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

DATED 15^th DAY OF JUNE 2024

ORDER

SMT. K. ANITA SHIVAKUMAR, MEMBER

Complaint filed by the complainant U/S 35 of Consumer Protection Act 2019, seeking direction to OP to pay claim amount and expenditure incurred by complainant in total sum of Rs.10,36,646/- with 18% interest p.a. from the date of repudiation, to pay sum of Rs.1,00,000/- towards compensation for the deficiency of service and unfair trade practice , to pay Rs.25,000/- towards cost of litigation and such other reliefs.

2. Brief facts of this case are as follows:-

Complainant was an owner of the car bearing No. KA-04-MQ-2612, complainant has purchased the insurance policy from OP, policy No.141522223110088021, was in force from 19.07.2022 to 18.07.2023. On 14.03.2023 complainant and his friends one Mr. Ganesh Babu were travelling in the said Ford Eco sport car from Bangalore to Kadiri and stayed there. On 15.03.2023, both were returning from Kadiri to Bangalore around 2.30 p.m. They reached Chanduru cross on NH 44, Gudibande Taluk, at around 5.15 p.m. Complainant was driving the said vehicle, due to uncontrol over the car,  hit to right side of the divider of the road, due impact, car was turned towards left side and landed in the trench beside the road and fully damaged to the car in the front. At that time air bags opened. Hence, complainant and his fried has not got any injury.

3. Complainant in the complaint stated that, thereafter friend of the complainant Mr. Ganesh complaint lodged the complaint before the Police Sub-Inspector, Gudibande Police Station. On the very same day, police have registered case in crime No.0035/2023 for the offence committed U/S 279 of IPC against the complainant. Complainant intimated the OP immediately after the accident i.e. on 15.03.2023 for the claim, in claim No.3123066889.

4. Complainant further stated that police conducted Mahazar of the accident on 16.03.2023 and motor vehicle inspector has conducted inspection of the vehicle in the premises of Gudibande Police Station at 4 p.m. on 17.03.2023, gave report of the vehicle. He opined that cause of accident was not due to any mechanical defect of the motor vehicle. Complainant sent location of the accident, photo of the vehicle and other details to the OP as per the instructions of OP’s authorized person on 15.03.2023 itself and the said vehicle was lifted from Gudibande Police Station as per the instructions of OP’s authorized person vehicle was brought to the PPS Ford service station at Yelhanka. Complainant approached Mr. Nuthan, Manager of the OP and furnished required documents. After receiving all the required documents from the complainant, OP has never contacted the complainant with regard to the claim on 21.03.2023. OP sent E-mail on 21.04.2023, stating that investing report is submitted to them, as per the report, claim is not permissible and the repudiation letter will be sent to the policy holder.

5. At the same time service station executives call the complainant demanding to pay the money for repair to take back, the vehicle after paying the demurrages. On 29.04.2023, complainant lifted the vehicle from the PPS service station, Yelhanka and parked the vehicle in the private garage. The PPS service station has estimated for the repair work was Rs.9,80,754/- in the estimation report dated 18.03.2023.Complainant incurred shifting charges from Gudibande Police Station to PPS service station from PPS service station to Private Garage for Rs.6,734/- and Rs.12,000/- respectively. He also incurred shifting charges to private garage Rs.12,000/- apart from this complainant has incurred sum of Rs.22,892/- for estimation and parking charges paid at PPS service station. He even incurred Rs.11,000/- for lifting and accident location to Police Station. OP sent letter dated 02.05.2023, stating that vehicle damages are not line with the scenario mentioned by the complainant and OP repudiated the claim, stating that they are unable to process claim due to breach of principle of utmost good faith and condition No.1&8 of Motor insurance Policy. Complainant keep on contacting Mr. Nuthan through whatsapp not materialized the claim of the complainant. But OP did not do so.  Hence complainant underwent mental agony, hardship and financial loss and alleged that OP has caused deficiency of service by repudiation of the claim of the complainant. Hence this complaint.

6. OP represented through its counsel and filed version. In its version, OP denied the averments made in the complaint, stated that complaint is not maintainable and he suppressed the material and pertinent facts. OP also stated that complainant has not approached this commission with clean hand. The complaint lacks with cause of action, is based on near surmises and conjectures.

7. The OP in its version, admitted that the insured car bearing No.KA-04-MQ-2612 vide insurance policy No. 141522223110088021, valid from 19-07-2022 to 18-07-2023. The liability of OP is limited to the terms and conditions of the policy and as per the provisions of motor vehicles act. OP even admitted that complainant has informed about the own damage claim, wherein on 15.03.2023 the insured vehicle registered No. KA-04-MQ-2612 met with an accident and got damaged. In claim No.3123066889. After the verification of claim documents, it was found that there was an act of misrepresentation on the part of complainant, wherein the complainant was supposed to disclose the true facts and violated the terms and conditions of the policy. As per the terms and the conditions “If there is non-disclosure or the misrepresentation with fraudulent intention, insurance contract becomes void. A void contract has no legal effect of validity”.

8. OP has taken contention that one Althaf S, who was driving at the time of accident did not hold a valid driving license. After verification of all the documents, OP has rightly repudiated the claim in their letter dated 15.03.2023 on the ground of mis-representation of facts/mis-representation of driver details. Hence, OP has not caused any deficiency of service nor adopted any unfair trade practices. Immediately after receiving the intimation of the accident and the damage, branch office of OP deputed an independent IRDA licensed surveyor and loss assessor to conduct a survey and assess the loss. According to his assessment vehicle damaged is a worth of Rs.3,25,648/-. The liability if any on the part of OP, shall be limited to the amount assessed by surveyor. Hence this complaint is liable to dismiss with exemplary cost.

9. At this stage, complainant lead evidence by filing affidavit and filed 11 documents including Certificate U/S 65B of IE Act which are marked as Ex.P.1 to Ex.P.11. Complainant reiterated in the affidavit as mentioned in the complaint. One ApoorvaMajakar, Deputy Legal manager of OP company is authorized to lead evidence on behalf of the OP. Accordingly, she filed affidavit evidence, reiterated as mentioned in the version filed 6 documents including Certificate U/S 65B of IE Act, which are marked as Ex.R.1 to Ex.R.6. Heard complainant counsel, in spite of several opportunity given to OP, not addressed the arguments, hence we proceed to pass the following order on merits.

10. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant proves the deficiency of service on the part of OP’s?

ii) Whether complainant is entitled for the relief?

iii) What order?

11.  Our answers to the above points are as follows:-

Point No.1:-Affirmative.

Point No.2:-Partly Affirmative.

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

REASONS

12. Point No.1&2:-These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

13. After perusal of the pleadings and documents on record, it is not disputed that complainant’s vehicle Ford Eco Sport has got insured with OP company, by paying premium of Rs.6,540/- which covered own damage and personal accident benefit. At the time of accident, complainant who is insured his vehicle which has an validity from 19.07.2022 to 18.07.2023, a total IDV is Rs.4,05,000/- which is at Ex.P.1 and Ex.R.2. As admitted by OP, complainant was informed immediately and OP company has assessed the loss by their licensed surveyor.

14. On 16.03.2023, one Ganesh Babu who is the friend and co-passenger in the vehicle when the insured vehicle was met with an accident, has registered a complaint before Gudibande Police Station and the same has been registered in the FIR which are at Ex.P.2 and P.3 respectively. As per the crime registered before the police station, police has conducted mahazar which is at Ex.P.4. Complainant taken the vehicle from Police Station to PPS Ford Service Station for a repair service and the service station has issued estimation details for the repair work which amounts to sum of Rs.9,80,754/- which is at Ex.P.6. After verification of the documents, OP has rejected the claim of the complainant in letter dated 02.05.2023 which is at Ex.P.8 on the ground that the damages of the vehicle claimed against the accident are not matching with the cause and nature of loss mentioned in the claim form and it is not possible for the insured vehicle who have sustained the impact damage due to the median divider as mentioned in the accident summary.

15. On 18.04.2023, JP Research India Pvt. Ltd., has conducted accident survey and report submitted to OP, which is at Ex.R.3 with few photographs of damaged vehicle and its report. As per their observation, “the impact damagewas not due to hit to the median divider as mentioned in the accident summary, is likely to be insured vehicle sustained the damages as a result of impacting a vehicle with a large ground of clearance such as a truck or bus. The manner of accident as stated by insured vehicle driver cannot be correlated with the available evidence and the accident does not seem genuine”.At the same time, OP has got his survey report which is at Ex.R.4, is assessed for the sum of Rs.3,25,648/-.

16. Here we can observe that complainant got insurance for his vehicle to safeguard from the financial burden against the unexpected and unforeseen events in the future, has paid premium of Rs.6,540/-. Though it is within the validity period, there is no such reason to repudiate the claim of the complainant on silly technical reasons. In the version, OP taken contention “driver of the insured vehicle was not holding proper valid driving license at the time of accident”. Complainant has produced his driving license issued by Govt. of Andhra Pradesh, which is at Ex.P.11. In our considered view, there is no misrepresentation of facts or with regard to the driver’s details. In the licensed surveyor’s report they have observed that the accident was not due to hitting the divider by driver of the insured vehicle, as per OP’s stand it was due to the accident with a heavy vehicle with large ground clearance like truck or bus. The same has been taken as misrepresentation by the complainant. But no doubt, their own surveyor has assessed the vehicle loss which can met with repair by incurring Rs.3,25,648/-, though the complainant has claimed Rs.10,36,646/- with 18% interest, the IDV value at the time of valid insurance for the period of 2022-23 was Rs.4,05,000/-, will consider the surveyor’s assessment as per the report submitted by them and complainant is entitled for the same i.e. Rs.3,25,648/-. OP has failed to produce cogent evidence to prove that the complainant has misrepresented the facts and also their contention with regard to the valid driving license of driver when the accident occurred, is also not proved by OP. Hence OP has failed to prove its defense and complainant is entitled for the amount assessed by surveyor, not as much amount he claimed and also compensation for the deficiency of the service for without any proper reason OP has delayed to honor the claim of the complainant on the ground that misrepresentation of the facts, OP has to compensate the same for its deficiency of service by repudiating the claim of the complainant on improper reason. OP is liable to pay Rs.30,000/- towards compensation and Rs.10,000/- towards cost of litigation, though the complainant has claimed Rs.1,00,000/- and Rs.25,000/- towards compensation and cost, which seems to be  exorbitant. On the above reasons we answer Point No.1 in affirmative and Point No.2 in partly affirmative.

17. Point No.3:-In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part.
2. OP shall pay Rs.3,25,648/- with interest at the rate of 9% p.a. from the date of claim till realization.
3. OP shall pay Rs.30,000/- towards compensation for deficiency of service and Rs.10,000/- towards cost of litigation within 30 days from the date of order, failing which shall pay 10% interest p.a. from the date of order till realization. 
4. Furnish the copies of the order and return the extra copies of pleadings and documents to the parties, with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th day of June 2024)

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

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