::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.20/2017.

                                                            Date of filing: 17.03.2017.

                                                                   Date of disposal: 15.02.2018.

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.   Sanju S/o Kashinath,

                                             Age: 30 years, Occ: Private service,

                                             R/o H.No.152,Madpalli,,

                                            Tq: Aurad(B), Dist: Bidar.

                                            Now at Sidramayya Badwane Mailoor,
                                            Bidar- 585401, Karnataka State. 

                                      (By Sri. Sanjaykumar S.Patil, Adv.)

                                                                 VERSUS

OPPONENT/S:        1)         Sri Ram General Insurance,

                                            Address-E-8, RIICO Industrial Area Sita Pura-             
                                            Jaipur-302022. (Rajasthan State).

                                    2)        Sri Ram Transport Finance Company Ltd.,

                                             Near Roatry Chowk,

                                             Opposite Sai School, Stadium Road Bidar-585401.                                                                                   

                                      (By R1.Sri. V.M.Prakash, R2. Sri.S.Wilson, Adv.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

      The complainant herein has filed the present complaint against both opposite parties, alleging deficiency of service, in not settling the Insurance claim u/s 12 of the Consumer Protection Act, 1986.

2.            We may note down here that, the O.P.No.2 has nothing to do in setting the Insurance claim and we exonerate it from the case.

3.          The gist of the complaint is that, the complainant was owner of the Motor vehicle bearing Regn.No.KA-27-A-1286, and it was insured with the O.P.No.1 vide policy No.10003/31/16/580293 (Ex.P.1).  The I.D.V. of the vehicle was accepted as Rs.7,50,000/-, total premium of Rs.35,449/- for own damages and further premiums were collected for third party coverage.  The coverage period was from 14.02.2016 to midnight of 13.02.2017.  The complainant was plying the Lorry for his livelihood.

4.         The vehicle met with an accident on 11.01.2017 at about 12.30 Pm. Near Dabka village of Bidar District, while it was plying loaded with sugarcane and was being driven from Zaheerabad area to Dattanagar of Solapur District.  The cause of the accident as stated in the complaint and also as mentioned in surveyors report (Ex.P.4/Ex.R.6) is that, to avoid collision with another H.G.V. coming from the opposite direction with full speed and in a rash manner, the driver swirved the vehicle to the road side which was with pot hole and ditch at the side for further road formation, lost its balance and the vehicle toppled on road side From the color photos,  submitted by the complainant vide Ex.P.5 to Ex.P.22, it is observed that, the motor vehicle was extensively damaged.  The complainant/ Insured in formed  the Insurer about the accident vide toll free No.118001033009 and as per their instruction removed the vehicle from the spot.  After such information, a valuer visited the spot followed by an inspection of a surveyor and as per the instruction of the later handed over the vehicle to M/s Tajuddin body builder of Basavakalyan  District Bidar.  As per Ex.P.3, the initial repair estimate was Rs.4,86,600/-,  but he had paid a sum of Rs.5,69,600/- ultimately towards the total repair charge believing in the assurances of Insurer and its surveyor.

5.         The complainant avers that he lodged a claim of Rs.4,86,600/- with the O.P.No.1/ Insurer vide Ex.P.2 but the claim being rebutted by the later vide Ex.P.30 on vague grounds he has approached this forum.

6.         Both opposite parties have put up appearance through counsels and have filed versions.  TheO.P.NO.2 has rightly raised its objections that, the complaint is not maintainable against a finance company.

7.         The real relevant opponentNo.1 in its versions, vide Paras 3 to 6 interalia has claimed as follows:-

            i.          Further opponent No.1 submit that, on the date of accident the complainant vehicle was more than 9 years old i.e. the said vehicle was registered in the year 2008 and the complainant vehicle was not in good condition and his vehicle valuation is less than its repairable value.  So, he has colluded with concerned persons and created the false story and filed the complaint against this opponent insurance company, only with an ulterior motive to make a wrongful claim of compensation.

            ii.        Further opponent No.1 submits that, the opponent No.1 has issued the proper endorsement to complainant on 22.02.2017 and rejected the claim of complainant due to some reasons as overloading, strain, internal shifting of load, poor maintenance, wear and tear and not due to any accidental external means of impact on your vehicle.  Moreover such damages arising out of due to wear and tear are not covered under the policy of insurance.  The relevant exclusion clause is reproduced for reference.

            a).       Consequential loss, depreciation, wear and tear, Mechanical or electrical breakdown, failures or breakages.  In view of policy exclusion referred above, we regret our inability to consider your claim.  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 quit 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.

            iii.       Further opponent No.1 submit that, the  complainant is not maintained his vehicle properly, over loading on the date of incident, and wear and tears on the date of incident, it is clearly mentioned in the above Para of this objection, the opponent insurance company is not liable to pay any compensation to complainant under the policy.

            iv.       Further opponent No.1 submit that, the complainant is colluded auto mobile shop owners and created the false Quotation and the said Quotation has not disclosed the K.S.T. and C.S.T. numbers and has not disclosed the complainant has paid the billed amount.  The said bills are false and baseless and created by the complainant, only to claim the exorbitant compensation from this opponent insurance company.        

8.         The O.P.No.1 has further alleged collusion with automobile shop owners and that, the vehicle was being driven by unauthorized person.

9.         Both complainant and O.P.No.1 have filed evidence affidavits and documents listed at the end of this order O.P. No.2 has not led any evidence.

10.       Weighing the pros and cons of the claim and counter claim of the O.P.No.1, the following point rise for our consideration.

1. Does the complainant prove deficiency of service in the part of O.P.No.1?
2. Does the O.P.No.1 prove that, it is justified in denying the Insurance claim?
3. What order?

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

            Point No.1.       In the affirmative.

            Point No.2.       In the Negative.

            Point No.3.        As per final orders, owing to the following.

:: REASONS ::

12.       Answers to Point No.1 and 2 would be dealt simultaneously being inter webbed.

13.       The complainant has submitted photographs of the damaged vehicle vide Ex.P.5 to P22, proving extensive damages to the vehicle bearing No.KA-27-A-1286.  So also copy of the surveyors report has been filed by both sides.  The survey report discloses that the vehicle while was being driven with sugar cane load on the way to Maharastra, had to be swirved to the side of the road by the Driver to avoid head on collision with a first moving H.G.V. from the opposite direction as a result of which it capsized due to potholes and ditch by the side of the road.  Surprisingly,  however, the surveyor has mindlessly made nil assessment of cost towards repair of the damages.  This act is nothing but collusion to favour the insurance company.

14.       The O.P.No.1 in the versions and affidavit has raised vague defences that, the vehicle was age old and was subject to over load, strain, internal shifting of load, poor maintenance, wear and tear etc.  The I.D.V. was declared on 14.02.2016 and premium was accepted on the very same day after inspection.  What wears and tears could have happened to the vehicle in period of eleven months, that too when it was plying on the road with load?  Undoubtedly it was in perfect condition.  The rebuttal letter at Ex.P.30 takes a defence about “consequential loss, depreciation, wear and tear, mechanical or electrical break down, failures or breakage”.  From the survey report relied upon by the O.P.No.1, no such situation is seen or observed.  Hence we are constrained to hold that, the O.P.No.1 has taken imaginary grounds to deny the genuine claim of the complainant and answer Point No.1 and 2 as stated supra.

15.       Our answers is fortified by following the ratio of the Hon’ble Supreme Court reported in [2015] C.J.361 (SC) Lakshmichand V/s Reliance General Insurance, submitted by the complainant interalia which reads as follows:-

            “In Narvinva’s case (supra) a Division Bench of this Court observed: “The insurance company complaint of breach of a term of contract which would permit it to disown its liability under the contract of insurance.  If a breach of a term of contract permits a party to the contract complaints of to prove that the breach has been committed by the other party to the contract.  The test in such a situation would be who would fail if no evidence is led.

            The proposition of law is no longer res-integra that the person who alleges breach must prove the same.  The insurance company is, thus, required to establish the said breach by cogent evident.  In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”

16.       Coming to assess the net entitlement of the complainant, though he has claimed to have paid a sum of Rs.5,69,600/-, no proof has been led to that effect.  In Ex.P.3, the original assesement has been depicted as Rs.4,86,600/- and the complainant would be entitled for that much only and hence we proceed to pass the following:-                     

                                                         ::ORDER:: 

1. The complaint is allowed in part.
2. The O.P.No.1 is hereby directed to pay a sum of Rs.4,86,600/- (Rupees four lakh eighty-six and six hundred) along with interest @ 12% p.a. calculated from the date of lodging the claim i.e. 12.01.2017 till date of realisation.
3. A further sum of Rs.20,000/-(twenty thousand) would be payable as compensation by the O.P.No.1 towards unjust denial of claim and mental agonies caused.
4. Additionally a sum of Rs.5,000/-(five thousand) would be payable towards litigation expenses.
5. Case against O.P.No2 stands dismissed No costs.
6. Four weeks time is granted to comply this order.  

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 15^th  day of February 2018).

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                       

Documents produced by the complainant

1. Ex.P.1-  Copy of insurance certificate.
2. Ex.P.2– Copy of claim form.
3. Ex.P.3– Copy of estimate of repair to the vehicle.
4. Ex.P.4—Copy of survey report.
5. Ex.P.5 to P.22- Photos of damaged vehicle.
6. Ex.P.23- Copy of National permit.
7. Ex.P.24- Copy of authorisation certificate.
8. Ex.P.25- Copy of certificate of fitness.
9. Ex.P.26- Copy of R.C.
10. Ex.P.27- Copy of compliance certificate.
11. Ex.P.28- Copy of D.L.
12. Ex.P.29- Copy of Tax paid receipt.
13. Ex.P.30- Copy of rebuttal letter.        

 Document produced by the Opponents. (O.P.NO.1 only).

1. Ex.R.1- Insurance certificate (copy).
2. Ex.R.2- Rebuttal letter (copy).
3. Ex.R.3 to R.5-  Photos of the vehicle. (copy).
4. Ex.R.6- Surveyors report (copy).

Witness examined.

Complainant.

1. P.W.1- Sri. Sanju S/o Kashinath ( complainant).

Opponent No.1

1. R.W.1- Sri. Peeyush Jain (Legal officer of O.P.No.1).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.