Karnataka

Bangalore 4th Additional

CC/286/2017

Smt Rekha K, - Complainant(s)

Versus

M/s SBI General Insurance Co Ltd., - Opp.Party(s)

20 Dec 2019

ORDER

Complaint Filed on:22.02.2017

Disposed On:20.12.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

   20^th DAY OF DECEMBER 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.286/2017

 

 

 

COMPLAINANT	Smt.Rekha K, W/o Late R.V Ramaswamy, Aged about 36 years, Residing at No.2, MVR Paradise, Defence Layout, SBI Building, Devi Circle, Vidyaranyapura, Bangalore – 560 097.   Advocate – Sri.Praveen Hegde.       V/s
OPPOSITE PARtIES	1) M/s.SBI General Insurance Co. Ltd., Rep. by General Manager, Ground and First Floor, No.3/1, Rukmini Towers, Platform Road, Sheshadripuram, Bangalore – 20.   2) M/s.SBI General Insurance Co. Ltd., Rep. by General Manager, ‘Nataraj’, 101, 201 and 301, Junction of Western Express Highway & Andherikurla Road, Andheri (East), Mumbai – 400 069.   Advocate – Sri.H.N Keshava Prashanth.

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to pay claim amount of Rs.12,00,000/-, to pay compensation of Rs.5,00,000/- as compensation towards monetary loss, mental agony, to award cost of the complaint and to grant such other reliefs.

 

2.      The brief facts of complaint is as under:

 

Complainant husband deceased R.V Ramaswamy was the owner of Toyoto Innova 2.5V vehicle bearing registration No.KA-53-MB-3231.  Deceased R.V Ramaswamy insured the said vehicle with the OP bearing No.0000000004072893.  The said policy valid for the period from 10.03.2016 to 09.03.2017.  The complainant submitted that on 16.04.2016 complainant husband R.V Ramaswamy died in the road accident in NICE road between Sompura Bridge and Nagegowdanapalya Bridge.  At the time of the accident the said deceased R.V Ramaswamy and his friend Sri.Rajanna, travelled in the vehicle and one Hanumantharaju was driving the vehicle.  Sri.Hanumanraju and Sri.Rajanna had sustained several injuries and R.V Ramaswamy died in the said accident.  The complaint was lodged before the Thalagattapura police against the driver Hanumantharaju on 16.04.2016 for rash and negligent driving of the vehicle.  Police have registered the complaint in Crime No.148/2016 under sec.304A,   279 and 337 of IPC.  Police have filed investigation report/charge sheet against the driver of the vehicle on 01.10.2016.

 

The complainant submitted that, the vehicle was sent to the service centre of the Toyata showroom for repair.  OP visited the service centre, inspected the vehicle and declared that the vehicle has total loss.  The complainant being a nominee of the policy holder has submitted claim before the OPs in claim No.257980 for total loss of the vehicle on 21.04.2016.  The complainant submitted that after several approaches OP has not settle the claim of the complainant and sent untenable reply by rejecting the claim.  At the time of accident one Sri.Hanumantharaju R was driving the said Toyota Innova vehicle.  The OPs have rejected the claim stating that R.V Ramaswamy was driving the vehicle at the time of accident and there was no material proof to substantiate the same.  The husband of the complainant being the bonafide customer of the OPs and have rejected the claim without any valid reason.  Hence complainant issued legal notice on 04.01.2017 calling upon the OPs to pay the insurance amount.  The notice was served on OPs, the OPs have neither replied to the said legal notice nor complied the demands made in the notice.  Hence complainant approached the Forum.

 

3. In response to the notice issued, OPs appeared through their advocate and filed their version in brief as under:

 

OPs admitted that the complainant car bearing No.KA-53-MB-3231 insured the said vehicle with the OP and the policy was valid from 10.03.2016 to 09.03.2017.  The complainant intimated the OP about the accident on 21.06.2016.  Accordingly the OP has issued a claim form and requested the complainant to submit claim form along with other relevant documents and necessary information.  Accordingly complainant has submitted the necessary documents to the OPs.

OPs further submitted that on receipt of the claim form and other documents from the complainant, the OP investigated the accident.  As per the information gathered by the OP the accident occurred on 16.04.2016 and the OP was informed the accident on 21.06.2016 and there was inordinate delay in informing the accident to the OP.  As per the terms and conditions of the policy, it is duty of the insured to intimate the alleged accident and damages caused to the vehicle to the concerned police and also to the OPs, immediately after the alleged damages were noticed.  However in this case no such attempts were made.  The complainant informed the OP on 21.04.2016 i.e., after lapse of 5 days.  There is a inordinate delay in giving the intimation to the OP hence OP is not liable to pay compensate the claim of the complainant and the complaint is liable to be dismissed on this ground alone.

 

OPs further submitted that the admissibility of the claim is subject to the terms and conditions of the insurance policy.

 

1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage In the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.  Every letter, claim, Writ summons and / or process or copy thereof shall be forwarded to the company immediately on receipt of the insured.  Notice shall also be given in writing to the company immediately the insured shall have the knowledge of any impeding prosecution, inquest or fatal injury in respect of any occurrence which may give raise to a claim under this policy.  In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.

 

Further OPs submitted that after receipt of the claim and other documents from the complainant, the OP caused investigation through its investigators i.e., M/s N Quire Associates.  As per the investigation the insured himself was the driving the insured car at the time of accident and not the Hanumantharaju as stated by the complainant in her claim form.  OP further submitted that, OP have collected the report from the NICE road toll entry and as per the said report the insured Sri.Ramaswamy R.V was the driver at the time of accident.  The OP also obtained the medico legal opinion and as per the opinion also the insured himself was the driver at the relevant point of time and not the Hanumantharaju as stated by the complainant.  Hence it is clear that complainant has misrepresented the materials information about the driver details.  Hence OPs have rightly repudiated the claim of the complainant vide letter dated 21.12.2016.  Hence OPs prayed for dismissal of the complaint. 

4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant has submitted written arguments.  Complainant and OPs have produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

 

 

2.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1:  Affirmative in part

Point No.2:  As per the order below

 

REASONS

 

 

7. Point No.1:  On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that the complainant’s husband deceased R.V Ramaswamy was the owner of the Toyoto Innovo 2.5V vehicle bearing registration No.KA-53-MB-3231.  The said vehicle was insured with the OP vide policy No.0000000004072893.  The said policy valid from 10.03.2016 to 09.03.2017 as per Ex-P1.  It is also admitted fact that the said vehicle met with an accident on 16.04.2016 and complainant husband R.V Ramaswamy died in the said accident.  At the time of accident the policy was in force.

 

8. The contention of the complainant is that after the accident the complaint was lodged before the Thalagattapura Police against the driver Hanumantha Raju.  The case was registered in Crime No.148/2016 U/s.304A, 279 and 337 of IPC.  The police have also filed the charge sheet against the driver for rash and negligent driving of the vehicle on 01.10.2016.  The complainant further contended that the said accident was informed to the OP Insurance company immediately after the accident and the vehicle was shifted to Toyoto service center.  The OP investigator declared that the vehicle has been crushed.  Thereafter the complainant submitted the claim form along with documents on 21.04.2016.  The OPs have rejected the claim illegally.

 

9. Per contra OPs submitted that the complainant has not informed the accident to the OPs insurance company immediately after the accident.  Hence it is against the terms and condition No.1 of the policy.  Further at the time of the accident deceased Mr.Ramaswamy R.V was driving the said vehicle not the Mr.Hanumantha Raju R.  It is misrepresentation of material information about the driver details.  Hence the OPs have repudiated the claim of the complainant.

 

10. The question before us whether deceased Mr.R.V Ramaswamy was driving the vehicle or Mr.Hanumantha Raju R was driving the vehicle at the time of accident.  As per the FIR report/Ex-P3 and panchanama/Ex-P5 Mr.Hanumantha Raju was driving the vehicle at the time of accident.  Further the police have filed charge sheet against Mr.Hanumantha Raju for rash and negligent driving of the said vehicle as per Ex-P4.  The said charge sheet was not challenged by the OPs.  Hence it is proper to accept that at the time of accident Mr.Hanumatha Raju, was driving the said vehicle.  After thorough investigation of the case, the police authority have filed detailed charge sheet.  In the charge sheet reason for the accident noted that the accident occurred due to rash and negligence driving of the driver Sri.Hanumantharaju.  The OPs have not challenged the said charge sheet before any appropriate Forum.  This Forum does not have power and jurisdiction to express any opinion on the charge sheet and the charge sheet has to be accepted.  Therefore, in the light of the panchanama and the charge sheet we deem it proper to come to the conclusion that Mr.Hanumantharaju was driving the said vehicle at the time of accident.

 

11. Further the OPs contended that the complainant has not informed the accident to the OPs immediately after the accident but they have informed after lapse of 5 days of the accident.  Admittedly accident occurred on 16.04.2016.  As per the survey report dated 22.06.2016/Ex-B5 it is seen that the OPs surveyor, survey the vehicle on 18.04.2016.  Hence the contention of the OP cannot be acceptable.  Be that as it may the contention of the OPs does not hold good in view of the judgment rendered by Hon’ble Supreme Court of India in Civil Appeal No.15611/2017 (Supreme Court of India) – OM Prakash – V/s. Reliance General Insurance and another has observed as under:

 

“10. Condition No.1 of the Insurance policy states that notice shall given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured has to give all such information and assistance as the company may require”

 

11.   It is common knowledge that a person who lost his vehicle may not straightway go to the Insurance Company to claim compensation.  At first, he will make efforts to trace the vehicle.  It is true that the owner has to intimate the insurer immediately after the theft of the vehicle.  However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances.  The decision of the insurer to reject the claim has to be based on valid grounds.  Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry.  If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay.  It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator.  The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine.  It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers.  It is a beneficial legislation that deserves liberal construction.  This laudable object should not be forgotten while considering the claims made under the Act.

 

12. Based on the facts of the case and background of yardstick of the above said decision of the Hon’ble Supreme Court of India, OPs are not at all justified in repudiating the claim of the complainant on the basis of the insured was driving the vehicle at the time accident and delay in intimating the alleged accident.  Further the complainant has sought Rs.12,00,000/- from OPs as the vehicle was fully damaged.  As per survey report OP surveyor in the particulars of loss/damages column it is mentioned as complete body has been crushed.  Therefore, we are of the opinion that, OPs have to be directed to pay a sum of Rs.12,00,000/- being the total IDV value of the vehicle in terms of the policy document.  Since OPs have repudiated the claim without any valid reasons they shall have to be directed to pay interest on the claim amount at the rate of 9% p.a from the date of repudiation till the date of payment.  The conduct of OPs, in unnecessarily repudiating the claim of the complainant and thereby forcing her to approach the Forum must have put her to great hardship, inconvenience and mental agony.  Therefore, they have to be directed to pay compensation of Rs.30,000/- to complainant together with litigation cost Rs.20,000/-.  The complainant has successfully proved deficiency of service on the part of OPs.  Accordingly, we answer the point No.1 partly in the affirmative.

 

15. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:     

  

 

 

                 

  O R D E R

 

 

 

The complaint filed by the complainant is allowed in part.

 

OPs.1 & 2 jointly and severally directed to pay insurance claim amount of Rs.12,00,000/- (Twelve Lakhs only) to the complainant together with interest @ 9% p.a from the date of repudiation till the date of realization.

 

OPs.1 & 2 further directed to pay compensation of Rs.30,000/- and litigation cost of Rs.20,000/- to the complainant.

 

This order is to be complied by the OPs.1 & 2 within 30 days from the date of receipt of this order.

 

          Supply free copy of this order to both the parties.

   

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 20^th day of December 2019)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

                         
             

 

 

 

 

                      

Witnesses examined on behalf of the complainant by way of affidavit:

 

Rekha K.

 

 

Copies of documents produced on behalf of complainant:

 

Ex-P1	Copy of insurance policy.
Ex-P2	Copy of complaint dated 16.04.2016.
Ex-P3	Copy of FIR in Crime No.148/2016.
Ex-P4	Copy of charge sheet.
Ex-P5	Copy of postmortem report.
Ex-P6	Copy of statements of the witnesses.
Ex-P7	Copy of letter dated 22.06.2016.
Ex-P8	Copy of reply letter dated 05.07.2016.
Ex-P9	Copy of letter issued by OPs dated 21.12.2016.
Ex-P10	Copy of legal notice dated 05.01.2017.
Ex-P11 to P13	Copy of postal receipts and RPAD acknowledgments.

 

Witnesses examined on behalf of the OPs by way of affidavit:

 

Sri.Prabhakar Naik, who being working as a Legal Manager in OP insurance company.

 

 

Documents produced on behalf of Opposite Party/s:

 

Ex-B1	Copy of private car certificate insurance cum policy schedule.
Ex-B2	Copy of 1st reminder for submission of claim document.
Ex-B3	Copy of letter dated 21.12.2016 to the insured.
Ex-B4	Copy of report from the NICE road toll entry.
Ex-B5	Copy of professional survey fee bill dated 22.06.2016.
Ex-B6	Copy of certificate of registration.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

 

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