BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL    
    FORUM AT BANGALORE URBAN

 26^th DAY OF FEBRUARY 2015

             PRESENT:- SRI. J.N.HAVANUR              PRESIDENT

                              SMT. M. YASHODHAMMA    MEMBER    

                       
O R D E R

SRI. J.N. HAVANUR, PRESIDENT

This is a complaint filed by the complainant against Opposite Party (herein after called as OP) U/s. 12 of Consumer Protection Act 1986 praying to pass an order directing OP to settle the claim of the complainant which is for Rs.6,00,000/- along with 12% interest and costs.

2.      The brief facts of the complaint can be stated as under:

          The complainant is the R.C owner and he has insured his vehicle Hyundai Verna CRDI SX bearing registration No.KA-41-M-5588 for a period from 01.07.2009 to 30.06.2010 with the OP under package policy, covering risk of own damage having model of the vehicle 2007 and the I.D.V is Rs.6,00,000/-.  The vehicle in question has been hypothecated to ICICI Bank Ltd., as the loan has been raised for purchase of the said vehicle and the vehicle in question met with an accident on 05.08.2009 while being driven by his driver namely Hanumantha @ Hanumegowda and a crime has been registered in FIR No.355/2009 at Bidadi Police Station, Ramanagaram Taluk and sustained damages, which was intimated to the OP and OP arranged for a survey of the vehicle and on inspection of the damages of the vehicle, the surveyor has submitted his report and in view of the claim preferred by the complainant by submitting the necessary documents to the OP in order to process the claim.  On repeated enquiries with the OP finally a letter dated 18.11.2009 was sent by OP stating that claim is not payable and close the file as no claim.  The reasons mentioned are that the complainant has violated the terms and conditions of the policy and that one of the occupant was under the influence of alcohol.  The claim could have been settled by the OP instead of closing the claim as no claim as the OP has no authority to do the same for flimsy reasons and thereby committed deficiency in service in not making settlement of claim of complainant.  So the complainant has come up with the present complaint.

3. After service of the notice, OP has appeared through its counsel and filed the version contending interalia as under:

The complaint of complainant is not maintainable under the C.P Act and the same is liable to be dismissed.  The OP admits that policy for having insured the car bearing No-KA-41-M-5588 vide policy bearing No.1409792311003119 for a period from 01.07.2009 to 30.06.2010.  As per the said policy the insured declared value as Rs.6,00,000/-.  The complainant has suppressed the true facts before the Forum.  So complaint is liable to be dismissed with costs.  On 05.08.2009, two persons were going in the car bearing No.KA-41-M-5588 and the said car was being driven by one Mr.Hanumegowda, who is non other then the R.C owner of said car and the complainant before the Forum.  The name of another person in the car is one Mr.Narasimhamurthy, who died in the road traffic accident.  The driver of the said car i.e., complainant who being R.C owner drove the vehicle in a rash and negligent manner and dashed to a parked lorry bearing No.KA-41-2044.  The driver of the lorry by name K.V Purushotham who was very much present at the time of accident has lodged the Police complaint and in the police complaint it is stated that the driver of the car Mr.Hanumegowda came in a rash and negligent manner and dashed to a lorry and driver of the car and another occupant of the car got injured in the accident.  In the FIR also it is specifically mentioned that the driver of the Car Mr.Hanumegowda caused the accident.  In the requisition to file additional charge sheet by Police by incorporating Sec.304(A) mentioned Accused driver name as Hanumegowda.  The other occupant as stated above Narasimhamurthy died on 06.08.2009 due to the said accident.  This goes to show that Hanumegowda and Narasimhamurthy were going in the Car on 05.08.2009 and Hanumegowda was driving the Car.  Immediately after the accident both Hanumegowda and Narasimhamurthy were shifted to BGS Global Hospital for treatment.  As per the MLC register extract of the hospital of Hanumegowda it is made clear that patient was driving the car and hit to a lorry.  The copy of the MLC of Narasimhamurthy shows that patient was travelling in the Car.  These two documents go to show that Hanumegowda was driving the Car and Mr.Narasimhamurthy was occupant of the said car.  But the complainant with the ulterior motive stated in the petition averments that one Hanumanth @ Hanumegowda was driving the car.  As per the BGS Hospital history and physical examination sheet of Hanumegowda, it is made clear that the patient was driving the Car and hit to a lorry and Alcohol intake.  The history examination sheet of Hanumegowda is filed.  In the discharge summary it is also mentioned that Smell of Alcohol.   The aforesaid hospital documents go to demonstrate that Hanumegowda i.e., complainant herein after consuming the Alcohol, drove the Car in a rash and negligent manner and dashed to the Lorry.  The complainant/driver of the car was under the influence of Alcohol.  The driver cum owner of the Car drove the car by consuming the Alcohol and in the intoxication mood he lost control over the vehicle and dashed to the parked lorry.  Thus complainant has violated the terms and conditions of the policy, rules and regulations of the M.V Act.  Hence complaint filed by the complainant is liable to be dismissed.  The complainant intimated regarding the accident to the OP after 25 days from the date of accident.  The complainant violated the condition No.1 of the policy.  The complainant ought not to have driven the car in intoxication mood by consuming the Alcohol and negligence is on the part of the complainant.  Hence the OP has rightly closed as no claim.  There is no deficiency of service on the part of the OP.  Hence, it is prayed to dismiss the complaint of complainant with exemplary costs.

4. So from the averments of the complaint of the complainant and version of Opposite Party the following points arise for our consideration as under:

5. Our answer to the following points:

Point No.1:-  In the negative

Point No.2:- In view of the negative findings on the point
                                No.1 the complainant is not entitled to any
                             relief as prayed in the complaint.

                          
          Point No.3:-  For the following order

                                       REASONS

6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 6 documents along with memo. 

7. On the other hand one Sri.Chandrashekar, Deputy Manager working in OP has filed his affidavit and produced documents which are marked as annexure R-1 to R-8.  Sri.Hanume Gowda, who being complainant has stated in his affidavit that he is the R.C owner and has insured his vehicle Hyundai Verna CRDI SX bearing registration No.KA-41-M-5588 for a period from 01.07.2009 to 30.06.2010 with OP under package policy, covering risk of own damage having model of 2007 and the insured declared value is of Rs.6,00,000/-.  The vehicle in question has been hypothecated to ICICI Bank Ltd., as loan has been raised for purchase of the vehicle and the said vehicle met with an accident on 05.08.2009 while being driven by the driver of the insured and a crime has been registered in FIR No.355/2009 at Bidadi Police Station, Ramanagaram Taluk and vehicle sustained damages, which was intimated to the OP who arranged for a survey of the vehicle and on inspection of the damages to the vehicle, the surveyor has submitted his report and in view of the claim preferred by the complainant by submitting the necessary documents to the OP in order to process the claim.  On repeated enquiries with the OP finally by its letter dated 18.11.2009 the OP has written that the claim is not payable and close the file as no claim.  The reason mentioned is that the complainant has violated the terms and conditions of the policy as one of the occupant was under the influence of alcohol.  In fact in respect of the death of an inmate of the car, a claim petition was filed by legal heirs and representatives seeking for compensation in M.V.C No.7581/2009 on the file of the M.A.C.T Bangalore, wherein no such defence is taken by OP.  OP has led evidence by examining one of the officer who has not spoken to about the defence now urged in the version that the driver was the insured and that the said driver was drunk at the time of the accident.  The charge sheet is filed by the police against one R.Hanumantha @ Hanumegowda S/o Rajanna who is entirely different person and as the insured name also resembles the OP by raising flimsy grounds has closed the file without settling the claim.  IMV report produced goes to show that the vehicle was damaged and the Police having filed charge sheet against R.Hanumantha @ Hanumegowda S/o Rajanna.  OP has no authority to close the file on flimsy grounds and thereby committed deficiency in service in not settling his claim.  So, he prays to pass an order directing OP to settle the claim in a sum of Rs.6,00,000/- along with interest and costs as prayed in the complaint.

 8. Let us have a look at the relevant documents of the complainant.  Document No.1 of complainant is certified copy of judgement in MVC No.7581/2009 passed by XVI Addl. Judge, MACT, Bangalore City wherein Smt.Rukmini W/o Late Narasimhamurthy, her son and two daughters together filed a petition U/s.166 of Motor Vehicles Act against Hanumegowda S/o Yellappa and Reliance General Insurance Company Ltd., and that petition was allowed in part with costs and petitioners are awarded a sum of Rs.8,79,855/- with costs and simple interest at 6% p.a from the date of the petition till the date of realization.  The Respondents 1 and 2 are jointly and severally directed to pay the entire compensation with costs and interest.  But in view of the insurance policy, R-2 is liable to pay entire compensation to the petitioners within a month from the date of its order.  The advocate’s fee is fixed at Rs.1,000/-.  Draw decree accordingly.  The complainant has produced certified copy of written statement of R-2 filed in MVC wherein it is stated that one Hanumegowda S/o Yellappa was driving the vehicle and not R.Hanumantha @ Hanumegowda S/o Rajanna.  The copies of FIR and charge sheet are produced wherein name of the driver mentioned as R.Hanumantha @ Hanumegowda S/o Rajanna and case has been registered U/s.279-338-304(A) IPC and one of the inmate by name Narasimhamurthy sustained severe injuries on his head, fore head and died in the hospital.  The complainant has produced the copy of RC standing in his name.  Copy of insurance policy is also produced.  Copy of driving licence of one R.Hanumantha S/o Rajanna is produced.  Copy of terms and conditions of the policy is also produced by the complainant.

9. Let us have a look at the material evidence of OP.  One Sri.Chandrashekar, Deputy Manager working in OP has stated in his affidavit that he admitted the policy for having insured the car bearing No-KA-41-M-5588 vide policy for a period from 01.07.2009 to 30.06.2010 and insured declared value is of Rs.6,00,000/-.  On 05.08.2009 two persons were going in the car the said car was being driven by one Mr.Hanumegowda, who is none other than the R.C owner of the car and complainant before the Forum.  The name of another person in the car is one Mr.Narasimhamurthy, who died in the accident occurred on 06.08.2009.  The driver of the said car drove the vehicle in a rash and negligent manner and dashed to a parked lorry bearing No.KA-41-2044.  The driver of the lorry by name K.V Purushotham who was present at the time of accident has lodged the Police complaint.  In the discharge summary it is mentioned that the smell of Alcohol.  The copy of the discharge summary is produced.  The said document goes to show that one Mr.Hanumae Gowda i.e., complainant herein after consuming alcohol has driven the car in a rash and negligent manner & hit against the lorry.  The complainant/driver of the car was under influence of alcohol.  So he has violated the policy terms and conditions of the policy.  So complaint is not sustainable.  The complainant has intimated regarding the accident to OP after 25 days from the date of the accident.  The complainant has violated the condition No.1 and 4 of the policy.  The complainant ought not to have driven the car in intoxication mood by consuming the Alcohol.  Negligence is on the part of the complainant.  So this OP has rightly closed as no claim.  The facts and circumstances of MVC proceedings not applicable to this case.  There is no deficiency of service on the part of the OP.  So complaint be dismissed with costs.

10. OP has produced the copy of insurance policy issued in the name of complainant in respect of Hyundai Verna CRDI SX for a period from 01.07.2009 to 30.06.2010 by collecting premium amount of Rs.9,185/- for a sum of Rs.6,00,000/- and that policy is annexed with terms and conditions of the policy.  Annexure-2 & 3 are copies of complaint and FIR wherein name of the accused is mentioned as Hanumae Gowda and case has been registered U/s.279 and 377 of IPC.  Annexure R-4 is the requisition of Police officer addressed to CJM, Bangalore to include Sec.304(A) of IPC as injured Narasimhamurthy died in the hospital.  Annexure R-5 is the MLC extract of BGS Global hospital in respect of Mr.Hanume Gowda S/o Yellappa, who being present complainant and he also sustained in the injuries in the said accident and it is stated in the said documents that complainant was driving the vehicle on the said date and caused the accident.  Annexure R-6 is the MLC extract of Narasimhamurthy, who was also travelling in the Car on the fateful day.  Annexure R-7 is the copy of history and physical examination report of BGS hospital in respect of Hanumegowda, who being the present complainant wherein it is stated as alcohol intake and patient was driving the vehicle.  Annexure R-8 is the discharge summary of Hanume Gowda, wherein under examination finding column it is stated as smell of alcohol.

11. So looking to the evidence of employee of OP and Annexure R-5 to R-8 produced by OP and relevant terms and conditions of policy it is made manifest that as on the date of accident the complainant was driving the vehicle and he was under influence of Alcohol and he suffered injuries in the accident and another inmate of the vehicle by name Narasimhamurthy has also sustained severe head injuries and died but the criminal case has been registered against one Hanumegowda S/o Rajanna, giving up the complainant as an accused and complainant has been cited as witness in the criminal case as per the charge sheet copy produced by the complainant.  The complainant who being R.C owner of vehicle ought not to have driven the vehicle by consuming alcohol as per the policy terms and conditions.  So also the claim has been submitted to OP by complainant late i.e., after 25 days of the accident.  If the claim is submitted late and if the person i.e, policy holder drives the vehicle with intoxication the OP who being insurance company will not come to the rescue of complainant to indemnify the loss caused to the vehicle in the accident as the same is violation of terms and conditions of policy taken.  The legal representative of deceased Narasimhamurthy have been awarded compensation in MVC case under 3^rd party risk as per the terms and conditions of the policy and that case is not helpful to the case of the complainant.  The evidence of employee of OP that complainant drove the vehicle under influence of Alcohol on the date of accident and claim made to OP by complainant is late is supported by Annexure R-1 to R-8.  In fact the OP has scrutinized the claim of the complainant strictly in accordance with the terms and conditions of the policy and repudiated the claim as there is a violation of policy by the complainant.  There is no negligence or deficiency of service as such on the part of the OP in making repudiation of claim of the complainant.  The complainant who comes to the Forum seeking relief has not approached the Forum with clean hands and he has suppressed the material facts before the Forum.  So taking oral and documentary evidence of OP and compare the same with material evidence of complainant, it is vivid and clear that the oral and documentary evidence of OP are more believable, trustworthy and acted upon than the material evidence of complainant and as such we are of the considered opinion that the complainant who knocks the door of the Forum seeking relief has utterly failed to establish with clear and tangible material evidence that OP is negligent and there is deficiency of service on the part of the OP in not making settlement of his claim and accordingly we answer this point in a negative.

12. In view of our negative finding on point No.1 complainant is not entitled for any relief.  So we answer this point also in a negative.  In the result for the foregoing reasons, we proceed to pass the following:     

O R D E R

The complaint of complainant is hereby dismissed. No costs.

Supply free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 26^th day of February 2015)

MEMBER                                                                   PRESIDENT

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Complainant                 -        Sri.Hanumegowda H.Y

                                                V/s.

Opposite Party    -                  M/s Reliance General

Insurance Co., Ltd,

Represented by its

Manager,

Witnesses examined on behalf of the complainant dated 26.10.2011

1) Sri.Hanumegowda H.Y

  Witnesses examined on behalf of the Opposite party dated 17.11.2011.

1. Sri.Chandrashekar. 

Documents produced by the Opposite Party:

MEMBER                                                                 PRESIDENT

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