::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.41/2017.
Date of filing: 15.07.2017.
Date of disposal: 06.10.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Baswaraj S/o Kashinath Biradar,
Age:42 years, Occ: Owner of the vehicle bearing
Reg.NO.KA05 AA9054,
R/o H.No.15-3-181, Pushpa Nikita Rampure
Bank Colony Bidar.
( By Sri.D.M.Swamy.,Adv.)
VERSUS
OPPONENT/S: 1) Sri Ram General Insurance company Ltd.
E-8-RIICO Industrial Area Sitapur-Jaipur,
Rajasthan-302022.
2) The Manager, Sri Ram Vehicle Finance company
Ltd. Sri Veerbhadreshwar Chambar,
Near Stadium Road Bidar.
(By. R.1. V.M.Prakash
R.3. Sri. Arvind Singode., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainant had approached this forum by filing complaint u/s 12 of the Consumer Protection Act, 1986, impleading three opponents in all. The O.P.No.1 is the Insurer, O.P.No.2 was his agent and O.P.No.3 happens to the financier of the complainants’ motor vehicle make TATASUMO, bearing Registration No.KA05 AA9054. Later, the complainant opting to withdraw the case as against original O.P.No.2 (agent of insurer) the case remains to be adjudicated against two opponents i.e. insurer and financier. The allegation is deficiency of service. The facts of the case are as hereunder.
2. The complainant avers that, he was the Regd. Owner of the vehicle as aforesaid (as per R.C. book copy vehicle has changed number of hands albeit he is the last) and had availed finance from the earlier O.P.No.3, present O.P.No.2. The O.P.No.2 used to pay the Insurance premium to the O.P. NO.1 collecting the amount from the complainant. The last such premium amounting to Rs.19507/- was collected and remitted and Insurance cover was obtained for the period 08.06.2016 to 07.06.2017. The cover note and insurance certificate used to be kept with the financier.
3. The complainant further avers that, since 15.04.2015 he had kept the vehicle stationary in front of his home to effect necessary repairs but could not do so owing to paucity of funds. Later, the vehicle for repair was entrusted to M/s Musa Garage, Behind Kotarke house, Gandhigunj, Bidar on 09.08.2016. Said garage mechanics repairing the vehicle on 10.08.2016, kept it for observation and while attempting to start the vehicle, fire was caused due to short circuit and engulfed the entire vehicle. The complainant just after the incient informed the insurer and the claim was registered vide No.10000/31/17/C/029797. The Insurer in turn appointed a surveyor by name Shivraj Anandwade, who visited the garage, took photographs of burnt vehicle but had not provided anything or information to the complainant. The complainant following suit raised a claim of Rs.1,98,808/- (I.D.V. of the vehicle) with interest with O.P.No.1 but the same was rejected citing violation of provisions of Motor Vehicle Act. The complainant inspite of causing legal notice served did not get any reprieve and therefore he is before us claiming insurance amount and other ancillary relief (s).
4. The Opponents have duly put up appearances and have contested the case by filing written versions.
5. The instant O.P.No.2 (originally O.P.No.3) has washed off its’ hand stating that, it has got nothing to do for the insurance claim, it is a finance company which has done its’ duty diligently, the complainant is not a consumer under it, it has no nexus with the other opponents and hence it prays rejection of the complaint with costs. Though, we are not in agreement with this O.P. that, the complainant cannot be a consumer under the finance company, are in firm agreement with other contentions raised by it and thereby conclude that, the complaint is not maintainable against O.P.No.2 (old O.P.No.3). However the case would proceed against solo O.P.No.1 basing on the evidences on record.
6. The O.P.NO.1, in its’ versions denies to be the insurer of the motor vehicle bearing Regn. NO.KA 05/AA 9054. It also denies all other averments of the complaint. Going one step ahead, we found a strategic departure in the part of the O.P.No.1 that, it had in fact insured the vehicle, but the risk do not cover burning. Rather, the coverage is for own damage and theft.
7. The O.P.No.1 has further raised several points in para-7 of its’ versions.
“Further opponent No.1 submit that, the opponent No.1 has know the burning of the complainant vehicle from investigator, surveyor and independent inquiry and issued the specific and proper endorsement on 08.10.2016 as follows.
- Chassis no of vehicle found manually punched on damaged vehicle which is differing from founding vehicle chassis impression photos hence there is Manipulation and misrepresentation on your part and also violation of motor vehicles act.
- (The complainant) you are failed to produce road tax details.
- Permit of vehicle found expired on 05/2015, much before the reported incident.
- (The complainant) you are failed to produce copy of F.I.R. and fire brigade report though the vehicle caught fire at workshop which was not belongs to you.
- (the complainant) you have confirmed that cause of loss is short circuit but, as per surveyor and investigator battery was missing from vehicle at the time of incident hence there is no point of short circuit arrived in absence of source of current/ electricity which is again misrepresentation on your part regarding cause of loss.
- Vehicle was not road worthy at the time of incident and lying at workshop for repairs.
- Radiator, wiring, master cylinder and some other parts found missing at the time of incident.
- Owner/repairer of workshop where vehicle was lying for repair prior to incident escaped from meeting with our investigator during investigator to narrate the incident.
The opponent No.1 has rightly rejected the claim with an proper endorsement.So, there has not question arose to deficiency in service and the complainant has suffered the mental torture by the opponent No.1 insurance company.Because, the opponent has not kept quiet, but issued the proper endorsement with reasoned and this opponent No.1 insurance company is not liable to pay any compensation on the basis of breach of policy conditions and misrepresentation by complainant.
8. The O.P.No.1 alleging provisions of sections 84,56 and 149 of the M.V. Act having been violated justifies its’ rebuttal of the claim.
9. All the parties have filed evidence affidavits were heard in length trying to justify their respective contentions. Documents as detailed at the end of this order have been filed by the complainant and O.P.No.1.
10. Synthesizing the rival contentions the following points arise for our consideration.
- Does the complainant prove that, the O.P.No.1 has indulged in deficiency of service?
- Does the O.P.No.1 prove that, it was justified in refuting the claim?
- What orders?
11. Our answers to the points raised are as following:-
- In the affirmative.
- In the negative.
- As per final orders owing to the following:-
:: REASONS ::
12. Point.No.1 and 2: Being complementary are to be considered together. Surprisingly the O.P.No.1 at one point of time denies the Insurance cover and next making volte face suggests that, the policy does not cover burning of the vehicle but of own damage and theft. A strange way of canvassment indeed. We find no negative clauses in the Insurance certificate, wherein own damage of vehicle due to fire accident is excluded and hence this approach of O.P.No.1 holds no water.
13. Next, the O.P.No.1 alleges violation of provisions contained in Section 84,56 and 149 of the Motor vehicle Act. While section 56 of the Act specifies conditions for grant of fitness certificate in respect of a transport vehicle. Section 84 is the mandate of conditions of permits.
14. Section 149 of the M.V. Act spells out the dos and don’ts for an Insurer regarding satisfaction of judgements. Admittedly by the captioned vehicle was an old one changing number of hands ultimately landing in the ownership of the complainant. It is also made out from the report of the surveyor that, at the time of fire accident the vehicle was parked in the premises of Musa garage for the purpose of repair and the provisions of Section 56 and 84 of the M.V. Act was supposed to be effected when the vehicle was to be presented to the R.T.O. for fitness, permits, roadworthiness or whatsoever. It is not the case of the Insurer that at the time of issuing the Insurance cover, the vehicle had no F.C. or permits and hence the submissions of the O.P. harping violation of provisions of motor vehicle Act, 1988 is nothing but a smoke screen designed to escape liability. After all, it was up to the Insurer to verify all the above claimed requirements before setting the policy.
15. Thirdly, the insurance surveyor has pointed out that, no police complaint was filed nor the services of the Fire brigade was obtained. It is in the own language of the surveyor that, he visited the place of accident after some days. Conducted spot inspection. Nothing is on record that, he had ever given a copy of the investigation or report to the complainant. As per the findings the fire accident occurred in the dread of the night of 10.08.2016, when neither the complainant nor the garage technicians were present. They had found about the burnt vehicle on the next date and at that juncture what help could have been rendered by the fire service. Again, when the complainant lodged his claim promptly, had the insurer advised him to file a Police complaint? Nothing is avered in that regard. It is settled law by the Hon’ble Apex Court in reported case, AIR 1988 page 1531- A.R. Antulay V/s R.S. Naik that, anybody can set the criminal law into motion. Why could not the insurer do it?
16. This apathy (s) of the Insurer and its’ more knowledgeable, articulate surveyor compels us to believe in the oral submission of the complainant that, the insurance company on receipt of fire accident communication dissuaded him to file Police complaint. However, we concede it is a minor lapse in the part of the complainant also.
17. The surveyor has also pointed out the absence of battery and radiator from the burnt vehicle. The surveyor conducted spot inspection after lapse of many days. Is it expected that, detachable parts whether burnt wholly or partly would have been kept in open to be stolen?
18. The change of punched number on the chassis once again pointed out by the Surveyor is of little significance towards the role of the complainant. He had given the vehicle for complete repair to the garage. He is not technically qualified or competent to maintain a hawks’ eye on every move of the technician. Had the vehicle been restored to running condition and presented before the Transport authorities all these factors could have been brought up. But alas, the object is fully burnt.
19. Next, the Surveyor disbelieving the deliberations of the complainant and his mechanic that, when the vehicle was being started after repair, fire broke out due to short circuit. In 8th page of his report the surveyor has explicitly opined as follows interalia:-
20. “During investigation, we found clear reasons to burnt insured vehicle to get compensation under insurance rather bring vehicle to roadwor thy condition. Hence we opine that, accident to insured vehicle due to fire is Malicious Act by unknown persons”.
21. This rational advice has been ignored by the Insurer. The fact remains, whether the vehicle was burnt due to short circuit or auto ignition or malicious act of unknown persons, the same has happened in the absence of the complainant, beyond his control and has caused damages. From the photographs submitted by the Insurance Company it is crystal clear that, the Insured vehicle is completely, burnt beyond scope of repair even as per the Surveyors’ report. The O.P. Insurance company acting realistically and pragmatically should have settled the claim instead of causing the complainant to file a complaint. Hence, we hold that, there has been a clear deficiency of service.
22. Point.No.3: We observe from the Insurance policy of the relevant year and time produced by the complainant, the I.D.V. of the vehicle has been accepted as Rs.1,98,808/-. The vehicle having been burnt completely the Insurance company would be liable to pay that amount to the Insured/ complainant and hence we pass the following:-
ORDER.
- The complaint is allowed in part.
- The O.P.No.1 Insurer is directed to pay the sum of Rs.1,98,808/- to the complainant;
- On such payment, the O.P.No.1 would be at liberty to take possession of the burnt vehicle;
- On the peculiar circumstances of the case, we declined to award any interest or litigation expenses;
- Complaint against O.P.No.2 (old O.P.No.3) stands dismissed.
- Four weeks time granted to comply the order at (a) above.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 06th day of October 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Original of rebuttal letter date:08.10.2016.
- Annexure.B– Copy of R.C.Book of Motor Vehicle No.KA05889054.
- Annexure.C- Office copy of legal notice.
- Annexures. D to F– Postal receipts.
- Annexure.G- Copy of insurance Policy No.10003/31/17/123412.
- Annexure.H- Copy of account Statement of Ms.Sri Ram Transport
Finance Company Limited pertaining to the
complainant.
Document produced by the Opponents.
- Annexure.R.1-Copy of insurance policy Bearing
No.10003/31/16/114084. (Inrrelevant). - Annexure.R.2- Copy of certificate regarding compliance of section
64VB. - Annexure.R.3- Letter of the opponent date:08.10.2016 justifying rebuttal of insurance claim.
- Annexure.R.4- Copy of survey report.
- Annexure.R.5- Communication of the Insurer.
- Annexure.R.6-Black and White photographs and the inspection
report. - Annexure.R.7- Another copy of survey report.
- Annexure.R.8- Notarise copy of instrument of Power of Attorney.
Witness examined.
Complainant.
- P.W.1- Sri.Basawaraj S/o Kashinath Biradar.(complainant).
Opponent.
- R.W.1- Sri Peeyush Jain legal Officer of Sri Ram General Insurance
Company Limited. - R.W.2- Sri Steven P.A.Holder of Sri Ram Transport Finance
Company Limited.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
