BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^ST MAY, 2016

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

COMPLAINT NO.226/2011

(Admitted on 13.07.2011)

Mr.S.M.Afham Ali,

S/o K.Sayyed Ali,

Aged about 23 years,

Resident of Padil House,

Bannur Post,

Padil, Puttur – 574203.                                                        …….. COMPLAINANT

(Advocate for the Complainant: K.S.Nambiar)

          VERSUS

1.       M/s IFFCO TOKIO General Insurance Co. Ltd.,

          4^th and 5^th Floor, IFFCO Tower,

          Plot No.3, Sector – 29, Gurgaon – 122001.

          Rep. by its Authorised Signatory.

2.       M/s Bharath Auto Cars (Pvt) Ltd.,

          N.H.17, Near Kuntikan Junction,

          Mangalore – 575004.                                                   ……. OPPOSITE PARTY

(Advocate for Opposite Party No.1: Smt.Hemalatha Mallya)

(Advocate for Opposite Party No.2: Sri Venugopal V.S)

                                                                                  ***************

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant is a registered owner of a Car i.e. Maruthi Wagon R VXI B S III bearing Regn. No.KA21 M 7233 insured with the Opposite Party No.1 under the Policy bearing No. (M111211150037567) valid from 24.06.2009 to 23.06.2010.  It is sated that the above said vehicle met with an accident on 01.07.2010 and after the accident the vehicle was taken to the authorized Service Centre at Mangalore.   Thereafter the Complainant approached the Opposite Party and submitted all the required documents as sought by the Opposite Party but there was no response from the Opposite Party thereafter Complainant got issued a legal notice dated 26.11.2010.  In reply to the said notice the Opposite Party issued a reply dated 14.12.2010 to the Complainant stating that the claim of the Complainant will be considered as a total loss and requested the Complainant to produce certain documents.  The Complainant produced the documents on 04.01.2011 but till date the Opposite Party not settled the claim.  It is also stated that the Complainant obtained a loan of Rs.3,00,000/- from the Syndicate Bank, Mallya Gate Branch and has to pay Rs.8,000/- with interest to the Bank.  Since the Opposite Party not settled the claim the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.2,85,469/- i.e. total loss to the Complainant along with interest, compensation and cost of the litigation expenses

II.      1. Version notice served to the Opposite Party by R.P.A.D.   

The Opposite Party No.1 Insurance Company appeared through their counsel and filed version admitting the policy and stated that the Opposite Parties has appointed a surveyor to assess the damages and the said surveyor and has submitted his report dated 28.09.2010 to the Opposite Party.  As per the said report the Complainant is required to produce No Objection Certificate from the Bank to settle the claim.  Since the Complainant not produced the same, the Opposite Party closed the claim as no claim and denied the deficiency and prayed for the dismissal of the complaint.

III.     1.  In support of the complaint, S.M.Afham Ali (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C1 to C10.  On behalf of Opposite Party No.1, one V.Jagmohan Rao, Deputy General Manager, Customer Service Centre, Iffco Tokio General Insurance Company Ltd., Bangalore (RW-1) filed counter affidavit and answered the interrogatories served on him and got marked Ex R1 to C23.  On behalf of the Opposite Party No.2 one Rajram Karanth, Body Shop Manager, Bharath Auto(P) Ltd. Mangalore (RW-2) filed counter affidavit and answered the interrogatories served on him.  On behalf of the Opposite Party one Chittaranjan S., Surveyor-Loss Assessor, Mangalore (RW-3) filed counter affidavit and answered the interrogatories served on him. 

          In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?
2. If so, whether the Complainants are entitled for the reliefs claimed?
3. What order?

            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): Affirmative.

                         Point No.(ii) & (iii): As per the final order. 

REASONS

IV.     1.  POINTS NO. (i) TO (iii):

          The facts which are admitted is that the Complainant is the registered owner of the vehicle bearing KA21 M 7233.  The Complainant obtained the policy pertaining to the above said vehicle under the Policy No.M111211150037567 valid from 24.06.2009 to 23.06.2010.  It is also not in dispute that the above said vehicle met with an accident on 01.07.2010. 

Now the points are in dispute between the parties before this Fora is that, after the above said accident the Complainant submitted all the required documents to the Insurance Company but the Insurance Company not settled the claim till this date. 

The 1^st Opposite Party i.e Insurance Company on the contrary contended that the Complainant was asked to produce No Objection Certificate form the Bank.  Since the Complainant not produced the above document the Opposite Party closed the Complainant’s claim. 

On perusal of oral / documentary evidence available on records, we find that both the parties admitted the accident and also there is no dispute with regard to the total loss under the claim.  The only contention raised by the Insurance Company is that the Complainant availed a Bank Loan for purchase of the vehicle but not produced NOC letter from the bank, which is the reason they could not honour the claim.    It is seen on record that the Complainant obtained a loan of Rs.3,00,000/- from Syndicate Bank, Mallya Gate Branch, and cleared the Bank Loan and there is no due whatsoever.  Further it is also seen that the Complainant’s vehicle met with an accident on the above said date and the vehicle valued as total loss. Under the above circumstances, the 1^st Opposite Party Company is liable to settle the claim under total loss basis.    Just because the Complainant not produced No Objection Certificate the Opposite Party cannot withheld the claim of the Complainant till this date.   There is also no material evidence produced before this Fora to show that the Opposite Party Company before settling the claim call for the Complainant to produce NOC from the Bank. The Ex.C-9 produced before this Fora clearly reveals that the Syndicate Bank issued a letter i.e. NOC stating that they have no objection to release the amount in favour of the Complainant.  At least after receipt of the Ex.C-9 the Opposite Party Company should have come forward to settle the claim.  Ex.C-10 is the Statement of Accounts clearly shows that the Complainant had settled the bank loan and there is no due whatsoever.  The repudiation made by the Opposite Party is not justifiable.  It is significant to note that the Opposite Party Company cannot repudiate the claim in this fashion.   By considering the fact that there was no justifiable explanation offered by the Opposite Party for the delay in settling the claim except the above said documents.  In our view the Opposite Party Company miserably failed to give any acceptable and cogent reasons to substantiate their version.   Thus gross negligence, deliberate inaction shows in this case.   Therefore, we hold that the 1^st Opposite Party Company committed deficiency in service as well as Unfair Trade Practice.

By considering the above aspect, we hereby direct the 1^st Opposite Party to pay a sum of Rs.2,85,469/- under the total loss basis along with interest @12% per annum from the date of accident till the date of payment and also to pay to the Complainant Rs.3,000/- as cost of the litigation expenses  and payment shall be made within 30 days from the date of receipt of this order.

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.        

As far as Opposite Party No.2 is concerned there is no contractual obligation between the complainant and the Opposite Party No.2 and at the same time there is no deficiency whatsoever on the part of the Opposite Party No.2.   The complaint against the Opposite Party No.2 is hereby dismissed

          In the result, we pass the following:  

ORDER

The complaint is allowed. The Opposite Party No.1 i.e. IFFCO TOKIO General Insurance Co. Ltd. Shall pay to the Complainant a sum of Rs.2,85,469/- along with interest @12% per annum from the date of accident till the date of payment and further pay a sum of Rs.3,000/- as cost of the litigation expenses.  Payment/compliance shall be made within 30 days from the receipt of this order.

The complaint against Opposite Party No. 2 is hereby dismissed. 

 Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 6 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of May, 2016).

    PRESIDENT                           MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum            D.K. District Consumer Forum

                        Mangalore.                                         Mangalore.

                                 ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Afham Ali (CW1) – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – Insurance Policy dated 24.06.2009.

Ex C2 – Lawyer’s Notice dated 26.11.2010.

Ex C3 – Reply issued by the Opposite Party No.1 dated 14.12.2010.

Ex C4 – Letter issued by the Complainant to the Opposite Party No.1

            Dated 04.01.2011.

Ex C5 – Insurance Policy dated 24.06.2009.

Ex C6 – Insurance Policy 23.06.2010.

Ex C7 – Delivery Challan bearing No.DLN09000449 dated 24.06.2009.

Ex C8- Receipt dated 25.06.2009.

Ex C9 – No objection certificate issued by the Syndicate Bank, Mallya Gate

            NMPT, Panambur Branch,

Ex C10- Loan Account Statement issued by Syndicate Bank, NMPT, Mallya

            Gate Branch.

Witnesses examined on behalf of the Opposite Parties:

RW-1: V.Jagmohan Rao, Deputy General Manager, Customer Service

          Centre of Opposite Party Company.

RW-2: Rajram Karanth, Body Shop Manager, Bharath Auto(P) Ltd.,

          Mangalore

RW-3: Chittaranjan S., Surveyor-Loss Assessor, Mangalore

Documents produced on behalf of the Opposite Parties:     

 NIL 

Dated:31-05-2016                                       PRESIDENT