IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.M.G.Hiremath<br /> B.Sc., L.L.B (Spl.)- President<br /> <br /> <br /> 2. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 172/06 DATED 26-10-2006<br /> <br /> Complainant H.J.Anand Kumar, S/o Jeevendra Kumar, No.1, Gokulam Road, V.V.Mohalla, Mysore.<br /> (By N.Govinda, Advocate)<br /> Vs. <br /> Opposite Party Senior Divisional Manager, The Oriental Insurance Company Ltd., Divisional Office-2, New Muslim Hostel Complex, Opposite Fire Brigade, Saraswathipuram, Mysore-570 009.<br /> <br /> (By J.S.K, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 23-06-2006<br /> Date of appearance of O.P. : 12-07-2006<br /> Date of order : 26-10-2006<br /> Duration of Proceeding : 3 ½ MONTHS<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT MEMBER<br /> <br /> <br /> <br /> <br /> Sri.G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The complainant is the owner of the Tata Indica car bearing registration number KA 09 M 8123. The vehicle was insured with the opposite party and the said insurance was valid from 2.6.2005 to 1.6.2006. <br /> <br /> 2. The vehicle met with an accident on 25.6.2005 in the twilight near Shrirangapattana when an oncoming truck brushed the complainant’s car. The car hit the culvert and the guard wall of the bridge. The car got extensively damaged and as the complainant was in a daze he could not note down the registration number of the truck. After composing himself, he went to Shrirangapattana police station and lodged a complaint. The police registered a C.Mis case numbered as 152/2005. Later on, the complainant lodged the insurance claim with the opposite party. <br /> <br /> 3. The complainant has submitted that though the opposite party sought certain clarifications from him regarding the accident, his claim was not settled. Hence, he was forced to issue a legal notice. Instead of settlement, only an untenable reply was sent. On 10.3.2006, another legal notice was issued by the complainant. Yet there was no settlement. The complainant says that the damaged vehicle is parked at Suson Auto Service Centre, old H.D.Kote Road awaiting repairs and as such he has not been able to use it from the date of accident. Besides, he is paying ground rent also.<br /> <br /> 4. The complainant has, further, submitted that the act of the opposite party has caused monetary loss and mental tension. He has prayed that the Forum award him Rs.2,99,726/- as damages and Rs.25,000/- as compensation for inconvenience, mental agony and hardship payable by the opposite party.<br /> <br /> 5. The opposite party has admitted that the complainant’s car had a valid insurance issued by him. He has alleged that the complainant despite being an agent of New India Assurance Company took a policy from him suppressing the fact that the vehicle had already met with accident. <br /> <br /> 6. The opposite party has denied that the accident as described by the complainant took place. He says that the police complaint is a false one and the accident is concocted. He has averred that his surveyor’s report and investigator’s investigation have revealed that the damage suffered by the vehicle did not correlate with the kind of accident described by the complainant and that they have opined that the accident must have happened at least 1 to 11/2 months prior to the date given by the complainant. It is the contention of the opposite party that his investigator’s report completely dislodges the accident theory put out by the complainant. <br /> <br /> 7. On the merits of the claim, the opposite party has submitted that according to his surveyor, it can not exceed Rs.83,255/- and all other claims made by the complainant being consequent to accident are excluded under the terms of the policy. Pointing out that the contract of insurance is a contract of utmost good faith, he says that he has a right to repudiate as the complainant has made misrepresentation. <br /> <br /> 8. Apart from the above contentions, the opposite party has, also, taken a defence that the complainant has to approach a civil court as his claim requires recording of elaborate evidence. <br /> <br /> 9. From the above rival contentions, the following points arise for our consideration:<br /> <br /> a) Whether the complainant proves that the opposite party has repudiated his claim without justifiable reasons thereby giving rise to deficiency in service?<br /> <br /> b) Whether the opposite party proves that the complainant has made misrepresentations due to which the claim has been repudiated?<br /> <br /> c) What relief or order?<br /> <br /> 10. Our finding on the above points are as under:<br /> <br /> Point 9(a): In the affirmative<br /> <br /> Point 9(b): In the negative<br /> <br /> Point 9(c): As per final order<br /> <br /> REASONS<br /> <br /> 11. Points 9(a) & 9(b):- There is no dispute about the validity of the policy. It is a package policy. The Insured Declared Value[IDV] of the vehicle is Rs.1,50,000/-. The opposite party has repudiated the claim based on the investigation report of his investigator who has disbelieved the accident theory put out by the complainant. Now, the complainant’s version is that on 25.6.2005 at about 7 p.m on the bridge near Shrirangapattana an oncoming truck brushed his car, as a result of which his car hit the culvert first and then the railing of the bridge. <br /> <br /> 12. Basically there are two reasons why the opposite party has not accepted the version of the complainant. Firstly, because the complainant is himself an insurance agent with New India Assurance company and the vehicle in question had a concurrent valid 3rd party insurance issued by that company. As such, if he wanted a comprehensive policy, he should have gone to New India Assurance Company. Secondly, because the accident happened much before the complainant took the comprehensive policy from him. We have to now examine the merits of these contentions.<br /> <br /> 13. The opposite party has produced a copy of the insurance which shows that the New India Assurance Company had issued a third party insurance policy valid from 23.3.2005 to 22.3.2006. The name of the owner of the vehicle has been shown as S.R.Dayananda. There is a scribbling on the policy certificate “R.C.Transefrred Mr.Anand Kumar”. The reference is obviously to the complainant. The opposite party has, also, filed a copy of the registration certificate book. The vehicle has been registered on 17.4.2000. The owner Shri.Dayanand died subsequently and the ownership came to be transferred to the name of his wife Smt.Sharada. She has transferred the vehicle to the complainant. Both transfers have apparently happened within a short span of time. There is an endorsement that if there arises any litigation we are not responsible for change in ownership. The word “we” refers to the regional transport authority. Anyway, the vehicle did have a valid 3rd party insurance as on the date of the alleged accident issued by The New India Assurance Company Ltd. <br /> <br /> 14. Except the statement of the opposite party company investigator Shri.V.M.Suresh Babu there is no other evidence to show that the complainant himself is an insurance agent of that The New India Assurance Company Ltd. The objection of the opposite party is that the complainant himself being an agent of New India Assurance Company could have taken a policy from that company if he wanted comprehensive coverage. Even if the complainant is an agent, that by itself is no disqualification for obtaining a policy from other companies. More over the opposite party had an opportunity to cross examine the complainant to find out the motive behind not going to New India Assurance Co Ltd for insurance. As already observed, this fact would have carried corroborative value if there was some supporting evidence. The prima facie inference that can be drawn from the act of the complainant is that on purchasing the vehicle he wanted a comprehensive insurance instead of the 3rd party insurance that it carried. It is nobody’s case that New India Assurance Co. Ltd. refused to issue such policy. Further, so long as there is no evidence that the insurances were attempted to be used by the complainant to make profit, we cannot condemn him.<br /> <br /> 15. The next objection is about the date of accident. According to the complainant the alleged accident took place on 25.6.2005 at about 7 p.m. The opposite party has filed two reports one of Shri.M.S.Guruswamy, surveyor, loss assessor and the other of Shri.V.M.Suresh Babu, investigator. Shri.Guruswamy says<br /> <br /> “During my inspection it was noticed that the above cause of accident did not correlate with the kind of damages suffered by the said vehicle. At the time of my inspection I observed that front bonnet, front bumper, RH fender assembly and battery were missing from the vehicle: Also, the front radiator support panel. LH crash panel, RH side front door panel were already rusted/corroded and the subject vehicle was completely covered with dust. In my opinion, the insured vehicle while on movement might have hit against an opposite coming TP vehicle [may be HTV/bus/truck] before hitting the culvert. The rusting and dust on the vehicle suggest that the vehicle might have met with the accident 1 to 11/2 months before my first inspection i.e 11.7.2005 and not on 25.6.2005 as the claim form puts it”.<br /> <br /> 16. The investigator Shri.Suresh Babu says <br /> <br /> “Firstly, I met the surveyor Shri.Guruswamy and enquired him about the accident of this vehicle. He some how got information that the accident had occurred somewhere on Mysore – Bangalore road and the vehicle was parked in M/s Pervez’s garage at Bamboo Bazar, Mysore and the vehicle was lying in the garage for about 15 – 20 days. Later, I paid visit to M/s Pervez’s garage at Bamboo Bazar and met him. I showed him that photograph of the damaged car bearing Reg No. KA 09 M 8123, belonging to Shri.Anand Kumar. He stated that this car had come for accident repairs, following an accident on Mysore – Bangalore road, but he was unaware about the correct date and spot of accident. He further stated that this car had been brought to his garage by towing after the accident and left in his shed for about 15 – 20 days. But the owner Shri.Anand Kumar took away the vehicle stating that he will get it repaired at M/s Susan auto garage. As such he took the car and it was and left it at Susan auto garage (sic) for repairs. When asked why the vehicle was not repaired in his garage, he stated that Shri.Anand Kumar had informed that the repairs had to be carried out after the transfer of vehicle in his name. When asked whether any entry had been made regarding this vehicle, he stated that no records will be maintained with regard to the vehicvles parked in his garage. He stated all these orally but failed to give the same in writing.<br /> Later, I paid visit to the said spot of accident at North Cauvery bridge, S.R.Patna and met the near by people. I showed them the photograph of the damaged car and asked them whether this car had met with an accident here. They all stated that they were unaware about the accident to this car.<br /> Later I paid visit to Ramanagaram traffic police station and learnt that the said car met with an accident on 28.5.2005 when it collided with a lorry near Rampada. But the case was not registered as the parties involved reached a compromise. The police gave all these orally, but failed to give the same in writing.<br /> Later I & the Insurance surveyor Shri.Guruswamy somehow collected information that one Shri.Ravi was driving the vehicle, at the time accident. By putting our best efforts, we met the said Shri.Ravi and enquired him in detail about the accident. He stated that he was the one who was actually driving the vehicle and had a miraculous escape when the car he was driving had a collision with an oncoming lorry in between Channapatna & Ramanagaram on Mysore – Bangalore road. He further stated that he could not remember the correct date and actual spot of accident. Also, no case was registered in police station regarding this accident.<br /> <br /> Observations:<br /> <br /> Shri.Anand Kumar is an agent of M/s New India Assurance Co Ltd., But in spite of this he has taken a comprehensive policy at M/s Oriental Insurance Co, Metagalli, Mysore<br /> <br /> As per the claim form, the accident has taken place on 25.6.2005 whereas the complaint was issued on 26.6.2005 and in the mahazar, there is no mention about the date of accident.<br /> <br /> Though the vehicle was sold on 15.3.2005, it was transferred to the name of Shri.Anand Kumar only on 31.5.2005.<br /> <br /> 17. Based on the above two reports, the opposite party repudiated the claim on 8.12.2005. The opposite party has filed a few photographs of the damaged car. The damages look extensive. But, if we overlook for a moment the doubt why the complainant did not approach New India Assurance for the comprehensive policy and examine the evidentiary value of the two reports relied upon by the opposite party to repudiate the claim, then it becomes clear that the opposite party is guided by the hearsay information collected by the surveyor and investigator. The investigator says that the accident took place somewhere near Ramanagaram and one Ravi was driving the vehicle. No concrete evidence is placed before us in this regard. The investigator says that Ramanagaram police refused to give anything in writing. Ravi has not been examined to prove that he was driving the vehicle on the day when it met with the accident near Ramanagaram. The investigator has quoted Ravi as saying that he had a miraculous escape in the accident. But if the photographs produced by the opposite party are to be believed it is doubtful that anybody would reach a settlement with the other vehicle involved in the accident and the police would not register any case. <br /> <br /> 18. The complainant has produced a spot mahazar conducted by Shrirangapattana police. The mahazar report has superior evidentiary value than the words of some people whom the investigator says he met near Shrirangapattana bridge and enquired about the accident by showing the photograph of the damaged vehicle. Instead, he could have met the witness to the spot mahazar to ascertain the veracity of the incident. If the opposite party wants to disbelieve the mahazar of Shrirangapattana police, then the hearsay evidence collected by the investigator can also not be believed.<br /> <br /> 19. Next, the opposite party’s investigator says that the damaged vehicle was parked in Pervez’s garage before being taken away to Suson’s garage. Pervez has not given any evidence before the Forum nor has anybody from Suson’s garage deposed to the effect that the vehicle was brought to their garage from Pervez’s garage. In fact, some body from these garages could have deposed about the date and place of accident. <br /> <br /> 20. What is the evidence placed before us to justify repudiation? A few photographs and the hearsay evidence collected by the surveyor and investigator. No material evidence is produced. The dust on the vehicle and corrosion could have become material only if there were other supporting evidences like the statement of Ravi, statement of pervez or somebody from Suson’s garage, a report from Ramanagaram police, etc.,. In the absence of these evidences the dust and corrosion alone can not have much evidentiary value. <br /> <br /> 21. We have gone through the proposal form filled up by the complainant to obtain the policy from the opposite party. A number of vital information that should have been divulged by the complainant have not been filled up. For example, at serial number 28, the proposer has to give the previous history of the vehicle and insurance. The complainant has not filed in the name and address of the previous insurer and previous policy number. Yet, the opposite party issued the policy. Had the opposite party insisted upon these information he could have noticed that the previous insurance was a third party insurance, that there is a change in ownership of the vehicle and that the complainant instead of going back to New India Assurance for comprehensive insurance is approaching him. These facts would have alerted the opposite party. It is also obvious that the opposite party has not undertaken the mandatory inspection of the vehicle before issuing the comprehensive policy. Now, he cannot take refuge behind hearsay evidence collected by his surveyor and investigator. Nor can he take advantage of his own faults like not inspecting the vehicle before issuing comprehensive insurance and not securing a completely filled up proposal form. In view of the above facts, we answer point 9(a) in the affirmative and 9(b) in the negative.<br /> <br /> 22. We have to now verify the claim of the complainant. The IDV is Rs. 1,50,000/-. The complainant has produced an estimate given by Suson auto service for Rs.1,38,155/-. The opposite party’s surveyor has assessed the loss at Rs.83,255/- under repair/replacement basis and at Rs.79,000/- under salvage loss basis. The surveyor has, also, said that in his opinion settlement on salvage loss basis is best suited in the existing circumstances. This is covered under clause 3 of the conditions of the policy on page 3. It reads as under:<br /> <br /> The company may at its own option repair, reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed (a) for total loss/constructive total loss of the vehicle(including accessories thereon) as specified in the schedule less the value of the wreck.<br /> <br /> 23. Further, clause 4 stipulates that the insured in case of an accident or breakdown shall not leave the vehicle unattended without proper precautions being taken to prevent further damage or loss. We are citing these clauses because the surveyor has deducted a sum of Rs.10,000/- towards missing parts from the IDV before calculating the liability of the opposite party under the salvage loss basis. He has valued the wreck at Rs.60,000/-. The responsibility of safeguarding the vehicle after an accident depends on various factors. In this case, the place of accident and the time of accident are such that the complainant could have taken reasonable care to have the wreck transported to the nearest police station or even to Mysore. Hence, the deduction made for missing parts must be deemed to be correct and it shall include the policy excess. However, so far as valuation of the wreck is concerned, we disagree with it simply because it is unilateral and not based on any reasoning. In the present circumstances it would do justice to both the parties if the wreck is handed over to the opposite party with independence to do whatever he wants with it. Keeping in view these factors we proceed to pass the following order:<br /> <br /> <br /> ORDER<br /> <br /> A. Complaint is allowed<br /> <br /> B. The opposite party is directed to pay the complainant Rs.1,40,000/- within 2 months from the date of this order failing which such amount shall carry interest at the rate of 10% p.a thereafter until the date of payment. Upon making such payment it shall be the responsibility of the complainant to handover the wreck to the opposite party and complete such formalities as are necessary for transferring the ownership to the opposite party.<br /> <br /> C. The opposite party is directed to pay the complainant damages of Rs.5000/- within 2 months from the date of this order failing which the said amount shall carry interest at 10% p.a thereafter until the date of payment.<br /> <br /> D. The opposite party shall pay the complainant cost of Rs.1000/-. <br /> <br /> E. Give a copy of this order to both parties according to Rules. <br /> <br /> (Dictated to the Stenographer, transcribed by him, transcript revised by us and then pronounced in the open Forum on this the day 26th October 2006)<br /> <br /> <br /> <br /> <br /> <br /> (M.G.Hiremath) (G.V.Balasubramanya)<br /> President Member<br /> <br />