BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th of December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.69/2010
(Admitted on 26.02.2010)
Mr.Sandesh Shetty,
So. Late Mahabala Shetty,
Aged about 38 years,
RA. Kolke House, Harekala Post,
Mangalore Taluk,
Dakshina Kannada District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Umesh Shetty).
VERSUS
1. The Branch Manager,
Authorized Signatory,
Reliance General Insurance,
Maximus Commercial Complex,
4 Floor, Light House Hill Road,
Hampankatta,
Mangalore 575 001.
(Advocate for Opposite Party No.1: Sri.B.Gangadhar).
2. The Branch Manager,
State Bank of Patiala,
1st Floor, Star of Bombay Complex,
P.B. No.562, Bendoorwell,
Kankanady, Mangalore – 2. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.K.S. Udayanarayana).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant is the owner of the vehicle i.e., Indica Car bearing registration No.KA-19Z-9761. The above said vehicle insured with the Opposite Party Company as per policy No.1404782311002436, the same is valid for the period from 11.10.2008 to 10.10.2009.
It is stated that, the above said vehicle met with a road accident on 08.07.2009 at about 11.00 hours on N.H. 13 near Gonal Cross, Bagevadi Taluk. The case was registered as per crime No.161/2009. Due to the road accident, the Complainant’s car sustained huge damages. After releasing the said car, the above said vehicle kept at Auto Matrix i.e., the authorized workshop of Tata Motors at Mangalore. The repairer estimated the repair cost at Rs.3,85,492/- which includes spare parts and labour charges and issued an estimation dated 21.07.2009.
It is submitted that, on receipt of the intimation of the accident, the Complainant had reported the same to the Opposite Party and submitted all necessary documents. The Opposite Party appointed a Surveyor and inspected the vehicle but as the cost of the repair exceeded his competency limit, he could not carry out the assessment/survey and returned back. It is stated that, the repair estimation issued by the repairer is more than the insured declared value of the car i.e., Rs.3,42,700/-, the Complainant is entitled on total loss basis but the Opposite Party repudiated the claim without any valid reasons.
It is stated that, the said car was hypothecated to State Bank of Patiala, Mangalore. Since the car met with an accident, dumped at the workshop but the Opposite Party not settled the claim. Ultimately, the Complainant issued a legal notice dated 18.08.2009 but the Opposite Party not complied the demand made therein and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.3,42,700/- towards actual repair charges and also claimed Rs.50,000/- as compensation and Rs.2,500/- as cost of the proceedings and also directing the Opposite Party No.2 to exonerate the Complainant from payment of interest on the loan since due to the accident.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 admitted the policy and the coverage made therein. It is stated that, the Complainant not intimated to the Opposite Party as to the alleged accident within the specified time. The Complainant neither informed nor reported as per the terms of the policy nor any claim lodged as required under the policy much less to the 24 hours call centre provided by the Opposite Party. It is stated that, the Complainant has not given any chance to the Opposite Party to carry out spot survey and removed the vehicle from the spot of the accident without intimating and consent of the Opposite Party. Thus, the Opposite Party is deprived of its legitimate right to inspect the damaged vehicle at the spot and to ascertain the actual loss. It is stated that, the Complainant failed to furnish the relevant documents to the Opposite Party to process the claim and the vehicle was used in contravention of the policy conditions and also denies the correctness of the estimation prepared by the Auto Matrix and contended that there is no deficiency and the liability of the Opposite Party if any is subject to depreciation as per the policy conditions and prayed for dismissal of the complaint.
Opposite Party No.2 i.e., State Bank of Patiala stated that, the complaint is not maintainable against this Opposite Party as there is no consumer dispute nor deficiency of service as alleged in the complaint and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Sandesh Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him by the Opposite Party No.1 but not answered the interrogatories served on him by the Opposite Party No.2. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Sri.Chandrashekara Hosamani (RW1), Deputy Manager, Legal Department of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. One Sri.N.Rama Murthy (RW2) – Branch Manager of the Opposite Party No.2 filed counter affidavit. Opposite Party No.2 produced 7 (Seven) documents as listed in the annexure. Both the parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are not in dispute is that, the Complainant is the registered owner of the vehicle bearing registration No.KA-19Z-9761 i.e., Indica Car insured with the Opposite Party Company as per policy No.1404782311002436, the said policy is valid for the period from 11.10.2008 to 10.10.2009 (as per Ex C1). On the date of the alleged accident, i.e., on 08.07.2009 the policy was in force. The above said vehicle insured with the Opposite Party for a sum of Rs.3,42,700/-.
Now the point in dispute between the parties before this FORA is that, the above said vehicle met with a road accident on 08.07.2009 at about 11.00 hours on N.H. 13 near Gonal Cross, Bagevadi Taluk. Due to the road accident, the vehicle sustained huge damages and the case was registered before the jurisdictional police station as per crime No.161/2009. After releasing the said car from the police station, it was kept in Auto Matrix, an authorized service centre of the TATA motors situated at Mangalore. The above said authorized workshop estimated the cost of the repair at Rs.3,85,492/- which is above the Insured Declared Value of the vehicle. It is stated that, after the above accident, the Complainant lodged a claim with the Opposite Party but the Opposite Party repudiated the claim without valid reasons, hence came up with this complaint.
The Opposite Party No.1 on the other hand contended that, the Complainant has not intimated to the Opposite Party as to the alleged accident within the specified time and not given any chance to the Opposite Party to carry out spot survey and stated that they have removed the vehicle from the alleged spot of the accident without the consent of the Opposite Party. Thus, the Opposite Party is deprived of its legitimate right to inspect the damaged vehicle at the spot and to ascertain the actual loss. Further contended that, the Complainant failed to furnish the relevant documents to process the claim. And submitted that, the vehicle is used in the contravention of the policy condition and as such they are not liable.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C7. Opposite Parties also filed oral evidence by way of affidavits and produced seven (7) documents.
On scrutiny of the oral as well as documentary evidence available on record, we find that, there is no dispute of the fact that the vehicle has been duly insured with the Opposite Party as per the policy number stated supra and at the time of accident the insurance policy was in force. The Complainant produced Ex C2 i.e., the FIR issued by the jurisdictional police station, Kolhar, Bagevadi Taluk, wherein, it shows that the vehicle in question met with an accident on 08.07.2009 on N.H.13 near Gonal Cross, Bagevadi Taluk, a lorry bearing registration No.HR-38-M-5170 came in rash and negligent manner hit against the car and caused damage to the above said vehicle. The FIR produced by the Complainant clearly reveals that, the vehicle in question sustained damage due to the motor vehicle accident. However, it could be seen that, the Complainant obtained a Private Car Package Policy and the said policy was in force at the time of accident. The Opposite Party though admitted the policy but it is contended that, the Complainant has not intimated to the Opposite Party as to the alleged accident within specified time and not given any chance to the Opposite Party to carry out the spot survey and removed the vehicle from the alleged spot of accident. We are very strange to note the approach of the Opposite Party in this case by denying the legitimate claim. The FIR itself shows that, the subject vehicle met with a road accident and necessary documents drawn by the concerned police station. It is a well settled rule that, in case of road accident on the public road herein the N.H.13, the vehicle cannot be kept on the spot for unreasonable time in order to access the Opposite Party Company. In the above road accident, the case has been registered before the jurisdictional police station, Begavadi Taluk and all the necessary documents are available in concerned police station which is not in dispute. When that being the case, the contention of the Opposite Party that the vehicle has been removed from the spot and they have not given chance to the Opposite Party to carry out the spot survey or the vehicle has been removed from the spot of the accident which does not arise. The Opposite Party ought to have sought motor vehicle report drawn by the concerned department in order to carry out the survey of the vehicle. When the vehicle is involved in road accident and the case has been registered in concerned police station as stated supra, it is the duty of the Opposite Party to engage a Surveyor to assess the loss soon after the receipt of the intimation of the accident. But in the instant case, the Opposite Party after receipt of the intimation of the accident or the worst-cum-worst after receipt of the necessary required documents should have appointed a Surveyor to assess the damage. But no such survey report produced by the Opposite Party to show that, they have not taken steps to assess the damage of the vehicle. As we know, the surveyor is the best person to assess the damage of the vehicle or consequential loss caused to the vehicle. But in the instant case, the Opposite Party in order to avoid the liability simply came up with a defence by stating that the Complainant has not informed or reported the alleged accident much less to the 24 hours call centre and removed the insured vehicle from the spot of the accident etc. etc. has no basis. Atleast after receipt of the documents/intimation from the Complainant, the Opposite Party ought to have deputed a Surveyor to assess the damage. But in the instant case, the Opposite Party miserably failed to take any steps much less denying the legitimate claim of the Complainant. The Insurance Company should have adopted honest approach instead of repudiating the claim by raising flimsy reason. There is no valid reason why the surveyor not deputed in this case to assess the damage. In the absence of any Surveyor’s report, the estimation given by the authorized workshop dated 21.07.2009 for Rs.3,85,492/- holds good. We have further observed that, the Complainant rightly kept the vehicle with the authorized service centre/workshop in order to repair the vehicle but the repairer issued an estimation as per Ex C6 for Rs.3,85,492/- which includes spare parts and labour charges. Where the authorized repairer had assessed the damage of insured vehicle for Rs.3,85,492/- and when there is no survey report to show that the above said damage assessed by the authorized repairer is not acceptable, in the absence of the same, the estimate made by the authorized repairer is acceptable. However, the above estimated cost exceeds the Insured declared value of the car and hence the Complainant is entitled for compensation on total loss basis. In case of total loss, the question of depreciation in the insured amount which is the contractual value under the insurance agreement does not arise. Hence the Complainant is entitled Insured Declared Value as per the policy i.e., Rs.3,42,700/-.
Further, we find that, the above said vehicle hypothecated to the Opposite Party No.2 i.e., State Bank of Patiala and availed banking facility. The vehicle was insured for Rs.3,42,700/- but the cost of repair estimated by the authorized repairer is more than the total declared value of the insured vehicle i.e., Rs.3,85,492/-. When that being the case, the Complainant is entitled for the total loss of the vehicle i.e., Rs.3,42,700/- (minus value of the salvage).
In view of the above discussion, we hold that, there is no valid/justifiable reason to repudiate the claim in this case which amounts to deficiency in service. Therefore, the Opposite Party No.1 i.e., Reliance General Insurance, represented by its Branch Manager is hereby directed to pay Rs.3,42,700/- (minus value of the salvage) along with interest at 10% p.a. from the date of accident till the date of payment.
In the present case, the interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no deficiency on the part of the Opposite Party No.2 i.e., State Bank of Patiala, hence the complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.1 i.e., Reliance General Insurance, represented by its Branch Manager is hereby directed to pay Rs.3,42,700/- (Rupees three lakh forty two thousand and seven hundred only) (minus value of the salvage) to the Complainant along with interest at 10% p.a. from the date of accident i.e., on 08.07.2009 till the date of payment. Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.2 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29th day of December 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Sandesh Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Reliance General Insurance policy bearing No.1404782311002436 for the period from 11.10.2008 to 10.10.2009.
Ex C2 – : Copy of the FIR issued by the jurisdictional police station.
Ex C3 – 08.07.2009: Copy of the statement given by the witness before the jurisdictional police station.
Ex C4 – 10.10.2008: Original receipt issued by the RTO Mangalore for the proof of road tax paid by the Complainant.
Ex C5 – 13.08.2009: Letter issued by the State Bank of Patiala addressed to the Opposite Party.
Ex C6 - : Original estimation issued by Auto Matrix (authorized repairer of TATA Cars).
Ex C7 – 18.08.2009: Lawyer’s notice along with acknowledgement sent to the Opposite Party No.1 on behalf of the Complainant.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Chandrashekara Hosamani, Deputy Manager, Legal Department of the Opposite Party No.1.
RW2 – Sri.N.Rama Murthy – Branch Manager of the Opposite Party No.2.
Documents produced on behalf of the Opposite Party No.2:
Doc. No.1: 07.10.2008: Application form.
Doc. No.2: 07.10.2008: D.P. note.
Doc. No.3: 07.10.2008: D.P. Note delivery letter.
Doc. No.4: 07.10.2008: Hypothecation agreement.
Doc. No.5: 07.10.2008: Letter from the 2nd Opposite Party.
Doc. No.6: 07.10.2008: Letter from the guarantor.
Doc. No.7: 07.10.2008: Guarantee agreement.
Dated:29.12.2010 PRESIDENT
