::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

   C.C. No.33/2019.

                                                Date of filing: 20.06.2019.

                                                       Date of disposal:  12.02.2021.

P R E S E N Ts:-    

                                    (1) Shri. Rajmohan Srivastava,                                                                                                

                                                                               B.Sc., M.A.,LL.M.,

                                                                                President.,  

                               (2) Shri. Shankrappa (Halipurgi),

                                                                            B.A.LL.B.,

                                                                                    Member.

                               (3) Kum. Kavita,

                                                    M.A.,LL.B.,  

                                                             Member.

                                                                                                                                                                                                                                                            ( By Shri. Sanjay Kumar  S. Patil, Advocate )       

                                                                       VERSUS

                                     (  O.P.No.1 By Smt. Padma  M., Advocate )

                                       (   O.P.No.2- Exparte )

::   J UD G M E N T  ::

By  Shri. Rajmohan Srivastava, President.

                    This complaint  filed by the above said complainant    ( U/sec.12 of C.P.Act., 1986 (Old)) U/s. 35  1 &2  of the C.P.Act., 2019,(New)  against the Respondents  alleging  deficiency in service  on the part of Respondents. 

2.       The Complainant stated in the complaint that he is the registered owner of Ashoka Leyland/2214 Std. bearing                                 Reg. No. KA 39-6888 which is insured with the Respondent vide    policy No. 734321823340000286 and also valid from 23.03.2018 to 22.03.2019.   At about 7.00. a.m. when the lorry bearing No. 39-6888 proceeding within the limits of  Mann-e-khelli village, Humnabad Taluka.  In the normal speed ofthe so called lorry and when so applied break the said lorry was turtle on the left side of the road.  The lorry driver was Balbheem at the  time of accident.  The registered lorry extensively got damaged due to the accident.  The complainant intimated to the Respondent No.1 Insurance Company as well Respondent No.2 Authorized agent regarding the accident.  The Complainant submitted  the vehicle damage claim registered with Respondent No.1 on 22.01.2019 at about 10.53 a.m. in claim reference No. 3119018085.  The Complainant submitted that the Respondent No.1 Company deputed surveyor one Mr.Gnyander GN to conduct survey about the damaged lorry.  The Surveyor Mr. Gnyander visited spot and estimated parts of bill and labour charges through Nizamuddin body builder at Basavakalyan.  The Complainant removed the said vehicle from the place of incident and shifted the vehicle lorry to authorised garage  Nizamuddin body builder and simultaneously took the photos.  The complainant stated surprisingly that the Respondent advised that to  contact Mallikarjun  for further details by SMS on the same day 22.01.2019 at about 2.00 P.M.  The Complainant further stated that the Respondent again deputed one more surveyor by name Chandershekhar at about 7.57.   But,  he did not visit  nor conducted survey but, the complainant  submitted photo copy of damaged lorry, insurance copy, Driving Licence, R.C. Book etc. as per the direction of Respondent.  It is only instruction of                     Mr. Gnyander GN the said vehicle dismantled and got repaired of the vehicle.  The Respondent deputed other surveyor only to escape from liability but it caused deficiency of service.  But, the Respondent Insurance Company liable to indemnify the liability of the Complainant.  The Complainant stated that the estimated damage parts of the vehicle Rs. 2,25,000/- and estimate for labour charges Rs. 3,37,800/- and shifted of lorry from it’s place of incident to garage Rs. 12,000/- so also mental agony and litigation costs of Rs. 20,000/-.  Total claim made for Rs. 5,95,600/-.  When the complainant repeatedly requested for payment but, the Respondent’s Company on 20.02.2019 repudiated the claim on the flimsy grounds that  by  “upon inspection of the Lorry vehicle was already dismantled and repairs were started prior to survey of the vehicle without intimating Respondent” by denial stated that the claim did not fall under the scope of the terms and conditions of the policy and repudiated the claim.  The Complainant stated the on no any valid grounds to deny the liability to pay compensation for Respondent No. and 2.  Therefore cause of action arose on 20.02.2019 and the complaint presented well within the period of limitation.  This Commission has jurisdiction to maintain the complaint and to award Rs. 5,95,600/- with 12 % interest.  Becaue the complainant is a Consumer as defined under C.P.Act, and entitled to claim for deficiency of service against the Respondents No.1 and 2 for the damage of Ashoka Layland lorry in the interest of justice.

3.       The Respondent No.2 in spite of service of notice did not appear before this Commission hence, Respondent No.2 placed exparte.

4.       The Respondent No.1 has appeared through his counsel and filed Written Version.  In the Written version Respondent No.1 submitted that, the Complaint filed by the complainant is false and baseless ground so the complaint not maintainable either under law or on facts and as such the claim petition is liable to be dismissed.  The Respondent No.1 admitted about the insurance policy and  it’s validity on the date of accident as if the detail submitted in the claim petition.   The Respondent No.1 submitted the claim of the damaged vehicle bearing No. K.A. 39-6888 met with an accident on 21.01.2019.  The objection raised that on the date of accident the driver did not have valid and effective Driving Licence provision under M.V. Act.  The complainant created false documents to misrepresent the facts of the case and to make claim on false and created documents to the tune of Rs. 2,17,967/-  The bills and estimated bills by un-authorized person.  Respondent No.1 Company submitted that when there was inspection the vehicle  was already dismantled and already repairs carried out without intimation to the Company.  The Complainant has deprived the Company an opportunity to ascertain the necessary facts related to the accident including without limitation etc.  The Company submitted that if it all the company is made liable by actual assessment Rs.1,31,870/- as assessed by the Company.  According to the Section 1 of the policy, which does not fall under the terms and conditions of the policy and same is repudiated and the complaint has no cause of action and it to be dismissed with costs in the interest of justice.        

5.         The complainant to prove his case has given by sworn affidavit and narrated all the grounds,  examined as P.W.1 and  filed documents exhibited Ex.P 1 to  P.14 and closed his side.

6.     The Respondent to prove the case has examined R.W.1 and filed one documents exhibited  as Ex.R.1 and closed it’s side.

7.       We have heard from the both sides and perused the documents filed by the complainant carefully.

8.         Considering the above said facts and circumstances of the case the following points arise for our consideration.

1.  Whether the complainant entitled to claim for valid policy to the claim set up in the complaint for the damage of the vehicle by bearing registration No. KA-39-6888 upon the accident dated 21.01.2019 because of the deficiency of service against the Respondent No.1 & 2 ?
2.  Whether the Respondent’s Insurance Company repudiated the claim of the complainant on valid grounds form the violation of terms and conditions of the policy ?
3. What orders ?

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

1. In the Affirmative.
2. In the Negative.
3. As per the final order.  

10.        The both points No.1 & 2 in consideration arise  out of the same facts and circumstances and therefore linked together and answered accordingly on the findings as therein below.

11.        The admitted grounds between the Complainant and Respondent No.1  that the accident of the vehicle bearing Registration No. KA 39-6888 on 21.01.2019 at about 7.a.m. the lorry belong to the complainant met with an accident and got turtle on the left side of the road;  it  is because of the accident.  The intimation given to the Insurance Company on 22.01.2019 vide claim reference No. 3119018085.  It is also undisputed that the accident  said vehicle within the jurisdiction of this Commission.  The case of the complainant when the intimation given to the Insurance Company the Company engaged surveyor Mr.Gnyander GN and the intimation given through SMS on 22.01.2019 and estimated parts of bill and labour charges through Nizamuddin body builder, Basavakalyan.   But, it so happened that on the same day the Respondent’s Insurance Company advised the complainant to contact Sri. Mallikarjun.  Further the Respondent’s Insurance Company again deputed another surveyor Officer Sri.Chandrashekhar on 23.01.2019 but, it was not done again.  Thereafter,  re-survey done by Mallikarjun.  The Complainant’s case is that as per authorized survey Officer Mr.Gnyander GN the said accident vehicle was dismantled and repairs carried out.  The total estimation including  damaged parts around Rs. 25,000/-, labour charges of   Rs. 3,37,800/- and to shift lorry from the place of accident to garage Rs. 12,000/- and for mental agony suffered by the complainant  for Rs. 2,000/- and this total claim set up against the Respondents Rs. 5,95,600/-.   The Respondent’s Insurance Company contrary to the sworn affidavit of P.W.1 has filed Written Statement and examined R.W.1 Amarnath D.V. S/o Veerbhadrappa, Manager RGICL , Hubli branch.  It it is as stated above,  in the evidence of R.W.1 the insurance and the accident of the vehicle undisputed but Insurance Company stated through R.W.1 that the complainant created all false documents to set up huge claim.  The main objection of the Insurance Company upon inspection of vehicle, it was observed that the vehicle was already dismantle and repairs were done prior to survey of the vehicle without intimating the Company.  Thus, the Complainant has deprived the Company an opportunity to ascertain the necessary facts related to the accident.  The Insurance Company also relied Section 1 of the policy that the claimant is entitled to repair the vehicle damaged either for any replacement or repair should not exceed Rs. 2,500/-.  The Insurance Company stated by affidavit and Written Statement of R.W.1 the Respondent Insurance Company is liable according to it’s assessment only to the extent of Rs. 1,31,817/- as per Ex R.1.

12.     The learned counsel for the complainant has advanced arguments based on Ex.P.1 to P.3 that the complainant immediately informed the Insurance Company and Nizamuddin body builder, Basavakalyan as per Ex.P.4 made total cost of Rs. 2,25,800/-   If it is seen from Ex.P.6 , P.7 and P.8 the dates are 22.01.2019 to 23.01.2019 and the  SMS  also mentioned date and time.  When the intimations are given by Insurance Company under SMS messages,  which are not more than one or two days after the accident.    The learned counsel for the complainant as per Ex.P.12  the claim coverage are liability only under the survey deputed by the Respondent’s Insurance Company.  But the case of Respondent Insurance Company that the vehicle was already dismantled and the repair was carried out by un-authorized person not under our deputation of the surveyor.  The photos produced seen but when the vehicle lorry turned turtle no any such photos produced by the complainant.  All the photos which are produced by the complainant side are not related to the position of accident of the lorry vehicle.  The photos produced only after the vehicle brought to it’s normal condition of the parking.  This give significant evidence in favour of the Respondent’s Insurance Company that the vehicle which was repaired or dismantled and the opportunity was deprived to the Respondent’s Insurance Company to assess in it’s accident position.  Therefore, the objection raised by Insurance Company appears totally valid and in Ex.P.1 the Insurance Company emphasize Section 1 of the policy.  The Complainant for the reason for shifting the vehicle from the place of the accident is not supported by any evidence.  It it is under such circumstances the Insurance Company which has produced actual repair as per Ex.R.1 to an extent of Rs. 1,31,870/- is legal and correct and accepted to the claim of  the complainant.  The Complainant which he has calculated the damage and repair replacement of parts and shifting are not supported with valid documents and therefore the evidence in this regard of the complainant unacceptable.  Hence, the point No.1 is order as per to the extent of the claim considered accordingly and Respondent’s Insurance Company as per point No.2 in consideration would have released the amount in favour of the complainant immediately and so suffered deficiency of service.  It is no doubt when there is insurance policy is valid and accident is admitted the Complainant is entitled to claim but not as per assessment made by him.  But on the other hand we have relied Ex.R.1 the actual assessment of the vehicle of the damage.  Hence, the point No.1 answered in the affirmative and point No.2 in the negative. Hence, for the forgoing reasons, we proceed to pass the following:                                            

::ORDERS::

The complaint filed by the complainant  U/s. 35  1 &2  of the C.P.Act., 2019, against Respondents is  allowed with costs.

Consequently the Respondents No.1& 2 jointly and severally  liable to pay  Rs. 1,31,870/- to the complainant along with interest at the rate of  8% p.a. from the date of the order till realisation.

The Respondent No.1 & 2 jointly and severally liable to pay s. 25,000/- to the complainant towards compensation for  mental agony suffered by the complainant and   Rs. 10,000/- towards litigation expenses.

 The Respondents shall comply the above said orders within sixty days from the date of this order.

Intimate the parties accordingly.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this  12^th  day of  February- 2021).

Documents produced by the complainant.

1. Ex.P.1- Copy of Repudiation Letter issued by the Respondent No. 1.
2. Ex.P.2 & 3 Copies of online SMS/MMS by Respondent No.1.
3. Ex.P.4-  Copy of estimate bill of parts issued by Nizamuddin Body Builder, Basavakalyan.
4. Ex.P.5- Copy of estimate bill of of labour charges issued by Nizamuddin Body Builder, Basavakalyan.
5. Ex.P.6 to 8- Copies of online SMS/MMS by Respondent No.1.    
6. Ex.P.9- (8) Photographs of Lorry bearing No.K.A.39-6888.       
7. Ex.P.10- Xerox copy of Registration Certificate.  
8. Ex.P. 11-Xerox copy of National Permit for Goods Carrier
9. Ex.P.12-Xerox Copy of Insurance Policy.
10. Ex.P. 13-Xerox Certificate of Fitness .
11. Ex.P.14- Xerox copy of Driving Licence of Balbhim.

Document produced by the Respondents.

1. Ex.R.1- Xerox copy of Loss Assessment.

Witness examined.

Complainant:

1. P.W.1- Gulam Rasool, S/o Ahmed Sab. (Complainant ).

Resondents:

1. R.W.1- Amarnath D. V. S/o Veerabhadrappa, Manager, RGICL, Hubli Branch ( Respondent No.1 )