The Branch Manager, National Insurance Co. Ltd., Belgaum, through Branch Manager, National Insurance V/S Sharanamma W/o. Mallayya Swamy Hiremath, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/38

Sharanamma W/o. Mallayya Swamy Hiremath, Raichur - Complainant(s)

Versus

The Branch Manager, National Insurance Co. Ltd., Belgaum, through Branch Manager, National Insurance - Opp.Party(s)

Sri. Virupakshagowda

15 Sep 2010

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/38

Sharanamma W/o. Mallayya Swamy Hiremath, Raichur						...........Appellant(s)
Vs.
The Branch Manager, National Insurance Co. Ltd., Belgaum, through Branch Manager, National Insurance Co. Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by the complainant K. Sharanamma against opposite U/sec. 12 of Consumer Protection Act for to award a sum of Rs. 1,70,000/- towards cost of the repair charges of her vehicle which was damaged in the accident with interest and cost. 2. The brief facts of the complainants case are that, she is the owner of Tempo Trax vehicle bearing No. KA-36/M-5392 which was insured with opposite Insurance Company vide policy bearing No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10. Her vehicle met with an accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce. The case has been registered by the Manvi Police, vide crime No. 219/09 for the offence punishable U/sec. 279, 304(A) of IPC thereafter, he lifted his damaged vehicle to the garage and got repaired the same by spending huge amount and later on submitted the relevant bills, records for claiming compensation in respect of damages of the vehicle. Further it is the case of the complainant that, even inspite of submission of all the relevant documents and claim forms the opposite insurance company has not settled the claim. The complainant even inspite of that, got issued a legal notice on 01-03-10 and the same was served upon opposite, neither the reply has been given nor settled the claim of the complainant for which she has sustained huge loss, incidental costs, agony and mental shock. Hence for all these reasons the complainant has sought direction against the opposite to pay total compensation of Rs. 1,70,000/- along with cost and interest. 3. Opposite appeared in this case through its Advocate filed its written version. The brief facts of the written version filed by opposite are that, the complaint filed by the complainant is false, frivolous & vexatious and this forum has no jurisdiction to try it. Further it is contended that, the vehicle has been used for commercial purpose hence complainant is not a consumer within the meaning of C.P. Act., and driver was not having valid driving licence to drive it. The complainant deliberately and consciously permitted a person was not holding a valid and effective driving licence to drive the type of vehicle involved in the present case which is breach of policy condition. Further it is contended that, even in spite of several requests made by the opposite vide letter dt. 16-12-09 01-02-10 and 20-03-10 the complainant has not produced driving licence of the driver who was at the wheel at the time of the accident which is a condition precedent to settle the claim. As the complainant failed to produce the driving licene the claim has been closed. The non settlement of the claim of the complainant is due to the lethargic and complacent attitude of the complainant herself, as such there is no deficiency in service on the part of the opposite. Further it is contended that, the claim of the complainant is that, exorbitant, excessive and without any basis the damage estimated by the surveyor is Rs. 72,804/- only not more than that, hence prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, her TEMPO Trax vehicle policy bearing No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10. Her vehicle met with an accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce and in the said accident, the vehicle badly damaged, she informed the same to opposite, thereafter he lifted the vehicle to garage and got repaired and thereafter he filed claim petition along with necessary records, but opposite not settled her claim inspite of her oral and written requests and thereby opposite found guilty under deficiency in its services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgment and as noted in the final order. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-24 are marked. On the other hand affidavit-evidence of Branch Manager of opposite Insurance Company was filed, who is noted as RW-1 and documents Ex.R-1 to R-6 are marked. 7. The admitted facts are that, the vehicle was insured with the opposite insurance company vide Policy No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10 and about the accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce. 8. On perusal of the pleadings of the parties, that more particularly from the pleadings of the opposite mainly it is noticed that, the reasons for not settling the claim of the complainant by the opposite insurance company is for not producing the driving licence of the driver one who drives the vehicle at the time and date of accident. But from the pleadings of the parties further we have observed that, the claim is for the damaged vehicle and same has been put forth by the owner of the vehicle and not by the driver or the family of the driver one who has lost his life in the accident. Ultimately the claim of the complainant is against her vehicle damage. Under such circumstances, the denial of the claim by the insurance company in respect of damages of the vehicle is concerned is totally un called for because the driver of the vehicle is the actual possessor of the driving licence and he himself knows about his driving licence but not by the owner of the vehicle regarding where it is. In the present case the driver of the vehicle has lost his life and he was no more to produce the driving licence. Insisting the complainant/owner of the vehicle to produce the same by the opposite and for non-producing the same by the complainant and for that reasons denial of the claim holds no good. Because neither the complainant nor the any other person are know about the driving licence where it is. And it was also highly impossible to get it from the competent authority from where the driver was obtained the licence as they were not known about its Badge No. and other details. Practically it is also highly impossible to produce the same. In this regard we have referred the ruling cited in IV 2006 ACC Page 31 wherein the Honble High Court of Karnataka in Smt. Usha V/s. Life Insurance Company clearly held that, widow of deceased may not be having knowledge about details regarding licence held by her husband. Under such circumstances claim cannot be repudiated on such ground alone. This fact is clearly applicable to the present case on hand, hence the denial of the claim by the insurance company for not producing the driving licence of the driver is nothing but an intentional denial of the claim of the complainant. 9. Further the opposite insurance company has raised some other points regarding denial of the claim in its written version, particularly in respect of territorial jurisdiction and use of the vehicle for commercial purpose. On perusal of the Ex.P-1 to Ex.P-6 i.e, the police record it is very clear that, the accident took place in Manvi Tq. which is comes under Raichur District only. The complainant is also a resident of Manvi Tq. and from where she has got insurance policy. Under such circumstances, the claim made by the complainant through her complaint before this Forum is a proper Forum and this Forum has got jurisdiction to entertain the complaint. Therefore in this regard, the objection raised by the opposite, holds no water, hence we have rejected the same and further we come to the conclusion that, such rejection made by the opposite is nothing but an improper or unwanted denial. 10. On perusal of the police records and Ex.R-2, Ex.R-3 and Ex.R-4 there was no mentioned regarding the use of the vehicle on the time and date of accident for commercial purpose. The reason for repudiation of claim was also not mentioned in their letters produced under Ex.R-2, Ex.R-3 and Ex.R-4 Mere raising the objections in the written version without any valid documents in order to prove the case holds no water. Pleadings without evidence cannot be accepted. Therefore we have rejected the contention of the opposite in this regard. Under the above circumstances, we feel that, the claim of the complainant through her complaint is proper and genuine one and the opposite insurance company has failed to settle the claim of the complainant. This itself would goes to show that, there is a deficiency in service on the part of the opposite. Hence we answered Point No-1 in affirmative. POINT NO.2:- 11. The complainant has sought direction against the opposite to award compensation amount of Rs. 1,50,000/- in respect of damage of the vehicle towards expenses, mental shock etc., Rs. 20,000/- in all Rs. 1,70,000/-. He has produced (12) documents under Ex.P-7 to Ex.P-19 in support of her claim. But on perusal of Ex.R-5 the survey report it is very clear that, the surveyor of the opposite insurance company has conducted the survey and assessed the loss to the tune of Rs. 72,804.65/-. No doubt the bills produced by the complainant are pertaining to the repairs in respect of the damaged vehicle but we cannot accept them without any affidavit evidence of the issuer of the same for to award the damage is concerned, because the survey report submitted by the opposite is a valid and cogent and convincing material and same is to be considered for to assess the loss of the vehicle because it is supported by the affidavit of the surveyor. Hence we have accepted the survey report for to consider the damage of vehicle is concerned and awarded Rs. 72,804/- towards damage of the vehicle is concerned. As regards to the mental shock, expenses etc., is concerned the claim of the complainant to the tune of Rs. 20,000/- is excessive and exorbitant one, hence we have awarded only to the tune of Rs. 10,000/- in this regard. We have noticed the deficiency in service on the part of opposite for non settling the claim of complainant, as such complainant is entitled to recover a lumpsum amount of Rs. 3,000/- from opposite No-1 towards deficiency in service. A lumpsum amount of Rs. 3,000/- is granted towards cost of this litigation. 12. The complainant is entitled to get total amount of Rs. 88,804/- which is rounded to Rs. 89,000/- from opposite. 13. The complainant also entitled to get interest at the rate of 9% p.a. on the total sum of Rs. 89,000/- from the date of this complaint till realization of the full amount from opposite. Accordingly we answered Point No- 1 & 2. POINT NO.3:- 14. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is totally entitled to recover an amount of Rs. 89,000/- from the opposite. The complainant is entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 89,000/- from the date of the complaint till realization of the full amount. Opposite is hereby granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-09-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by the complainant K. Sharanamma against opposite U/sec. 12 of Consumer Protection Act for to award a sum of Rs. 1,70,000/- towards cost of the repair charges of her vehicle which was damaged in the accident with interest and cost. 2. The brief facts of the complainants case are that, she is the owner of Tempo Trax vehicle bearing No. KA-36/M-5392 which was insured with opposite Insurance Company vide policy bearing No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10. Her vehicle met with an accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce. The case has been registered by the Manvi Police, vide crime No. 219/09 for the offence punishable U/sec. 279, 304(A) of IPC thereafter, he lifted his damaged vehicle to the garage and got repaired the same by spending huge amount and later on submitted the relevant bills, records for claiming compensation in respect of damages of the vehicle. Further it is the case of the complainant that, even inspite of submission of all the relevant documents and claim forms the opposite insurance company has not settled the claim. The complainant even inspite of that, got issued a legal notice on 01-03-10 and the same was served upon opposite, neither the reply has been given nor settled the claim of the complainant for which she has sustained huge loss, incidental costs, agony and mental shock. Hence for all these reasons the complainant has sought direction against the opposite to pay total compensation of Rs. 1,70,000/- along with cost and interest. 3. Opposite appeared in this case through its Advocate filed its written version. The brief facts of the written version filed by opposite are that, the complaint filed by the complainant is false, frivolous & vexatious and this forum has no jurisdiction to try it. Further it is contended that, the vehicle has been used for commercial purpose hence complainant is not a consumer within the meaning of C.P. Act., and driver was not having valid driving licence to drive it. The complainant deliberately and consciously permitted a person was not holding a valid and effective driving licence to drive the type of vehicle involved in the present case which is breach of policy condition. Further it is contended that, even in spite of several requests made by the opposite vide letter dt. 16-12-09 01-02-10 and 20-03-10 the complainant has not produced driving licence of the driver who was at the wheel at the time of the accident which is a condition precedent to settle the claim. As the complainant failed to produce the driving licene the claim has been closed. The non settlement of the claim of the complainant is due to the lethargic and complacent attitude of the complainant herself, as such there is no deficiency in service on the part of the opposite. Further it is contended that, the claim of the complainant is that, exorbitant, excessive and without any basis the damage estimated by the surveyor is Rs. 72,804/- only not more than that, hence prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, her TEMPO Trax vehicle policy bearing No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10. Her vehicle met with an accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce and in the said accident, the vehicle badly damaged, she informed the same to opposite, thereafter he lifted the vehicle to garage and got repaired and thereafter he filed claim petition along with necessary records, but opposite not settled her claim inspite of her oral and written requests and thereby opposite found guilty under deficiency in its services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgment and as noted in the final order. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-24 are marked. On the other hand affidavit-evidence of Branch Manager of opposite Insurance Company was filed, who is noted as RW-1 and documents Ex.R-1 to R-6 are marked. 7. The admitted facts are that, the vehicle was insured with the opposite insurance company vide Policy No. 602600/31/09/6100000481. The effective date of commencement of the policy is from 16-04-09 to 15-04-10 and about the accident on 24-08-09 while it was proceeding on Raichur Manvi Main Road at about 15.00 hours, and driver of the said vehicle was died in the said accident when the insurance policy was inforce. 8. On perusal of the pleadings of the parties, that more particularly from the pleadings of the opposite mainly it is noticed that, the reasons for not settling the claim of the complainant by the opposite insurance company is for not producing the driving licence of the driver one who drives the vehicle at the time and date of accident. But from the pleadings of the parties further we have observed that, the claim is for the damaged vehicle and same has been put forth by the owner of the vehicle and not by the driver or the family of the driver one who has lost his life in the accident. Ultimately the claim of the complainant is against her vehicle damage. Under such circumstances, the denial of the claim by the insurance company in respect of damages of the vehicle is concerned is totally un called for because the driver of the vehicle is the actual possessor of the driving licence and he himself knows about his driving licence but not by the owner of the vehicle regarding where it is. In the present case the driver of the vehicle has lost his life and he was no more to produce the driving licence. Insisting the complainant/owner of the vehicle to produce the same by the opposite and for non-producing the same by the complainant and for that reasons denial of the claim holds no good. Because neither the complainant nor the any other person are know about the driving licence where it is. And it was also highly impossible to get it from the competent authority from where the driver was obtained the licence as they were not known about its Badge No. and other details. Practically it is also highly impossible to produce the same. In this regard we have referred the ruling cited in IV 2006 ACC Page 31 wherein the Honble High Court of Karnataka in Smt. Usha V/s. Life Insurance Company clearly held that, widow of deceased may not be having knowledge about details regarding licence held by her husband. Under such circumstances claim cannot be repudiated on such ground alone. This fact is clearly applicable to the present case on hand, hence the denial of the claim by the insurance company for not producing the driving licence of the driver is nothing but an intentional denial of the claim of the complainant. 9. Further the opposite insurance company has raised some other points regarding denial of the claim in its written version, particularly in respect of territorial jurisdiction and use of the vehicle for commercial purpose. On perusal of the Ex.P-1 to Ex.P-6 i.e, the police record it is very clear that, the accident took place in Manvi Tq. which is comes under Raichur District only. The complainant is also a resident of Manvi Tq. and from where she has got insurance policy. Under such circumstances, the claim made by the complainant through her complaint before this Forum is a proper Forum and this Forum has got jurisdiction to entertain the complaint. Therefore in this regard, the objection raised by the opposite, holds no water, hence we have rejected the same and further we come to the conclusion that, such rejection made by the opposite is nothing but an improper or unwanted denial. 10. On perusal of the police records and Ex.R-2, Ex.R-3 and Ex.R-4 there was no mentioned regarding the use of the vehicle on the time and date of accident for commercial purpose. The reason for repudiation of claim was also not mentioned in their letters produced under Ex.R-2, Ex.R-3 and Ex.R-4 Mere raising the objections in the written version without any valid documents in order to prove the case holds no water. Pleadings without evidence cannot be accepted. Therefore we have rejected the contention of the opposite in this regard. Under the above circumstances, we feel that, the claim of the complainant through her complaint is proper and genuine one and the opposite insurance company has failed to settle the claim of the complainant. This itself would goes to show that, there is a deficiency in service on the part of the opposite. Hence we answered Point No-1 in affirmative. POINT NO.2:- 11. The complainant has sought direction against the opposite to award compensation amount of Rs. 1,50,000/- in respect of damage of the vehicle towards expenses, mental shock etc., Rs. 20,000/- in all Rs. 1,70,000/-. He has produced (12) documents under Ex.P-7 to Ex.P-19 in support of her claim. But on perusal of Ex.R-5 the survey report it is very clear that, the surveyor of the opposite insurance company has conducted the survey and assessed the loss to the tune of Rs. 72,804.65/-. No doubt the bills produced by the complainant are pertaining to the repairs in respect of the damaged vehicle but we cannot accept them without any affidavit evidence of the issuer of the same for to award the damage is concerned, because the survey report submitted by the opposite is a valid and cogent and convincing material and same is to be considered for to assess the loss of the vehicle because it is supported by the affidavit of the surveyor. Hence we have accepted the survey report for to consider the damage of vehicle is concerned and awarded Rs. 72,804/- towards damage of the vehicle is concerned. As regards to the mental shock, expenses etc., is concerned the claim of the complainant to the tune of Rs. 20,000/- is excessive and exorbitant one, hence we have awarded only to the tune of Rs. 10,000/- in this regard. We have noticed the deficiency in service on the part of opposite for non settling the claim of complainant, as such complainant is entitled to recover a lumpsum amount of Rs. 3,000/- from opposite No-1 towards deficiency in service. A lumpsum amount of Rs. 3,000/- is granted towards cost of this litigation. 12. The complainant is entitled to get total amount of Rs. 88,804/- which is rounded to Rs. 89,000/- from opposite. 13. The complainant also entitled to get interest at the rate of 9% p.a. on the total sum of Rs. 89,000/- from the date of this complaint till realization of the full amount from opposite. Accordingly we answered Point No- 1 & 2. POINT NO.3:- 14. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is totally entitled to recover an amount of Rs. 89,000/- from the opposite. The complainant is entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 89,000/- from the date of the complaint till realization of the full amount. Opposite is hereby granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-09-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.