Karnataka

Raichur

CC/10/28

Mohammed Hussain S/o. Abdul Nabi, Kot-talar, Raichur - Complainant(s)

Versus

The Branch Manager, Oriental Insurance Co. Ltd., Raichur - Opp.Party(s)

Sri. Aravinda Patil

19 Aug 2010

ORDER


Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/28

Mohammed Hussain S/o. Abdul Nabi, Kot-talar, Raichur
...........Appellant(s)

Vs.

The Branch Manager, Oriental Insurance Co. Ltd., Raichur
The Divisional Manager, Oriental Insurance Co. Ltd., Hubli
...........Respondent(s)


BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




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ORDER

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mohammed Hussain against the Respondents- The Branch Manager, Oriental Insurance Company Ltd., Raichur and the Divisional Manager, Oriental Insurance Co. Ltd., Hubli. The brief facts of the complaint are that: The complainant is the registered owner of Scorpio Mahindra Vehicle bearing No. KA-36/M4293 insured with Respondent under policy No. 422901/31/2010/400 for a period from 19-04-09 to 18-04-10. On 14-07-09 vehicle had met with an accident at about 4-15 am while it was flying on Gangavathi-Kartagi Road and fully damaged. The same was intimated to the Respondents over phone and thereafter as per the instructions of the Respondents, the complainant submitted all documents along with proposed estimation cost of repairs to the tune of Rs. 4,13,834/- towards vehicle damages on 21-07-09 and also submitted relevant original bills etc., to the Respondents. That immediately after the accident the surveyor of the Respondents Insurance Company conducted the survey and submitted his report. But even inspite of survey and several requests the Respondents have not settled the claim with regard to the damages to the vehicle. Finally the complainant has got issued legal notice on 04-03-10 to settle the claim. Even then, the Respondents have not settled the claim. But in turn they have repudiated the claim of the complainant vide letter dt. 19-04-10, this act of the Respondent is nothing but negligence on the part of the Respondents and unfair trade practice which amounts to deficiency in service by the Respondents. Because of the said act the complainant has suffered great inconvenience, hardship and huge loss and also makes him to suffer with mentally. Therefore he has sought compensation to the tune of Rs 4,50,000/- against the Respondents. 2. The Respondent Nos. 1 & 2 have appeared through their counsel and filed written statement contending that, the complaint of the complainant is devoid of any material substances, no deficiency of service or unfair trade practice can be attributed on the part of the Respondents. The accident took place within the territorial jurisdiction of Koppal District and the policy in respect of the vehicle involved in the case is issued by the Insurance Company at Hubli. Hence this Forum has got no jurisdiction to entertain the complaint. Further it is the case of the Respondent that, the claim made by the complainant is repudiated on the ground that, the vehicle was being driven by a person who did not have a valid driving licence. In addition to that the vehicle which was insured for personal use and was used for commercial purpose, the vehicle was being used as a taxi for hire which is breach of policy condition consequently the complainant is not entitled for any monetary benefits from the Respondents. Further it is contended that, the claim made by the complainant is highly exaggerated, excessive one As per the survey report the amount spent for the vehicle shall not be more than Rs. 2,58,000/-. Under the above circumstances there is no deficiency or unfair trade practice on the part of the Respondents. Therefore the complainant is not entitled to receive the claim of Rs. 4,13,834/-. Hence for all these reasons the Respondent has sought for dismissal of the complaint. 3. During the course of enquiry the complainant filed his sworn-affidavit by way of examination-in-chief and has got marked (14) documents at Ex.P-1 to Ex.P-14. In-rebuttal the Respondent No-1 has filed sworn-affidavit by way of examination-in-chief on his behalf and on behalf of Respondent No-2 and has got marked (2) documents at Ex.R-1 & Ex.R-2. 4. Heard the arguments of both sides. The counsel for the complainant has also filed written arguments. Perused the same and records field by the both the parties. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service and unfair trade practice by the Respondent in not settling his claim, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the Affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 6. There is no dispute that the complainant is the registered owner of Scorpio Mahindra Vehicle bearing No. KA-36/M4293 insured with Respondent under policy No. 422901/31/2010/400 for a period from 19-04-09 to 18-04-10 and on 14-07-09 at about 4-15 am vehicle had met with an accident while it was flying on Gangavathi-Kartagi Road. 7. The complainant has produced in all (14) documents at Ex.P-1 to Ex.P-14 namely (1) Copy of RC Book at Ex.P-1, (2) Original Policy Bond at Ex.P-2, (3) Driving Licence at Ex.P-3 (4) FIR along with statement of one Chandrashekarayya Swamy at Ex.P-4 & Ex.P-4(1), (5) Further statement of Chandrashekarayya marked at Ex.P-5, (6) Charge sheet issued by PSI Kartagi Police Station at Ex.P-6, (7) Crime Details Form marked at Ex.P-7, (8) Statement of Mahantamma, Rachamma, Nirmala, Neelakantayya, Sarita, Rachayya Swamy, Shivakumar and Virupaxayya are marked at Ex.P-8 to Ex.P-8(7), (9) Requisition Letter dt. 15-07-09 issued by PSI Kartagi PS to RTO, Koppal is marked at Ex.P-9, (10) Bills for having spent for the repairs of vehicle are marked at Ex.P-10 to Ex.P-10(4), (11) Claim form is marked at Ex.P-11, (12) Office copy of legal notice marked at Ex.P-12, (13) Reply letter dt. 03-03-10 written by Respondent No-2 is marked at Ex.P-13, (14) Repudiation Letter dt. 19-04-10 marked at Ex.P-14. 8. The Respondent Insurance Company in their written statement has raised mainly three points regarding non settlement of the claim and maintenance of the complaint filed by the complainant they are as follows: 1. Regarding territorial jurisdiction. 2. Valid driving licence of the driver one who driving the vehicle on the time and date of accident. 3. and regarding use of the vehicle for commercial purpose i.e, on the time and date of accident vehicle was being used as a Taxi for Hire. No doubt on perusal of the Ex.P-4 to Ex.P-9 i.e, police records its very clear that, the allied accident was taken place on Gangavathi-Karatagi Road at Salunchimara village, Tq. Gangavathi which is comes under the Koppal District, However the policy i.e, Ex.P-2 is issued by the Respondent No-1 office situated at Raichur. The said Ex.P-2 clearly discloses its office address in this regard. Under such circumstances, the complainant has got option to prefer Raichur has a jurisdiction to file complaint and accordingly he has filed at Raichur which is a proper and competent Forum to decide the matter. Under such circumstances, the contention of the Respondent in this regard holds no good. Therefore we have rejected the said contention of the Respondent raised under Point No-1. The Point No-2 is concerned, we have perused the Ex.P-3 i.e, driving licence of the driver one who fly the vehicle on the date and time of accident. On perusal of the said document it is very clear that, the driver of the vehicle is having driving licence for to drive LMV. The vehicle involved in the accident is also a LMV. This point is very clear from the RC Book filed under Ex.P-1. On perusal of the said Ex.P-1 particularly at Page No-3 it is clearly motioned under the heads class of vehicle as “Light Motor Vehicle” (LMV. Under such circumstances, the objection raised by the Respondents in this regard holds no water. Hence we have not considered the objection raised by the Respondents. The Point No-3 is concerned, we have gone through the Ex.P-4 to Ex.P-8. No doubt Ex.P-4(1) the statement given by the one Chandrashekarayya the complainant in criminal case has stated that, the vehicle has been taken on rent to visit the Dharmastala and other places and on that basis Respondents might have come to the conclusion that, the vehicle has been used for taxi purpose and further come to the conclusion that the vehicle has been used for commercial purpose. But on perusal of Ex.P-5, i.e, further statement given by the same Chandrashekarayya before the police on the same day is clearly speaks that, he has given his earlier statement under fear and further he has disclosed that, he has taken the vehicle in question on request from the owner. This further statement of complainant clearly goes to show that, the vehicle in question was taken by the driver of the vehicle from the owner on request and not for any rent. Further it is also clearly discloses that, he being a relatives of the inmates he has taken then to the different places without any charge or fair as they were relatives to him. The further statement given by the complainant cannot be discarded because it has been given on the same day before the police. This further statement is also corroborated with the statement of one Mahantamma, Rachamma Nirmala, Neelakantayya, Sarita, Rachayya, Shivakumar and Virupaxayya who have given their statements before the police as per Ex.P-8 to Ex.P-8(7). Under such circumstances, the objection of the Respondents in this regard holds no value. Hence we have not accepted the objection raised by the Respondent in this regard under Point No-3. Therefore we have come to the conclusion that, the vehicle in question on the date and time of the accident was used not for any consideration. Under these circumstances we do not find any reasons to believe that, there is a violation of any policy condition from the complainant as contended by the Respondents. 9. Further on perusal of the Ex.R-1 = Ex.P-14 i.e, Repudiation letter dt. 10-04-10 it is witnessed that, the Respondent Insurance Company has repudiated the claim of the complainant on another one point i.e, the vehicle was carrying 9+1 persons against the capacity of 8+1, but this fact have not seriously raised in their written version or in affidavit-evidence. There is no specific pleading in this regard either in written version or in affidavit. However the crime details form produced under Ex.P-7 clearly speaks that, two of the inmates whose name shown at Sl.No. 3 & 5 are 4 & 5 years children’s and in our view they cannot be treated as a major persons and their count cannot be considered for sitting capacity. Under such circumstances, the ground for repudiation of claim by the Respondents cannot be accepted . 10. The Respondents have categorically admitted the accident and they have also admitted the existence of the policy in question on time and date of accident. Further it is also admitted by the Respondent regarding damage to the vehicle in question and they have also accepted the survey report conduced by the surveyor of their own. Under such circumstances repudiation of the claim as per Ex.P-14 = Ex.R-1 in our view is nothing but a deficiency in service or unfair trade practice. Hence in the above circumstances, we hold that the complainant has proved his case against the Respondents. So point No.-1 is answered in affirmative. POINT NO.2:- 11. The complainant has sought for compensation of Rs. 4,50,000/- along with interest and towards mental torture financial burden etc., and he has also reduced bills under Ex.P-10 to Ex.P-10(4) but the Respondent Insurance Company has produced survey report under Ex.R-1 on perusal of the said Ex.R-1 survey report the surveyor has estimated the net loss to the tune of Rs. 1,96,417.02/- towards damage of the vehicle and Rs. 70,277.65/- towards labour charges totally which amounts to Rs. 2,66,694.67/-. The surveyor has also supported his report by affidavit-evidence. Under such circumstances, the report of the surveyor cannot be discarded and the loss assessed by the surveyor cannot be rejected. Therefore we have not considered the bills submitted by the complainant and accepted the report of the surveyor and loss assessed by him in respect of damages caused to the vehicle in question. Therefore in view of the above circumstances, we have opined that, the complainant is entitled only to the tune of Rs. 2,66,694.67/- towards the damage of the vehicle is concerned with interest @ 9% from the date of complaint. 12 As regards to the compensation is concerned towards mental torture, financial burden etc., is concerned we have convinced that there was a negligence on the part of the Respondents in not settling the claim of the complainant even in spite of their own survey report and several requests, as such we are of the view that, a lumpsum amount of Rs. 10,000/- is awarded as a compensation amount to the complainant, we have awarded an amount of Rs. 3,000/- under the deficiency in service and another amount of Rs. 3,000/- towards cost of this litigation, accordingly we answered Point No-2. POINT NO.3:- 13. In view of our finding 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 entitled to recover a total sum of Rs. 2,82,694.67/-which is rounded to Rs. 2,83,000/- from the Respondents. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 2,83,000/- from the date of the judgement till realization of the full amount. The Respondent has to comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 19-08-10.) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.