COMPLAINT FILED ON 19/10/2019

 DISPOSED ON 19/12/2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:584/2019

DATED:19/12/2022

PRESENT: -     Kum. H.N. MEENA., B.A., LL.B., PRESIDENT

                       Sri. G. SREEPATHI, B.COM., LL.B., MEMBER       

:JUDGEMENT:

Delivered by Hon’ble President, Kum. H.N. MEENA.

The complainants have filed this complaint under section 12 of Consumer Protection Act, 1986 for seeking the relief by praying to direct the opponent to settle the amount of Rs.4,16,750/-, as compensation of Rs.25,000/- on account of mental agony, loss of income till this date sustained by the complainant and  other expenses @ 18% p.a. from the date of accident and pass such other reliefs as this Hon’ble Commission may deems fit and proper in the  interest of Justice. 

2. The brief facts of the complaint:

The complainant No.1 is the wife, complainant No.2 and 3 are the daughters and complainant No.4 is the mother, all are claims to be one deceased Sri Mohan Kumar.T. S/o Late Thippeswamy B.T. the owner of the vehicle Mahindra Xylo bearing Reg. KA-14/B-1991 and the deceased has purchased the said vehicle from the actual owner in the year 2017 for the purpose of his livelihood and also he has used the said vehicle for catering purpose and he has running the catering under the name and style of Bhargavi Catering at Challakere.

3. Complainants alleged that, on 08/04/2019 at about 6.30 am as stated by the complainant the deceased Mohan Kumar T S/o Thippeswamy.B.T. was traveling along with his family members from Challakere to Goravanahalli Mahalakshmi Temple. When the vehicle came near Yaraballi village on Challakere-Hiriyur National Highway- 150, the deceased Mohan Kumar.T. was driving the vehicle and he lost the control over the vehicle and toppled, the vehicle was entirely damaged. After the accident the complainant No.1 has intimated the accident to the opponent and they have appointed surveyor for conducting the survey and at the time of survey of the vehicle the complainant No.1 has given entire papers and also given the signed papers of claim form and in the said accident the vehicle was entirely damaged and it is not in a condition to repair. For that, the vehicle was not repaired till this date and the said vehicle was surveyed by Sri Himmath Kedar who is a Loss Assessor from opponent insurance company and he has taken the photos and he has surveyed the vehicle.

4. The complainants stated that, the deceased Mohan Kumar.T has obtained policy vide No.10003/31/19/715734 to the vehicle bearing Reg. KA-14/B-1991 from 16/03/2019 to 14/03/2020 and the said policy covers the risk of own damage for an amount of Rs.4,16,750/-, since opponent has collected a premium of
Rs.4307/-.

5. The complainants further stated in this complaint that, they have intimated to opponent insurance company regarding the accident which occurred on 08/04/2019 and the death of Mohan Kumar T. The complainant has given the necessary application along with the documents to the opposite party for the purpose of claiming the damage to the vehicle and the insurance amount, but till this date the opponent insurance company not settled, but surprisingly on 23/07/2019 the opponent have repudiated the claim of the complainant. Even inspite of collecting papers and obtaining signature on the claim form, the opponent insurance company have not settled the claim of the complainants for the benefit under personal accident. Stating the letter to the deceased itself and also mentioned wrong policy number and also mentioned wrong vehicle number.

6. The complainants are complained that, the complainant No.1 has visited number of times to the Branch Office, at Bengaluru for settlement of the claim, but opposite party has never settle the claim of the complainant reason for this was the negligent act of the opponent.

7. The cause of action for the complainant has arose to file this complaint is on 08/04/2019, which the vehicle met with accident and insured has died due to accidental injuries and also on 23/07/2019 the date on which the opponent have repudiated the claim of the complainants. Hence, this complaint comes under the jurisdiction of this Hon’ble commission. 

8. After registering the complaint, The Hon’ble Commission has issued Notice to opponent, notice duly served on 30/10/2019 placed
ex-parte, Council for the opponent filed IA application the IA is allowed as on order dated 09/12/2019. Wherefore, opponent have filed their version.

9. Version filed by the Opponent submit as here under:

Opponent filed their version by denying the allegations made in the complaint para No.1 to 10.

a) It is submitted that, this opponent has received the Intimation about the accident, immediately this opponent has appointed Sri Hanumanth Kedar surveyor for conducting the survey of the vehicle and to submit their report. The complainant has not submit all the required documents to the surveyor. The surveyor after conducting the survey in front of complainant and submit their report.

b) It is false to say Insurance Company has not settled the claim. In fact this opponent has waited that the complainant will furnish the documents but complainant has not furnished the documents. Hence with no alternative way this opponent on 23-07-2019 send the repudiation letter to complainant through RPAD. There is no negligence on the part this opponent to settle the claim.

c) It is false to say complainant No 1 has visited so many times to the branch office at Bangalore. This fact is created story to file this false compliant.

d) It is submitted that, without prejudice to the above contention and without admitting the liability that this opponents submits that at the time of alleged accident deceased had no valid and effective DL to drive the Mahindra Xylo. This is within the knowledge of deceased himself, in spite of it deceased has driving the vehicle without valid and effective DL. Deceased (owner of the vehicle) has violated the terms and conditions of the policy and MV rules. Hence this opponent is not liable to pay any compensation to the complainant.

e) There is no cause of action to file this complainant. The cause of action alleged in para No 8 of the complaint are all false and created for the purpose of filing this complaint.

f) It is submitted that, the several allegations alleged in the complaint which are not specifically admitted and which are against the contents of this version are all false. The complainants are not entitled for any relief as sought in their complaint. Therefore, it is respectfully prayed that this Hon’ble court may kindly pleased to dismiss the petition with cost.

10. The complainant got herself examined as PW-1 by filing her affidavit as  a part of examination-in-chief  and the documents Ex.A-1 to Ex.A-4 were got marked and closed their side evidence.

11. The opponent have examined as DW-1 and the documents were marked as Ex B-1 to B-4 and closed the evidence on their side Complainant and opponents have filed their written Arguments, Arguments of Complainants and Opponent were heard.

        12. Now, the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that the opponents are negligent and there is deficiency in service?
2. Whether the complainant is entitle for reliefs as sought in the complaint?
3. What order?

13. Our finding on the above points are as follows:

a) (i) Affirmative.

b) (ii) Partly in Affirmative.

c) (iii) As per final order.

REASONS

14. Point No.1 & 2: We have gone through the pleading of complaint and documents submitted by the both parties. It is clear case of the complaint that. She claiming I.D.V. Coverage of Insurance by the OP of her deceased husband.

        15. In this case complainant submits that, the complainant No.1 is the wife of deceased Mohan Kumar.T., complainant No.2 and 3 are daughters and complainant No.4 is mother of deceased Mohan Kumar.T., The complainants No.1 to 4 are legal heirs of deceased
Mohan Kumar T., the alleged vehicle Mahindra Xylo bearing Reg. KA-14/B-1991. The deceased has purchased the said vehicle from the actual owner in the year of 2017 for the purpose of his livelihood. 

16. The deceased Mohan Kumar.T has obtained vehicle policy vide No.10003/31/19/715734 to the vehicle bearing Reg. KA-14/B-1991 policy was valid from 16/03/2019 to 14/03/2020  for sum insured of Rs.4,16,750/-In this policy OP company received the premium of Rs. 4,750/-for I.D.V. covers Rs.4,16,750/-

17. In the back ground of above said fact, we perused all the documents produced by both parties. The complainant side documents are got marked as Exhibits A-1 to 4 that is policy copy, FIR, repudiation letter and genealogical tree these documents are substantiate the facts of the case, that is complainant No.1 husband avail the policy and accident took at the time of driving the said vehicle and he died due to alleged accident finally Policy was existing at the time of accident and I.D.V. coverage of Rs. 4,16,750/-

18. In the mean while on 08/04/2019 at about 6:30 pm. The deceased Mohan Kumar T. S/o Thippeswamy was traveling along with her family member from Challakere to Goravanahalli Mahalakshmi Temple, where the vehicle came near Yaraballi Village on Challakere-Hiriyur National Highway-150, the deceased Mohan Kumar.T. was driving the vehicle and he lost the control of the vehicle and toppled the vehicle in the accident, After the accident the complainant No.1 has intimated the accident to the opponent and they have appointed surveyor for conducting the survey and at the time of survey of the vehicle. Surveyed by Sri Himmath Kedar who is a Loss Assessor from opponent insurance company and he has been inspected the vehicle and taken the photos report of the concerned vehicle. In this regard we perused the Ex.B-2, as per the survey report the assessment of loss at 1, 63,130/-.

        19. There after complainant has claim but OP has issued repudiation letter dated 23/07/2019. The opponent alleged that, at the time of accident deceased had no valid and effective D.L. to drive the Mahindra Xylo and another contention is that, at the time of accident alleged vehicle was overloaded as per R.C. seating capacity at vehicle.

20. In the back ground of above said fact. We perused the documents of complainant that is policy copy, FIR, repudiation letter and genealogical tree these documents are got marked. FIR and Charge sheet and other documents reveals the above facts that,   in this regard Hiriyur Police have registered complaint in Crime No. 92/2019. Further pertinent to note that we carefully perused the policy copy, FIR, repudiation letter and genealogical tree all are clearly reveals the truth that, these are public documents and having evidentiary value and also having statutory prominence on those documents taken in to consideration in believing the alleged accident. For that reason in the above said case insured person was eligible for O.D. coverage. In case of death of LA his legal heirs are entitled for received the O.D. coverage.

21. In spite of this as per the Ex.A-3 repudiation letter submitted by the complainant that, at the time of accident your vehicle was overloaded as per RC seating capacity of vehicle. In this regard we perused the Motor vehicle accident report issued by Inspector of Motor Vehicle, he is opined that, the accident was not caused due to any mechanical defects of that motor vehicle. The above said accident is not occurred of overloaded. The insurance company must be proved any evidence on record. The accident occurred on account of the overloaded, the Insurance Company has not produced any evidence on record to prove that, the accident occurred on account of overloading. The Insurance Company has failed to prove the alleged point of overloading.

22. The insurance company has taken an another contention that, at the time of alleged accident deceased had no valid and effective D.L. to drive the Mahindra Xylo we observed the Ex.B-4, it is very clearly reveals that, deceased Mohan Kumar T., was having valid and effective D.L. at the time of accident it is valid from 06/08/2013 to 19/06/2024. Driving licence exists at the time of accident. The complainant has proved the deficiency in service on the part of the OP. More over opponent reject the claim of the complainant.

23. On the ground of overloading capacity by way of breach of the terms of Insurance Rules & conditions in this regard we cited decision reported in National Consumer Dispute Redressal Commission, New Delhi, reported in 2010(3) CPR 38 (NC) The Manager, The United India Insurance Co. Ltd. Vs Sri B. Ugandar as here under:

Consumer Protection Act, 1986-Sections 12 and 17- Insurance claim – Taxi Cab carrying eight persons as against sanctioned capacity of six persons met with accident by colliding against another vehicle – There was no fitness certificate of vehicle at the time of accident – Carriage of eight passengers against sanctioned capacity of six could not be construed as major violation or breach of conditions of policy.

24. The complainants have prayed for Rs.4,16,750/- towards the own damage. But it is not supported by documentary evidence. Ex.B-2 is a survey report submitted by OP himself. In this the loss is assessed at Rs.1,63,130/-

25. The report of the surveyor is an important document in settling the claim of the  insured vehicle, for this, we rely on ruling reported in 2008 (4) CPR 83 (NC) The National Insurance Company Ltd., through the Branch Manager and another V/s Shree Shyam Cold Storage through its Director.  

“Report of the surveyor appointed under the provision of  

  Insurance Act has to be given greater importance”

26. The above citation is applicable to the present case. It is pertinent to note that on careful perusal of the policy certificate, Nominee column says as N.A. In this regard complainant has filed the genealogical certificate, living Members of the family certificate and Aadhar cards of family members of complainant No.1 to 4, complainant also filed the Notarized declaration certificate of genealogical. These documents shows that above said deceased person have left the complainants No.1 to 4, behind the back of his death above said documents shows as genuine documents opponent has not disputed these records. For that reasons complainant No.1 to 4 are entitled to receive the claim amount of Rs.1,63,130/-of own damage Risk coverage and opponent company is hereby directed that, issue the claim of the complainant No.1 to 4 O.D. coverage amount of Rs. 1,63,130/- to the family members, that is complainant No.1 to 4 of deceased person. They are entitle to receive the O.D. Risk coverage amount of Rs. 1,63,130/-.

27. The complainants are proved deficiency in service on the part of OP. The complainants have entitled for Rs. 1,63,130/- and claim for loss of earing of Rs.5,000/- along with interest compensation for mental agony and cost of proceeding as per the final accordingly we answer the Point No. 1 and 2 Partly in the affirmative.

28. Point No.3:  Hence, in the light of above discussion we proceed to pass the following.

::ORDER::

1. The complaint filed by the complainant U/s.12 of Consumer Protection Act, 1986 is Partly allowed.
2. The OP, shall pay the O.D. coverage amount of Rs. 1,63,130/- to complainants No.1 to 4 along with interest at the rate of 6% p.a. from the date of order.
3. The OP, shall pay Rs.2,000/- towards the cost of complaint and also pay for physical and mental agony of Rs.3,000/- to complainants No.1 to 4.
4. The OP, shall pay the above said award amount within 30 days from the date of this order.
5. Send the free copies to both parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 19^th December 2022.)

     MEMBER                                                 PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1:- Smt. Radha.J W/o Late Mohan Kumar.T by way of
            affidavit of evidence.

Witness examined behalf of opponents:

DW-1:- Sri Pradeep. D.S. S/o Siddanagouda by way of affidavit

           of evidence

Documents marked on behalf of Complainant:

Documents marked on behalf of opponents:

  MEMBER                                                    PRESIDENT

GM**