Date of Filing:29/08/2015
Date of Order:13/11/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 13TH DAY OF NOVEMBER 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. (Rtd. Prl. District & Sessions Judge) And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.1565/2015
COMPLAINANT/S | | Sri MANJUNATH.R, Aged about 30 years, S/o Sri Ramaiah D, Residing at # 139, 6th Cross, 1st Main Road, Manjunathanagar, Bengaluru 560 073. (Sri Harsha.R Adv. for Complainant) |
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V/s
OPPOSITE PARTY/IES | 1 | TATA AIG INSURANCE COMPANY LTD., Office at 2nd Floor, J P & Devi JumbukeshwarArcade, # 69, Millers Road, Bengaluru 560 052. |
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| 2 | PRERANA MOTORS (P) LTD., # 28-D/29, 2nd Phase, Peenya Industrial Area, Bengaluru 560 058, Represented by its Managing Director. (Sri Prashant.T.Pandit Adv. for O.P No.1) (Sri Benedict Anand Adv. for O.P No.2) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.P No.1 to pay the repair estimate of TATA Indica Car bearing No.KA 41 A 3527, issued by the 2nd O.P and further O.P.No.2 to release the TATA Indica Car without any car parking fee from 21.04.2014 and also to pay cost of this complaint.
2. The brief facts of the complainant’s case are that, he is the owner of the car bearing No.KA-41A-3527 TATA Indica. The said car met with an accident on 19.03.2014 at about 11.30 p.m when he was going to Adichunchanagiri from Bengaluru in between Vaderahalli and Thirumalapura on NH 75. Himself and the person travelling along with him Smt.Komala sustained injuries and the accident was reported to Belluru Police Station. They recorded the statement of Smt. Komala and registered a case under Section 279 and 337 of IPC under Crime No. 92/2014. He was shifted KIMS hospital Bengaluru for treatment.
3. It is contended that, the vehicle was insured with O.P.No.1 since the car was damaged in the accident.A claim was made with O.Ps as per the invoice given by O.P.No.2 the repairer of the car. O.P.No.1 sent the surveyor to inspect the same. The said person after inspecting the same has given a report. The claim made by the complainant was rejected on the ground that the vehicle was not having fitness certificate and there is four days delay in reporting the accident to the police.
4. It is contended that, the estimate for the repair of the vehicle is Rs.4,93,299/-.Since O.P.No.1 did not allow the claim, the vehicle is with the O.P.No.2 and he is charging parking charges at the rate of Rs.200/- per day from 21.04.2014 onwards. He is only the bread earner of the family and suffered injuries in the accident. Repudiation of the claim by O.P.No.1 has put him to mental strain, monetary loss and hence the complaint for deficiency in service in not allowing his claim.
5. Upon issuance of notice, OP No.1 and 2 appeared before this Forum and filed separate version. O.P No.1 in its version contending that the complaint is not maintainable either in law or on facts, it is baseless, frivolous and only filed with a view to make wrongful gain. O.P.No.1 has admitted the issue of insurance in respect of the said vehicle and the validity of the insurance was from 07.03.2014 to mid-night of 06.03.2015. They have collected the insurance premium of Rs.16,734/-.Their liability is subject to the terms and conditions of the policy, the provisions of the Motor Vehicles Act and the rules and regulations guided by IRDAI. It is contended that it is not within their knowledge as to how the accident has happened. Whereas the said Komala has given a false complaint. It is also not within its knowledge that the complainant was admitted to Victoria hospital and later at KIMS hospital at Bengaluru. It has also denied that the said accident vehicle was shifted to O.P.No.2 for repair.
6. It is the case of O.P.No.1 that the said vehicle was insured with them and the IDV value was Rs.2,95,811/-, whereas, the estimate/invoice given by the O.P.No.2 is for Rs.4,93,299/- whereas the estimate made by their surveyor is of Rs.3,51,472/-. It has also admitted the policy period. Whereas it is its specific case that there is inordinate delay of 35 days in making the claim from the date of accident which is a clear violation of terms and condition No.1 of the policy. Further it is the specific case that though the said vehicle is registered in the name of the complainant and the claim is made by the complainant, since the vehicle insured met with an accident is a transport vehicle, the fitness certificate issued expired on 11.03.2014 met with an accident on 19.03.2014, under Section 56 of the Motor Vehicles Act, not obtaining fitness certificate in respect of the vehicle amounts to non-registration of the said vehicle and on that ground they have repudiated the claim. There is no violation of any terms and conditions of the insurance policy by itand further the repudiation is legal and hence there is no deficiency in service. On the other hand the complainant failed to get the vehicle repaired in spite of the survey and has not produced the cash bill for having paid the repair charges.It is not liable to pay the parking charges as claimed by the complainant and hence all these reasons O.P. No.1 prayed the Forum to dismiss the complaint.
7. O.P.No.2 by filing its version has contended that the complainant has not come up with clean hands in filing the complaint. In order to steal the order from the forum has filed the complaint, he do not fall under the ambit of consumer. The complaint is bad for misjoinder of necessary parties. It has admitted having given the estimate for the repair of the vehicle for Rs.4,93,299/- as per the standard operating procedure. The actual charges could vary after internal inspection and test drives.The allegation made against it in respect of parking charges levied. The vehicle was left with it for repairs, there was no instruction for it proceed with the repairs of the vehicle. It has written letters and reminders stating that in the absence of payment to proceed for repair parking charges would be levied. The allegation of demanding illegal parking charges or made with oblique motive. There is no cause of action against O.P.No.2. The vehicle has no manufacturing defect whatsoever. It is not liable to pay any of the claim made by the complainant. Hence prayed to dismiss the complaint.
8. On the other hand, the complainant and O.Ps filed their affidavit evidence and produced documents. Heard the arguments.The following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Parties?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
9. Our answers to the above points are:-
POINT 1: In the Affirmative.
POINT 2: Partly in the affirmative
for the following.
REASONS
POINT No.1:-
10. The Complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. Besides he has also produceddocuments pertaining to the insurance of the vehicle, registration of the said vehicle, complaint to the police, FIR filed by the police and also estimate for repair. He has also produced the repudiation letter issued by the O.P.
11. It is not in dispute that the complainant is the owner of the vehicle having its registration in his name and has obtained permit from 17.03.2012 to 16.03.2017, the period of validity of the authorization is from 17.3.2012 to 16.03.2013. Registration/fitness validity is up to 11.03.2014. Taxes received from 01.03.2014 to 31.05.2014 as per the documents of the vehicle produced by the O.P and the complainant.
12. The main contention of the O.P who has admitted the registration of the vehicle in the name of the complainant, its insurance withit, having validity from 07.03.2014 to 06.03.2015 and its accident, is that reporting the accident to the police is delayed by four days and further the claim is made after almost 35 days and further as on the date of accident i.e. 19.03.2014 this vehicle was not having fitness certificate and the one given expired on 11.03.2014 and hence have repudiated the claim of the complainant.
13. In view of the clear cut admission in respect of the registration of the vehicle in the name of the complainant, issuing of insurance policy to the vehicle, it is to be seen whether the repudiation by OP is proper, legal under the circumstances.
14. The accident has taken place on 19.03.2014 while the complainant was going on NH 75 along with one Smt. Komala. The permit is upto 2017 whereas the fitness certificate expired on 11.03.2014. It is to be borne here that O.P has failed to prove that the vehicle was used for commercial purpose in order to attract Section 39 of Motor Vehicles Act which renders registration at nullity when the vehicle fitness certificate has not been renewed. In view of this the contention of the O.P.No.1 and the citations relied on by O.P. No.1 i.e.
i)Hon’ble Supreme Court of India, 2014(3) CPR 609 (SC) between Narinder Singh Vs New India Assurance Co. Ltd.
ii)Hon’ble National Consumer disputes Redressal Commission, 2016 NCJ 536 (NC) in New India Assurance Co. Ltd., VsMeenakshiJarial.
iii)Hon’ble National Consumer Disputes RedressalCommission- 2016 (4) CPR 40 (NC) in United India Isurance Co. Ltd., VsSurinder Kumar.
iv) Hon’ble National consumer Disputes Redressal Commission, 2016 (3) CPR 688 (NC) in Bhagu Ram Vs National Insurance Co. Ltd.,
v) Hon’ble National Consumer disputes Redressal Commission, 2017(1) CPR 437(NC) in Achambhit Prasad Gupta Vs Oriental Insurance Company Ltd.
vi) Hon’ble National Consumer Disputes Redressal Commission – 2012 (2) CPJ 189 (NC) in Kaushalendra Kumar MisharaVs Oriental Insurance Company Ltd., is in no way helpful to the O.Ps.
15. Further according to O.P there is four days delay in reporting the accident to the police. It is true that the record speaks to that effect. It is to be considered here that the vehicle met with an accident.The complainant who is the owner and driver of the vehicle sustained injuries in the said accident and was admitted to Victoria Hospital and later to KIMS hospital at Bengaluru.He was fighting for his life.
16. When such being the case, one cannot expect to adhere to the terms and conditions of the policy. According to O.P.No.1 theinvoice given by O.P.No.2 exceeds the insured value of the vehicle. Further O.P No.1 has sent its own surveyor to inspect and survey the damage caused to the vehicle and surveyors estimate is also produced which shows that a sum of Rs.5,28,636/- is the estimated cost of the repair and assessed the damages at Rs.3,51,472.70/-. In view of the estimated cost by the repairer for repairing the vehicle and the assessed cost of the repair by the surveyor of O.P exceeds the IDV of the vehicle and since the IDV value of the vehicle as mentioned in the insurance policyis Rs.2,95,811/- the complainant is entitle for the said sum with interest at 12% per annum from the date of claim i.e. On 22.04.2014. Further since there is deficiency in service by repudiating the claim of the complainant, complainant was put to lot of mental agony, physical strain and monitory loss that too when he was suffering from the injuries sustained at the time of accident, for which he has to be compensated. Hence we assess the damage at Rs.25,000/- and further the act of the O.P made the complainant to approach this Forum appointing an advocate by paying his professional fee. This could have been avoided had the O.P given its thought to the circumstances of the case. Hence we are of the opinion that if a sum of Rs.10,000/- if ordered to O.P to pay to the complainant towards litigation and expenses charges would meet the ends of justice.
17. The complainant, after the accident left the vehicle with O.P.2 for repair. According to the complainant, theestimated cost of the repair is Rs.4,93,299/-.Since O.P. 1 did not honour the policy, and agreed to pay at least the insured value of the vehicle, he had to leave/park the vehicle with O.P. 2 only. He has claimed Rs.200/- per day as parking charges. In view of O.P1 rejecting the claim, O.P. 1 is bound to pay the parking fee as claimed by the complainant. We are of the opinion that the claim of the complainant in this regard is neither exorbitantnor excessive. Hence we order O.P.No.1 and 2 to pay Rs. 200/-per day from 21.04.2014, the day on which complainant left the vehicle with O.P.2 and O.P.No.2 gave the repair estimate. Since no relief is claimed and can be granted, complaint against O.P.No.2 is hereby dismissed. Hence we answer Point No.2 Partly in the Affirmative pass the following:
ORDER
1. The Complaint is partly allowed with cost.
2. The O.P No.1 i.e. TATA AIG INSURANCE COMPANY LTD., represented by its Authorized Signatory is hereby directed to pay a sum of Rs.2,95,811/- i.e. IDV value of the vehicle to the complainant along with interest at 12% per annum from the date of claim i.e. from 22.04.2014 till the date of payment of full amount.
3. O.P.No.1 further directed to pay a sum of Rs. 200/- per day as parking charges from21.04.2014 till payment of the IDV of the vehicle along with interest as ordered above.
4. Further O.P.No.1 is hereby directed to pay Rs.25,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses.
5. Complaint against O.P.No.2 is hereby dismissed.
6. The O.P No.1 ishereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
7. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 13th of NOVEMBER 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1:Sri MANJUNATH.R- Complainant.
Copies of Documents produced on behalf of Complainant/s:
Annexure-A: copy of Registration Certificate.
Annexure-B: Copy of Insurance Policy.
Annexure-C: Copy of complainant’s wound certificate.
Annexure-D: Copy of Statement to the policy of Smt.Komala.
Annexure-E: Copy of F.I.R.
Annexure-F: Copy of repair estimate issued by O.P.NO.2.
Annexure-G: Copy of rejection of accident claim of vehicle issued by O.P.No.1 on 28.06.2014.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1:SriAlok Gupta, Zonal Claims Manager of O.P.NO.1.
RW-1:SriGopal A.R. Authorized Signatory and the Divisional Manager of O.P.No.2
Copies of Documents produced on behalf of Opposite Party/s
Ex R1:Copy of the policy.
Ex R2:Copy of Auto secure/terms and conditions.
Ex R3:Copy of letter of complainant
Ex R4:Copy of intimation cum preliminary claims form.
Ex R5:Copy R.C Extract.
Ex R6:Copy of permit.
Ex R7:Copy of authorization permit.
Ex R8:Copy of Fitness certificate dt.21.03.2014.
Ex R9:Copy of smart card of RC.
Ex R10:Copy of Smart card of D.L.
Ex R11:Copy of FIR.
Ex R12:Copy of I.M.V. (Accident vehicle.)
Ex R13:Copy of Claim Repudiation letter dated 28.06.2014.
Ex R14:Copy of Motor Final Survey Report dt 28.04.2014.
Ex R15:Copy of photographs of damaged vehicle.
MEMBER PRESIDENT
*RAK
