Karnataka

Chitradurga

CC/64/2016

Ramesh N. - Complainant(s)

Versus

National Insurance Company Limited, - Opp.Party(s)

M. Govindareddy

22 Apr 2017

ORDER

COMPLAINT FILED ON:27/06/2016

DISPOSED      ON:22/04/2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 64/2016

 

DATED: 22^nd APRIL 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B.,   

……COMPLAINANT/S	Ramesh. N, S/oT. Nagappa, Age:30 Years, SDA, Department of Agriculture, Mastamma Layout, Stadium Road, Chitradurga.   (Rep by Sri.M. Govinda Reddy, Advocate)
V/S
…..OPPOSITE PARTIES	The Manager, National Insurance Company Limited, Branch Office, I Floor, Jagalur Mahalingappa Complex, B.D. Road, Chitradurga.   (Rep by Sri.K. Mohan Bhat, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OP to pay a sum of Rs.3,95,861/- with interest, Rs. 27,000/- towards parking charges and Rs,50,000/- towards mental agony and Rs.10,000/- towards costs.

2.      The brief facts of the case of the above complainant are that, he is the RC owner of the Car bearing Reg. No. KA-16 B-2349 and the same was purchased on 14.09.2010 and insured the same with the OP for the period from 12.12.2015 to 11.12.2016 under policy No.610301/31/15/6300010508.  It is further submitted that, on 18.12.2015, one Sri. Prithviraj Bari, the Driver of the said vehicle returning from Huliyar to Chitradurga via Huliyar-Hosadurga at about 9-30 AM, the said driver parked the vehicle for nature call by the side of the road.  By that time, one tractor came from backside in a rash and negligent manner and dashed to the said car.  Due to the said accident, the car of the complainant hit to the opposite tree and the front portion of the car, right side doors, left front door, seats, Dash Board, front portion glass and door glass were completely damaged.  The complainant was under training from 15.12.2015 to 26.12.2015.  After the training, complainant left his car with Adishakti Car Service, Show room and informed the insurance company, Shimoga about the accident on 29.12.2015 and submitted an application claiming compensation before the OP requesting to appoint a Surveyor to assess.  On the requisition made by the complainant, the OP Company has appointed one Shivakumar. S.K. Surveyor and Syed Siraj Bandi for enquired and submit the report.  The Surveyor and Investing Officer have not inspected the real spot.  Instead of that, they have inspected some other place, it is not correct according to the complainant.  It is further submitted that, the enquiry officer of the company has inspected the second time on 07.02.2016 and submit the report to the company.  Sri. Shivakumar, Surveyor has also inspected the spot i.e., Adishakti Car Service Show Room, Shimoga and obtained the photocopies of the damaged vehicle bearing No.KA-16 B-2349 and submitted the report to the company.  It is further submitted that, the complainant has installed the original parts i.e., bonnet, headlights and bumper for the purpose of FC.  The complainant is not having more money for repair the damaged vehicle and he asking the money from the OP for repair the said vehicle.  On the promise made by the OP, the complainant has shifted the vehicle before the Adishakti Car Showroom, Shimoga.  Now the complainant is due for payment of Rs.27,000/- to the said Showroom. 

It is further submitted that, the complainant has furnished all the documents to the OP company for settlement of the claim.  The OP company has dragon the matter on one or other pretext.  Finally, on 02.03.2016 the OP company has repudiated the claim of the complainant.  At the time of accident, the vehicle of the complainant was having FC, permit and Driving License of the Driver was in force.  The OP has neglected to settle the claim of the complainant, it is purely a deficiency of service and unfair trade practice on the part of the OP.  The cause action for the complaint arose on 11.05.2016 when the complainant has send the legal notice to the OP and repudiation of the claim of the complainant which is within the jurisdiction of this Forum.  Therefore, the complainant respectfully prayed before this Forum to allow his complaint with cost. 

3.      On service of notice, OP appeared through Sri. K. Mohan Bhat, Advocate and filed version denying the allegations made in para-2 to 9 of the complaint.  It is further stated that, the complainant has not approached this Forum with clean hand and the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  It is true that, the OP company has issued policy bearing No.610301/31/15/6300010508 to the Tata Indica bearing Reg. No.KA-16 B-2349 valid for the period from 12.12.2015 to 11.12.2016 in favour of complainant for ID value of an amount of Rs.2,25,000/-.  It is further submitted that, the said vehicle met with an accident on 18.12.2015 at about 9-30 PM near Huliyar are all false.  The complainant gave an intimation on 29.12.2015 to OP insurance company and one Shivakumar. S.K, Surveyor has appointed and survey the car.  The said Surveyor submitted a report on 21.01.2016.  As per the complaint, the said vehicle met with an accident on 18.12.2015 but, the FC expires on 19.12.2015.  Hence, the OP company has appointed another Surveyor by name Syed Siraj Bandi to survey the said vehicle.  The said surveyor visited the spot and submitted the report.  It is further submitted by the OP that, the Surveyor has confirmed that, during spot inspection and the discussion had with villagers, he opined that, accident insured vehicle has not occurred near the declared place of the accident.  Further the surveyor requested to insured to furnish any evidence to confirm the roadworthy condition of the said vehicle prior to the date of accident.  Unfortunately, the complainant has not furnished any proof/repair bills/tool receipts/fuel bills.  The other allegations made in para No.2 to 9 are denied as false.  The complainant has violated the terms and conditions of the policy.  There is a delay of 11 days in giving the intimation to the OP about the accident, which is a violation of Condition No.1 of the terms and condition of the policy. 

The complainant is suppressing/non-disclosure of material information of the accident which is violation of terms and condition of the policy.  Due to the violation of the terms and condition of the policy, the OP has repudiated the claim of the complainant and therefore, there is no deficiency of service on the part of OP and prayed for dismissal of the complaint.               

4.      Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-18 were got marked. On behalf of OP, one Sri. Malatesh, Assistant Manager, has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-7 documents have been got marked.  

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

(1)  Whether the complainant proves that the OP has committed deficiency of service in settling the claim made by him and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Partly in Affirmative.

          Point No.2:- As per final order.

 

REASONS

8.      It is not in dispute that, complainant is the RC owner of the Car bearing Reg. No. KA-16 B-2349 and insured the same with the OP for the period from 12.12.2015 to 11.12.2016 under policy No.610301/31/15/6300010508.  On 18.12.2015 at about 9-30 AM, the driver of the said vehicle parked the same by the side of the road.  By that time, one tractor came from backside in a rash and negligent manner and dashed to the said car.  Due to the said accident, the car of the complainant hit to the opposite tree and the front portion of the car, right side doors, left front door, seats, Dash Board, front portion glass and door glass were completely damaged.  The complainant was under training from 15.12.2015 to 26.12.2015.  After the training, complainant left his car with Adishakti Car Service, Show room and informed the insurance company, Shimoga about the accident on 29.12.2015 and submitted an application claiming compensation before the OP requesting to appoint a Surveyor to assess.  On the requisition made by the complainant, the OP Company has appointed one Shivakumar. S.K. Surveyor and Syed Siraj Bandi for enquiry and submit the report.  The Surveyor and Investing Officer have not inspected the real spot.  They have inspected some other place.  The enquiry officer of the company has inspected the vehicle for the second time on 07.02.2016 and submitted the report to the company.  Sri. Shivakumar, Surveyor has also inspected the spot i.e., Adishakti Car Service Show Room, Shimoga and obtained the photocopies of the damaged vehicle bearing No.KA-16 B-2349 and submitted the report to the insurance company.  The complainant has installed the original parts i.e., bonnet, headlights and bumper for the purpose of FC and asked the money from the OP for repair the said vehicle.  On the promise made by the OP, the complainant has shifted the vehicle before the Adishakti Car Showroom, Shimoga.  Now the complainant is due for payment of Rs.27,000/- to the said Showroom. The complainant has furnished all the documents to the OP company for settlement of the claim.  But, the OP dragon the matter on one or other pretext and on 02.03.2016 the OP company has repudiated the claim of the complainant.  At the time of accident, the vehicle of the complainant was having FC, permit and Driving License of the Driver was in force.  The OP has neglected to settle the claim of the complainant, it is purely a deficiency of service and unfair trade practice on the part of the OP. 

9.      In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like original RC Book stands in the name of complainant marked as Ex.A-1, Original insurance Policy copy marked as Ex.A-2, which shows that, the policy was in force at the time of accident, Endorsement of Renewal of Tourist Vehicle Permit marked as Ex.A-3, Form 49 permit in respect of Tourist Vehicle marked as Ex.A-4, Form No.47 Authorization letter of KSTA marked as Ex.A-5, Form 38 Certificate of Fitness marked as Ex.A-6, Form KMV-20 Application for renewal of certificate of Fitness marked as Ex.A-7, Receipt for Fitness Renewal Fee marked as Ex.A-8, Job Slip issued by Adishakti Cars marked as Ex-9, Estimation for repair accident vehicle marked as Ex.A-10, Repudiation letter dated 02.03.2015 to the complainant marked as Ex.A-11, Letter given by complainant to the OP dated 05.03.2016 marked as Ex.A-12, Repudiation letter dated 10.03.2016 issued by the OP to the complainant marked as Ex.A-13, wherein the OP has explained why they have repudiated the claim of the complainant, Letter given by complainant to the OP dated 16.03.2016 marked as Ex.A-14, Repudiation letter dated 20.04.2016 to the complainant marked as Ex.A-15, Office copy of the Legal Notice dated 11.05.2016 marked as Ex.A-16, Postal receipt and served acknowledgement marked as Ex.A-17 and letter dated 02.05.2016 to the complainant marked as Ex.A-18.    

10.    On the other hand, it is argued by the OP that, the complainant has not approached this Forum with clean hand and the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The OP company has issued policy bearing No.610301/31/15/6300010508 to the Tata Indica bearing Reg. No.KA-16 B-2349 valid for the period from 12.12.2015 to 11.12.2016 in favour of complainant for ID value of an amount of Rs.2,25,000/-.    It is further argued that, the said vehicle met with an accident on 18.12.2015 at about 9-30 PM near Huliyar are all false.  The complainant gave an intimation on 29.12.2015 to OP insurance company and one Shivakumar. S.K, Surveyor has appointed and survey the car.  The said Surveyor submitted a report on 21.01.2016.  As per the complaint, the said vehicle met with an accident on 18.12.2015 but, the FC expires on 19.12.2015.    OP company has appointed another Surveyor by name Syed Siraj Bandi to survey the said vehicle who visited the spot and submitted and opined that, accident has not occurred near the declared place of the accident. The surveyor requested the insured to furnish any evidence to confirm the roadworthy condition of the said vehicle prior to the date of accident.  The complainant has not furnished any proof/repair bills/tool receipts/fuel bills.  The complainant has violated the terms and conditions of the policy.  There is a delay of 11 days in giving the intimation to the OP about the accident, which is a violation of Condition No.1 of the terms and condition of the policy. The complainant is suppressing/non-disclosure of material information of the accident which is violation of terms and condition of the policy.  Due to the violation of the terms and condition of the policy, the OP has repudiated the claim of the complainant.

11.    In support of its contention, the OP has filed affidavit evidence of one Sri. Malatesh, Assistant Manager, has examined as DW-1 by filing the affidavit evidence and reiterated the contents of version and relied on the documents like copy of proposal form for commercial vehicles package policy and liability only policy marked as Ex.B-1, photos marked as Ex.B-2, survey report marked as Ex. B-3, postal acknowledgement marked as Ex.B-4, letters dated 02.03.2016 and 10.03.2016 to complainant intimating about closure of file as no claim marked as Ex.B-5 and Ex.B-6 and Accident intimation letter dated 29.12.2015 marked as Ex.B-7. 

12.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, the complainant has taken insurance policy for his Tata Indica bearing Reg. No.KA-16 B-2349 from the OP for the period from 12.12.2015 to 11.12.2016 for an ID value of Rs.2,25,000/-.   The said vehicle met with fire accident on 18.12.2015 and entirely damaged.  The complainant intimated about the accident to the OP and also claimed compensation by producing all the necessary documents but, the OP repudiated the claim of the complainant on the ground that, there is a violation of terms and conditions of the policy, which is without proper reasons.  As per the guidelines of the Hon’ble Supreme Court of India, when there is a violation of policy terms and conditions and M.V. Act, the insurance company has to settle the claim on non-standard basis.      There is a decision reported in 2008 SAR (Civil) 484 (SC) in the case of National Insurance Co. Ltd., Vs. Nitin Khandelwal which reads as under:-

(A) Consumer Protection Act, 1986 – Terms of insurance policy – Theft of vehicle – Breach of conditions is not germane – Respondent, owner of the vehicle sent his vehicle to bring his children – On the way, some unknown people stopped the vehicle, tied the driver and snatched away the vehicle – Report was lodged by driver – Insurance claim – Rejected by Insurance company – Appellant’s version was that vehicle was being used as a taxi – The vehicle was insured for personal use – Complaint – Dismissed by District Forum – Appeal – State Commission observed that claim ought to be settled on non-standard basis and allowed the appeal – Revision – Dismissed by National Commission upholding the order of the State Commission – Legality of – Theft of the car – Vehicle has not been recovered – Nature of use of the vehicle cannot be looked into – Whether Insurance Company was justified in rejecting the claim – Held : No.

          The Hon’ble Supreme Court in the case of Jitendra Kumar Vs. National Insurance Co. Ltd., and another case at para 9 and 10 reported in (2003) 6 SCC 420 observed as under:-

It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to an acts to which the driver has not, in any manner, contributed i.e., damages incurred due to reasons other than the act of the driver. 

It is the case of the parties that the fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. 

          13.    Therefore, in our considered opinion, the Insurance Company could not have repudiated the claim of the complainant.  It clearly goes to show that, the OP has committed a deficiency in service and unfair trade practice in settling the claim made by the complainant.  Further the OP has been admitted that, the policy was in force as on the date of accident.  When the policy was in force, it is the bounden duty of the OP to settle the claim of the insured/complainant.  But, herein the OP has taken a contention that, there is a violation of terms and conditions of the policy i.e., the complainant has intimated about the accident to the OP after lapse of 11 days.  The reason for delay in giving intimation to the OP company i.e., the complainant is a Government employee and he was deputed for training from 15.12.2015 to 26.12.2015.  The reason given by the complainant is bonafide reason.      Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP and the complainant is to be compensated on non-standard basis after depreciation.  Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP/insurance Company.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            14.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OP is hereby directed to pay a sum of Rs.1,68,750/- towards compensation along with interest at the rate of 12% p.a from the date of filing of the complaint till realization. 

It is further ordered that, the OP is hereby directed to pay Rs.25,000/- towards parking charges, Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceeding.  

It is further ordered that, the OP is hereby directed to comply the above order within 30 days from the date of this order.

 (This order is made with the consent of Member after the correction of the draft on 22/04/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP:

DW-1:  Sri. Malatesh, Assistant Manager of OP by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Original RC Book stands in the name of complainant
02	Ex-A-2:-	Original insurance Policy copy
03	Ex-A-3:-	Endorsement of Renewal of Tourist Vehicle Permit
04	Ex-A-4:-	Form 49 permit in respect of Tourist Vehicle
05	Ex-A-5:-	Form No.47 Authorization letter of KSTA
06	Ex-A-6:-	Form 38 Certificate of Fitness
07	Ex-A-7:-	Form KMV-20 Application for renewal of certificate of Fitness
08	Ex.A-8:-	Receipt for Fitness Renewal Fee
09	Ex.A-9:-	Job Slip issued by Adishakti Cars
10	Ex.A-10:-	Estimation for repair accident vehicle
11	Ex.A-11:-	Repudiation letter dated 02.03.2015 to the complainant
12	Ex.A-12:-	Letter given by complainant to the OP dated 05.03.2016
13	Ex.A-13:-	Repudiation letter dated 10.03.2016 issued by the OP to the complainant
14	Ex.A-14:-	Letter given by complainant to the OP dated 16.03.2016
15	Ex.A-15:-	Repudiation letter dated 20.04.2016 to the complainant
16	Ex.A-16:-	Office copy of the Legal Notice dated 11.05.2016
17	Ex.A-17:-	Postal receipt and served acknowledgement
18	Ex.A-18:-	Letter dated 02.05.2016 to the complainant marked as Ex.A-18.

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Proposal form for commercial vehicles package policy and liability only policy
02	Ex-B-2:-	Photos of the damaged vehicle
03	Ex-B-3:-	Survey report
04	Ex.B-4:-	Postal acknowledgement
05	Ex.B-5 & 6:-	Letters dated 02.03.2016 and 10.03.2016 to complainant intimating about closure of file as no claim
06	Ex.B-7:-	Accident intimation letter dated 29.12.2015

 

 

 

MEMBER                                                            PRESIDENT

Rhr**