Complaint filed on: 04.05.2016
Complaint Disposed on:08.09.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.54/2016
DATED THIS THE 8th DAY OF SEPTEMBER 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
Sri H.Yashodhara Rao,
S/o Late H.Raghunatha Rao,
Aged about 60 years,
R/a Sathyanarayana Store,
Banakal, Mudigere Taluk,
Chikmagalur District.
(By Sri/Smt. H.M.Raghunath, Advocate)
V/s
OPPONENT/S:
The National Insurance Co. Ltd.,
2nd floor, Yashoram Chambers,
Rathnagiri Road,Chikmagalur.
Rep. by its Manager.
(Op By Sri.T.R.Haresh, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op alleging deficiency in service in not paying the balance amount of Rs.65,625/- towards own damage claim. Hence, prays for direction against Op to pay the said amount along with compensation for deficiency in service in the interest of justice and equity.
2. The brief facts of the complaint is that:
The complainant is the owner of Mahindra Logan car bearing registration no.KA-18-M-9927 and insured with Op vide policy no.6049013114100001531 which is valid from 14.03.2015 to 13.03.2016. The complainant has declared the value of the vehicle to the tune of Rs.3,20,000/-. Such being the case, on 21.04.2015 at about 3.00 a.m. the vehicle met with an accident due to collusion and rash and negligent driving of the KSRTC bus bearing registration no.KA-19-F-3316 and police have registered the criminal case against the driver of the bus and FIR filed. Due to the accident the car was completely damaged and it was impossible to repair. Hence, tender was called for salvage disposal and it was disposed off for Rs.60,500/-only. There afterwards, the complainant submitted a claim form before Op for insured declared value of Rs.3,20,000/- under own damage claim. Out of which a sum of Rs.60,500/- was deducted to the value obtained from salvage value, after deducting the said salvage amount the op is liable to pay Rs.2,54,375/-, but Op instead of paying the said amount had only paid Rs.1,93,875/- and Op have deducted an amount of Rs.65,625/- without any valid reason and at the time of settling the claim the complainant has requested the Op to settle all the amount and not to deduct the said Rs.65,625/- without any reason, inspite of that Op had paid only Rs.1,93,875/-. Finally, the complainant issued a legal notice dated:28.01.2016 and called upon Op to pay the balance amount, even inspite of receipt of the legal notice Op not paid the balance amount, instead of that had issued reply untenably.
Complainant further alleges that, the accident took place due to rash and negligent driving of the driver of KSRTC bus, who dashed to the car of the complainant and at the time of accident the complainant has not violated any terms and conditions of the policy. The Op in his reply has given a reason that there is a overload in the car at the time of accident. In fact there is no any overload in the car at the time of accident. It is only one small baby who is also accompanied with the inmates of the car, due to that reason only the Op had deducted an amount of Rs.65,625/-. Hence, Op rendered deficiency in service in not paying the entire declared value of the vehicle. Hence, prays for direction against Op to pay the balance amount of Rs.65,625/- and compensation as prayed above.
3. After service of notice Op appeared through his counsel and filed version and contended that, they have issued package policy relating to Mahindra Logan car bearing registration no.KA-18-M-9927 vide policy no.6049013114100001531 which is valid from 14.03.2015 to 13.03.2016. The liability of this Op is subject to terms and conditions of the policy.
The complainant has reported that his car met with an accident on 21.04.2015 near Gonibeedu Hospital, Mudigere Taluk. Thereafter this Op appointed one B.S.Ragavendra, surveyor for spot survey, by that time the vehicle had been shifted to police station and the said surveyor has submitted a preliminary survey report on 24.04.2015. There afterwards, one Jayaram was appointed as final surveyor to quantify the loss caused to the vehicle and after discussion with the complainant the said surveyor has submitted the final report on 04.11.2015 and quantify the loss to the tune of Rs.1,93,875/- after deducting wreck value of Rs.60,500/- and this Op has settled the claim to the said amount after deducting 25% on 2,58,500/- under non-standard claims.
The Op further contended that, the seating capacity of the vehicle is 4+1 as per the registration certificate and at the material time of accident the vehicle was carrying 5+driver and complainant had overloaded the vehicle which was the main cause for accident. At the time of accident three persons died and two persons were sustained injuries. This Op also has to pay compensation towards the said claim under the policy. The complainant has clearly violated the provisions of Motor Vehicle Act by overloading the car.
Op further contended that, the complainant himself is an insurance agent and fully conversant with the terms and conditions of the insurance policy he has received an amount of Rs.1,93,875/- under full satisfaction of the claim and also executed affidavit and discharge voucher confirming the amount. Hence, complainant is not entitled to get any claim made under this complaint and this Op has not rendered any deficiency in service in settling the claim of the complainant. Hence, prays for dismissal of the complaint.
4. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.4. Op also filed affidavit and marked documents as Ex.R.1 to Ex.R.6.
5. Heard the arguments.
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a Deficiency in service on the part of Op?
- Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. On going through the pleadings, affidavits and documents produced by both complainant and Op, we noticed that the vehicle bearing registration No.KA-18-M-9927 was insured with Op vide policy no. 6049013114100001531 which is valid from 14.03.2015 to 13.03.2016. It is also admitted that on 21.04.2015 it was met with an accident due to collusion with KSRTC bus bearing registration no.KA-19-F-3316, due to which the vehicle was fully damaged and three passengers was succumbed to injuries, subsequently, other two injured, the accident was reported by complainant and police have registered FIR against KSRTC bus driver for rash and negligent driving. There afterwards, complainant being the insured claim for compensation under own damage claim, for which Op appointed two surveyors for preliminary survey and for final survey, both have submitted their reports to the Op company. As per the final survey report (Ex.R.4) we noticed that the said surveyor has suggested the Op to settle the claim for Rs.2,58,500/- after deducting Rs.60,500/- under wreck value and Rs.1,000/- less under policy excess out of insured declared value of Rs.3,20,000/-. After obtaining the said survey report the Op have settled the claim for Rs.1,93,875/- instead of Rs.2,58,500/-. Hence, complainant alleges deficiency in service and prays for payment of the balance amount which was deducted without any valid reason. The complainant in his version and affidavit has sworn that they have deducted Rs.64,625/- out of 2,58,500/- under non-standard basis they have deducted 25% in order to settle the claim under non-standard basis. The reason given by Op is that the complainant had overloaded the vehicle against the permitted seating capacity which resulted in accident. Hence, submits no deficiency in service and denies for payment of the balance amount. We observed as per Ex.P.1 i.e., FIR police have registered criminal case against driver of KSRTC bus bearing registration no.KA-19-F-3316 for rash and negligent driving and no documents reveals that the driver of the car belonging to complainant was rash and negligent during driving. It is also observed that, the cause of accident is only rash and negligent driving of the driver of the KSRTC bus and not overloading. We also observed in Ex.P.1 that there is another small baby was accompanied with passengers in the car. It is also highlighted in Ex.R.2. We are of the opinion that the complainant has not violated any terms and conditions of the policy and also there is no any negligence on the part of driver of the car at the time of accident. The deduction of 25% made by Op basing on the reason that the car was overloaded at the time of accident is not acceptable and treating the claim of the complainant under non-standard basis is also not correct as complainant has not violated any terms and conditions of the policy. We also observed that the Op has settled the claim as per the recommendation made by surveyor, the said surveyor has not given any opinion to settle the claim under non-standard basis. The said two survey reports has not highlighted that there is a overloading of the car beyond seating capacity inspite of that Op has settled the claim by deducting 25% and after deducting wreck value which amounts to deficiency in service on the part of Op.
Op further in his affidavit has sworn that, the complainant has settled the claim as full and final settlement and has executed affidavit and discharge voucher which was dully signed by complainant. Here we are of the opinion that receiving affidavit and discharge voucher for a lesser amount against payable amount itself amounts to deficiency in service, even in the said discharge voucher and affidavit Op has not mentioned the claim was settled under non-standard basis. Hence, it is clear case of deficiency in service on the part of Op in not settling the entire claim of the complainant after deducting wreck charges and salvage. Hence, Op is liable to pay a balance amount of Rs.64,625/- to the complainant under own damage claim. Op is also liable to pay a compensation of Rs.5,000/- along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op is directed to settle the balance claim amount of Rs.64,625/- under own damage claim along with compensation of Rs.5,000/- (Five Thousand Rupees only) for deficiency in service and litigation expenses Rs.1,000/- (One thousand Rupees only) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 8th day of September 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Certified copy of FIR.
Ex.P.2 - 4 photos of complainant car.
Ex.P.3 - Office copy of legal notice.
Ex.P.4 - Reply to legal notice.
Documents produced on behalf of the OP/S:
Ex.R.1 - Certified copy of Policy.
Ex.R.2 - Survey Report dtd:24.04.2015.
Ex.R.3 - Investigation Report dtd:16.11.2015.
Ex.R.4 - Final Survey Report dtd:04.11.2015.
Ex.R.5 - Affidavit of complainant to Op.
Ex.R.6 - Acknowledgment of claim dtd:23.12.2015.
Dated:08.09.2017 President
District Consumer Forum,
Chikmagalur.
RMA
