BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 21st of July 2011
PRESENT
SRI.RAVISHANKAR : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.285/2010
(Admitted on 23.10.2010)
Narayana K,
So. Yelyanna Gowda,
Aged about 31 years,
RA. Kanyana House,
Herebandady Post,
Puttur Taluk, Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D).
VERSUS
Manager,
Future Generali India Insurance Co. Ltd.,
201, 202, Inland Avenue,
M.G. Road, Lalbagh,
Mangalore. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.B.Gangadhar).
***************
ORDER DELIVERED BY PRESIDENT SRI.RAVISHANKAR:
1. The Complainant filed this complaint under Section 12 of the Consumer Protection Act against the Opposite Party alleging deficiency of service in not settling the own damage claim. Hence prays for settlement of the claim to the tune of Rs.4,00,000/- with interest along with compensation of Rs.50,000/- towards deficiency of service and Rs.40,000/- as expenses.
The brief facts of the complaint are as under:
The Complainant is the registered owner of Maxicab Chevrolet Tavera bearing No.KA-21-7665 and is insured with Opposite Party No.1 as per the policy bearing No.2009-V0400055-FCV and paid Rs.13,096/- as premium. Such being the case, on 16.03.2010 the vehicle met with an accident near Bannadka on Highway No.13 near Moodbidre and vehicle suffered extensive damages. The police have registered the case and IMV report was given by police on 20.03.2010. The details of the damage of the vehicle is explained in the said IMV report and one Surveyor has also conducted inspection and noted that the vehicle has suffered total loss and it cannot be repaired for which the Complainant filed claim petition for total loss to the Opposite Party. The detailed assessment of repair cost is to the tune of Rs.5,10,231/-. Therefore the repair cost is more than the insured amount. The Complainant is entitled for reimbursement of the insured amount but the claim made by the Complainant was repudiated by them through their letter dated 18.06.2010 stating that the vehicle was sold to one Mr.Thimmappa on 30.07.2009 for which the Complainant issued legal notice dated 17.07.2010 calling upon the Opposite Party to pay the insured amount. Complainant further alleges that the repudiation on the ground of change of ownership has no basis. The R.C. and policy stands in the name of the Complainant but Complainant only entered into an agreement with said Thimmappa and no transfer of R.C. was made to said Thimmappa. The premium of the policy was paid by Complainant himself. Therefore, the repudiation made by the Opposite Party amounts to deficiency of service. Hence prays for settlement of the claim to the tune of Rs.4,00,000/- along with compensation as prayed above.
2. After service of notice Opposite Party appeared through his counsel and filed version and contended that they have issued insurance policy to the vehicle owned by Complainant and their liability is subject to terms and conditions and exclusions of the policy. The repudiation of the claim is perfectly justified and there is no deficiency of service. The documents submitted by the Complainant clearly indicate that the Complainant was not in possession and control of the said vehicle at the time of accident. The agreement dated 30.07.2009 clearly established that the Complainant sold and transferred the vehicle and handed over the possession to one Mr.Thimmappa, S/o.Narayana on that date itself. The said transfer of the vehicle was not brought to the knowledge of the Opposite Party Company and Complainant has not transferred the policy into subsequent owner. As such the claim made by the Complainant was rightly repudiated. Opposite Party further contended that the said transferee Thimmappa confirms the purchase of the said vehicle from the Complainant by submitting a letter dated 20.04.2010 to the Opposite Party. The Complainant also given a similar letter to Opposite Party on 20.04.2010. Thus, at the relevant time of accident the vehicle was not stands in the name of Complainant and he has no insurable interest to claim the own damage. As such there is no deficiency of service in repudiating the claim of the Complainant and prays for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Narayana K (CW1) filed affidavit and answered the interrogatories served on him. Ex C1 to C11 were marked for the Complainant as listed in the annexure in detail. One Miss.Mamatha H.C. (RW1), Deputy Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on her. Ex R1 to R6 were marked for the Opposite Party as listed in the annexure in detail. The Complainant as well Opposite Party produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) & (ii): Affirmative.
Point No.(iii): As per the order.
Reasons
5. Point No. (i) to (iii):
The case of the Complainant is that, his vehicle which is insured with the Opposite Party Company had met with an accident on 16.03.2010 and claimed for own damage for which Opposite Party repudiated the claim stating that the Complainant had no insurable interest and stated that he has sold the vehicle to one Mr.Thimmappa. The said ground for repudiation is not valid reason, hence alleges deficiency of service and prays for settlement of the own damage to the tune of Rs.4,00,000/- along with compensation for deficiency of service.
On contrary Opposite Party has taken a contention that as on the date of accident the vehicle was not in possession of Complainant, he sold the vehicle to one Mr.Thimmappa on 30.07.2009 itself and said Thimmappa also made a claim, hence the Complainant had no insurable interest and for which they have repudiated the claim and submits no deficiency of service.
The Complainant has produced copy of the policy marked as Ex C1 which is valid from 30.08.2009 to 29.08.2010. On going through the said policy it stands in the name of Complainant himself and further he has produced copy of the R.C which is marked as Ex C2 there also we noted that the said RC stands in the name of Complainant himself and accident took place on 16.03.2010. As on the date of accident also we observed no transfer has been made to the said Thimmappa by Complainant in lieu of agreement to sell dated 30.07.2009 which is produced by Opposite Party i.e., Ex R1. On going through the Ex R1 we observed that it is only an agreement to sell and not a sale deed. When Complainant entered into an agreement that does not mean the sale was completed as on 30.07.2009. If at all sale was executed by Complainant in favour of said Thimmappa definitely Thimmappa would have changed the R.C. into his name and he would have made an application to transfer of the policy into his name to the Opposite Party Company. The Opposite Party Company has neither produced R.C. nor policy which stands in the name of said Thimmappa and we are of the opinion that it is the burden of the Opposite Party to establish that Complainant had no insurable interest. At the same time Complainant had produced policy i.e., Ex C1 and R.C. Ex C2 to show that as on the date of accident the vehicle stands in his name. Merely receiving a letter from said Thimmappa will not sufficient to establish that he has purchased the said vehicle from Complainant and we are of the opinion that said Thimmappa had no insurable interest to claim the own damage claim as per Ex R2 and it is also pertinent to note in Ex R2 in the column of insured details the insured name is one Narayana who is none other than Complainant. Therefore, it is clear that as on the date of accident Complainant is the insured and R.C. owner of the vehicle and he has got insurable interest to claim the own damage when the accident took place. The Opposite Party had wrongly considered that Complainant is not entitled to get the own damage claim. They have wrongly contended that Thimmappa had claimed own damage claim and repudiated the claim basing on the said agreement to sale and letter issued by said Thimmappa which is marked as Ex R4. The Opposite Party has also produced a letter issued by Complainant dated 20.04.2010 which is marked as Ex R3. Even Complainant wrote a letter stating that he has sold the vehicle that cannot be considered without valid transfer of R.C into said Thimmappa. The Opposite Party has to honour the claim made by the Complainant and not to the said Thimmappa and we found there is a deficiency of service on the part of the Opposite Party in repudiating the claim on the ground that Complainant had no insurable interest. The Complainant is entitled to get own damage claim. The Surveyor has assessed the loss to the tune of Rs.2,24,184/- which is net payable by Opposite Party. The Complainant has not made any objections in this regard. As such the Complainant is entitled to get a own damage claim to the tune of Rs.2,24,184/- from Opposite Party. We consider it is just and proper to award Rs.5,000/- towards compensation for deficiency of service against Opposite Party. Complainant is also entitled to get court cost of Rs.1,000/-. As such for the above said reasons we answer point No.(i) and (ii) in affirmative.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party is directed to pay Rs.2,24,184/- (Rupees two lakh twenty four thousand one hundred and eighty four only) to the Complainant along with compensation of Rs.5,000/- (Rupees five thousand only) and Rs.1,000/- (Rupees one thousand only) towards litigation expenses within one month from the date of receipt of this order.
Failing which 9% interest will be charged on the said amount till realization.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21st day of July 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Narayana K – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 30.08.2010: Copy of the policy.
Ex C2 – 19.07.2005: Copy of the Registration certificate.
Ex C3 – 17.03.2010: Copy of the FIR.
Ex C4 – 19.03.2010: Copy of the seizure mahazar.
Ex C5 – 20.03.2010: Copy of the motor vehicle accident report.
Ex C6 – 29.03.2010: Copy of the S-160 information.
Ex C7 – 07.04.2010: Estimate given by Frontline Automobile.
Ex C8 - 18.06.2010: Repudiation letter of the Opposite Party.
Ex C9 - 17.07.2010: Copy of the Lawyer’s notice.
Ex C10 - 19.07.2010: Postal acknowledgement.
Ex C11 - 30.07.2009: Copy of the agreement.
Witnesses examined on behalf of the Opposite Party:
RW1 – Miss.Mamatha H.C., Deputy Manager of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 30.07.2009: True copy of agreement between Complainant and one Mr.Thimmappa.
Ex R2 – 20.04.2010: Claim form submitted by Mr.Thimmappa.
Ex R3 – 20.04.2010: Letter submitted by the Complainant.
Ex R4 – 20.04.2010: Letter submitted by Mr.Thimmappa.
Ex R5 – 28.09.2010: Copy of the reply notice sent by the Opposite Party’s counsel to the Complainant’s advocate.
Ex R6 – 17.05.2010: Survey report by Mr.Naveen Kumar PVT, Engineer, Surveyor and Loss Assessor.
Dated:21.07.2011 PRESIDENT
