Karnataka

Bellary

CC/174/2018

B Maruthi - Complainant(s)

Versus

The Branch Manager, M/s Bharti AXA General Insurance Co & Another - Opp.Party(s)

K Nagaraja

19 Nov 2021

ORDER

FILED ON:	14-12-2018
ORDER ON:	19-11-2021

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AT BALLARI.

C.C.No.174 of 2018    

 

Present :-  

 

(1)  Shri.A.H.Malaghan. B.com. LLB.(Spl), …  Hon’ble President.

(2)  Shri.H.Veera Shekar. B.A. LLb.(Spl),    …  Hon’ble Member.

(3)  Smt. Marla Shashikala. B.com. LLB.     .… Hon’ble L-Member.

 

DATED THIS THE 19^th DAY OF NOVEMBER- 2021

 

COMPLAINANT/S   By-Shri.K.Nagaraja, Advocate, Bellary.   //VS//	B.Maruthi S/o Manjamma, Age: 26 Years, Driver cum owner of the Bolero Maxi Truck bearing No.KA-37/A-4787, R/o Magimavinahalli Village, H.B.Halli Tq, Ballari Dist.
OPPOSITE PARTY/IES   By-Shri. B.Venkateswara Prasad, Advocate, Bellary.	1) The Branch Manager, M/s Bharti AXA General Insurance Co., Plot No.3/9, Ground Floor, Niranjan Building, W.No.16, Dr.Raj Kumar Road, Ballari.   2) The Manager, M/s Bharti AXA General Insurance Co., Ltd., NO.28, 1st Floor, Ferns Icon, Doddanekundi, Office outer Ring Road, Maratahalli, Bangalore-560037.

 

// O R D E R //

By Hon’ble President Shri.A.H.Malaghan. 

        This is a complaint filed by the complainant against the opposite parties U/Sec-12 of the Consumer Protection Act 1986.   

              2.    The complaint in brief is that, the complainant is the absolute owner of the Bolero Maxi Truck bearing No.KA-37/A-4787 and the same was insured with the OPs vide Policy bearing No:FCV/S4904877/E1/07/004668 which was valid from 18-07-2016 to 17-07-2017.  On 26-02-2017 at about 2-00 p.m., the said vehicle was proceeding on NH-13 road, near Magimavinahalli cross, Hosapete, at that relevant time one Lorry bearing No.HP-12/H-0514 came from Mariyammanahalli side, the driver of the said lorry drove with speed in rash and negligent manner and dashed to the complainant’s vehicle.  As a result of the said vehicle was totally scrapped. Immediately after occurrence of the said accident, the same was informed to the opposite parties and OPs Company has deputed the company Surveyor to assess the damage to the vehicle on the spot.   Accordingly, the Survey has conducted and assessed the damage and submitted the report to the OPs.  The complainant has furnished all the relevant documents and lodged his damage claim with OPs Company.  The OPs have postponed the same on one pretext or the other without assigning any cogent reasons.  The OPs have intentionally till to this day have not discharge the claim of the complainant thereby since from the date of accident the complainant has forced to take the vehicle for hire and incurring expenses at the rate of Rs.1,000/- per day. The OPs have non discharging the claim of the complainant and he loss both physically and mentally, only due to the negligence and deficiency of service of the OPs.  On these ground, the complainant has prayed for allowing the complaint.  

         3.    After due service of notice by this Commission, the OPs have appeared through their counsel and the OPs No.2 filed the written version which is adopted by the OPs No.1, in brief is as follows, all the allegation made in the complaint, except those which are expressly admitted, are denied. The complainant has obtained a policy for his LGV bearing Reg No.KA-37/A-4787 vide policy bearing No.FCV/S490477/E1/07/004668 valid from 18-07-2016 to 17-07-2017 and the said policy issued to the complainant is subject to terms and conditions enumerated therein and inconformity with the provisions of M.V.Act-1988.  The company has sent letter dt:12-05-2017 intimating about the facts of case under what circumstances the said closure letter has been sent and the letter reads as follows “In case we do not receive any response from you within 7 working days, we would conclude that you are no longer interested in the claim and would close the case”. Section 1. Loss of or damage to the vehicle insured; The insured may authorize the repair of the vehicle necessitated by damage for which the company may be liable under this policy provided that; (a) The estimated cost of such repair including replacement of parts, if any does not exceed Rs.500/- (b)The company is furnished forthwith with a detailed estimate of costs of repair; and (c) The insured shall give the company every assistance to see that such repair is necessary and charges are reasonable. The OPs has also sent notice/letter                dt:12-05-2017 along with the above said letter as mentioned in para 4 requesting the complainant to submit the driving license of one Mr.Shivakumar for the purpose of processing the claim, for which there is no response from the complainant and hence process of claim has been delayed and closed is on account of non compliance of the requirements as sought.  As per the Claim Form submitted by the complaint the name of the driver of the vehicle at the material time of alleged accident is shown as Mr.Shivakumar and as per the FIR filed in the case also the name of the driver of LGV bearing Reg.No.KA-37/A-4787 and also sustained injuries due to rash and negligent driving of the Lorry bearing Reg.No.HP-12/H-514 by its driver and the driver of LGV was not holding a valid and effective driving license to drive the above said LGV and hence the complainant knowing full well that the said driver Shivakumar does not hold any driving license has authorized him to drive the LGV and thereby violated the terms and conditions of the policy more particularly at driver’s clause.  Therefore, there is no deficiency in service on the part of the OPs.  On these grounds, the OPs have prayed for dismissal of the complaint.  

                        4.      The complainant to prove his case filed his affidavit evidence as P.W-1 and got marked 18 documents as Ex.P-1 to Ex.P-18.   The OP No.2 has filed his affidavit evidence as RW-1 and got marked 03 documents as Ex.R-1 to Ex.R-3.  

 

           5.     The points that arise for our consideration are;

1.	Whether the complainant has proved deficiency in service on the part of the opposite parties, as alleged in the complaint?
2.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
2.	What order?

 

                             

 

 

 

 

 

6.   Our findings on the above points are as follows;

 

 

        

Point No.1:	In the Affirmative.
Point No.2:	Partly in the Affirmative.
Point No.3:	As per final order.

                                   

 

   // R  E A S O N S //

Point No:1:-

 

7.   In order to prove their respective case, both parties have produced their documents and respective evidence affidavits.

 

8.     It is the case of the complainant that, he is the owner of LGV vehicle bearing No. KA-37/A 4787, and said vehicle was met with an accident on NH 13 road near Magimavinahalli cross Hospet on 26.02.2017, due to hitting by another lorry bearing No.HP-12-H-0514. Accordingly, the criminal case was registered against the driver of the above said lorry for causing this accident.  As a result of the said accident, the vehicle of the complainant was damaged extensively including driver cabin, front bonnet both side doors, language carrier, front excel, radiator, staring, front glass, lights etc, and the said vehicle was completely in scraped condition.

 

9.    The above said vehicle was insured with OP with effect from        Dt:18-07-2016 to 17-07-2017. Such being the fact, the complainant was immediately intimated to OP, and then OP has appointed a spot surveyor to assess the loss caused to the said vehicle, who after verification has submitted his report to the OP along with photos taken by him, despite of these procedures and personal contact with OP he did not take any action on the claim of the complainant.  So, the OP has failed to discharge his duties costs on him, but postponing the settlement on one or the other reasons, without any positive answerers. Hence, the effort of the complainant become in vain for non settlement of the claim by OP till this day which amounts to deficiency of service on the part of the OP.  It is further contended that, the OP has intentionally failed to settle the claim, and as such the complainant has put in to loss on account of non using of the said vehicle for earning his livelihood.  So, it caused the complainant great mental agony, hardship & other inconveniences. So, the complainant has prayed for compensation of Rs.13,26,000/- on various grounds, including the repair costs of the vehicle of Rs.6,00,000/-. 

 

10.    The OP has contested the above said case through his counsel by denying the entire allegations made in the complaint.  The policy issued by OP in respect of LGV bearing Reg. No.KA-37-A-4787  under vide policy No.FCV/S490477/EI/07/004668 valid from dt:18-07-2016 to dt:17-07-2017 is true,  but same has been issued subject to terms and conditions of the policy. The company has sent a letter on dt:12-05-2017 intimating about the facts of the case under what circumstances the said closer letter has been sent, which reads as under: “In case we do not receive any response from you within 07 working days, we would conclude that, you are no longer interested in the claim, and would close the case”.

 

11.    Sec 1 loss of or damage to the  vehicle insured, the insured may authorized to repair of the vehicle necessitated by damage for which the company may be liable under this policy provided that, a): the estimated costs of repair including replacement of parts if any does not exceed Rs.500/-, b): The company is furnished forthwith a detailed estimate of costs of repair, c): the insured shall give the company every assistance to see that, such repair is necessary , and charges are reasonable .

12.      The OPs have sent notice/letter on 12.05.2017 along with above said letter as mentioned in para No.4 requesting the complainant to submit driving license of one Mr. Shivakumar for processing the claim, but, there is no response from the complainant.  Hence, process of claim has been delayed and closed, on account of non compliance of requirement as sought.   As per claim form submitted by complainant, the name of the driver of the vehicle is shown as Mr. Shivakumar was the driver of the above said vehicle of the complainant, and he sustained injury in the said accident.   But, the above said driver was not holding a valid and effective driving license to drive above said LGV vehicle.   Hence, the complainant knowing full well has authorized him to drive the said vehicle, who does not hold any driving license, there by violated the term and conditions of the policy more particularly at drivers clause.  Therefore, there is no deficiency of service on the part of the OPs in any manner; hence, the claim of the complainant is liable to be set aside.  So, he prayed to dismiss the complainant.

 

13.   Considering the facts of the above said case, it is not in dispute of the fact that, above said vehicle was met with an accident on 26.02.2017 at about 2.00 pm., and the insurance policy was in force issued by OP in respect of above said vehicle , and under the said accident the vehicle was sustained damage.

 

14.    The main argument of the OP is that, the complainant has violated the terms and conditions of the policy as he failed to furnished the copy driving license of Shivakumar, who was driving the said vehicle on the date of accident.  So non compliance of the said requirement as sought by the OP from complainant is main reason for delay in settlement or closer of claim. Therefore, there is no deficiency of service on the part of the OP in settling the claim of the complainant.

 

15.   On careful scrutiny of the documents produce by the parties, the criminal case papers and photo copies of the damaged vehicle marked under Ex.P-3, Ex.P-4, Ex.P-7, Ex.P-8 series, Ex.P-9 charge sheet, Ex.P-10 FIR, Ex.P-11 to Ex.P-16 confirms that, the vehicle of the complainant was met with an accident, and thereby, the said vehicle was damaged extensively .

 

16.    Considering, the defense of the OP , he has mainly contended that, the driver Mr. Shivakumar was not holding a valid and effective driving license at the time of the alleged accident. In this regard he wrote letter to the complainant on 12.05.2017 as per Ex.R-2 & Ex.R-3,  to submit  his driving license, but the complainant has not complied the same. Hence, the delay has been caused in processing the claim.  But, on perusal of the Ex.P-17 & Ex.P-18 the extract of driving license copies of said Shivakumar produced by the complainant clearly goes to show that, the said driving license is valid from 30.10.2015 to 29.10.2035 by authorizing him to driving LMV ( NT ) vehicle issued by RTO Bellary.   Hence, on perusal of the said driving license, it is evident that, the said Shivakumar was having a valid and effective driving license to drive above said LGV vehicle also, since, both the vehicles are same class of vehicles and the nature and mechanism of the said vehicles are one and the same, which is decided by Hon’ble Apex Court in its recent judgment.  Therefore, in our view, the said driver is authorized to drive the above said vehicle of the complainant by holding LMV (NT) license.  Therefore, the contention of the OP that, the driver of the vehicle does not have any driving license is not holds good.   So, the closer of the claim of the complainant for want of driving license is not sustainable in the eye of law.

 

17.    Further, we noticed that, the OPs have not produced any documents to show that, they have made any efforts in securing the driving license of the Shivakumar from concerned RTO independently or by their agency for settlement of the claim, but simply closing of claim of the complainant based on Ex.R-2 & Ex.R-3  letters dated:12.05.2017, without any further effort in securing the driving license independently, since it is a public document, is amounts to deficiency in service on the part of the OPs.   The duty costs on the OPs also in securing the required documents in order to speedy disposal of the process of the claims concerned.   But in this case, the OP has simply written a letter to the complainant seeking to produce the copy of the driving license of his driver, and thereby when he failed to comply the same, the OPs have randomly close the file which is unjust and improper, and amounts to deficiency in their service.  

 

18.    It is further observed that, when the complainant was filed this case against the OPs by producing the copy of driving license of the Shivakumar in this case, based on the same the OPs could have settled the claim of the complainant at the earliest stage of the case by taking prudent action on the claim of the complainant, and thereby they could have shown their sincere efforts in settling the claim, but, the OPs have not made any such efforts,  but blames the complainant in this regard, which is not proper on the part of the OPs.  So, we are of the view that, the claim of the complainant is payable by OPs. Hence, in our view, the complainant has proved the Point No. 1, which is answered by us Affirmatively.

 

Point No:2:-

19.  In view of our answer to the Point No.1 as Affirmative, the claim of the complainant is maintainable against the OPs.   The complainant has claimed Rs.6,00,000/- towards damage  caused to his vehicle along with compensation, cost etc., on various heads of claims totalling Rs.13,26,000/-.  But, no documents are produced by the complainant in order to claim above said amount.

20.   As per the policy contract and the insurance policy marked Ex.R-1, wherein, the IDV value of the vehicle is shown as Rs.3,50,000/- only.  Considering the said points the maximum liability of insurance company is only Rs.3,50,000/- in respect of above said vehicle of the complainant. 

21.  On perusal of the documents produced by the complainant there are no documents to show that, the vehicle has been sustained damage to the extent of Rs.6,00,000/-.  Even, the complainant has failed to produce the copy of estimation report for repairing the vehicle.  On the other hand, the OPs are also not produced any documents to show that, the vehicle loss has been estimated by their penal surveyors.   So, in the absence of the same, we have considered the damage of the vehicle based on Ex.P-7 M.V.I. Report and also Ex.P-8 photos of the damaged vehicle.   In the MVI report the visible damage of the subject vehicle has been noted.  As per the said report the above said vehicle was damaged over 1) driver side cabin complete damage,  2) damage over front side of the vehicle, 3) both doors are damage, 4) carrier damage, 5) front axle damage, 6) staring damage, 7) Radiator damage and front wind glass damage including front portion of the vehicle, so considering the said damage caused to the said vehicle it is quite natural that, some inner parts of the engine of the vehicle are also likely to be damaged but, the same was not proved by any documentary evidence.  However, looking to the impact caused on the vehicle there is a every change of the damage even, on engine of the vehicle also including its inner parts. 

22.  On perusal of the photos produced under Ex.P-8 series taken on the damaged vehicle are clearly established that, the vehicle of the complainant was in completely damaged condition which is having only scrape value.  Therefore, by considering the Ex.P-7 and Ex.P-8 it appears that, the subject vehicle is under total loss condition.  Hence, considering the same as total loss of the vehicle the same is to be assessed on the basis of depreciation of the vehicle, as the age of the vehicle is about 3 years old as per Ex.P-2 R. C copy.   As per the RC Ex.P-2 of subject vehicle, the date of registration is 07-05-2014 so, the depreciation of the said vehicle is to be considered as 40%.  The IDV value of the vehicle was Rs.3,50,000/- and after deducting the 40% of the same, the amount of loss comes to Rs.2,10,000/- which is considered as loss caused to the said vehicle.  Therefore, in our view, the same is to be indemnified towards the loss of the vehicle by OPs, even in the absence of any other documentary evidence, looking to the Ex.P-7 and Ex.P-8 and other criminal case papers produced by complainant in this case.    Hence, the OPs are liable to pay an amount of Rs.2,10,000/- to the complainant towards loss caused to the said vehicle.

23.   In addition to above claim in our view, it is just and proper to grant Rs.10,000/- towards pain and suffering and other inconvenience caused and Rs.5,000/- towards litigation charges to the complainant, looking to the present facts and circumstance of the case.   So, in all the OPs are jointly and severely liable to pay Rs.2,10,000/- + Rs.10,000/- + Rs.5,000/- total of Rs.2,25,000/- to the complainant.  So, as stated supra we answered Point No.2 partly in the Affirmative in above terms.  Thus we proceed to pass the following order.     

 

// ORDER //

 

         The complaint filed by the complainant U/S 12 of C.P.Act-1986 against the OPs is allowed partly with cost.

 

       Consequently, the OPs are jointly and severely liable to pay Rs.2,25,000/- to the complainant as stated above within 45 days from the date of this order.  Failing which the above said amount shall carry interest @ 8% p.a., from the date of complaint till its realization.

 

     Inform the parties accordingly.

           

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court  this 19th day of November- 2021)

7.  
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Smt.Marla Shashikala                Sri.H. Veera Shekar         Sri. A.H. Malaghan

        Lady Member.                              Member.                      President,

District Consumer Commission Ballari.      District Consumer Commission Ballari.      District Consumer Commission Ballari.