Karnataka

Chitradurga

CC/25/2016

Nagraj.C S/o Chitralingappa - Complainant(s)

Versus

Manager,New india Insurance Co Ltd., - Opp.Party(s)

Sri.Y.Thippeswamy

18 Feb 2017

ORDER

COMPLAINT FILED ON:07.04.2016

DISPOSED      ON:18.02.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 25/2016

 

DATED:  18^th FEBRUARY 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                                 B.A., LL.B.,                   

……COMPLAINANT	Nagaraja. C S/o Chitralingappa, Age: 45 Years, R/o Chitraiahnahatti, Challakere Taluk, Chitradurga.      (Rep by Sri. Y. Thippeswamy, Advocate)
V/S
…..OPPOSITE PARTIES	The Branch Manager, New India Assurance Co. Ltd., Opp: Nanjundeswara Petrol Bunk, P.B. Road, Chitradurga.   (Rep by Sri. K. Mohan Bhat, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OP to pay Rs.7,53,675/- with interest, Rs.1,00,000/- towards mental agony and cost of Rs.5,000/-.

2.      The brief facts of the case of the above complainant are that, complainant is the RC owner of White Car belongs to Hyundai bearing Reg. No.  KA-01 MP-6066 and the same was insured with OP under policy No.68050231150100000218 valid for the period from 08.04.2015 to 07.04.2016.  It is further submitted that, on 27.07.2015 the complainant travelling from Chitraiahnahatti, Challakere Taluk towards Dharmasthala, Subramanya.  While returning on 29.07.2015 towards Kottigehara, Mudagere, Chikkamagalur near Mangalur-Kadur road at about 6-30 PM, when crossing the Devarahalli Gate by that time, out of the control of the Driver the said Car met with an accident and dashed to the right side tree and fully damaged and the inmates of the Car sustained injuries.  Out of which, two were died and front portion of the car, front door, glass, front bonnet, engine, mudguard and steering were fully damaged.  One P. Nethravathi, W/o B.B. Nanjappa aged about 27 years lodged a complaint before the Chikkamagalur Rural Police, the concerned Police inspected the spot and prepared the Spot Mahazar.  It is further submitted that, the complainant informed the same to the OP, the OP told the complainant to keep the Car in Rahul Cars India Pvt. Ltd., Shimoga.  Then the complainant left the Car in the said Show Room, the surveyor concerned to the OP inspect the vehicle and handed over the claim intimation letter on 09.09.2015.  After that, the Show Room people have not repaired the said car.  After 20 days, the complainant intimated the same to the OP.  The Showroom estimated the cost of the repairs at Rs.7,53,675/- on 06.09.2015.  Again, the Surveyor visited the spot and investigated and obtained the photos of the damaged car.  The complainant handed over the estimated bill, Tax Invoice to the OP.      The OP repudiated the claim of the complainant stating that, the seating capacity of the car is only 5 members but, at the time of occurrence of accident the complainant along with six members were travelling by that time i.e., more than the capacity of the car.     It is further submitted that, the cause of action arise for the complaint when complainant obtained policy from the OP which is within the jurisdiction of this Forum and prayed for allowing the complaint. 

3.      On service of notice OP appeared through Sri. K. Mohan Bhat, Advocate and filed version admitting about issuance of the Policy bearing No.68050231150100000218 valid for the period from 08.04.2015 to 07.04.2016 to the car bearing Reg. No.KA-01 MP 6066 for an ID value of Rs.3,00,000/-.  It is further admitted by the OP that, the said car met with an accident on 27.07.2015 and the same was reported by the complainant to the OP on 28.09.2015.  The OP has deputed one Sri. L.S. Mohan Kumar, Surveyor to assess the damage caused to the said vehicle and the said Surveyor have conducted survey and taken photos and submitted final survey report to the OP on 01.12.2015.  Further the complainant has produced Police papers to the OP.  As per the papers produced by the complainant, it clearly shows that, at the time of accident, 7 persons were travelling in the said car, which is against the seating capacity of the car, i.e., 4 + 1=5.  Therefore, there is a violation of the terms and conditions of the policy.  Hence, the OPs have repudiated the claim of the complainant.  As per the information in FIR dated 30.07.2015 bearing No.0254/2015 and Charge Sheet No.1539 and 1540 dated 30.07.2015, that the insured vehicle was carrying 7 members including Driver at the time of accident which exceeds the seating of the car.  Due to the accident, two were died and five were injured.  Hence, on this ground the OP reserve its right to repudiate the claim of the complainant.  As per the policy, the insured declared the said car for Rs.3,00,000/- in his claim form, hence the OP has collected the premium to cover the damages for Rs.3,00,000/- only.   The liability of the OP is only for Rs.3,00,000/- and further submitted by the OP that, if the Forum comes to the conclusion to pass an order it may be restricted to Rs.3,00,000/-      Therefore, there is no deficiency of service on their part and prayed for dismissal of the complaint.                

4.      Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-10 were got marked. On behalf of OP one Sri. A.V. Chandrashekharaiah, Branch Manager examined as DW-1 by filing affidavit evidence and Ex.B-1 to B-3 documents have been got marked.   

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OP has committed deficiency of service in settling the claim made by him and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Partly in Affirmative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, complainant is the RC owner of Hyundai White Car bearing Reg. No.  KA-01 MP-6066 and the same was insured with OP under policy No.68050231150100000218 valid for the period from 08.04.2015 to 07.04.2016.  It is argued by the complainant that, on 29.07.2015 when the complainant returning from Dharmasthala towards Chikkamagalur near Mangalur-Kadur road at about 6-30 PM, when crossing the Devarahalli Gate by that time, the said Car met with an accident and dashed to the right side tree and fully damaged and the inmates of the Car sustained injuries.  Out of which, two were died and five were injured.  Due to the said accident, the front portion of the car, front door, glass, front bonnet, engine, mud-guard and steering were fully damaged.  Complaint has been lodged before the Chikkamagalur Rural Police, the said Police inspected the spot and prepared the Spot Mahazar.  As per the information given by the OP to the complainant, the complainant left the Car in Rahul Cars India Pvt. Ltd., Shimoga for repairs.  The surveyor concerned to the OP inspected the vehicle and handed over the claim intimation letter on 09.09.2015 to the OP.   But, the Showroom people have not repaired the said car for about 20 days.  The complainant intimated the same to the OP.  The estimated cost of the repair was of Rs.7,53,675/-.  Again, the Surveyor of the OP visited the spot and obtained the photos of the damaged car and submit the same before the OP.  The complainant handed over the estimated bill and Tax Invoice to the OP. The OP repudiated the claim of the complainant stating that, the seating capacity of the car is only 5 members but, at the time of accident the complainant along with six members were travelling i.e., more than the seating capacity of the car.    

Complainant has relied on a decision reported in 2004 CCJ 485 (NC) in the case of Oriental Insurance Co. Ltd., Vs. Rajkumar Gupta wherein it has been held as under:

Consumer Protection Act, 1986, Sec. 2(1)(g) and 1(1)(d) – deficiency in service – Compensation – Motor insurance – Repudiation of claim – damage to truck in accident – insurance company contended that truck was carrying 13 persons contrary to the terms of the policy – it was not disputed that travelling of 13 persons in the vehicle did not contribute to the accident – whether insurance company was deficient in its service in repudiating the claim – held: yes; insurance company should have settled the claim as non-standard claim at 75% of the insured amount.

The above decision is squarely applicable to the present case on hand.    

9.      In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like Complaint marked as Ex.A-1, Copy of FIR marked as Ex.A-2, Statement of Smt. Nethravathi marked as Ex.A-3, Copy of Charge Sheet marked as Ex.A-4, Motor Vehicle Accident Report marked as Ex.A-5, Copy of Claim Estimation Letter marked as Ex.A-6,  Repudiation letter marked as Ex.A-7, DL Extract marked as Ex.A-8 and Photos are marked as Ex.A-9 and Ex.A-10.

10.    On the other hand, it is argued by the OP that, they have issued Policy bearing No.68050231150100000218 valid for the period from 08.04.2015 to 07.04.2016 to the car bearing Reg. No.KA-01 MP 6066 for an ID value of Rs.3,00,000/-.  On 27.07.2015 the said car met with an accident and the same was reported by the complainant to OP on 28.09.2015.  One Sri. L.S. Mohan Kumar, Surveyor of the OP has assessed the damage caused to the said vehicle and taken photos and submitted final survey report to the OP on 01.12.2015.  It is argued by the OP that, at the time of accident, 7 persons were travelling in the said car, which is against the seating capacity of the car, i.e., 4 + 1=5, which is a violation of the terms and conditions of the policy.  Therefore they have repudiated the claim of the complainant.  As per the information in FIR dated 30.07.2015 bearing No.0254/2015 and Charge Sheet No.1539 and 1540 dated 30.07.2015, the insured vehicle was carrying 7 members including Driver at the time of accident which exceeds the seating of the car.  Therefore, the OP reserves their right to repudiate the claim of the complainant.         As per the policy, the insured ID value of the said car for Rs.3,00,000/- and the OP has collected the premium to cover the damages for Rs.3,00,000/- only and their liability is only for          Rs. 3,00,000/-. The decision relied on by the Advocate for OP is not applicable to the case on hand.  

11.    In support of their contention, the OP has filed affidavit evidence and reiterated the contents of version and relied on the documents like repudiation letter dated 21.12.2015 marked as Ex.B-1, Acknowledgement marked as Ex.B-2 and final survey report marked as Ex.B-3.

12.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, complainant is the RC owner of Hyundai White Car bearing Reg. No.  KA-01 MP-6066 and the same was insured with OP under policy No.68050231150100000218 valid for the period from 08.04.2015 to 07.04.2016.  On 29.07.2015, the said Car met with an accident and dashed to the right side tree and fully damaged and the inmates of the Car sustained injuries.  Out of which, two were died and five were injured.  Due to the said accident, the front portion of the car, front door, glass, front bonnet, engine, mud-guard and steering were fully damaged.  The OP himself admits the validity of the policy and further admits that, the ID value of the car is of Rs.3,00,000/-.  The OP is restricted its liability for Rs.3,00,000/-.  As per the documents it clearly shows that, the ID value of the car is Rs.3,00,000/- only.   But, the calculation made under non-standard basis, the amount comes under Rs.2,25,000/-. Therefore, we have no agitation to pass an award of Rs.2,25,000/- to the complainant.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            13.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

 

ORDER

 

The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

It is ordered that, the OP is hereby directed to pay a sum of Rs.2,25,000/- along with interest at the rate of 12% p.a from the date of filing of the complaint till realization.   

It is further ordered that, the OP is hereby directed to pay Rs.50,000/- towards loss of earnings.

It is further ordered that, the OP is hereby directed to pay Rs.5,000/- towards costs of this proceeding.  

It is further ordered that, the OP is hereby directed to comply the above order within 45 days from the date of this order.

 

 (This order is made with the consent of Member after the correction of the draft on 18/02/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of Complainant:

01	Ex.A-1:-	Complaint report
02	Ex.A-2:-	Copy of FIR
03	Ex.A-3:-	Statement of Smt. Nethravathi
04	Ex.A-4:-	Copy of Charge Sheet
05	Ex.A-5:-	Motor Vehicle Accident Report
06	Ex.A-6:-	Copy of Claim Estimation Letter
07	Ex.A-7:-	Repudiation letter
08	Ex.A-8:-	DL Extract
09	Ex.A-9 & Ex.10:-	Photos

Documents marked on behalf of OP:

 

01	Ex.B-1:-	Repudiation letter dated 21.12.2015
02	Ex.B-2:-	Served Acknowledgement
03	Ex.B-3:-	Final survey report dated 01.12.2015

 

MEMBER                                                            PRESIDENT

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