Complaints filed on: 15-03-2023

                                                      Disposed on:26-07-2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

          DATED THIS THE 26^th DAY OF JULY 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

CC.No.109/2022

Sri. Athiq Rehman S/o Abdul Jabbar Sab,

Aged about 32 years, R/at Garimaranahatti,

Sira Taluk, Tumakuru District-572 137.

……….Complainant

(By Sri. S. Manjunatha, Advocate)

V/s

1.       M/s Bajaj Allianz General Insurance

Company Limited, Bajaj Allianz House,

GE Plaza, Airport Road, Yerwada,

Pune-411 006(India).

2.       M/s Bajaj Allianz General Insurance

          Company Limited, Golden Heights,

          4^th Floor, No.1/2, 59^th ‘C’ Cross,

          4^th ‘M’ Block, Rajajinagar,

          Bangalore – 560 010.

……….Opposite Party

(By Sri. N.V.Naveen Kumar, Advocate)

:ORDER:

BY SMT.G.T.VIJAYALAKSHMI, PRESIDENT

The complainant alleging deficiency in service against the OPs filed this complaint U/s 35 of the Consumer Protection Act 2019 with a prayer to direct the OP to pay compensation of Rs.5,00,000/- for non discharge of their duty in accordance with law, Rs.2,00,000/- for damages along with cost and such other reliefs as the Hon’ble Commission deems fit to grant.  

2.       The brief facts of the complaint are as under:-

The complainant is a customer of OP and insured his vehicle bearing No.KA-28-C-6769 under a policy No.OG-20-3233-1803-00000097         Dated:22-11-2019 and the same is valid from 23.11.2019 to 22.11.2020.  It is further submitted that the complainant was handed over the said vehicle to one of his friend by name Sarfaraj Ahmed on 11.02.2020 to attend function at Chikkamagalur and on 8.00 PM on the same day at Thogarihankal and near Jagadeesh Shop at CKM-Tarikere Road, suddenly a boy entered the road and met with an accident and said Sarfaraz Ahmed parked the said vehicle on extreme left side of the said road and get down, at that time, people gathered and made some conflict and tried to beat him and due this, Sarfara Ahmed feared and started the said vehicle to move to nearby police station, but at 8.20 PM Sarfaraz Ahmed near Kaimara circle at CKM-Tarikere Road tried to park the said vehicle to get the address of police station, but suddenly due to fear of the incident occurred, once again met with an accident by dashing the tractor-trailer and due to the accident, the vehicle has been damaged with high loss and thereafter the police has seized the vehicle and after the incident came to the knowledge of the complainant by Sarfaraz Ahmed, complainant went to police station and by clearing all the formalities, complainant got released the said vehicle and took the said vehicle for repair to AL SHIFA AUTO MOBILES, Shikaripura and also at FEETAJ CAR CARE, Shikaripura. 

The complainant further submitted that complainant after getting repaired the said vehicle by spending an amount of Rs.1,94,773/-, the complainant approached the customer portal of the Respondent on 11.03.2020 and submitted the claim intimation along with necessary documents, but on 15.06.2020, the respondent’s authorized signatory have issued a notice by stating that the complainant has violated the terms and conditions and also denied the license holding by the Sarfaraz Ahmed, the driver/friend of the complainant has not authorized to drive LMV-TR vehicle.  The said complainant have replied to the said notice dated:15.06.2020 and on 17.07.2020 with the documents sought by the respondent and requested to settle the claim, for which the OP showed negligence in providing the service to the complainant and not settled the claim.  Hence, the complaint.         

3.       After receipt of notice, the OP appeared through its counsel and filed the version contending that the OP has insured the vehicle bearing registered No.KA:28:C:6769 vide policy (commercial vehicle-package policy) No.OG-20-3233-1803-00000097 valid from 23.11.2019 to 22.11.2020 and the IDV value of the insured vehicle was Rs.5,00,000/- and the said policy covers the risk subject to the terms and conditions of the policy and also compliance under section 64 VB of insurance act.   The OP further contended that the insured vehicle was dashed to one Nishanth a pedestrian, on 11.02.2020 and a complaint was lodged in this regard in crime No.15/2020 for an offence punishable under section 279, 337 of IPC R/w Section 187 of the MV act.  Later on 13.02.2020 at about 3.00 PM another complaint was lodged against the insured vehicle’s driver by one Valeriayan Menesses stating that the said vehicle driver has dashed to his tractor and trailer No.KA:18:TB:0685/KA-18-TB-0964 in crime No.48/2020 for an offence punishable under section 279 of the IPC.  All these clearly goes to show that there was a delay of two days in holding the complaint and the delay was not properly explained with justifiable grounds.  Further, the OP submitted that the insured vehicle was voluntarily surrendered before the Investigation Officer on 13.02.2020 vide seizer mahazar dated:13.02.2020 at about 12.00 to 13.00 PM and there was no explanation from the insured with regard to delay and also where the vehicle was parked for two days.  All these clearly go to show that the insured/complainant has suppressed the real facts and it is a clear case of suppression of material facts.  The OP further submitted that the OP has received a claim intimation through customer portal on 11.03.2020 after lapse of more than one month and immediately upon the verification of the documents, the OP has appointed the investigator and also independent IRDA licensed surveyor to assess the loss.  On 15.06.2020 this OP has issued a letter to the complainant stating that it is a clear case of breach of policy terms and conditions and the policy, but the complainant intimated the claim after inordinate delay and thereby violated the condition No.1 of the policy.   It is further submitted that the complainant has not safeguarded the insured vehicle, as the driver of the insured vehicle has not taken proper care and caution at the time of 1^st accident and he drove the same with negligent manner and dashed to one tractor and trailer, as a result, the vehicle got damaged severely.  Further, it is contended that the driver of the vehicle is not an authorized person to drive the insured vehicle, as he was unauthorised to drive the MCWG and LMV valid from 20.06.2015 to 19.08.2015 and the insured vehicle is a commercial and to drive the same, the transport endorsement is required.  The repair bill produced by the complainant is created and fabricated and SHIF AUTO MOBILE AND REETAJ CAR CARE are not the authorized service centre.  The bills produced by the complainant are of no evidentiary value in the eye of law. 

          The OP further submitted that the Insurance Company will pay the amount which has been assessed by the Surveyor i.e. Rs.97.576/- and no sum shall be paid more than the net assessed amount as per the guidelines given by IRDA.  The report of the licensed surveyor cannot be brushed aside without giving any cogent reasons and both the parties to the contract are bounded by the said report of the surveyor.  The complainant has knowing fully and willfully committed the breach of policy terms and conditions, hence, on this ground, the claim was repudiated with justifiable grounds.  As per the guidelines of the Hon’ble Supreme Court of India in Ravneet Singh Bagga V. KLM Royal Dutch Airlines (2000) 1 SCC 66 and Revision petition No.1046/2015 by Hon’ble National Consumer Commission, is liable to be dismissed. On these among other grounds, there is no deficiency of service on the part of OP and prays to dismiss the complaint.      

4.       The complainant has filed his affidavit evidence.  The complainant marked the documents at Ex.P1 to P23.  One Mr.V.Inamdar, Legal Executive has filed his affidavit evidence on behalf of OP.   The OP marked the documents at Ex.R1 to R12.  

5.       We have heard the arguments from both side counsels. 

6.       On perusal of pleadings and documents produced by the parties, the points that would arise for our consideration are:

1. Whether there is any deficiency in service on the part of OP?

2. Whether complainant is entitled for reliefs sought for?

7.       Our findings to the aforesaid points are as under:

Point No.1: Partly in the affirmative

Point No.2: As per the final order, for the below

:REASONS:

Point Nos.(1) & (2):-

8.       On perusal of pleadings, evidence and documents, the admitted facts between the parties are:

The complainant insured his vehicle bearing No.KA:28:6769 under policy No.OG-20-3233, dated:22.11.2019 and the same is valid from 23.11.2019 to 22.11.2020.   The complainant was handed over the said vehicle to one of his friend by name Sarfaraz Ahmed on 11.02.2020 to attend the function at Chikkamagalur and the car met with accident two times on 11.02.2020 at 8.00 PM and 8.20 PM.  Due to the accident, the vehicle has been damaged with loss.  Thereafter the police has seized the vehicle and after the incident came to the knowledge of the complainant, went to police station and by clearing all the formalities, complainant got released the said vehicle and took the vehicle for repair at AL SHIFA AUTO MOBILES, SHIKARIPURA.  After getting repaired the said vehicle by spending an amount of Rs.1,94,773/-, the complainant approached the customer portal of OP on 11.03.2020 and submitted the claim intimation along with necessary documents.  On 15.06.2020, the OP’s authorized signatory have issued a notice by stating that the complainant has violated the terms and conditions and also denied the license holding by the Sarfarz Ahmed, the driver/friend of the complainant has not authorized to derive LMV-TR vehicle. 

9.         The main allegation of the complainant is that even submission of all necessary documents; the OPs have not settled the claim.   

10.       Per-contra, the OPs contended that the OP has received a claim intimation through customer portal on 11.03.2020 after lapse of more than one month and the OP has appointed the investigator and also independent IRDA licensed surveyor to assess the loss.  The surveyor has assessed the loss at Rs.97,576/-.  Further, the OP contended that the driver of the vehicle is not an authorized person to drive the insured vehicle, as he was authorised to drive the MCWG and LMV from 20.06.2015 to 19.08.2035.   The insured vehicle is a commercial vehicle and to drive the same, transport endorsement is required. 

11.       From the above admitted facts and parties allegations and contentions, it is seen that the vehicle met with an accident on 11.02.2020.  A complaint was lodged in this regard in crime No.15/2020.  After the accident, the driver surrendered the vehicle before the Investigation officer.  A complaint was lodged against the insured vehicle driver.  There is no delay in intimating to the law enforcement authorities.   But there is delay in intimation to the insurance company. 

12.       As per Ex.R12, the driver is authorised to drive the MCWG and LMV from 20.08.2015 to 19.08.2025.  The insured vehicle is a commercial vehicle and to drive the same, the transport endorsement is required.  In this regard, the notification No.RT-11021/44/2017 – MVL dated:16.04.2018 of the ministry of Road Transport and Highways had notified that:

 “In view of the legal position as settled by the Hon’ble Supreme Court in the above judgment(Mukund Dewagan case), the requirement under the Motor Vehicles Act, 1988 to obtain the transport license would arise in case of medium/heavy goods and passengers vehicles only.”  No other vehicle will require any separate endorsement, even if they are used for commercial purposes.  The exemption from the requirement to obtain the endorsement for commercial vehicles would apply to following vehicles:

(i) Motorcycle without gear,

(ii) Motorcycle with gear,

(iii) Light motor vehicle (goods/passenger)

(iv) e-rickshaw/e-cart

The Notification has been issued in compliance of judgment dated:03.07.2017 of the Hon’ble Supreme Court in Civil Appeal No.5826/2011 in the case between Mukund .Dewagan Vs Oriental Insurance Company Ltd., & Others, in the matter of issue of DL for LMVs.

13.       From the above notification and Hon’ble Apex Court judgment, it is clear that transport license would arise in case of medium/heavy goods and passengers vehicle only.  As per the above notification and judgment, the repudiation of the claim of the complainant amounts to deficiency in service and the OPs are liable to settle the claim of the complainant.     The complainant not taken any authorization for repairs from the OPs and without intimating the OPs, he spent amount for repairs.  Considering the above facts and circumstances of the case, it is just and proper to direct the OPs to settle the claim of the complainant on the basis of surveyor report.  

14.       The OPs have not produced any surveyor report, but stated in the version that their surveyor has assessed the loss at Rs.97,576/-.  Hence, the OPs are liable to pay Rs.97,576/- along with interest @ 9% PA from 15.06.2020 to till realization.  For the act of the OPs, the complainant compelled to approach this Commission.  Hence, the OPs are liable to pay Rs.10,000/- as compensation and Rs.10,000/- as litigation expenses.  Accordingly, we proceed to pass the following:-    

:ORDER:

The complaint filed by the complainant is allowed in part.

The OPs are jointly and severally directed to pay Rs.97,576-00 along with interest @ 9% PA on the said amount from the date of repudiation i.e. 15.06.2020 to till realization to the complainant.

The OPs are jointly and severally directed to pay Rs.10,000/- as compensation and Rs.10,000/- as litigation expenses to the complainant. 

The OPs are further jointly and severally directed to comply the above order within 45 days from the date of receipt/knowledge of the order.

Supply free copy of this order to both parties immediately.