PRESIDENT 

1)        By this complaint the Complainant has prayed that the Opposite Party be held and declared guilty of unfair trade practice and deficient in service as per the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The Complainant has also prayed that the Opposite Party be directed to pay Rs.2,52,447/- + Rs.6,000/- + Rs.800/- (towing charges) = Rs.2,59,247/- with interest @ 18% p.a. from 06/02/2010 and compensation of Rs.50,000/- towards mental torture and Rs.25,000/- towards the cost of litigation.  

2)        According to the Complainant his vehicle MH-43-8526 was insured with the Opposite Party under Private Car Package Policy for the period 07/09/2009 to 06/09/2010.  It is submitted that the Complainant alongwith his family members had gone to Pune on 06/02/2010 to attend some family function in the aforesaid vehicle.  It is alleged that while returning alongwith his family from Pune to Mumbai at 11.00 p.m. one heavy vehicle was coming at high speed from the opposite side and to avoid the hidden collusion the Complainant drove his vehicle to one side and dashed against the divider because of which the vehicle was damaged very badly.  It is alleged that since it was night time and there was risk to life of the Complainant’s family members.  He took them to safe place and got his vehicle towed to Sion on 07/02/2010 by engaging services of Pranjali Towing Crane, Pune.  It is alleged that thereafter, he engaged the service of Raju Towing Service to tow his vehicle from Sion to Worli and got the total estimate of damage from Apex Honda, Kurla-Mumbai.  It is submitted that thereafter, the Complainant, submitted the estimated damage bill of Rs.2,52,447/- to the Opposite Party on 10/02/2010 alongwith Invoice No.920233 dtd.17/03/2010 given by Apex Honda, Kurla-Mumbai.  The Opposite Party appointed Surveyor M/s. Dhruva & Co. on 13/02/2010 who submitted the report to the Opposite Party assessing the loss to the extent of Rs.33,000/- disallowing damages to engine parts. The Complainant did not agree to the above loss estimate of M/s. Dhruva & Co.  The matter was therefore, referred to Ombudsman at Mumbai.  The Ombudsman after certain directions to the Opposite Party to re-verify the claim of the Complainant finally dismissed the claim made by the Complainant on 14/11/2011.  The Complainant has therefore, filed the present complaint alleging that there is deficiency in service on the part of the Opposite Party which amounts to unfair trade practice.  The Complainant has therefore, prayed for compensation on account of hardship and mental agony suffered by him as referred in para 1 of this order.

3)        The Opposite Party by filing written statement contested the complaint.  It is contended that as per the Exclusion Clause No.4 and condition No.4 thereof the Opposite Party is not liable to pay any compensation to the Complainant for the loss incurred in respect of the subject vehicle.  The Opposite Party relied the terms and conditions of Private Car Package Policy and also the premium receipt issued to the Complainant at Annexure – ‘A’ & ‘B’.  It is contended that the Surveyor M/s. Dhruva & Co. whose Prop. M/s. M.J. Dhruva has recently expired has submitted a report dtd.24/03/2010 quantifying the net amount payable to the Complainant to the tune of Rs.33,000/-.  The copy of the said report is marked as Annexure – ‘C’ & ‘D’.  The Opposite Party has also filed the claim form submitted by the Complainant on 10/02/2010 which is marked as Annexure – ‘E’.  The Opposite Party also filed the letter of the Complainant dtd.20/08/2010 as Annexure – ‘F’.  It is contended that by giving the version of the above accident the Complainant is not entitled to compensation.  The Opposite Party also relied the letter issued by Mahendra Dhruva dtd.11/06 and contended that as per the letter marked as Annexure ‘G’ the Complainant is not entitled to any amount as per policy condition no.4.  The Opposite Party also relied the report of B.N. Mehta & Co. filed as Annexure–‘H’ and contended that as per the said report the Complainant is not entitled for any claim since it was a consequential loss which is an exception under the policy. The Opposite Party also relied the report of G.B. Dalvi, Investigator marked as Annexure–‘I’ and contended that as per his report towing bill dtd.07/02/2010 for Rs.6,000/- issued by Pranjali Towing Service and one more bill dtd.07/02/2010 for Rs.800/- which is issued by Raju Towing Service are bogus and fake.  It is thus, submitted that the complaint is liable to be dismissed.  It is also contended that the Complainant could not lodge the police report within 24 hrs. from the time of occurrence of the accident as he claims suffered a.  It is contended the assessment made by the Surveyor is Rs.33,000/- is absolutely fair and proper.  The Opposite Party has denied its liability as claimed by the Complainant in the prayer clause of the complaint.  The Opposite Party thus, prayed that the complaint be dismissed with cost. 

4)        The Complainant has filed affidavit of evidence of himself and one Kiran Suresh Bhope.  The Opposite Party filed affidavit of Sukumar Babu, Sr. Divisional Manager.  Both the parties filed their written arguments.  We heard the argument of Ld.Advocate Shri. Goravankol for the Complainant and Shri. B.L. Kapadia, Ld.Advocate for the Opposite Party.  We have perused the documents relied by both the parties.  

5)        While considering the rival contentions raised by both the parties, it is necessary to be seen that the Opposite Party and the Surveyor appointed by it have admitted that the Complainant while coming from Pune-Mumbai during night time one heavy vehicle was coming from the opposite side direction with full dipper on the car of the Complainant and the car of the Complainant smashed on divider and after loosing staring control it smashed to right side of wall and then hit slightly to left side of a poll and accident took place.  The Opposite Party has come out with the case that as per conditions Clause No.4 the Complainant is not entitled to the claim.  According to the Opposite Party the Complainant in his letter dtd.20/08/2010 has stated that he started the car and therefore, the condition no.4 applies for repudiating the claim lodged by the Complainant.  As per the condition no.4 “in the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be given before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the ensured own risk.”  In our view while repudiating the claim of the Complainant the analogy applied by the Opposite Party that the damage was caused to the Complainant’s vehicle as he has admitted in his letter dtd.20/08/2010 that he started his vehicle and therefore, the condition no.4 referred above is applicable for repudiating the claim lodged by the Complainant in our view has been wrongly interpreted. In the letter dtd.20/08/2010 placed on record the Complainant has described how the accident took place and what were the circumstances at the time of accident and lastly he stated that after the accident he started the car and also explained that to his surprise the car did not start and for the safety of the vehicle he had towed the vehicle upto his destination.  From the contents of the aforesaid letter it cannot be said or considered that the Complainant had driven the vehicle before its repairs as per condition No.4.  On the other hand from the said letter it appears that the Complainant has plainly explained that he started the car after the accident but it did not start and therefore for the safety of the vehicle he had to tow the vehicle upto his destination.  We therefore, hold that the Opposite Party is wrong in applying condition no.4 of the terms and conditions of Private Car Package Policy in respect of the claim lodged by the Complainant.  Furthermore, in the report of Dhruva & Co. the assessment of loss has been estimated to Rs.1,54,630/- including labour charges + cost of the parts.  In the report of Dhruva & Co. he has though assessed payable claim to the tune of Rs.33,000/- in Annexure -‘D’ to the written statement we are of the view that on what basis the said assessment made by him has not be properly explained in his report.  As per the premium receipt placed on record by the Opposite Party at Annexure ‘B’ to the written statement the total IDV of the vehicle in question has been admitted by the Opposite Party to the tune of Rs.5,60,998/-.  Thus, in our opinion the Opposite Party ought to have considered that the Complainant was entitled at least for the amount of Rs.1,54,630/- which Dhruv & Co. has assessed as loss to the vehicle of the Complainant.  The letter relied by the Opposite Party of Mahendra Dhruva & Co. at Annexure - ‘G’ only mentions the date and month as 11/06 it does not mentioned the year on which it was issued to the Opposite Party by Mahendra Dhruva & Co.  The said letter therefore, cannot be relied upon to consider the defence raised by the Opposite Party.  Furthermore, in the report of B.N. Mehta it is also wrongly mentioned that the insured in his letter dtd.20/08/2010 has stated that after the accident, under certain circumstances he had tried to drive the car to reach the destination. The said observation of B.N. Mehta & Co. in its report at Annexure ‘H’ is totally wrong and in consistent with the letter of the Complainant letter dtd.20/08/2010  we therefore, hold that the Opposite Party has viewed the claim lodged by the Complainant with prejudicial approach. The Complainant though in the letter dtd.20/8/2010 had mentioned that he towed the vehicle upto his destination the Opposite Party appointed some investigator and relied the report of such investigator who did not prima facie made any efforts to find out the owner or manager of Pranali Towing Crane, Pune whose bill was submitted by the Complainant as well as Raju Towing Service, Worli, Mumbai.  From the report of the Investigator it appears that he did not try to find out the person or the owner or manager of concerned Pranjali Towing Crane by calling upon them on 3 mobile numbers given in the bill No.103 dtd.07/02/2010 submitted to the Opposite Party.  It appears that Dalvi Investigator only tried to contact one person having mobile number 9881907360.  In the report of the Investigator – Dalvi filed at Annexure – ‘I’ there is no mention that he had contacted the other 2 mobile numbers mentioned in the bill no.103.  The Investigator has also not submitted the statements of the persons to whom he had contacted and who had stated that at any point of time Pranjali Towing Service was not in existence near Dange Chowk, Pune.  We therefore, hold that the report of Dalvi Investigator relied by the Opposite Party also cannot be taken into consideration to repudiate the claim lodged by the Complainant.  We also hold that as the Complainant had specifically mentioned that the vehicle was required to bring at Sion by towing and he had produced the bills not only of Pranjali Towing Crane but also of Raju Towing Service of Mumbai, and as such, the doubt which the Opposite Party had shown as regards the claim lodged by the Complainant cannot be considered as just and fair approach towards the Complainant’s claim.  It is also pertinent to note that in the report of Dalvi Investigator there is no mention as regards that he had made search of Raju Towing Service, Mumbai then also the Opposite Party in the affidavit of its Sr. Manager has contended that in view of the report of Dalvi Investigator both the bills are bogus and fake.  In this complaint to overcome the stand taken by the Opposite Party regarding towing bills and specifically the bill issued by Pranjali Towing Crane has filed affidavit of Kiran Suresh Bhope notarized before Notary J.R. Dubey Mumbai who in his affidavit has explained that he had brought the vehicle owned by Harminder Kumar Paul Singh Oberoi which met with an accident on 06/02/2010 from Pune to Mumbai and the Complainant paid Rs.6,000/- to the said Pranjali Towing Crane as per Bill No.103.  The Advocate for the Opposite Party relied upon the authority in the case of H.K. Taneja V/s. Bipin Ganatra reported in 2009(2) Maharashtra Law Journal - Page 855 and submitted that as the Complainant has not produced the relevant notarial register of the notary, kept in the normal course of him such notary to prove the execution of document before him the affidavit of Mr. Bhope cannot be relied upon.  In our view the said submission of Advocate for the Opposite Party also cannot be said just and proper because under the Consumer Protection Act, 1986 the prima facie evidence brought on record can be taken into consideration without going into technicalities as referred in the above authority. We hold that the strict proof of procedural aspect is not necessary to be placed on record.  From the documents placed on record by the Complainant i.e. affidavit of Kiran Bhope the Complainant has placed on record that the bill issued by Pranjali Towing Crane dtd.07/02/2010 is not a fake document as alleged by the Opposite Party. We therefore, hold that the Complainant has brought on record by filing affidavit of Kiran Bhope that the Bill No.103 submitted to the Opposite Party may be taken or considered as genuine document.  Thus, the report of Dalvi Investigator in our view because of the affidavit of Kiran Bhope cannot be relied upon as contended by the Opposite Party.  Furthermore, the Complainant has also produced on record the tax invoice issued by Apex Honda Kural dtd.17/03/2010 showing that the Complainant had incurred expenditure of Rs.2,52,477/- for the insured vehicle no.MH-43-R-8526. The Complainant has also produced on record the payment receipt of the said amount to the Apex Honda Co.  In our view as the IDV of the Complainant’s vehicle was accepted by the Opposite Party to the tune of Rs.5,60,998/- and the claim lodged by the Complainant to the Opposite Party was of Rs.2,52,447/- which was less than IDV, the Opposite Party ought to have accepted the said claim + Towing charges of Rs.6,000 and Rs.800/- which are also supported by the documents.  In our view the Opposite Party has wrongly repudiated the claim lodged by the Complainant regarding the accident of his insured vehicle with the Opposite Party.  The Opposite Party therefore, is liable to pay Rs.2,59,247/- to the Complainant towards the compensation of the accident loss sustained by the Complainant to insured vehicle.  The Complainant is entitled for the interest @ 6% p.a. from 10/02/2010 i.e. the date when the Complainant lodged the claim to the Opposite Party till its realization.  The Complainant in our view is entitled for compensation of Rs.10,000/- towards mental torture and hardship which he had suffered because of the stand taken by the Opposite Party while repudiating the claim and cost of Rs.5,000/- towards this proceeding.  In the result we passed the following order –

O R D E R 

i.                    The Opposite Party is directed to pay Rs.2,59,247/- (Rs.Two Lacs Fifty Nine Thousand Two Hundred Forty Seven Only) to the Complainant with interest @ 6% p.a. from 10/02/2010 till actual payment.

ii.                 The Opposite Party is directed to pay Rs.10,000/-(Rs.Ten Thousand Only) towards the mental torture and hardship suffered by the Complainant.

iii.               The Opposite Party is directed to pay cost of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant.   

iv.               The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.   

v.                  Certified copies of this order be furnished to the parties.