BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 04^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint  has been filed under section 35 of C.P.Act, 2019 (herein referred as “Act”) for the following reliefs.

      a) To direct the Opposite parties to pay the I.D.V. amount of Rs.5,40,000/- with interest at the rate of 18% from the date of accident till date of payment.

b) To direct the opposite party to pay the compensation of Rs.1,50,000/- towards for mental shock and agony undergone by the complainant for all these days.

c) costs of this legal proceedings and such other reliefs as the Hon’ble Forum fit to grant under the circumstances of the case, in the interest of justice and equity.

2.The brief facts of the complaint  is as under :

The complainant who is registered owner of Tayota Etios G.D bearing No.KA-01-AE-3854 insured the same with OPs under policy no.423200/31/2018/2263 for a period  from 01.07.2017 to 30.06.2018 for a sum assured Rs.5,40,000/- by paying premium of Rs.27,449/-.

It is further case of the complainant that the above vehicle met with an accident on 04.05.2018 at about 11.30PM during the subsistence of the policy. The inmates  of the car sustained injuries. The case has been registered before the Kamakshipalya Traffic Police station and IMV report has been obtained. The vehicle has been completely damaged.

The complainant gave a declaration dt.23.07.2018 and requests the OPs to pay total value of Rs.5,40,000/-. Despite legal notice  dt.23.01.2020, the OP fails to pay Rs.5,40,000/-. This act of the OPs amounts to deficiency of service. Therefore, OPs are liable to pay interest, compensation and cost of legal proceedings.

3. After receipt of notice, the OPs appear and file version on 10.12.2020. The OPs contended that the complaint is not maintainable either in law or facts. The OPs admit the insurance policy of the vehicle, but complainant gave only the intimation on 31.05.2018 about accident even the complainant was to intimate the OPs within 48 hours of the accident. The OPs admit sum insured  amount of the policy. According to the complaint filed with the Police station Naveen kumar  was seated  besides of the driver seat and driver  of the vehicle was not having valid driving license  at the time of accident. Therefore, the complainant violated the terms and conditions of insurance policy. The postmortem report indicates deceased Naveen Kumar  body contained 30ML of brown coloured fluid smell of alcohol. Therefore, OP is not liable to pay amount.

4. Despite opportunity granted to the complainant from 19.12.2020 till 06.01.2022, the complainant failed to lead evidence. Similarly, OPs also fail to file affidavit evidence. Despite opportunity granted both sides no arguments advanced.   

5. Perused records.

6. The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

7. Our answer to the above points are as under:

       Point No.1:- Affirmative.

      Point No.2:- Affirmative in part.   

      Point No.3:-As per the final order.

REASONS

8.  Point Nos.1 and 2: As per provisions of Consumer Protection Act, 2019, even though complainant fails to file affidavit evidence and documentary evidence, the District Consumer Commission shall decide the complaint on merits. Even though the OPs dispute its liability, but the fact of accident,  total loss of the vehicle and complainant insured the vehicle for a sum of  Rs.5,40,000/- by paying necessary premium of Rs.27,449/- is not in dispute.

9. The complainant has produced 9 documents along with complaint. The document no.1 copy of the registered certificate indicates that the complainant is registered owner of the vehicle bearing no. No.KA-01-AE-3854 that met with an accident. The document no.2 indicates that complainant being the registered owner of the vehicle as insured above vehicle with OPs for a sum of Rs.5,40,000/- from 01.07.2017 to 30.06.2018 by paying necessary premium amount. It is admitted and proved from the document no.3 that the vehicle met with an accident and complaint came to be filed against the driver of the vehicle on 04.05.2018 with Kamakshipalya Traffic Police station. Even presuming for the sake of arguments that the complainant committed delay in intimating the OPs about occurrence of the accident and damage caused to the vehicle, but registration of  FIR itself is an indication of the notice to the OPs. Therefore, on the  ground of delay of intimation, the complaint cannot  be rejected. One  R.S.Manoj Kumar, who lodged complaint. The FIR indicates that Naveen Kumar was seated by side of  driver seat, where as the copy of charge sheet filed by police indicates that Naveen Kumar  himself driving the above vehicle at the time of accident. Naveen Kumar succumbed to the injuries, this fact born out from the charge sheet and post mortem report.

10. The copy of report of Motor vehicle inspector  indicates that an accident was occurred not due any mechanical  defect. Even though initially the case was registered for offence punishable under section 134(a)(b), 187 of VMC, but ultimately charge sheet filed for offence punishable under section 278 and 304(A) of Indian Penal Code. Even though postmortem report indicates that the body contained 30 ML of  brown coloured fluid smell of alcohol presents, but there is no evidence to show that deceased Naveen Kumar was driving the vehicle at the time of accident and without driving license and under the influence of alcohal.

11. The complainant gave declaration  form claiming about accident   and damage caused to the vehicle. Despite receipt of legal notice dt.23.01.2020 the OPs fail to settle the claim.

12. It is proved that vehicle of the complainant met with an accident when the insurance policy was in force and vehicle was damaged completely. Despite proved that the vehicle was insured for a sum of Rs.5,40,000/- the OPs fail to pay this amount.

13. It is relevant to note that, as per provisions C.P.Act,2019 the complaint requires to be disposed within 90 days from the date of receipt of notice. Even after filing of version dt.10.12.2020 the complainant has not lead evidence  in all 12 adjournments  from 19.12.2020 to 06.01.2022. Under such circumstances, the complainant is entitled for interest on compensation even he is entitled to Rs.5,40,000/- from the OPs.

9. Point No.3: Having regard to discussions made in point no.1 & 2 complaint requires to be allowed in part. OP is liable to pay Rs.5,40,000/- towards sum assured with cost of litigation of Rs.10,000/- to the complainant. The complainant is neither entitled to interest nor compensation as the complainant caused delay in disposal of this case. we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OPs shall pay Rs.5,40,000/- with litigation cost of Rs.10,000/- to the complainant.
3. The claim of the complainant towards compensation and interest is rejected.
4. OP shall comply this order within 45 days from this date, failing which the OP shall pay interest at 10% p.a. on Rs.5,40,000/- after expiry of 45 days till realization.
5. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 4^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 : Nil