Karnataka

Kolar

CC/9/2023

Smt.C.Padmavathi - Complainant(s)

Versus

M/s.Magma HDI General Insurance Company Ltd. - Opp.Party(s)

28 Jul 2023

ORDER

Date of Filing: 09/03/2023

Date of Order: 28/07/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated:28^thDAY OF JULY 2023

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:09/2023

Smt. C.Padmavathi,

W/o. C.R. Gurumurthy

Aged about 50 years,

Residing at Rayalpad Village,

Srinivasapur Raluk,

Kolar Dist.

(Rep. by Sri. Kiran Kumar, Advocate)                 ….  Complainant.

 

                                                                                                                - V/s –

 

1. M/s MAGMA HDI General Insurance

Company Ltd., Unit No. 1B & 2B,

2^nd floor, Equinox Business Park,

Tower-3, LBS Marg, Kurla (West),    

Mumbai-400 070.

 

2. M/s MAGMA HDI

General Insurance Co.Ltd.,

Development House,

No.24, Park Street,

Kolkata-700 016.

 

3. M/s MAGMA HDI General

Insurance Co.Ltd.,

1^st Floor, Janardhan Towers,

No.133/2, Residency Road,

Bengaluru-560025.

   (Rep. by Sri.B. Kumar, Advocate)                        ….Opposite Parties.

 

 

 

 

 

 

 

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1)     That the complaint has filed this complaint U/s 35 of the C.P Act 2019 against the OP alleging deficiency in service and praying to direct the OPs to pay a sum of Rs.7,73,475/- towards the accidental Insurance Claim along with compensation of Rs.50,000/- for suffering mental agony and to pay a sum of Rs.50,000/- towards deficiency in service and also Rs.2,000/- towards cost of the proceedings along with interest @ 16% p.a. and other relief.  

2)     The brief facts of the complaint is that, the complainant is the owner of the Mahindra and Mahindra Bolero goods carrier bearing Reg. No.KA07B3040.  It is stated that, the above said vehicle insured with the opposite parties and the policy bearing No.P002330000/4103/100559 and the validity of the said policy for the period 29.04.2022 to 28.04.2023.  It is stated that, on 31.07.2022 at about 2:00 A.M the said vehicle met with an accident on the NH-44 within the Jurisdiction of Bhootpur police station of Mahabubnagar District Telangana State.  The said accident occurred between the complainant vehicle and the private car thereafter, the driver of the private car bearing Registration No.AP39CD2111 who lodged the police complainant before the jurisdictional police. It is stated that the Jurisdictional police have registered the Criminal case against the said driver in crime No.186/2022 for the offence punishable U/s 217 of IPC and also filed the charge sheet against the driver of the Mahindra Bolero Vehicle. 

3)     It is stated that, after the accident that the complainant took the Vehicle to the service centre at Bangalore and she had received the estimation report on 12.09.2022 to an extent of Rs.7,73,475/-.  That the complainant states that, on 01.08.2022 she had intimated the accident immediately to the OP and having receipt of claim information and thereon OPs were deputed the One Sri. S.N. Venugopal for verification and scrutiny of documents.  It is alleged that, the complainant had received the repudiation of the claim through letter dated 24.12.2022 on the ground that, there is no opportunity extended to the OPs to conduct spot survey.  Further stated that, as per the information of the car driver involved in the accident stated that, he had seen the driver of the complainant vehicle but not the Sri. K.V. Madhusudhan is the actual driver of the insured Vehicle and to that effect he has provided notarized affidavit. 

4)     It is stated that, subsequent repudiation of the claim, complainant got issued the legal Notice dated 30.01.2023 through RPAD demanding to settle the Insurance claim but the OPs despite service of legal notice failed to reply the same and also not settled the claim. 

5)     It is also stated that, after the accident the driver of the Mahindra Bolero Vehicle immediately ran away from the spot, whereas the Jurisdictional Police Registered the case against the driver of the Mahindra Bolero Vehicle and after investigation they have filed the charge sheet against the said driver.  That the driver possessing valid driving license, permit and the insurance certificate/package policy.  Further stated that, on Registration of the Criminal case against the driver of the insured vehicle in question and thereon, he had obtained the bail and assisted the investigation.  Further stated that, the complainant on the above said facts and on repudiation of the Insurance claim file this present complaint.

6)     On issuance of notice OP.No. 3 appeared through their counsel and filed its version and orally submitted that, the version of Op No.3 is also the version of O.P No.1 and 2 as they are all one and same.

7)     In the version Ops admitted that, MAHINDRA GOODS VEHICLE bearing registration no. KA07B3040 is insured with them subject to terms and conditions and limitation there under and accordingly issued the insurance policy.

8)     It is contended that, the averments made in the complaint that, the above said insured vehicle had valid permit to ply and the same is met with an accident on 31/07/2022, the car involved in accident and its driver lodged the compliant at Bhoothpur Police Station against the driver of the complainant’s vehicle.  That the Jurisdictional Police have registered the case against the driver of the complainant vehicle in Cr.NO.186/2022 and the above said facts are not in their knowledge.

9)     Further contended that, upon receipt of information of claim and the Op appointed an IRDA accredited surveyor to ascertain the cause of the accident, nature and extent of loss or damages. Further contended that upon careful observation of survey report and on perusal of the same it was found that the damages policy proposal done and the damages which complainant claim and found that the damages to the vehicle on front portion.  Further contended that upon filing of the FIR and the Ops visited the 3^rd parties vehicles, Registration No. AP 39CD2111, car involved in the accident is the owner cum driver by name Syed Iddrus Basha as he confirmed and indentified that, “after the accident they have seen the vehicle driver.  As per the driving license and the driver photos Mr. Madhusudhana K.V was not the actual driver of the offending vehicle at the time of accident and said Mr. Syyed Iddrus Basha has given the notarized affidavit”.  Hence contended that, as such there is swapping of driver in this case.

10)   Further based on the affidavit of the car driver involved in the accident it is contended that, complainant by creating false documents claiming the insurance amount and thereby contended that the complainant by violating the terms and conditions of the policy, based on misrepresentation of facts filed this false and frivolous complaint. On the above said grounds ops prays to dismiss the complaint.

11)   In order to prove the case of the parties and both the parties filed their affidavit evidence along with documents.

12)  On the basis of the pleadings of the parties, the following points will do arise for our consideration.

1. ) Whether the complainant proves deficiency in service on the part of the OPs?

2)  Whether the complainant is entitled for the relief as sought in the complaint?

3) Whether the OPs proves that complainant violated the terms and conditions of the policy by swapping of the driver at the time of accident of the Mahindra Bolero bearing Registration No. KA07B3040.

4)  What Order?

13)    Heard the arguments of the both the parties, perused the evidence placed on record.  Our answers to the above points are as follows.

 

POINT NO. (1):-  In the Affirmative.

POINT NO. (2):-  In the Affirmative.

POINT NO. (3):-  In the Negative

POINT NO. (4):- As per the final order for the following.

 

                                    REASONS

14) POINT No. (1) & (3):- These points are interlinked to each other and in order to avoid the repetition of discussion of facts and for the sake of brevity and convenience, these points are taken up together for common discussion.

15)   On perusal of the pleadings of the parties, it is an undisputed fact that, the complainant is the owner of the Mahindra Bolero Vehicle bearing registration No.KA07B3040.  It is also not in dispute that the said Mahindra Bolero Vehicle is insured the OPs Insurance Company and they were issued Insurance policy bearing No.P002330000/4103/100559 and the validity period of the said insurance policy is commencing from date: 29.04.2022 to 28.04.2023.  It is also not in dispute the vehicle was met with an accident on 31.07.2022 and at the time of said accident the insurance policy is in force. Further as per the evidence placed on record it is also not in dispute there was an accident between the Mahindra Bolero Vehicle and car bearing No.AP39CD2111.  Further it is also not in dispute subsequent to accident the owner cum driver of the car lodged the complaint before the Jurisdictional police and the Jurisdictional police have registered the FIR against the driver of the Mahindra Bolero Vehicle in crime No.186/2022 and subsequently filed charge sheet.

16)    It is the allegation of the complainant that, despite the coverage of the insurance and when the policy is in force at the time of accident and subsequent to the above said accident, complainant was took his vehicle to the service centre at Bangalore and intimated the fact of accident to the OP Insurance Company.  Whereas the OPs insurance company repudiated the claim of the complainant on untenable grounds.

17)   Per contra OPs contended that, they have deputed the qualified surveyor for verification of records and documents.  Further contended that, and subsequent to registering of the criminal case against the driver of the insured vehicle and thereon visited the car involved in the accident and enquired with the driver.  The driver at the car involved in the accident informed the OPs surveyor he had seen the driver of the Mahindra Bolero Vehicle and intimated that the driver shown in the police records is different from the actual driver.  Hence contended that, the complainant violated the terms and conditions of the policy.    

18)   It is worth to note that, on perusal of the Insurance policy it discloses that, the validity of the insurance commencing from 29.04.2022 to 28.04.2023.  Further on perusal of the FIR it also discloses that, One Syed Idrus Basha  lodged the police complaint on 01.08.2022 regarding the accident occurred on 31.07.2022 at about 11:40 PM and the driver of the insured vehicle driven the vehicle with rash and negligence manner and dashed to their car and thereon driver was escaped from the spot. 

19)   It is the specific contention of the OPs, when there surveyor  visited the accidental spot and met the car driver involved in the accident, who informed that, he has seen the driver of the Mahindra Bolero Vehicle and further informed that the driver shown in the police record is not the actual driver who caused the accident.  Based on the above grounds OPs contended that, due to swapping of the driver and the complainant violated the terms and conditions of the policy and hence they are justifying the repudiation of the claim.

20)   It is note worthy to mention that, after filing the FIR by the Jurisdictional Police against the driver of the Mahindra Bolero Vehicle who is the accused in FIR No.186/2022 and on perusal of the same it discloses that, in the FIR, no driver name is mentioned, however on perusal of the charge sheet filed by the Jurisdictional Police with the JMFC Court at Jadcherla on 08.08.2022 it discloses that, the accident occurred on 01.08.2022 at 3.2:00 hrs of early morning, and at the time of accident driver of the insured vehicle  is shown as Madhusudhan Shetty and the complainant though stated in his complaint regarding producing of charge sheet but produce the copy of the charge sheet, it also reveals the name of the driver of the insured vehicle.  Whereas, Ops not placed any rebuttable evidence to demonstrate that there was swapping of driver.   

21)   Further it is note worthy to mention that, the burden of proving the case always on the insurance company to disprove the case of the complainant.  Whereas the OPs failed to produce the complete set of charge sheet copy before this Commission, however they produced the copy of repudiation letter dated 24.12.2012 as document No.1. In the said letter it is mentioned that, “as the claimed lose is not found to be concurrent since there is a driver swapping found as stated, and repudiated the claim.  In order to substantiate the case of the OP and OP filed a Xerox copy of the affidavit stated to be sworn by One Syed Idrus basha son of late Syed basher Ahamed and the contents of the Xerox copy affidavit written in Telugu Language and hence filed document No.3 translated copy of the affidavit in English scribed by One Sudhanshu of Hyderabad.  On perusal of the translation copy the said deponent of the affidavit K.V. Madhusudhan is not the driver of the car involved in the accident but the actual driver who ran away immediately subsequently the accident. 

22)   It is worth to note that, if the OPs have genuine contention of swapping of driver and in such event they might have challenged before the Magistrate Court after the filing the charge sheet for re-investigation but not doing so is absolutely fatal to their contention.  Hence as per the evidence placed on record we cannot disbelieve the case of the complainant.  Further the OPs failed to examine deponent of the affidavit and also the translator.  As per the Law of affidavit, it is the duty of the OP Insurance Company to adduce the evidence of the deponent but failed to do so and hence their burden is not discharged. However on perusal of the own damage investigation report as per document No.6 is discloses that, the driver possessing valid license and the validity of the license is from 19.01.2018 to 18.01.2027 and hence at the time of accident the currency of the driving license is intact.  On perusal of the overall case of the informant who lodged the police complaint might have created a story in order to escape his liability.  The police records is officially prepared and the same cannot be disbelieved in absence of cogent evidence. Further in the copy of the charge sheet, it reveals the name of the driver of the insured vehicle.  If the OP Insurance company has any solid grievance they might have approached the higher police authority to resist the question of falsely implicating the driver in the criminal case as alleged since there is a driver swapping.  However the OPs miserably failed to establish that there is a driver swapping.

23)   Further that the Ops relay on the orders of the Hon’ble District Commission Belagavi passed in C.C. No. 147/2022, on perusal of the same, it discloses that, the facts challenged in the said case regarding driving license of the driver in question and in the present case on hand no such contention raised.  Further on analyzing the above said case facts, it reveals that, the said orders of District Commission cannot be made applicable to the present case on hand and the   persuasive value of the other District commission is not comes in the way to decide case as per the wisdom of this District Commission.

24)   Furthermore the Ops also resorted to the decision of the Hon’ble High Court, Kalburgi Bench rendered in MFA 201361/2017, with due respectfully perusal of the case facts, the decision of Hon’ble High Court and the facts involved in the said decision is quite different from the facts involved in the present case on hand. It is worth to note that, even the Hon’ble Apex court, held in many cases if there is the fault of driver and directed in such cases to the insurance company to pay and recover. Hence the said judgment is in any way helpful to the case of the Ops insurance company   

25)   Once vehicle is duly insured and the validity of the Insurance policy, when it is in force at the time of accident and the insurance company obviously settle the claim of the complainant as per the policy terms and conditions, whereas the OP Insurance Company with an intention to exonerate its liability raised the contention of driver swapping and the said contention cannot be acceptable in absence of cogent evidence and hence the non settling the claim of the complainant certainly amounts to deficiency in service on the part of the OPs.  On the basis of discussions and reasons assigned above we reached to conclusion that, OPs are deficient in their service and also failed to prove the swapping of drivers involved in the accident as contended, accordingly we answered point No. (1) In the affirmative and point No. (3) In the Negative  

26) POINT No. (2):- On perusal of the pleadings of the parties and the evidence placed on record it is not in dispute that the insured vehicle Mahindra Bolero Vehicle on 31.07.2022 met with an accident.  Further it is also not in dispute, when the said accident is occurred and the Insurance policy is in force.  On perusal of the policy it is also discloses that, the damage to the third party property Rs.7,50,000/- in respect of any one claim or series of claims arising out of one event.  From the policy of Insurance it is crystal clear that, for any damages to third party vehicle the coverage of Insurance is up to Rs.7,50,000/-. Whereas, as per insurance documents it is evident that the IDV of the vehicle is 6,87,000/-.  It is the contention of the OP that only the front portion of the vehicle in question is damaged, whereas, the complainant produced the photographs of the damaged vehicle in question and on perusal of the photographs it discloses that, on account of the accident much damaged was caused to the said insured vehicle that is Mahindra Bolero Vehicle.  Further to substantiate the claim of the complainant and the complainant produced the estimate report and the service quotation.  On perusal of the estimate it discloses that, to repair the accidental vehicle it is estimated to an extent of Rs.7,96,244/- but the complainant orally submits that during the course of the arguments that he was unable to pay the said estimate cost due to crunch of funds and hence bill is not generated and prays to honor the claim to an extent of estimate cost.  It is worth to note that, it is the duty of the insurer to deploy the surveyor  and accordingly survey report is produced as document No.5 from Op side, it discloses that damage caused to extent of Rs.4,48,597/- only.  Under the circumstances in absence of the original bill and as per the available evidence of record we fixed the liability of the insurance company to pay the actual repair cost to the complainant as shown in the surveyor report to an extent of Rs. 4,48,597 to the complainant. Furthermore the non settling claim made the complainant to wander from pillar to post and hence complainant entitled for compensation by way interest on the said amount, hence we deem just and proper to award interest at the rate of 7.5% per annum from the date of repudiation till its realization on the above said amount and the OP Insurance Company liable to pay the cost of proceedings to extent of Rs.2,000/-.  Accordingly we answered the Point No. (2) In the affirmative.

27) POINT NO. (4):-   On the basis of answering the Point No. (1) & (2) and the reasons assigned thereon, we proceed to pass the following.

ORDER

1. The complaint is hereby allowed with cost.
2. That the OP Insurance Company is directed to a sum of Rs. 4,48,597/- along with interest @7.5%pa from the date of repudiation of the complaint till its realization.
3. Further OP Insurance Company is directed to pay Rs.2,000/- towards the cost of the proceedings to the complainant.
4. Further OP Insurance Company is directed to submit compliance report within 45 days.
5. Send a copy of this order to both parties the proceedings at free of cost.

       (Dictated to the Stenographer, transcribed by him, corrected   and then pronounced by us on this 28^th DAY OF JULY 2023)

 

 

 

 

             LADY MEMBER                      PRESIDENT