evidence and was examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-15 and one Bahubali Kuge, Legal Manager of OP filed affidavit evidence and was examined as RW-1 and got marked the documents as Ex.OP-1 to Ex.OP-4.
5. Counsel for OP filed written arguments. Heard the arguments on both sides.
6. The points for our consideration arose are as under:
i) Whether the complainant proves that, there is a deficiency of service on the part of OP?
ii) Whether the complainant is entitled for the relief?
iii) What order?
7. Our findings on the above points are as under:
Point No.1: Affirmative.
Point No.2: Partly affirmative.
Point No.3: As per final order.
REASONS
8. Point No.1 & 2:- Learned counsel for complainant argued that as per evidence of PW-1 and Ex.C-1 to Ex.C-15 complainant proved. The learned counsel for OP argued that the complainant violated the conditions of the policy and is not entitled for the relief.
9. On careful perusal of the materials placed before the Commission, PW-1 has reiterated the contents of the complaint in his affidavit. PW-1 has stated that the contention of the complainant is that, the complainant is owner of lorry bearing No.KA-26 A-2076, the said lorry was purchased from the Chola M.S Finance for carrying business for his livelihood. The said lorry/vehicle was insured with the OP Company. The complainant was insured with OP under the policy No.3379/02826892/000/00 for the period from 04.12.2020 to 03.12.2021 for a sum assured Rs.6,00,000/- (IDV). On 25.04.2021 at about 02.00 hours the complainant authorized driver by name Rasulbdasha S/o Rahimsab Harogeri drove the lorry in moderate speed and went towards Hubli and at the said time on Gadag-Hubli Road near Dundur village Cross in Gadag Taluka, unfortunately a Dog came in the middle of the road and to save the life of dog and to avoid the accident, the driver turned the lorry and unfortunately met with an accident to the parked lorry bearing No.AP 39 TS 1189 and the complainant’s lorry was completely damaged. After the accident complainant intimated to the Gadag Rural police about the accident, the Gadag Rural Police came to the spot and enquired about the accident. Thereafter intimated about the accident to the OP office. The authorized officer of the OP came to spot inspected the lorry and made necessary enquiries and advised to shift the lorry to Garage. As per the direction of the authorized officer of the OP the complainant shifted lorry to Fatesha Garage Hubli for repairs. The Fatesha Garage Hubli issued an estimated damage to the insured vehicle a sum of Rs.6,25,574/-. Though the vehicle was fully damaged and all the necessary documents being furnished to the OP they have not settled the claim. Even after repeated request they have refused to settle the claim. The OP has replied through notice dtd:05.07.2021 to furnish the documents to the OP office. The complainant personally approached and submitted the documents to settle the claim. The complainant sent a notice to OP to settle the claim along with necessary documents through registered post. Even after receipt of notice they have not replied to the notice and settled the claim. After furnishing the necessary documents to avoid the claim OP orally submitted that at the time of accident permit was not in the name of the complainant. At the time of making the policy the Registration Certificate of vehicle was standing in the name of complainant and permit was standing in the name of earlier owner Sanaullakhan Bastwad for the period 11.07.2017 to 10.07.2022 which was valid. While issuing the policy the OP has not raised any question regarding the name of the permit holder and now at the time of claim to escape the liability the OP is coming up with all false contentions to repudiate the claim of the complainant. Complainant contends that permit is required to ply the vehicle on road. But permit is for the vehicle and not for the person. Therefore, the complainant has not violated the terms and conditions of the policy.
10. OP has filed affidavit and reiterated the contents of written version and denied various averments made in the complaint. OP contends that on scrutiny of complainant documents it was found that as on the alleged date of accident the complainant was not holding valid permit of the vehicle which was not transferred in the name of complainant. The vehicle was transferred on 15.04.2019 and at the time of making the policy R.C. book was standing in the name of complainant and permit was in the name of earlier owner for the period of 11.07.2017 to 10.07.2022, later the complainant got the permit transferred to his name from 17.06.2021 to 16.06.2026 which was after accident but at the relevant time of the accident the permit was very well existing, only it was not transferred to the name of complainant, but the policy was already issued in the name of complainant.
Further, the complainant was issued notice dtd:05.07.2021 for which he has failed to reply and claim was repudiated as there is breach of policy conditions and as there exists no consumer dispute and no cause of action against OP. However as per the survey report who inspected the vehicle the assessment was made to the extent 3,30,463/-.
11. Ex.C-1 policy Ex.C-2 registration certificate, Ex.C-3 fitness certificate, Ex.C-5 D.L. Ex.C-6 repudiation letter are not disputed by the OP. The main contention of OP is that the permit was not in the name of complainant at the time of accident it was standing in the name of Sanaullakhan Bastwad the earlier owner. It is true that previous permit was in the name of Sanaullakhan Bastwad earlier owner for the period 11.07.2017 to 10.07.2022. It is clear that as on the date of accident permit was valid. So also subsequently complainant got permit from 17.06.2021 to 16.06.2026, even though previous permit was in the existence till 10.07.2022, the only allegation of OP is that permit was not in the name of complainant at the time of accident. It is duty of the OP that at the time of issuing the insurance they should have refused on the ground that permit was not in the name of complainant. OP raised the contention only after accident regarding permit it was not in the name of complainant. It is not the contention of OP that as on the date of insurance and on the date of accident, there was no valid permit of the vehicle, but it was existing at the time of vehicle accident. Whether permit was valid or not is material aspect. Merely permit was standing in the name of previous owner is not a ground for the repudiation of the claim. So act and conduct of the OP repudiating the claim without good and material grounds, and only repudiating on flimsy grounds is not proper.
12. As per decision Civil appeal No.407/2022 dtd:20.05.2022, in Gurmelsingh V/s The Branch Manager National Insurance Company. Ltd., Wherein, it is held that;
“While settling the claims, insurance company should not seek documents which are beyond the control of insured to furnish”.
Further, held that, insurance company should not be to technical and ask for the documents, which, the insured is not in position to produce due to circumstances beyond his control. It is found that the insurance companies are refusing the claim on flimsy grounds and on technical grounds”.
The facts, circumstances and ratio of the above decision is aptly applicable to case on hand, as insurance company repudiated the claim on flimsy ground that it was not in the name of complainant.
13. Per contra for counsel for OP relying as decision in National insurance Co., Ltd., V/s Chell Bharathamma & Ors on 21.09.2004, in Sri. Venkatesh S/o Late Giriyappa V/s Iffco Tokio Gen. Insruance Co, Ltd., in M.F.A. No.967 of 2017 (MV-D) in the High Court of Karnataka Bengaluru dtd:22.04.2022. Facts, circumstances and ratio of the above decision are not similar with case on hand.
For the above the complainant proved that OP committed the deficiency of service and is entitled for relief.
14. So far as compensation is concerned complainant seeking damages a sum of Rs.6,25,574/-. Ex.C-5 to Ex.C-7 approximate estimation issued by the Fatesha Garage, these documents are approximate estimate of the vehicle only. Even total cost of new parts mentioned in the Ex.C-7 is Rs.4,26,074/- and total cost of labour charges Rs.1,99,500/-. Ex.C-9 to Ex.C-15 Tax invoice issued by the private garage are not sufficient. Even said documents are also not believable, as complainant has not examined the author of the said documents complainant is claiming exorbitant claim without producing surveyor report and reliable documents. Ex.Op-4 motor vehicle surveyor report produced by OP discloses net loss to the extent of Rs.3,30,463/-. On the contrary the complainant has not produced his vehicle loss assessment by licensed surveyor. So it is proper to award compensation as per authorized surveyor report.
Learned counsel for OP relying a decision in (2021) CJ (NC) Suresh Kumar Sharma V/s Oriental Insurance Co. Ltd., Wherein NCDRC, New Delhi held as.
“Insurance –Motor insurance Damage to vehicle in accident – State Commission granted compensation of Rs.2,96,446,99/- with 9% interest Report submitted by Surveyor is an Important piece of evidence and it has to be given due weight, though it is not sacrosanct and can be ignored, provided there is cogent evidence otherwise. In absence of any evidence to the contrary, report submitted by Surveyor is to be accepted. Whatever relief complainant was entitled, has already been given by State Commission State Commission had correctly relied on report of Surveyor appointed by Insurance Company and allowed claim of Rs.2,96,446.99. No illegality or Irregularity in Impugned order warranting interference in exercise of revision jurisdiction. Revision Petitions dismissed”. |
The facts circumstances and ratio of the above decision is aptly applicable to the case on hand.
15. Hence, the complainant is entitled for the loss and damage a sum of Rs.3,30,463/- with interest 9% p.a. from the date of complaint till realization. Complainant has suffered mental agony due to act of OP repudiating the claim. So he is entitled for a sum of Rs.30,000/- towards mental agony and also cost of the litigation a sum of Rs.10,000/-. Accordingly we answer point No.1 in affirmative point No.2 partly in affirmative.
16. Point No.3:- In the result, we pass the following:
//O R D E R//
The complaint filed u/Sec.35 of the Consumer Protection Act, 2019 is hereby partly allowed.
The complainant is entitled for loss of damage of the vehicle for a sum of
Rs. 3,30,463/- /- (Rupees Three Lakh Thirty Thousand Four Hundred Sixty Three only) with interest @ 9% p.a. from the date of complaint till realization.
Further, the complainant is entitled for compensation towards mental agony a sum of Rs.30,000/- (Rupees Thirty Thousand Only) towards cost of litigation Rs.10,000/-(Rupees Thousand only)
Office is directed to send the copies of this order to the parties free of cost.
(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us in the Open Court on this 30th day of
July-2022)
,
(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
-: ANNEXURE :-
EVIDENCE ON BEHALF OF COMPLAINANT/S:
PW-1: Ningaraj S/o Rammurthi Uppar
DOCUMENTS ON BEHALF OF COMPLAINANT/S
Ex.C-1 : Copy of Vehicle registration certificate.
Ex.C-2 : Copy of fitness certificate of vehicle.
Ex.C-3 : Copy D.L.
Ex.C-4 : Copy of Motor Policy Schedule Cum certificate of
Insurance.
Ex.C-5 to 7 : Copies of vehicle approximate estimations
dtd:05.05.2021.
Ex.C-8 : Copy of Form KMV 45 of Goods Carriage permit.
Ex.C-9 & 10 : Copies of Tax invoice dtd:14.10.2021.
Ex. C-11 & 12 : Cash Bills dtd:04.12.2021 and 20.12.2021.
Ex.C-13 & 14 :Tax invoice dtd:17.12.2021.
Ex.C-15 : Cash Bill/Quotation dtd:24.12.2021.
EVIDENCE ON BEHALF OF OPs:
RW-1: Bahubali Kuge
DOCUMENTS ON BEHALF OF OP:
Ex.OP-1 : Authorization letter.
Ex.OP-2 : Copy of Insurance Policy.
Ex.OP-3 : Copy of notice issued to complainant, dtd:05.07.2021.
Ex.OP-4 : Copy of Motor final survey report.
(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
