Karnataka

Belgaum

CC/274/2015

FRANSALIAN ASHRAM - Complainant(s)

Versus

The Authorised Signatory, RELIANCE GENERAL INSURANCE COMPANY - Opp.Party(s)

Ravi Katti

26 May 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.274/2015

                       Date of filing: 01/06/2015

                                                          Date of disposal:26/05/2017

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Fransalian Ashram, Vengurla Road, Uchagaon, Rep. by Fr.Denis Lemos, Rector, Fransalian Ashram, Age: 48 Years, Occ: Priest, R/o: Uchagaon, Tq: & Dist. Belagavi.                       (Rep.by Sri.R.G.Morab, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Authorized Signatory, Reliance General Insurance Co., Mahadev Plaza, CTS No.10719, 1357/A, Near Kolhapur Circle, Nehru Nagar,   Belagavi.                         (Rep. by Sri.B.N.Chougala, Adv.)

 

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay Rs.4,35,530/- towards the repairs charges of the damaged vehicle with interest @ 12% p.a. from the date of incident till its realization and Rs.20,000/- towards compensation for mental agony and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant is the R.C. owner of the Mahindra/Bolero XL 10 Seater bearing Registration No.KA-22/N-3337 and Engine No. Ga 74 A 26011 and Chassis No. MAI WL 2 GAK 72 B 14470 of 2007 and the said vehicle insured with OP/Company under policy bearing No.1410542311000186 valid from 25.02.2014 to 24.02.2015 and the complainant has paid premium of Rs.7,900/- for any peril and further on dtd: 24.10.2014 the complainant was driving the said vehicle near Hirebagewadi police station at about 15.30 hours, on the bent of the road, there was water logged which was not visible to the complainant, due to which the vehicle skidded off the road and rolled down about 15 feet onto the service road from there into the fields and accident took place and vehicle was completely damaged.

 

          It is further case of the complainant that, after the accident, the complainant has brought the said vehicle at Sutaria Auto Centre, Hubli, for repairs and further contended that, the father of the complainant had sustained severe head injury when he fell at home and was admitted to Goa Medical College, Bambolim and as such, the complainant went to Goa to look after his father. As such, on return from Goa, the complainant has lodged a Police Complaint on dtd: 30.10.2014, before the Hire-Bagewadi Police Station, in P.S.S.H.D. ENO.14/2014 and further the Sutaria Auto Care Centre has given estimate of the repairs of the damaged vehicle for Rs.4,35,530/- and further the complainant had submitted the claim form alongwith all the relevant documents to the OP on dtd: 10.12.2014 for settlement of the claim and further the complainant had also explained to the OP that, the cause of delay in submitting of the Claim Form and stating that, he was engaged in looking after his ailing father at Goa Medical College etc., and waiting for the settlement of the claim. But, Op has issued a letter dtd: 30.03.2014 and stated that, the claim is repudiated on the basis of alleged breach of policy terms and condition.

 

          It is further case of the complainant that, the said vehicle was duly insured with OP/Company at the time of accident and the said accident has taken place during the validity of the Insurance Policy and further contended that, the complainant had already submitted all the relevant documents to the OP/Company, but the Op failed to settle the claim of complainant, it amounts to deficiency of service under the provisions of the C.P. Act 1986 and as such the complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.   

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainant does not fall under the provisions of the C.P. Act and as such the complaint deserves to be dismissed as not maintainable.

 

          It is true that, the vehicle bearing Registration No.KA-22/N-3337 and Engine No. Ga 74 A 26011 and Chassis No. MAI WL 2 GAK 72 B 14470 of 2007 and the said vehicle insured with OP/Company under policy bearing No.1410542311000186 valid from 25.02.2014 to 24.02.2015 and further contended that, the said vehicle met with an accident on dtd: 24.10.2014 and the complainant has lodged police complaint on 30.10.2014 i.e. after lapse of 6 days and further contended that, on 10.12.2014, the complainant has intimated the alleged accident to the OP i.e. after lapse of 47 days. On perusal of the documents, claim form and police complaint  submitted by the complainant, the OP/company has repudiate the claim of the complainant on the ground that, “47 days delay in intimation to the company as well as police”.  Therefore, the complainant is not entitled to any claim from this OP/company on account of alleged accidental damage to the said vehicle, since it is clear violation of policy terms and conditions i.e. Condition No.1:-  Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim write summons and/ or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which many give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.  

 

          It is further case of the Op that, without admitting the liability of OP it is submitted that, after intimation of the damage, the OP inspected the vehicle and assessed the damages for Rs.98,356.31/-. Therefore, even if for the sake of argument it is assumed though not admitted that, the complainant is at all entitled to any claim in respect of the alleged accidental damage to his vehicle. Hence, the Op had repudiate the claim of the complainant and the same was informed through letter dtd: 30.03.2014 to the complainant and there is no deficiency of service on the part of OP. On this count also the complaint of the complainant is liable to be rejected and there is no negligence or deficiency in service on the part of the OP and prayed for dismissal of the complaint.

 

4.      Both parties have filed their affidavit in support of their case and on behalf of complainant has produced 11 documents, which are  marked as Ex.P-1 to Ex.P-11. On the contrary the OP has produced 5 documents, which are marked as Ex.R-1 to Ex.R-5, for sake of our convenience, we have marked P & R series. The Adv. for complainant has filed his written argument. Heard the argument on both sides.

 

Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant has proved that, there is deficiency of service on the part of the Op in repudiating  the claim amount under the insurance policy?

 

 

2. What order?

 

 

5.      Our findings to the above points are as under:

 

                              

1. In the Affirmative.
2. As per the final order for the following:

 

 R E A S O N S

 

6.      POINT NO:1:-  We have perused the pleadings of the parties and the evidence and documents placed on record of both parties and the arguments advanced, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy. The case of the complainant that, the complainant has intimated about the said accident to the OP insurance company and submitted a claim on dtd: 10.12.2014 requesting to settle the bill issued by the Sutaria Auto Centre estimate of repairs bills which is marked as Ex.P-8 towards the damaged of the said vehicle in accident, the vehicle has sustained damages to the tune of Rs.2,15,348-00 as per bill.  Inspite of submission of all the relevant documents for settlement of the claim of the complainant, and further the case of the complainant is that, the vehicle was got repaired in the Sutaria Auto Centre and charged of Rs.2,15,348/-, towards the bill for having effected repairs to the said vehicle and since the vehicle was covered under the insurance policy.

 

          And further the complainant claimed an amount of Rs.4,35,530/-, for that proposition, the complainant has not produced the original bills towards expenses actual incurred  and even the complainant has not substantiate to hold that, the complainant has spent Rs.4,35,530/- as claimed, therefore the complainant is not entitled to claim as stated in the complaint and same is not believable, as such the said bills are estimation. The said contentions are without provision of law and cogent documents to hold that, the complainant claim is justifiable.   Therefore, in our views such contention has no merit and it is not acceptable in law.  Further the complainant has not tried to convince the Forum under what circumstances insurance company is liable to indemnify the insured to pay the estimation bills, the complainant has failed to substantiate the case as alleged in the complaint. However, the claim of the complainant can be awarded on the basis of non-standard basis.   

 

          It is the case of the OP that, there is a breach of condition of the policy and the complainant has violated the policy conditions by making delay in intimating about the accident to the OP/insurance company, hence the OP justified in repudiating the claim of the complainant through repudiation letter on dated 30/03/2014 as per Ex.P.5 and there is no any deficiency in service on their part as alleged by the complainant. 

 

           The counsel for the OP further argued that, the alleged accident  was on 24/10/2014, but the complaint lodged before the police on dated 30/10/2014 and   intimation to the OP/insurance company given on 10/12/2014, there is delay in intimation of the said accident to the OP i.e  47 days,  hence the repudiation of the claim of the complainant is in accordance with law and for that contention, the OP/Insurance company has not proved the same by producing supporting affidavit evidence to hold that repudiation is justifiable. So, the contention of the Op is not acceptable and it has got no merit and further observed that, there was a contract between the insured and insurer and word ‘immediately’ has to be construed within a reasonable time having due regard to nature and circumstances of case. In case of accident where bodily injury has been caused to insured, it is not incumbent upon complainant to inform police about accident immediately or insurance company.  So, looking to the facts and circumstances of the case and as per terms and condition of the Insurance policy which is marked as Ex.R-1, for convenience it is reproduced below as:

 

 Condition No.1: notice shall be given in writing to the company immediately upon the occurrence any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.  Every letter claim writ summons and/or process or coy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy.  In case of theft or other criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender. 

 

      In this policy there is no special condition as alleged by the OP that, the intimation should give to the insurer immediately in case of accident, when bodily injured sustained. Therefore in our considered view that, the complainant has complied and fulfil the terms and condition No.1 of the policy by lodging the complaint in respect of accident, before the police as well as OP/Insurance company, and the complainant has produce the Medical Certificate towards delay caused to intimate regarding accident to the Police as well as Insurance Company which is marked as Ex.P-11, the said document revels that, the father of the complainant sustained head injury, for the said treatment the complainant has hospitalized to his father for his treatment, thereby delay has been caused and the same has not been challenged by the Op/Insurance company to disprove. Therefore, there is no any intentional delay or breach/violation of policy condition by the complainant and as there is only 47 days delay in intimating to the OP, which is not fatal to the case of the complainant and it will not amounts to violation of policy conditions.  When there is no specific condition in respect of immediate intimation regarding accident, when sustained injury, then the question does not arise of violating the policy condition by the complainant, moreover the OP though contended that, there is volition of policy condition by delay in intimating the Accident to the OP, for that proposition, OP has not produced any cogent, iota of evidence and material document showing that, there is a strict condition in the policy in this regard, but OP has failed to substantiate the same as alleged in the written version, evidence and written arguments.

 

           It is a mandatory duty and it is contract between the complainant and OP, the OP is required to be indemnified on the basis of settled legal position i.e., non-standard basis. However,  there is violation of policy condition as contended by the OP, the Insurer cannot be repudiate the claim of the complainant in toto and claim should be settled on non-standard basis.   Therefore in our opinion, the repudiation by the OP is not correct and justifiable, it amounts to deficiency in service on the part of the OP.  For that proposition, we would like to rely on the decision of the Hon’ble Apex Court reported in II 2010 CPJ 9 (SC) in case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd.  Further we would like to rely on a decision of the National Commission in the case of New India Assurance Co. Ltd., Vs. Narayana Prasad Appa Prasad Pathak, reported in II (2006) CPJ 144 (NC), wherein it is observed that while granting the claim on non-standard basis the National Commission set out on its Judgment the guidelines issued by the Insurance company about settling all such non-standard claims.

        Therefore we are of the view that, by applying the above said observations of the Hon’ble Supreme Court and National Commission and law laid down, therefore there is no merit in the contention of the OP at all and hence in our opinion, the repudiation of the claim of the complainant is amount to deficiency in service on the part of the OP and the OP has appointed surveyor to assess the loss to the vehicle of Rs.98,356/-, the surveyor report has been not challenged by the complainant towards procedure or method of assessing loss caused to the vehicle.  Therefore, in our considered view, it would be just and proper to award a surveyor assessed amount of Rs,98,356/- towards damages of vehicle with interest @ 6% p.a. from the date of complaint and the complainant is entitled for compensation of Rs.3,000/- towards mental agony and also Rs.2,000/- towards costs of the proceedings., Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following: 

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed with costs.

 

           The OP shall pay a sum of Rs.98,356/- with interest @ 6 % from the date of this complaint i.e. 01.06.2015 to the complainant towards damages.

 

          The OP shall pay a sum of Rs.3,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

 

          The OP is granted 10 weeks time for compliance of this order, failing to which the OP is liable to pay interest @ 9% p.a. from the date of order till its realization. 

 

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 26^th May -2017).

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,       Lady Member.