ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in repudiating the claim made in respect claim towards the damage to his vehicle in the accident and for payment of Rs.7,90,000/- being the repair charges of the damaged car along with interest at 12% p.a., from the date of accident and further for a sum of Rs.50,000/- as damages for causing mental agony and hardship and further Rs.5,000/- towards parking charges and estimation charges of the vehicle and Rs.5,000/- towards cost and other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant is the owner of the KA -02 MJ 7206 Maruthi Ertiga Vdi car.  The same was insured with the OPs with insurance policy No.MOP 517327200010, valid from 03.08.2018 to 02.08.2019. On 20.12.2018 his family members i.e., his father, mother, uncle, aunty, cousine sister and brother-in-law were travelling to Bagalkot from Bangalore to attend the death rituals of his uncle. The said car was being driven by one Bharath.  On the midnight of 20/21.12.2018 at 2 am., when the vehicle was negotiating near Nandi Feeds Factory, Near Metekurke Village, Hiriyur Taluk, the driver of the car lost the control of the car, and dashed to the divider and the vehicle crossed to the opposite road and dashed to oncoming lorry bearing NO.KA 01 AE 1735. 

3.      Due to the said accident, the inmates of the car i.e., his father, mother and other relatives suffered grievous injuries and were taken to Hiriyur Government Hospital for fist aid treatment and then they were taken to Columbia Hospital.  The statement given by Parashuram his brother in law was wrongly recorded by Hiriyur police to the effect that the car was taken on hire instead of the said vehicle belongs to his relative i.e., the complainant.  The police have registered a criminal case in Crime NO.450/2018.  After reporting the same to the office to make the claim, a survey was done by the surveyor of OP and afterwards his claim for the damages of the vehicle was rejected by the Ops on the ground that he has violated the terms and conditions and clause of the insurance policy. The surveyor has given report assessing the total loss of Rs.7,90,000/-.  Inspite of it, the Ops have refused to pay the same. 

4.      Further he has to pay Rs.5,000/- as parking charges.  The act of OP in repudiating his claim towards the cost of the damages for the vehicle amounts to deficiency in service and unfair trade practice and hence he had to issue a legal notice calling upon the Ops to pay the amount.  The same was not replied or complied even though the same was received by the Ops.  Since there is deficiency in service in not paying the claim amount, though the insurance in force, amounts to unfair trade practice and hence prayed the Commission to allow the complaint.

5.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is bereft of the merit and the claim of the complaint is wholly baseless unsustainable and liable to be dismissed with exemplary cost. The prayer of the complainant and the facts of his complaint are wholly unrelated.   The complainant has claimed on different grounds.   The complainant is not a consumer since it is clearly admitted in the statement before the police that the complainant’s car was hired by some third persons who met with an accident.  Hence the said vehicle comes under the exemption u/s 2(d) of the Consumer Protection Act.  The present complaint is wholly misconceived and complainant has misrepresented that he has been using the said vehicle for himself whereas, on the other hand, it has been rented to third party.  Complainant is guilty of suppressing the material facts and also misrepresentation of the facts.   Complaint field is only to make illegal gains.  Complainant is not entitled for any of the reliefs.  It has admitted that the vehicle was insured with it and the accident has been reported to the police.

6.      It is the contention of the OP that OP is not liable to pay any amount as compensation as the complainant has violated the terms and conditions of the policy though he has understood the same by affixing his signature to the policy.  The terms and conditions of the policy has been strictly adhere to by the persons who are party to the contract.  In view of the same, they are not bound to pay the claim made by the complainant and it do not amount to deficiency in service or unfair trade practice and hence prayed the commission to dismiss the same.  

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

9.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is the owner of the vehicle as per Ex.P1 the certificate of registration. It is also not in dispute that the said vehicle has been insured with the OP for a period from 03.08.2018 to 02.08.2019.  The insured value of the vehicle is Rs.4,13,200/- as per Ex.P2.  Ex.P3 is the copy of the FIR wherein it also consists the statement of one Parashuram, wherein, he has stated that he has hired the said car.  Police have also drawn the Mahajar and filed the charge sheet, wherein the relatives of the complainant are the witnesses and the injured persons.  Motor vehicle accident report is as per Ex.P7 and further Ex.P8 is the repudiation letter wherein OP has contended that the claim papers in respect of the vehicle “the said vehicle was used for hire and reward purpose at the time of accident, thereby violating the provisions of limitation as to use of the policy”.  Ex.P9 is the Surveyor report, wherein surveyor assessed the loss to the vehicle at Rs.8,13,285/- and further recommended that since the declared value of the vehicle is Rs.4,13,200/-, the claim can be settled for the said amount.  Ex. P10 is the bill by the surveyor for Rs.7,220/- for having surveyed the loss of the vehicle and P11 is the total estimate for repair.  P12 is the various photographs to show the damage caused to the vehicle of the complainant.  P13 is the estimate and parking charges for Rs.4,999/- by Mandovi Motors, and P14 is the copy of the legal notice.  He has also produced Ex.P16 that license copy of one Bharath Kumar who was driving the said car on the ill-fated day.  P18 is produced which is the SSLC marks card/certificate of complainant to show that one Kariyamma is his mother and Pundalika rao is his father who were also travelling in that car on that day and got injured in the said accident.  

        10.   OP has not at all produced any document to show that the said vehicle was actually hired or rather given for rent to earn money. Probably depending on the statement of the one of the injured person i.e., Parashuram, OP has relied on the same and repudiated the contract.  When the documents to show that the some of the inmates of the said car on that day were the parents of the complainant, and in the absence of no rebutting evidence adduced by the OP, it cannot be held that the complainant has in fact rented out the said car to earn money.  It is his specific case that in order to attend the funeral of his one of his uncle at Kodihal village, Bagalkot, his parents and relations were travelling in his car, which met with an accident and he made a claim which was repudiated by the OP only on the ground that one of the inmates had given statement before the police that it was hired and according to him the police  have recorded the said statement wrongly.  

        11.   Be it at it may be, the complainant is the owner of the vehicle and insured with OP and the said car met with an accident on 21.12.2018 and the claim was made by the complainant.  Since OP has not placed any material other than relying on the statement of one of the injured person in the said accident, rejected the claim.  It is also quite possible that due to the suffering of injuries and pain that Parashuram who is the brother of the complainant might have stated so in advertently or under shock.  In view of this, we hold that there is deficiency in service on the aprt of OP in repudiating the insurance claim of the complainant.  Hence we answer point No.1 in the Affirmative.

        12.   POINT NO.2:

In the result OP are bound to pay the insured value i.e., Rs.4,13,200/- of the vehicle to the complainant along with interest at 12% p.a, even though the repair value as per the survey report is Rs.8,13,285/-.  Complainant is not entitled for the said amount.  He is also entitled for the parking charges, the professional fee for survey and also body shop estimation charges i.e., a sum of Rs.7,220/- + Rs.2,237/- + 2,000/- if paid by him. 

        13.   Further complainant has claimed Rs.50,000/- as damages for suffering mental agony and harassment.  It is pertinent to note here that OP ought to have paid the insurance amount. It has on flimsy grounds rejected the claim of the complainant which automatically put the complainant to mental harassment and agony, for which we direct OP to pay a sum of Rs.25,000/- as damages and further a sum of Rs.5,000/- towards the litigation expenses and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay a sum of Rs.4,13,200/- along with interest at 12% p.a., from the date of accident till payment of the entire amount.  
3. Ops are also directed to pay the cost incurred by the complainant towards professional survey charges, body shop survey and parking charges of Rs.7,220/- + Rs.2,237/- + 2,000/- respectively, provided the complainant has paid and produces receipt for having paid the said amount.
4. Further Ops are also directed to pay Rs.25,000/- towards damages and Rs.5,000/- towards litigation expenses.
5. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 2^ND DAY OF SEPTEMBER 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex.P1       :       Copy of the my R.C.,

Ex.P2       :       Copy of the Certificate cum policy schedule

Ex.P3       :       Copy  of the  FIR

Ex.P4       :       Copy of the Statement of one Parashuram before the police

Ex.P5       :       Copy of the spot panchanama along with sketch

Ex.P6       :       Copy of the final Report

Ex.P7       :       Copy of the motor vehicle accident report.

Ex.P8       :       Copy of the repudiation letter

Ex.P9       :       Copy of the survey report

Ex.P10     :       Copy of the survey bill

Ex.P11     :       Copy of the loss assessment

Ex.P12     :       Photographs of the accident vehicle

Ex.P13     :       Invoice

Ex.P14     :       Copy of the legal notice

Ex.P15     :       Copy of the postal receipt for having sent the same.

Ex.P16     :       Copy of the licence of one Bharath Kumar who was driving the car on that day.

Ex.P17     :       Copy of the my Adhaar Card

Ex.P18     :       Copy of the SSLC marks card

Ex.P19     :       Copy of the Ration card of my family showing the name of my father

Ex.P20     :       Copy of the Adhaar card of my mother

Ex.P21:    Copy of the Voters ID card in respect of my father where is name is mentioned as Pundalika Sastri.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Sudhakara

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT