BEFORE THE DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM, DHARWAD.
COMPLAINT NO.190/2016
Date: 21st Day of March, 2017
P r e s e n t:
Hon’ble Smt.C.H.SamiunnisaAbrar,B.A.,LLB :President
Hon’ble Sri.B.S.Keri, B.A., LLB (Spl) : Member
Complainant :Sri.Rangaswamy.G S/o Gangadharappa, Age: 31 Yrs.,
Occ: Business,
R/o: Soolka Road, Arshinagatta,
Post: Lingadahalli, Tq:Channagiri,
Dist: Davangere.
(Shri.G.S.Hulmani, Adv)
V/s
Opposite Party :- Cholamandalam MS General Insurance Co.Ltd. 77/1,
1st Floor, Kalburgi Square, Deshpande Nagar,
HUBLI-580029
Rep by Its Branch Manager.
Policy No.3373/00382156/000/01
Valid from 29/04/2014 to 28/04/2015
(Shri.S.S.Karegoudar, Adv)
JUDGEMENT DELIVERED BY
HON’BLE SRI B.S.KERI, MEMBER:
The complainant has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP.
THE BRIEF FACT OF THE CASE
2. The brief fact of the case is that, the complaint is the owner of a Force Motors Tempo Traveller Mini White Color Passenger Carrying Vehicle bearing registration no.KA-17-A-8522. The vehicle was insured with the Op Company vide policy no.3373/00382156/000/01 with effect from 29.04.2014, 12:00 hours to midnight on 28.04.2015. The risk covered in this policy sum assured value is Rs.4,60,000/- The said vehicle met with an accident on 15.07.2014 on account of rash & neglect driving the driver of said vehicle was on the way from Davangere to Sigandur for hire purpose and when it was nearby to the village Huliderabana in sugara taluka at that time the driver of the ongoing bus without any indication rashly & negligent manner suddenly applied brake, As a result the front left portion of the vehicle damaged and to avoid the more damage, driver of the vehicle took his right side after said vehicle dashed to third vehicle which is coming from the opposite direction due to the accident the inmates who were traveling and the driver of the vehicle suffered injuries and the vehicle got severe damages, on the basis of the complaint filed by the inmate of vehicle. The said accident was registered under CR No.301/14 by Sagar.P.S on 15.07.2014.
3. Further complainant submit that on intimation to the insurer about the accident the insured vehicle was lodged for repair the authorized service station for tempo in davangere. That the insurers have carried out the necessary surveys through the authorized valuer’s. The authorized dealer has submitted the estimation of Rs.4,64,255/- on 23.07.2014. Thereafter, complainant filed claim petition to the Op, That, the Op repudiated the claim, on the alleged false ground that at the time of accident there were 16 passengers wore traveling in the insured vehicle including driver, under these circumstances the repudiation on a false & bogus ground wholly unjust, improper and illegal the said fact is no way concern to the said incident or make any difference, thus the repudiation has no base at all, the Op have settled the injured claim petition of the vehicle, those who have suffered injuries in the said accident. Now disowning with a new ground and repudiation of the claim by the Ops amounts to unfair trade practice, deficiency in service u/s 2(1)(g) & 2(1)(r) of CP ACT 1986, Hence the complainant approaches this Hon’ble forum praying to issue direction to the OP to pay sum of Rs.4.64.255/- along with interest @ 18% from the date of accident till realization Rs.2,00,000/- with interest @ 18% from the date of the repudiation of claim towards idling charges/loss of income to the complainant till realization and Rs.1,00,000/- compensation, costs of the proceedings and other appropriate reliefs.
4. That the predecessor on seat registered the complaint and notice were ordered as such Op appeared through his advocate and filed their vakalat and written version.
Brief facts of the Written Version of the Op:
That the Op had denied the contents of the complainant and stated that the insurance policy issued by the Op and number of the policy is admitted and Op further submitted that, the document which were produced before the forum as ANNEXURE A to F that is proposal form & policy bond & accident document are admitted, that the complainant is the owner of the said vehicle and the complainant submitted a claim form with necessary documents, The oral and documentary evidence and detailed cross examination of complainant is necessary. This District Forum is in the summary jurisdiction, matter cannot be adjudicated by this District Forum. Therefore the complaint is not maintainable either in law or on facts, that the present complaint is bad for non-joinder of necessary parties. The financial of the insured vehicle i.e. Indus Bank, without adding it as a party the present complainant cannot be proceeded to law.
5. Further Op submits that, the seating capacity of the insured vehicle is 12+1 but said vehicle carrying 16 passenger at the material time of the accident. The complainant was repudiated on the ground of violation as to the condition of “Limitation as to use”. Any violation of the insurance contract by the parties to the contract of insurance, the contract becomes void. The insured cannot claim anything more than what is covered by the policy.
6. There is no deficiency of service and negligence on the part of Op. The complainant has filed this complaint to harass, trouble and cause inconvenience and damage to the reputation of the Op. The Op is not liable in respect of any accident loss, damage or liability.
7. Further, Op submits that the surveyor has assessed loss to the insured vehicle to the tune of Rs.2,51,093/- recommended for repudiation of the claim for the reason of “Limitations as to use”, therefore it most humbly prayed that the complaint filed by the complainant is to be dismissed with costs.
8. The background of the above said pleadings the complainant filed his chief affidavit and produced the document as C1 to C8 the documents are:
1) C1- Insurance policy copy dtd: 29.4.2014 to 28.04.2015.
2) C2- FIR Cr.No.301/2014 dtd: 15.07.2014.
3) C3- Complaint in Sagar rural P.S Dt: 15.07.2014
4) C4- IMV Report dtd: 16.07.2014.
5) C5- Estimation copy dtd: 23.07.2014.
6) C6- Claim form Copy.
7) C7- Reply to Claim form. dtd: 11.09.2014.
8) C8- Charge sheet in CC No.210/15.
9) C9- CC of accident vehicle photos.
10) C10- Compromise awarded on file of PCJ (sn) Judge Ranebennur, MVC No.981 to 186 & 189 to 992.
9. On the other hand, op filed the written version on one Shri.Rajashekarappa S/o Sangappa Mundasad. The Asst. manager of company filed chief affidavit and following documents had been also filed on behalf of Op.
1) R-1: Policy terms and condition.
2) R-2: Copy of MI claim form.
3) R-3: Copy of motor final spot survey report.
4) R-4: Copy DL.
5) R-5: DL Extract.
6) R-6: Copy of R.C Extract.
7) R-7: Copy of permit.
On perusal of above documents and arguments heard on both the sides, we conceived that the dispute is regarding the accident claim of the complainant vehicle. The Op repudiated the claim as insured had suppressed the material facts. This being the pleadings the point arises before us for adjudication is as follows;
- Whether the Complainant proves that the Op made any deficiency in service?
- Whether the Complainant entitled for relief?
- What Order?
Our Answer to the above points are:-
Point No. 1 – Affirmative.
Point No. 2 – Accordingly.
Point No. 3 – As per final order.
The consideration of pleadings, objections, evidence and documents of the parties, we answer the above points as under:
R E A S O N S
10. POINT NO.1 and 2: Since the point No 1 & 2 are identical and to avoid the repetition of the fact we consider both the points together for discussion.
11. That the Force Motors Tempo Traveller mini passenger carrying vehicle Reg No.KA-17-A-8522 of the complainant insured his vehicle with Op bearing Insurance policy no.3373/00382156/000/01 commencing from 29.04.2014 to midnight on 28.04.2015, The sum assured value is sum of Rs.4,60,000/- we had through the documents on record, copy of the insurance policy marked as C-1, is undisputed document. The insured vehicle met with an accident on 15.07.2014 at about 7.30 am. The complaint was registered under Cr.No.301/14 by Sagar Rural P.S the copy of the complaint & FIR marked as C-2 & C-3 IMV Report one with here produced as C-4. The authorized dealer has submitted the estimation of Rs.4,64,255/- on 23.07.2014 herewith complainant produced C-5. The copy of the claim form is herewith produced as C-6. After long persecutions OP wrote a letter to the complainant Dt: 11.09.2014, stating that, “At the time of accident there were 16 persons travelling in the insured vehicle including driver” the copy of the same is here with produced as C-7, this document is the repudiation letter written by Op. these documents are produced by the complainant before this forum, the OP filed a detailed written version before the forum disputing the claim of the complainant took the plea that the complainant had violated the terms and conditions of the policy as 16 passengers were travelling in the passenger carrying vehicle at the time of accident, whereas the permitted seating capacity of the motor vehicle of the complainant was only 12+1, Hence claim is rejected. The complainant alleged that. Op expressed its inability to honour the claim. Further complainant submits that, The Op falsely stated that the more passengers were travelling, under these circumstances, Op repudiated the claim and argued that, the repudiation is just and law.
12. That the learned counsel for complainant strongly objected the argument of the OP and submitted that, before accident the said vehicle was in a good and proper condition, due to accident the vehicle occurred major damages which made complainant to incur huge expenses. Now vehicle had kept idle since from the date of the accident and the complainant is deprived from getting any source of income from the said vehicle. Due to this complainant and his family suffered a lot and gone through mental agony, Complainant counsel further argued that, the Op have settled the claim of injured persons of the inmates of the vehicle, those who have suffered an injuries in the said accident. But, this claim now disowns with a new ground bad for non-joinder of the necessary parties and “Limitation as to use”.
13. That the complainant counsel further argued and submits that financer is nothing to do with his claim. The Op is Insurance Co against whom complainant claim has been made OP is only necessary party, Further have submitted that, the Op had settled the other claims arising out of the same accident and the same Op have repudiated the claim of the complainant OP stating that the complainant violated the policy the terms and condition. The documents C-10 to C-19 specks the same that the award on file of Hon’ble Prl (sn) Civil judge at Ranebennur in MVC No.981 to 986 & 989 to 992, we perused these documents Dt: 14.03.2015. The dual stand taken by the insurance company, in turn violating the law & taken different stand while settling the claim of complainant that it is not a good deference for OP to avoid and deny the claim of the complainant. the survivor of the OP’s company one Murugendraiah visited on 04.08.2014 and carried the investigation submitted survey report to Op assessing a loss of Rs.2,51,093/- the survey report is marked as R-3, but complainant denied this documents and submitted that, this is false report and not genuine, Op have undervalued the loss caused to the vehicle. The authorized dealer has submitted the estimation of Rs.4,64,255/- this is the genuine documents, hence claim may be settled as per document no.C-5, but OP specifically denied and OP argued that the complainant not lead the evidence of author of this document, the documents produced by the C-5, produced by complainant is not admissible since merely filling a estimation is not enough and it is premature document.
14. ongoing through the pleadings and evidence coupled with document of the both parties, it is evident that there is no dispute with regarding in the policy and accident but here we have to discuss about the limitation for using the vehicle here OP submit that the above said vehicle have the capacity of carrying the passenger in a vehicle is 12+1 whereas the vehicle was carrying 16 passengers but it is clear OP had settled the matter of all the passengers in a MACT Cases. Here we have to look after that there is any defect in a vehicle and moreover OP have not filed the documents to show that the accident had accrued due to the over loading moreover OP had not produced any report from the RTO to say that the accident had occurred due to over carrying the seat. In this judicator OP cannot deny the claim of the complainant. Hence these facts taken in to consideration.
16. Now the question to be determined is, whether the respondent has committed deficiency in service, if so, for what relief the complainant is entitled. Under these circumstances Op held responsible to pay the claim amount of Rs.2,51,093/- as per OP survey report with prevailing interest and also for payment of compensation and cost of the proceedings. Otherwise other reliefs are rejected.
17. In view of the above discussion we have arrived and proceed to held point no.1 in affirmative issued No.2 is partly affirmative.
18. POINT NO.3: In view of the above by finding we proceed to pass the following:
//ORDER//
- This Complaint is partially allowed.
- The Op is directed to Pay Rs.2,51,093/-(Rupees Two Lakh Fifty One thousand and Ninety Three only) with interest @ 9% P.A from 15.07.2014.
- The Op is directed to pay Rs.2,000/-(Rupees two Thousand only) towards compensation towards financial loss with mental agony and Rs.1,000/- (Rupees one Thousand only)towards cost of the proceedings.
- The OP is directed to comply this order with in a period of 45 days, failing which OP is liable to pay interest 12% P.A from 15.07.2014 to till realization.
- Send the copies of this Order to the parties free of cost.
