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

DATED 6^th DAY OF JULY 2024

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

a) Direct the OPs to pay a sum of Rs.1,20,000/- to the complainant towards the membership amount.

b) Pleased to compensate the complainant for the tune of Rs.2,00,000/- as a damages along with an interest at the rate of 18% from the date of membership and also to grant a sum of Rs.1,00,000/- towards mental agony caused to the complainant.

c) Grant such other reliefs which deems to be fit under the facts and circumstances of the case.

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

The complainant is having Cab business, wherein he rented out his car Maruti Swift Dizire having registration No.KA-41-C-0786 to one Devaraj how drove his car as tax. On 05-01-2023 at about 10:30 PM the one Devaraj was travelling in the complainant’s car on 80 feet road Indiranagar. While a vehicle having registration No. KA-53-I-8855 was driving very dangerously from the opposite direction hit a vehicle bearing Reg. No. Ka-41-C-0786 and swiftly drove away, making it a hit and run case.

3. As the incident happened in a swift of a second, one Devaraj made note of the said registration number of the vehicle and on 06-01-2023 one Devaraj went to the Jeevanbimanagar Police Station and gave a written complaint regarding the same. After receiving the acknowledgement of said complaint the complainant and one Devaraj went to the Authorized Maruti Service Centre at Old Madras Road and got a estimation of the bill on the repairs, which was coming to an approximately Rs.1,20,000/- . Since the vehicle was insured the complainant handed over the insurance policy to the service center to claim the required claim insurance. The complainant even received a text message from Shriram General Insurance Company Limted, the OP that the complainant will receive the details of the surveyor, who is coming to inspect the car on 09-01-2023. Later a letter dated 10-02-2023 was received by the complainant and the letter contained that the complainant’s insurance was declined due to the reason that the complainant had declared NO CLAIM BONUS (NCB) at the time of purchase of the insurance. The complainant states that he does not remember accepting any such conditions and would also like to state that the said insurance was applied online. Wherein the OP company had hidden such a clause in small fonts which is not visible to the naked eyes.

4. Under supervisions of the representative of the OP company, the complainant followed the instructions of the said representative and went ahead with the terms and conditions and payment with respect to the premium amount. At the time of payment of the premium amount no such questions were asked by the representative of the OP company and now that the complainant claimed the benefits of the insurance, the OP company is coming up with all excuses and made up clauses in order to not give the rightful insured claim. The complainant issued a reply notice dated 10.04.2023 to the letter dated 10.02.2023 asking for payment of the insurance claimed. But there is no reply from the OP with respect to the reply notice dated 10.04.2023. As the accident was of no fault of the complainant and the complainant merely followed the instructions of the representative of the representative of the OP company at the time of paying the premium of the insurance. AS the complainant is the sole and only working member in the family, the complainant had to settle the bill with the authorized Maruti service center out of his pocket which has caused a great length of financial burden and stress on the complainant.

5. The OP is liable to pay the compensation claimed which are as follows:-

The complainant suffered a huge loss of business and mental agony due to false representation of the OP. Therefore, the complainant is entitled for compensation of the same. Hence this complaint by the complainant.

6. On issue of notice to OP. OP appears before this commission. OP counsel files version.

7. In the version of OP, the complainant seeking for relief as sought for in the complaint is not maintainable either in law or on facts and hence the same is liable to be dismissed. The OP admits that having insured the Maruti Swift car bearing No. KA-41-C-0786 bearing Policy No – 10019/31/23/011673 from 30.05.2022 to 29.05.2023 as per the provision of the motor vehicle Act and liability against the OP the same is limited as per the terms and conditions of the policy of insurance and further it is submitted that the policy terms and condition along with the policy was handed over to the complainant and based on the same now he has presented the claim.

8. The complainant has informed the OP on 09.01.2023 stating that his Maruti Swift car met with an accident on 09.01.2023 and accordingly the OP has appointed an investigator cum spot surveyor to assess the loss, but he has not given any opportunity to verify the alleged damaged to the car on spot, since he has shifted the car without prior intimation to OP and hence spot inspection was not done and therefore after the final surveyor was appointed and on verification of the damaged car in the garage, he has assessed the loss in a sum of Rs.51,450/- on repair basis and accordingly he has submitted the final report of survey to the company.

9. The OP has requested the complainant to submit the claim forma and other vehicle relevant documents and accordingly the complainant produced the documents. It is further submitted on scrutiny of the proposal from submitted by the complainant at the time of obtaining the policy from the OP, the insured has misrepresented the fact stating that he has not claimed any amount from the previous insurance company and therefore he is entitled to get the no claim bonus from the OP herein and accordingly the OP was given the no claim bonus, but as per the verification of records from the previous insurance company i.e. M/s Oriental Insurance Company Limited on 01.10.2020 having policy No.211200/31/2020/20869, wherein he has made the claim and further the claim has been settled by the M/s Oriental Insurance Company Limited and therefore the same amounts to mis-representation of facts and further the same is against the policy terms and conditions also to contract of insurance, which is issued on good faith and therefore on the basis of the investigation and police documents and the proposal from submitted by the complainant, the claim has been repudiated by this OP on 10.02.2023.

10. The OP submits that in claim form submitted by insured, driver name is mentioned as – Devaraj – (KA0120200018960) having DL Endorsement of LMV AND MCWG only in is DL. Whereas Insured being a commercial vehicle a Transport Endorsement DL is required for driving the Insured Vehicle. Hence DL of the driver was also invalid at the time of accident. It is submitted that the claim of the complainant in a sum of Rs.4,20,000/- towards the rapiers charges and other compensation is hereby denied and further the liability of the OP is limited to terms of the independent surveyor report, but due to violation of the policy terms and conditions, the claim has been rejected by the OP and hence the claim is not liable to be payable and hence the OP denied all the allegation and calling up on the complainant to prove the same. The OP submits that there is no deficiency of service on the part of OP, since there is no cause of action against the OP. Hence, the complaint is not maintainable and the same is liable to be dismissed.

11. The complaint in his contention files affidavit evidence along with 9 documents marked as Ex.P.1 to Ex.P.9. The OP files affidavit evidence along with 5 documents marked as Ex.R.1 to Ex.R.5. Complainant files written arguments and citation OP fails to submit arguments hence taken as NIL.

12. 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?

13.  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

14. 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.

15. On perusal of the documents submitted by the complainant, the Ex.P.1 is the copy of registration certificate of Swift Car bearing No. KA-41-C-0786, in the name of the complainant i.e. BasavarajDurgannavar, which clearly shows that the said car is owned by the complainant. Ex.P.2 which is a copy of the driving license (LMV, MCWG) of one Sri. Devaraj, with a validity till 18.04.2042. Ex.P.2(a) is the copy of driving license in the name of BasavarajDurgannavar with a validity till 22.05.2037. Ex.P.3 is an acknowledgement of copy of the written complaint submitted to the police by the complainant. Ex.P.5 is the copy of the insurance policy. Ex.P.8 is the invoice for an amount of Rs.1,19,159/- of the repairs done by the authorized service center i.e. Mandovi Motors dated 14.02.2023. Looking into the above documents, it is true that the complainant has obtained the policy from the OP with the IDV for the vehicle i.e. Rs.2,53,475/- for the period from 30.05.2022 to midnight 29.05.2023. On observing the certificate of the policy issued by the OP to the complainant, the “NCB discount –50% previous policy bearing No. 10019/31/22/004904 previous insurer-Shriram General Insurance”, which clearly is seen that the previous Insurance taken by the complainant for the previous year is with the OP.

16. The OP in their contention have submitted 5 documents, in which the copy of the policy marked as Ex.R.1. The OP has submitted the survey report marked as Ex.R.2, in which the estimation is Rs.51,450/-.  The OP is also submitted the proposal form and a closure letter. Observing the above documents the OP has got the survey done for the damages of the said car on the proposal of the complainant. The OP in his contention submits that the complainant has misrepresented the facts and on verification of records, the complainant has claimed from the previous insurance company i.e. M/s Oriental Insurance Company Ltd. on 01.10.2020 having policy No.211200/31/2020/20869, where the complainant has made a claim and further the claim is settled by the M/s Oriental Insurance Company Ltd., but the OP fails to submit any document/evidence to prove the same. The complainant has taken the policy for the year 2021-22 and 2022-23 from the OP, as it is clearly shown in the policy copy issued by OP to the complainant. The complainant has failed to verify the documents before issuing the insurance to the complainant. The OP further submits that the driver by name Devraj is having D.L of LMV and MCWG only, which is sufficient to drive a vehicle such as Swift Dezire as it is a Light Motor Vehicle (LMV). Looking into the above facts, we see that the complainant car has met with an accident while it was driven by one Mr. Devraj and got it repaired by Mandovi Motors. Looking into the invoice dated 14.02.2023, we see that the charges for the repair of the car of the complainant that met with an accident is an amount of Rs.1,19,159/-. The complainant has taken insurance policy from the OP for a period from 30.05.2022 to midnight 29.05.2023. The date of accident which is on 05.01.2023 and the invoice copy issued by Mandovi Motors dated 04.02.2023 fall well within the policy period. Hence the complainant is liable for the claim. The OP by rejecting the claim has shown deficiency in service and also Unfair Trade Practice. OP has failed to prove or produce evidence against the contentions made by them. Therefore the OP is directed to pay the amount of Rs.1,19,159/-. The compensation prayed by the complainant i.e. Rs.2,00,000/- as damages and Rs.1,00,000/- towards mental agony seems to be exorbitant. Therefore OP is directed to pay a compensation of Rs.25,000/- and litigation charges of Rs.10,000/-. Hence on the above discussions, we answer Point No.1&2 affirmative and partly affirmative respectively.

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 is directed to pay the claim amount of Rs.1,19,159/- with interest 6% p.a. from the date of closure letter issued by the OP i.e. 10.01.2023 till realization.
3. OP is further directed to pay Rs.25,000/- towards compensation and Rs.10,000/- towards litigation cost.
4. OP shall to comply this order within 45 days, failing which shall have to pay interest at the rate of 8% p.a. on the entire Award amount till realization.

5. 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 6^th day of July 2024)

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

Documents produced by the representative of opposite party – R.W.1&2;