DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday 29^th day of December 2023

CC.574/2012

Complainant

N.V. Jaifar,

S/o Pallima,

Neutham veetil House,

P.O Beypore, Kozhikode – 673 015.

(By Adv. Sri. Pavithran)

Opposite Party

Manager,

M/s Reliance General Insurance Co,

Opp. Tagore Centenary Hall,

Red Cross road, Kozhikode -673 032.

(BY Adv. Sri Sooraj)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant is the owner of the vehicle bearing registration No. KL-11-AA-3034 with valid insurance coverage from 19/10/2009 to 18/10/2010. On 20/08/2010 his vehicle met with an accident in NH-17 at Uchila within the limits of Ullal police station in Mangalore district by hitting with another vehicle bearing registration No. KL-19-3499 thereby causing complete damage to the complainant’s vehicle. The police charge sheeted the driver of his vehicle and he had paid a fine of Rs. 500/-. The driver was holding valid driving licence.

3. As per the request of the opposite party, the complainant submitted the driving licence of the driver at the time of the accident, copy of the registration certificate, permit, insurance policy and estimate obtained from authorised dealer and service centre at Bangalore, which is near to the place of accident. Thereafter, the opposite party deputed a qualified surveyor who assessed the damages to the vehicle. After the accident, the vehicle is kept in a stationary position at the service centre. Now the vehicle is having total loss. The complainant is in payment of road tax, insurance premium and the EMI to the financier in the bonafide belief that the opposite party would pay the own damage claim to repair the vehicle. But so far they have not allowed the claim. On 3/05/2011 the complainant requested for a reply for non-payment of own damage claim amount. The opposite party then replied that the file was closed. On 6/5/2011, the complainant issued a registered lawyer notice, but it evoked no response from the opposite party. The complainant has suffered a lot of mental agony and financial loss due to the act of the opposite party. His business was completely shattered due to the non-plying of the vehicle. The authorised dealer and service centre of Eicher Trucks has given an estimate of Rs. 3,68,824 for repairs of the vehicle. Hence the complaint to direct the opposite party to pay an amount of Rs. 3,68,824/- being own damage claim  to the vehicle, Rs. 1,00,000/- as compensation for the mental agony suffered, Rs.13,109/- being the road tax paid, Rs. 20,850/- being the insurance premium and Rs. 5,000 being the road tax payable to the Government of Karnataka, total being Rs. 5,07,783/-.
4. The complaint was subsequently amended enhancing the total claim to Rs. 15,00,000/- as per order  in IA No. 264/2015.
5. The opposite party has resisted the complaint by filing written version and additional written version. The contentions, in brief, are as follows: This Commission has no territorial jurisdiction to entertain the complaint. In response to the lawyer notice regarding own damage claim, the opposite party had sent 2 request letters on 1/12/2010 and 13/12/2010  and final reminder letter on 20/12/2010 to the complainant to submit claim form and the relevant documents and also to produce the vehicle. A final letter dated 20/12/2014 was also issued informing that if the documents were not produced within 10 days, the company shall be constrained to presume that the complainant was not interested in the claim and hence would treat the complaint as withdrawn and close the file. But the complainant has neither responded nor produced the vehicle for repairs and hence they were constrained to close the claim.
6. The policy is admitted. The claim was closed only due to the latches of the complainant. The opposite party was ready to compensate the complainant for the cost of repair as per the surveyor’s report at the prevailing rate at the time of the accident. But the complainant was not ready to repair the vehicle and to produce the same for surveying. The attempt of the complainant is to grab compensation under the head total loss by keeping the vehicle idle without any repair. The allegations contained in the complaint are denied. The allegations regarding deficiency of service and unfair trade practice is denied. The complaint is bereft of bonafides or merits. The complainant is not entitled to claim any relief. It is, therefore, prayed to dismiss the complaint with costs.
7. The points that arise for determination in this complaint are;

                 1). Whether this Commission is having territorial jurisdiction to entertain the complaint ?

                 2) Whether there was any deficiency of service on the part of the opposite party, as alleged?

                 3)  Whether the complainant is entitled to realise any amount from the opposite party ? if so, what is the quantum ?

                 4) Reliefs and costs.

8. The evidence consists of the oral evidence of PW1 and Exts A1 to A14 on the side of the complainant. No oral evidence was let in by the opposite party. Exts B1 to B4 were marked.   
9. Heard. The opposite party filed brief argument note.
10. Point No 1:  The opposite party has taken a contention in the written version that this Commission lacks territorial jurisdiction to entertain the complaint. But it may be noted that the office of the opposite party is situated in Kozhikode. Moreover, the policy in question was issued from Kozhikode.  So the cause of action has partly arisen in Kozhikode, which is within the territorial jurisdiction of this Commission. Hence it is found that this Commission has territorial jurisdiction to entertain the complaint.
11. Points 2 and 3:- The complainant has approached this Commission claiming Rs. 15,00,000/-   from the opposite party. The grievance of the complainant is that after receiving all the documents, the opposite party failed to satisfy the own damage claim preferred by him in respect of the vehicle owned by him which met with an accident within the limits of Ullal police station in Bangalore district, Karnataka state.
12. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. The documents produced by the complainant were marked as  Exts  A1 to A14 through PW1.
13. The case advanced by the opposite party is that the complainant failed to produce the documents and the vehicle in spite of repeated reminders issued by them and hence they were constrained to close the claim. No oral evidence was let in by the opposite party. The documents produced by the opposite party were marked as Exts B1 to B4.
14. The complainant is the registered owner of  KL-11-AA-3034 Eicher 10.90 (FSD 3760)  vehicle. The said vehicle met with an accident on 20/08/2010 at Uchila within the limits of Ullal Police station Mangalore district by hitting with another vehicle. Extensive damage was caused to the complainant’s vehicle in the accident. A case was registered by the police against driver of the complainant’s vehicle for rash and negligent driving and he was fined Rs. 5,00/-. Ext A11 is the check report cum receipt dated 20/08/2010 evidencing the same. The driver of the vehicle at the relevant time was Sri. Abdul Rasheed. K.T and he was holding valid driving licence. Ext A2 is the copy of the driving licence. The vehicle was validly insured with the opposite party at the time of the accident. The vehicular documents were in order. The complainant preferred own damage claim before the opposite party with claim No. 2101197443. A repair estimate amounting to Rs. 3,68,824/- was issued by Automotive Marketing Pvt Ltd., Manglore which is the authorised service centre of Eicher vehicle. An approved surveyor/loss assessor was appointed by the opposite party to assess the damages. The surveyor submitted report with survey details showing status history as ‘closed’. Ext B4 is the copy of the survey report and it contains copies of the photographs of the vehicle. The claim was not satisfied by the insurance company and closed the claim. There is no serious dispute on the above aspects.
15. The learned counsel for the opposite party submitted that despite several reminders requesting the complainant to submit necessary documents and to produce the vehicle, the complainant has not cared to do so and hence the company was constrained to close the claim. On the other hand, the learned counsel for the complainant submitted that all the requisite documents had already been submitted by the complainant and the insurance company was reluctant to honour the claim. It was submitted that no such communications calling for documents were received by the complainant.
16. Admittedly, the vehicle was lying in the authorised service centre of Eicher vehicle at Manglore. PW1 has categorically asserted that he had submitted all the necessary documents to the insurance company. PW1 has denied having received any reminders allegedly issued by the opposite party. The opposite party has produced the copy of the document request letter dated 1/12/2010 and 13/12/2010 and final reminder letter dated 20/12/2010, which are marked as Exts B1 to B3 respectively. But there is nothing in evidence to show that the above letters were sent to the complainant. Not even a scrap of paper showing despatch of those letters to the complainant is forthcoming.
17. The complainant has issued Ext A4 lawyer notice dated 6/5/2011 to the opposite party. The receipt of the notice is not disputed by the opposite party. This is further evidenced by the copy of the postal receipt and postal acknowledgment card attached to Ext A4. It is clearly stated in Ext A4 that the complainant had submitted all the relevant documents to the opposite party. But it is seen that the opposite party has not cared to send a reply notice to Ext A4. If the contention of the opposite party that they had issued  Exts B1 to B3 letters to the complainant is true and correct, nothing prevented the opposite party from sending a reply to Ext A4 stating the real facts. But that was not done. This is also a strong circumstance which goes against the opposite party. Moreover, it may be noted that there is no contra evidence to disprove the claim of the complainant.
18. The evidence of PW1 proves that he had preferred own damage claim and submitted necessary documents. The opposite party could not substantiate their contention that the complainant did not produce the relevant documents despite their requests. That being the position, the denial of the claim is not justified. The claim was denied without valid reason and it amounts to gross deficiency of service.
19.  The entitlement of the complainant to get the own damage claim is not disputed by the opposite party. So the complainant is entitled to be compensated. Now the question is regarding the quantum. Regarding this aspect, Ext A4 report is not helpful because the status history in Ext B4 is closed. Thus Ext B4 is not useful to assess the damages sustained to the vehicle. The remaining document available is Ext A5 repairs estimate given by Automotive Marketing Pvt Ltd. It is not disputed that the said company is the authorised service centre of Eicher vehicles. As per Ext A5, the total amount required for repairs of the vehicle is Rs. 3,68,824 /-.
20. The original claim in the complaint was for Rs. 5,07,783/-. After the amendment, the claim is for Rs. 15,00,000/- alleging that there is total loss. The AMVI Kozhikode was appointed as the expert Commissioner to inspect the damages of the vehicle and the cost of the repair. But no steps were taken by the complainant either to examine the expert as a witness before this Commission or to mark the report filed by him.
21. Considering the entire facts and circumstances, we are of the view that this is a fit case where the opposite party is to be directed to pay a sum of Rs. 3,68,824/- as estimated in Ext A5 to the complainant towards the own damage claim. Undoubtedly, the complainant was put to gross mental agony and hardship due to the denial of the claim without valid reason, for which, he is entitled to be compensated adequately.  We are of the view that a sum of Rs. 20,000/- will be reasonable compensation in this regard. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings from the opposite party.
22. The road tax and insurance premium are to be paid by the complainant, who is the RC owner.  The opposite party cannot be saddled with the liability to pay the road tax and the insurance premium as contented by the complainant. Hence the claim on the above counts is not allowed.
23. Point No. 4:- In the light of the finding on the above points, the complaint is disposed of as follows;

                  a)  CC.574/2012 is allowed in part.

b) The opposite party is hereby directed to pay a sum of Rs. 3,68,824/- (Rupees three lakh sixty eight thousand eight hundred and twenty four only) to the complainant with interest @ 6% per annum from the date of the complaint ie 27/12/2012 till actual payment.

c) The opposite party is directed to pay a sum of Rs. 20,000/- (Rupees twenty thousand only) as compensation to the complainant for the mental agony and hardship suffered.

d) The opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand) as cost of the proceedings to the complainant

e) The payment as afore stated shall be made within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this, the 29^th day of December, 2023.

Date of Filing: 27.12.2012 

                                     Sd/-                                                    Sd/-                                                   Sd/-

                             PRESIDENT                                        MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 -  Copy of the policy   

Ext A2 -  Copy of the driving licence of Abdul Rasheed. K.T.

Ext A3 -   Copy of the registration certificate with copy of permit.

Ext A4 – Copy of the lawyer notice with copies of postal receipt and

                  acknowledgment card.

Ext A5 -  Repairs estimate given by Automotive Marketing Pvt Ltd.

Ext A6 – Statement of transactions.

Ext A7- Copy of No Objection Certificate dated 13/10/2011.

Ext A8 – Copy of the tax licence.

Ext A9 – Copy of the tax licence.

Ext A10 – Letter dated 27/8/2011 from Automotive Marketing Pvt Ltd

                    demanding parking charge.

Ext A11- Check report cum receipt dated 20/8/2010.

Ext A12 – Motor Insurance Certificate cum policy schedule.

Ext A13 – Tax receipt and demand notice.

Ext A14 – Photos of the vehicle.

Exhibits for the Opposite Party

Ext B1 – Copy of the document request letter dated 1/12/2010.

Ext B2 - Copy of the document request letter dated 13/12/2010.

Ext B3 - Copy of the document request letter dated 20/12/2010.

Ext B4 – Survey details which showing status history ‘closed’.

Witnesses for the Complainant

PW1 -     N.V. Jaifar  (Complainant)

Witnesses for the opposite party

 Nil

                                        Sd/-                                                               Sd/-                                                  Sd/-

                               PRESIDENT                                                    MEMBER                                       MEMBER

True Copy,     

                                                                                                                                                                  Sd/-

                                                                  Assistant Registrar.