Karnataka

Kolar

CC/52/2015

Sri.H.G.Kashi Vishwanath - Complainant(s)

Versus

M/s. ICICI Lombard General Insurance Company Limited - Opp.Party(s)

Sri.Shiva Shankar.V

15 Jun 2016

ORDER

Date of Filing: 04/11/2015

Date of Order: 15/06/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 15^th DAY OF JUNE 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 52 OF 2015

Sri. H.G. Kashi Vishwanath,

S/o. H.N. Gopal,

Major in Age,

R/at: Harish Nilaya,

Sharada Talkies Road,

Brahmin Street, Kolar-563 101.

 

(Rep. by Sriyuth.Shiva Shankar.V, Advocate)              ….  Complainant.

 

- V/s -

M/s. ICICI Lombard General Insurance

Company Limited, # 89, SVR Complex,

Hosur Main Road, Madivala,

Bangalore.

(Rep. by Sriyuth.Reddeppa Gowda.S.G, Advocate)       …. Opposite Party.

-: ORDER:-

BY SMT. A.C. LALITHA, MEMBER

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) against OP has sought issuance of directions to the OP to make payment of assured policy amount of Rs.3,88,953/- of policy bearing No.3004/I-30773895/00/000 towards the total damage of the vehicle No.KA-07/A-3189 along with interest at the rate of 12% per annum from the date of complaint till the date of realization and damages towards deficiency in service together with costs and any other reliefs as the forum to deem fit.

 

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, being owner of Tata Car bearing registration No.KA-07/A-3189 which he had purchased in the year of 2013 for a value of Rs.4,50,000/- got the same insured with the OP, who had issued policy bearing No.3004/I-30773895/00/000 which was valid from 26.09.2014 to 25.09.2015.

 

(b)    Further he has contended that, the said car met with an accident on 23.12.2014 near the burial ground of Holalu bridge while his car was being driven by one Mr. Bharath who was proceeding towards Mandya side from Holalu, resulting in death of his said car driver on the spot and the car was totally damaged. 

 

(c)    Further it is contended that, the jurisdictional Mandya Rural Police of Mandya District, did register the case of the said accident in Cr. No.664/2014 for offences made punishable Under Sections. 279 and 304(A) of IPC.

 

(d)    Further it is contended that, at the first instance he had informed about the said accident orally to the OP company, later on he had also informed through a letter and applied for claim towards vehicle damages.  And that the OP company had sent Surveyor to inspect the said damaged car.

 

(e)    Further it is contended that, after completion of police formalities, the said damaged car was shifted to M/s. VIN Auto guarage at Tumkur for its repairs and as he was waiting for a consent letter from the OP, surprisingly the OP had issued letter dated: 15.06.2015 by repudiating his claim on the ground of “Non insurable Interest” in respect of the said car.

 

(f)     Further it is contended that, even after submission of registration certificate, insurance policy of said car, driving license of driver of the car and all other necessary documents also, the OP has repudiated his claim and thus deficient in service.

 

(g)    Further he to contend that, the said car was totally damaged and its cost of repairs is equivalent to its total market value as such, the OP is liable to pay a sum of Rs.3,88,953/- i.e., value of the insured sum and damages towards deficiency in service.

 

(h)    He has further contended that, he had issued legal notice through his learned counsel on 29.07.2015 to OP, which was duly served on 20.08.2015, for which there could be no response.  So contending, the complainant has come up with this complaint seeking the above set-out reliefs.

 

(i)     Along with the complaint the complainant has submitted Xerox copies of the following documents:-

i) Copy of FIR in Cr. No.664/2014.

ii) Copy of complaint

iii) Copy of Final report/charge-sheet

iv) Certified copy of IMV report.

v) Claim status notification dt: 15.06.2015

vi) Reply notice dated: 29.07.2015

vii) Postal receipt and acknowledgements

viii) Xerox copy of R.C.

ix) Xerox copy of D.L.

x) Xerox copy of insurance

 

03.   In response to the notice issued with regard to the case on hand, OP has put in appearance through his said learned counsel and submitted written version.

 

(a)    By denying averments of the complaint, OP admits that the said Tata Indica car bearing registration No.KA-07-A-3189 was insured with its company, hence the liability of OP was limited to in terms and conditions of the policy of insurance issued.

 

(b)    It is contended that, after receiving the information from the complainant about said accident on 23.12.2014, immediately this OP had requested to produce the documents, due to delay in intimation after lapse of 100 days survey was not conducted.

 

(c)    It is contended that, after receiving claim form with other relevant documents such as estimation for repair etc., OP has appointed surveyor N. Guru Shanthappa, who had submitted his final survey report on 23.05.2015 as the damages caused to the car on repair for a sum of Rs.1,87,000/-.  And that he had discussed with the owner of car and the father of subsequent purchaser of the car, they had given the written statement admitting the sale transaction between the complainant and the deceased and based on the same the claim was repudiated.

 

(d)    It is contended that, as per the documents collected by the investigator, it is clear that the present complainant was not having insurable interest, since he had sold the car to one Bharath one year back and further he had admitted that he had handed over the insured car including all original documents like RC, Ignition key policy and form No.28, 29, 30 to Bharath, S/o. Rangaswamy, based on the sale agreement, because of the hypothecation the registration certificate and policy was not transferred to Bharath till the date of accident and therefore the present complainant is not entitled for said insurance claim. 

 

(e)    Further it is contended that, according to written information given by Rangaswamy, the father of the deceased, that he had paid sum of Rs.2,50,000/- to Kashivishwanath and purchased the car one year back under the Sale agreement to Bharath.  And that the same was admitted by the present complainant as he has given written document too.  And that therefore the present complainant is not having insurable interest.

 

(f)     Further it is contended that, as per the terms and conditions of the policy the complainant had not intimated about the alleged accident immediately and hence they did not opt for the spot survey of the accident so as to estimate the damages of the car.  And that therefore, it amounts to violation of the policy terms and conditions.

 

(g)    It is contended that, the claim was not settled based on the written statement given by the father of the deceased and the present complainant to their surveyor and delay in intimation.  And that the complainant only to enrich himself, with a fraudulent intention has come up with this false complaint.  And that he had not made financier as necessary party.  And that therefore there is no deficiency of service on their part.  So contending, dismissal of the complaint has been sought.

04.   On 16.02.2016 the complainant submitted his affidavit evidence and Memo with the following documents:-

i) Original of estimate towards repair of the vehicle

ii) Statement of account MMFS report

iii) Mahindra Finance customer receipt

 

05.   On 07.05.2016 complainant got himself examined as PW-1 and Exhs.P.1 to P.11 were marked.  And Exhs.D.1 and D.2, D.1(a), D.1(b) have been marked by way of confrontation.   

 

06.   On 09.02.2016 Sri. Samantha, S/o. Sharath Babu, Manager of ICICI Lombard General Insurance Company Limited has submitted affidavit evidence on behalf of the OP.

 

07.   On 03.03.2016 the learned counsel appearing for OP has submitted list with below mentioned documents:-

(i) H.G. Kashi Vishwanath previous owner letter

(ii) Present owner letter A/w transaction in English.

(iii) Investigator Report

(iv) Final Survey Report

(v) Police Statement by Prasanth owner.

 

08.   On 03.03.2016 the learned counsel appearing for OP has submitted below mentioned citation:-

1. (2011) CPJ 22 (NC) between New India Insurance Co. Ltd., -V/s- Shri Divya Prashad.

 

09.   The learned counsel for both sides, have submitted their respective written arguments.  And heard the oral arguments as advanced by the learned counsel appearing for both sides.

 

10.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the complaint is bad for non-joinder of Mahindra Finance being the necessary party?

 

2.  Whether the repudiation on the part of the OP with regard to claim of the complainant would amount to deficiency in service?

 

3. If so, to what relief the complainant is entitled to?

 

4.  What order?       

 

11.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT 1:-        In the Negative

POINT 2:-        In the Affirmative

POINT 3:-        The complainant is held entitled to recover total sum of Rs.3,01,890/- which to carry interest at the rate of 9% per annum from 04.11.2015 being the date of the complaint till realization for being recovered from OP.

 

POINT 4:-        As per the final order

                        for the following:-

 

REASONS

POINT 1:-

12.   The very insurance policy issued by the OP in the name of the complainant would give anybody else, hence the said financier outside the scope of insurance policy.  In other words the said financier was not a contract in party to the insurance policy moreover the complainant has cleared the dues also towards the said financier.  Hence this financier was and is not a necessary party.

 

POINT 2 & 3:-

13.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

(a)    It is an admitted aspect that, the complainant had purchased the said Tata Indica car bearing registration No.KA-07/A-3189 which was insured with OP company which was to cover the period from 26.09.2014 to 25.09.2015.  So the contention of the complainant is that, the said vehicle was damaged in accident hence he is entitled for the above said insurance. 

 

(b)    OP has very much particularly contended that the complainant had sold the said car to the deceased Bharath and hence repudiation of the said policy.  Thus according to this OP the complainant had given consent letter in this regard.  In this context our attention has been drawn to the Exhibit-D1.

 

(c)    We are to observe that, in the cross-examination of this PW.1 at para-6 he has answered that, his educational qualification is up to SSLC.  He hails from rural back-ground.  Whereas, English language used in writing Exh.D.1 is certainly of high excellence with a very strong legal back ground.  On any stretch of imagination it cannot be held as a document voluntarily coming from the complainant/PW.1.  So we see the active role of the OP in creating this false document.  The complainant being simpleton has aptly answered that, he signed this document as it could be claim form.  We are thus sure that what is so stated by the complainant/Pw.1 is highly probable. 

 

(d)    When we perused the records and evidence it is clear that Ex.D.1 which cannot be believable because in the 2^nd para of the said letter there is no mention of the date and month of the said car sold but there is mention of the year as ……………. 2014 (has been left blank).  It appears to be concocted document.

 

(e)    Date of accident of said car was on 23.12.2014, date of FIR is 24.12.2014.  If so, how can the said complainant intimate on 08.04.2015 (date of Exh.D.1) about the sale?  Because, as the vehicle was damaged in the accident there could be no sale agreement.

 

(f)     If Exh.D.1 to be a fact how the complainant would submit information and hence FIR and charge-sheet could come in to existence showing the complainant as an owner?  Thus we have opined that Exh.D.1 cannot be believed.

 

(g)    Another contention of the OP is that, the said policy so repudiated as “Non insurable interest” because the said car was sold to deceased Bharath as per statement given by Rangaswamy father of deceased Bharath.  Here it is worthy to note the case ECA No.04/2015 filed by this Rangaswamy against the present complainant and OP on the file of Civil Judge and CJM at Mandya for claiming compensation for the death of his son deceased Bharath.  The averments of the said petition read thus:-

“Petitioner No.03 by name Bharath, S/o. Rangaswamy aged about 25 years, was working as Driver under the respondent No.1 in his car bearing No.KA-07/A-3189 since 02 years.  So, the said Bharath was the employee and there exists a relationship of master and servant between them”.

 

(h)    Another petition MVC No.573/2015 on the file of District Judge and MACT at Mandya has been filed by LRs of the deceased Raghu who had died in the said car accident against the present complainant and the OP claiming compensation.

 

(i)     By this it is clear that the deceased Bharath was the driver in the complainant’s car and there was no such sale transaction between them.  Rangaswamy had given false statement to the OP, by believing it without proper verification by repudiating claim of the complainant, the OP has rendered deficiency in service.

 

(j)     In the witness list of C.C. No.664/2014 the present complainant is the witness No.2 who speaks that, he is the owner of the said car.  After verification police had handed-over the vehicle to the complainant as he is the owner of the said car.  Registration certificate (Exh.P.6) stands in the name of the complainant.  It is clear from Ex.P.11 that, the complainant on 31.01.2015 had cleared the loan given by Mahindra finance.

 

(k)    So, we are of the opinion that, the complainant had never sold the said car to the deceased Bharath.  Deceased Bharath was working as driver in complainant’s car.  Only by believing false statement of Rangaswamy the OP without proper investigation and proper documents such as sale agreement etc., has repudiated the claim and thus rendered deficiency in service.

 

(l)     Vide terms of the said insurance policy the risk with regard to the said car covered was in sum of Rs.3,88,953/- which is claimed in this complaint.  In order to defeat legitimate claim of the complainant the OP, as noted above has taken shelter under the said concocted document.  The OP ought not to have resorted to such illegal activity.

 

(m)   Under these circumstances, we are of the definite opinion that, the complainant is entitled to relief.  As such, we proceed to consider his claim for compensation on merits. 

 

(n)    Exh.P.8 copy of the insurance policy discloses the duration as from 26.09.2014 to 25.09.2015.  Accident took place on 23.12.2014.  This is during insurance policy covering period.  No doubt the policy amount is for Rs.3,88,953/-.  We will have to rely on the document by way of estimate prepared by the surveyor to ascertain the actual damage.  Exh.P.9 report of the surveyor dated: 06.04.2015 discloses the extent of damages in sum of RS.2,76,819/-, we are bound to grant this amount.

 

(o)    Since the OP tried to avoid liability by creating a document vide Exh.D.1 as noted above we are of the definite opinion that, the complainant requires to be compensated as he suffered setback for no fault of him.  Moreover he has been forced to seek relief by preferring the complaint before this Forum.  Thus he has been made to suffer physically, mentally and financially.  So we award compensation of Rs.25,000/-.  Therefore the complainant is held entitled to total sum of Rs.3,01,890/- which to carry interest at the rate of 9% per annum from 04.11.2015 being the date of the complaint till realization for being recovered from the OP.

 

POINT 4:-

14.   We proceed to pass the following:-

 

ORDER

(01)  For foregoing reasons the complaint stands allowed with costs of Rs.2,500/- as against OP as hereunder:-

 

(a)    The complainant is held entitled to recover total sum of Rs.3,01,890/- which to carry interest at the rate of 9% per annum from 04.11.2015 being the date of the complaint till realization for being recovered from OP.

 

(b)    We give time of 30 days to the OP to comply this order from the date of communication of the same.

 

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 15^th DAY OF JUNE 2016)

 

 

 

MEMBER                           MEMBER                  PRESIDENT