Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 7th May 2013
This complaint is filed by aggrieved consumer against the National Insurance Co. Ltd. for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Padmavati, Pune. She is dealing in the business. She has purchased Maruti Wagon R car which was insured with the Opponent on 4/7/2007. The Opponent has accepted premium of Rs.11,937/- and insured the car for the value of Rs.3,59,843/- as well as coverage of five persons including the driver to the tune of Rs.1,00,000/- each. The car met with an accident. The driver of the car died on the spot and the car was totally damaged. Hence complainant submitted the claim to the Opponent on 19/10/2010. The Opponent neither repudiated the claim nor communicated decision as regards the claim and that amounts to deficiency in service. Hence complainant has filed present complaint and claimed value of the car to the tune of Rs.3,59,843/-, Rs.1,00,000/- for the death of her husband alongwith interest @ 12% p.a. She has also claimed compensation of Rs.35,000/- for mental agony and costs of the proceeding to the tune of Rs.5,000/-
[2] Opponent has resisted the claim by filing written statement. It has specifically denied that there is deficiency in service. According to the Opponent the claim application filed by the complainant is vague. She has not specifically mentioned the date of accident and how it was occurred. It was also not clarified as to whether deceased Prabhakar Sakharam Khadilkar was driving the car or traveling as passenger. It is also not established by the complainant that the person who died in the accident was Prabhakar Sakharam Khadilkar. The Opponent has prayed for dismissal of the complaint.
[3] After considering the affidavits which are filed on behalf of both parties, scrutinizing the documentary evidence and hearing the argument of both counsel following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that there is deficiency in service on the part of the Opponent ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
REASONS-
As to the Point Nos. 1 and 2-
In order to support the contention the complainant as well as Opponent both have filed affidavits. The complainant has filed voluminous documents alongwith list dated 18/7/2011 including copy of insurance policy, copy of claim application which was submitted to the Opponent, the cutting of daily newspaper showing that Prabhakar Sakharam Khadilkar was missing, the copy of missing report, F.I.R., statements of witness, spot panchanama, inquest panchanama, Post mortem notes, medical certificate and death certificate as well as driving license of Prabhakar Sakharam Khadilkar. It is not much in dispute that the complainant is the owner of the car which was insured with the Opponent for the period from 4/7/2007 to 3/7/2008. This fact is substantiated by the Insurance Policy. It reveals from the same that the complainant has paid premium of Rs.11,937/- for the coverage of value of the car to the tune of Rs.3,59,843/- as well as Rs.1,00,000/- each for five persons. The Opponent has not produced any record to show that the claim was repudiated by it on any legal ground. The learned Advocate for the Opponent argued before me that the complainant has not established with cogent and substantial evidence the date of accident as well as the occurrence of the accident. It is significant to note that the standard of proof in cases before the Consumer Forum and that in the Criminal Trial are totally different. In order to establish claim before the Consumer Forum it is not necessary for the complainant to establish the case beyond reasonable doubt and it is sufficient for the complainant to adduce cogent evidence in order to prove the case by preponderance of probabilities. The complainant has produced the cutting of daily newspaper Sakal dated 24/6/2008 in which she has published advertisement as regards missing of Prabhakar Sakharam Khadilkar from 24/6/2008. The copies of Missing Report as well as the F.I.R are disclosing that the Prabhakar Sakharam Khadilkar was missing. It further reveals from the F.I.R. dated 12/5/2009 that one Vijay Ganpat Waghmare had visited the remote place for collecting fuel alongwith friends and found that one white colour car was in damaged condition in the valley which is 1500 ft. in deep. They also found the bones, driving license and the documents. They have informed this fact to the police. Then police collected the bones, license and bank documents. The Inquest Panchanama, Post-Mortem were prepared. The complainant had identified the driving license and other documents of the deceased. On the basis of those documents the person who died in the accident was identified as Prabhakar Sakharam Khadilkar. According to the Opponent the complainant has not informed about the accident immediately to the Insurance Company and the Insurance Company had lost the opportunity of preparing the survey of the vehicle. It reveals from the record that the car was fell in the valley which is 1500 ft. in deep and it was not possible for the complainant to get that information immediately on the date of accident. Eventhough the complainant has made claim on 19/10/2010. The Opponent has not communicated about the decision on the claim till 13/7/2011. This fact itself is sufficient to held that there is deficiency in service. Hence I held that the complainant has established that there is deficiency in service.
As regards quantum the complainant has claimed value of the car to the tune of Rs.3,59,843/- which is referred in the Insurance Policy. It reveals from the record that the accident took place within near about one year from the date of Insurance. Hence 10 % depreciation from the said value should be deducted. After deducting 10% the value of the car comes to Rs.3,23,859/-. The complainant is entitled to get Rs.1,00,000/- for the death of her husband as per the terms and conditions of the policy. In absence of any evidence on behalf of the Opponent the legitimate inference can be drawn on the basis of the documents which were found on the spot that the deceased was driving car and he was holding valid driving license at the time of accident. Hence complainant is entitled to get Rs.1,00,000/- for the death of her husband. The complainant is also entitled to get compensation for physical and mental sufferings to the tune of Rs.10,000/- and costs of the proceeding to the tune of Rs.2,000/-.
In the light of the above discussion I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent has caused
deficiency in service.
3. The Opponent is directed to pay to the complainant
amount of Rs.4,23,859/- [Four lac twenty three thousand eight hundred fifty nine] alongwith interest @ 9 % p.a. from the date of filing of complaint i.e. 13/7/2011 till its realization within six weeks from the date of receipt of copy of order.
4. The Opponent is directed to pay to the complainant
amount of Rs.10,000/- towards compensation for physical and mental sufferings and costs of proceeding Rs.2,000/- within six weeks from the date of receipt of copy of order.
Copy of order be supplied to both the parties free of cost.
