BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC 105/10.
THIS THE 21st DAY OF APRIL 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Thimanna V. S/o. Venkappa, Age: Major,
Occ: Agriculture, R/o. H.No. 46, Jalahalli, Block-9, Tq. Deodurga, Dist: Raichur.
//VERSUS//
RESPONDENT :- The Branch Manager, Reliance General
Insurance Company Ltd., Hospet, Tq. Hospet, Dist: Bellary.
CLAIM :- For to direct the opposite to pay a sum of Rs.
75,000/- towards damage of vehicle with 12% interest, Rs. 50,000/- towards shock and mental agony and Rs. 10,000/- cost of the proceedings.
Date of institution :- 29-11-10.
Notice served :- 20-12-09.
Date of disposal :- 21-04-11.
Complainant represented by Sri. T.M. Swamy, Advocate.
Respondent represented by Sri. A.S. Mali Patil, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by the complainant Sri. Thimanna S/o. Venkappa against the Opposite Reliance General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay a sum of Rs. 75,000/- towards damage of vehicle with 12% interest, Rs. 50,000/- towards shock and mental agony and Rs. 10,000/- cost of the proceedings.
2. The brief facts of the complainant case are that, the complainant is the owner and possessor and RC Holder of TATA ACE vehicle bearing No. KA-35/117 and the same was insured with the Respondent company on 30-04-09 and valid till 29-04-10. The said vehicle was met with an accident on 25-07-09 near by Tintini Bridge, when the complainant was returning from Lingasugur. The said accident was occurred due to out of control of the vehicle by the driver and the vehicle was damaged.
Soon after the accident the vehicle was taken to authorize TATA Showroom i.e, BHAGYODAYA TROKHOS PVT. LTD., and got repaired by spending Rs. 75,000/- to the vehicle and submitted claim form to opposite. But the opposite Insurance company has repudiated the claim through letter dt. 15-02-10 on the ground that, the vehicle in question was not having valid fitness certificate to ply over public road and there was a delay in intimating about the accident. It is the case of the complainant that, immediately after the accident he has intimated the Respondent Insurance Company over phone, but the Insurance Company has told to the complainant not to register the case before the police. Hence no complaint has been made before the police. Just in order to harass the complainant the claim has been repudiated through letter dt. 15-02-10. It is just to harass the complainant. Hence he sought for compensation as prayed in the prayer.
3. The Respondent Insurance Company appeared in this case through its Advocate and filed written version contending that, the said vehicle was not having valid fitness certificate, there was delay of (43) days in intimating about the accident, No claim form is submitted by the complainant for the alleged damages. No police case has been registered about the accident. If at all any such accident was taken place the complainant has informed to the company on the same day only as per the policy terms and conditions and complainant has to submit the claim for regarding the accident with all police papers and other documents. The complainant has not submitted the claim form to this opposite Insurance Company and he has not submitted all the documents. Further it is contended that, at no point of time the complainant has intimated about the accident over phone to the opposite company. Above are the facts are clearly goes to show that, there was no accident occurred on the time and date and no damage caused to the vehicle in question. The complainant has filed false and frivolous case against the opposites Insurance Company. Under the above circumstances, the complainant is not entitled for the claim and sought for dismissal of the same with exemplary cost and interest.
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, his TATA ACE bearing No. KA-35/117 was insured with the Respondent Company for a period from 30-04-09 till 29-04-10. The said vehicle was met with an accident on 25-07-09, near by Tintini Bridge and the vehicle was damaged, while Insurance Policy was in force, the vehicle was having valid fitness certificate, the driver of the vehicle was holding valid driving licence, he informed the accident to opposite within in time, but opposite has not settled his claim inspite of repeated oral and written requests, opposite is negligent in settling his claim and thereby opposite found guilty under deficiency in its service.?
2. Whether complainant is entitled for the reliefs as prayed in the 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 judgement and as stated 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 and he was noted as PW-1. The documents Ex.P-1 to Ex.P-8 are marked.
7. On the other hand affidavit-evidence of Deputy Legal Manager of Opposite Insurance Company was filed and he was noted as RW-1. The documents filed by the Respondent are marked at Ex.R-1 to Ex.R-3.
8. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondent insurance company, it is very clear that, the Respondent insurance company has raised four points in their defence are:-
1. The driver of the said vehicle was not holding valid and effective driving licence to drive the light goods carrying vehicle.
2. There was no fitness certificate to the vehicle to ply the same in public place on the date and time of accident..
3. There was delay of (43) days in intimating about the accident and no claim was submitted by the complainant.
4. There was no police case registered regarding the accident, as such there was no accident.
9. In order to substantiate the case of opposite and defence as raised under these points, the opposite insurance company mainly depending upon the Ex.R-1 & Ex.R-3 i.e, Insurance Policy and letter dt. 07-07-09 written by complainant to the Respondent Insurance Company, wherein some of the important terms and conditions are mentioned regarding the claims are concerned and the date on which the complainant has approached the Respondent Insurance Company for to settle his claim. Of course, the terms and conditions mentioned under Ex.R-1 are much more necessary to consider the claims under the policy, but, it is also further more important on the part of the Respondent Insurance Company, to show about the violation of the those terms and conditions mentioned under the policy. But here in this case, the Respondent Insurance Company has raised all the possible terms and conditions for to repudiate the policy, without any documents to show that, they have been violated in support of its their defence raised under the above mentioned points shown under 1, 2, 3, & 4. On the contrary the complainant has produced Ex.P-5 i.e, endorsement issued by the RTO Raichur, which clearly speaks, about the class of vehicle for which driving licence has been issued to the driver, who drives the vehicle. The said document discloses that, the driver who was driving the above said vehicle was holding heavy motor vehicle licence. The vehicle in question is light motor vehicle. Basing on this point, the Insurance Company has raised that, the driver, who drives the vehicle is not having valid driving licence. But the driver one who is having heavy motor vehicle licence, he can drive light motor vehicle also. In support of this we have referred the ruling of the Hon’ble High Court of Karnataka in Srinivasagouda and Another V/s. Smt. Sanamma and others, cited in MACR 2010 (1) 125 (Kar) (DB) wherein, the Hon’ble High Court observed that, one who is having licence for one class or description but vehicle involved in accident was different class or description. It cannot be given any scope to Insurance Company to avoid their responsibility in settling the claim. Under such circumstances, the defence taken about the valid driving licence of the driver, one who is driving the vehicle at the time and date of accident holds no good. Hence defence raised under the Point No-1 by the Respondent cannot be sustainable.
10. Further, if we come to the defence raised under Point No-2, we will not find any reasons, to believe that those defences are proper and believable one, because, the complainant has produced some of the documents under Ex.P-1, Ex.P-4 i.e, sale certificate and temporary certificate of registration respectively. On perusal of the said documents, it appears that, the vehicle in question has been purchased from the complainant on 30-04-09 and same has been temporarily registered by the RTO, Hospet, on the same day after inspecting the said vehicle. The accident was took place on 27-05-09, within one month from the date of purchase. Under these circumstances, it cannot be said that, the vehicle in question is not having proper fitness to ply in the public place. On the contrary, the Respondent Insurance Company has not produced any documents to show that, the vehicle was not running without any fitness certificate. Under such circumstances, the version of Respondent cannot be believed because, when they are making proper allegations against the vehicle in question. The burden lies upon them to prove the same. Hence the contention under Point No-2, cannot be accepted.
11. Under this point the Insurance Company has raised their objections regarding delay in (43) days in intimating about the accident, but the case of the complainant that, immediately after the accident, he has contacted the Respondent over phone and intimated about the accident, but same was denied by Insurance Company. The Respondent Insurance Company in this regard mainly relying upon the Ex.R-3 i.e, letter dt. 07-07-09. No doubt, the said letter has been written by the complainant to the Respondent Insurance Company on 07-07-09 and explained about the accident and also requested to settle the claim. The Respondent Insurance Company claiming that, immediately after the accident intimation is to be given to the Insurance Company, failing which insurance company is not liable. In this regard they are relying upon the Hon’ble National Commission Case ie, First Appeal No. 321/2005 of New India Assurance Company Ltd., V/s. Trilochana Jane Case. On perusal of the said judgment, the facts involved in that case and facts involved in the case on hand, are quite different. Under such circumstances with great respect, we have not considered the ruling submitted by the Respondent. Even though there is a violation of policy condition of such kind the claim of the complainant cannot be rejected out rightly on technical ground and more particularly which are not touching to the rots of the terms and conditions of the policy. In this regard we have referred ruling of Hon’ble Orissa State Commission, in Oriental Insurance Company ltd., V/s. Kandha Nayak Case cited in IV (2009) CPJ 96. Hence we have not considered the objection of the Respondents regarding delay in intimating about the accident.
12. Further, the Insurance Company has raised objection regarding no police case about the accident as per Point No-4, we have gone through the policy, which has been given to the complainant in respect of his vehicle is concerned, which is marked under Ex.P-2. But no where in the said policy it has mentioned that, the registration of police case is necessary to get compensation under the policy. Under such circumstances, raising objection in this regard by the Insurance Company holds no good. In his regard, we have referred the Hon’ble National Commission Case cited in II (2009) CPJ 216 (NC) of Oriental Insurance Company Ltd., V/s. Sureshsingh and Another Case wherein, the Hon’ble National Commission categorically observed that, filing of FIR not compulsory to claim compensation under policy. The present case of Hon’ble National Commission aptly applicable to the case of complainant. Hence, we have considered the same and come to the conclusion that, the objection raised by the Insurance Company in this regard is fit to be rejected. Further, the Insurance Company has also strongly contended that, there was no submission of claim or necessary documents to settle the claim by relying upon the ruling of Hon’ble Maharastra State Commission of First Appeal No. 52/2009 @ Misc. Appeal No. 90/2009 in Consumer Complaint No. 116/2007 of DCF Thane. This contention of the Respondent is two technical one, where they are admitting the accident and the surveyor has conducted the survey regarding the loss to the vehicle, it cannot be a good ground to reject the claim on the ground that, no claim has been registered or no documents were submitted. Further it is not the case of Respondent that, even inspite of several requests, made by the Insurance Company, the complainant has not submitted the documents. Hence, the objection in this regard raised by the Insurance Company is hereby rejected as it is against the natural justice. Under the above circumstances, when there is no case against the complainant as alleged by the Respondent Insurance Company under Point Nos. 1 to 4, it cannot be said that, the complainant is not entitled to claim against the Respondent Insurance Company. Hence, we hold that there is a deficiency on the part of the Respondent in settling the claim of the complainant. So we answered Point No-1 in affirmative.
POINT NO.2:-
13. The complainant has sought compensation of Rs. 75,000/- towards damage of the vehicle, Rs. 50,000/- towards compensation for mental harassment and Rs. 10,000/- towards cost of the proceedings. The complainant has produced copy of the bills under Ex.P-6, Ex.P-6(1), Ex.P-7, Ex.P-7(1) Ex.P-7(2) for an amount of Rs. 65,000/- to get repair the vehicle involved under the accident. On the contrary the Respondent Insurance Company produced survey report under Ex.R-1 wherein, the surveyor has assessed the total loss to the tune of Rs. 41,000/-. Now the question before us that, whether the complainant has technically 100% right in claiming his claim or not. In this regard, if we gone through the pleadings of both the parties, we found that, some technical aspect have not been complied on the part of complainant, hence under such circumstances, we have decided to award the compensation on non standard basis. If we, considered the claim of the complainant under said non standard basis, the complainant is entitled to receive the compensation only 75% of admissible claim. However, we do not find much more difference between the 75% of the admissible claim and the total loss assessed by the surveyor. Hence we have come to the conclusion that, to award the global compensation of Rs. 50,000/- towards damage of the vehicle which is proper and just as it is very near to the loss assessed by the surveyor.
14. Regarding the interest is concerned, we have awarded 9% interest on the total compensation amount from the date of filing of the complaint to till its realization.
15. We have noticed the deficiency in service on the part of the Opposite Insurance Company, as such, we have granted an amount of Rs. 3,000/- which is recoverable by the complainant from the Opposite under the head of deficiency in service.
16. As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 3,000/- towards cost from Opposite Insurance Company.
POINT NO.3:-
17. 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. 56,000/- with interest at the rate of 9% from the Respondent Insurance Company from the date of complaint till realization of full amount.
Respondent Insurance Company is hereby given one month time from the date of the judgement for to make payment of the total amount with interest.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 21-04-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
