Karnataka

Chitradurga

CC/668/2019

Sri.Ekanthappa.A.C S/o late chandrappa, - Complainant(s)

Versus

The Branch Manager,The New india Assurance co Ltd., - Opp.Party(s)

Sri.K.S.Vijaya,

10 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:668/2019

DATED: 10^th AUGUST 2022

PRESENT: Sri.  M.I.SHIGLI. B.A., LL.M., PRESIDENT

 

                 Smt. B.H. YASHODA. B.A., LL.B., LADY MEMBER

 

                    

……COMPLAINANT/S	Sri.Ekanthappa. A.C S/o late Sri Chandrappa., Aged about 33 years, Agriculturist, R/o Arasanagatta village, Holalkere Taluk, (Rep by Advocate Sri. K.S.Vijaya)
V/S
.….OPPOSITE PARTY/S	1 . The Branch Manager, The New India Assurance co Ltd., Branch office, NR Road,Davangere. (Rep by Advocate S.N.Ponesha)   2 . The Branch Manager, Canara Bank, Chikkajajur, Holalkere Taluk.   (Rep by Advocate C.R. Shabbir Ahamed)

:ORDER:

 

Sri. M.I.SHIGLI. B.A., LL.M., PRESIDENT

 

       The present complaint is filed U/s 12 of CP Act 1986, Seeking the monetary relief like Rs.58,770/- towards loss & damage to vehicle.
Rs. 15,000/- towards travelling expenses, Rs.10,000/- towards Legal expenses, and Rs.50,000/- towards loss of earning mental agony  on the ground of deficiency of service.

 

BRIEF FACTS OF THE CASE:

1. The complainant claims to be the son of one deceased Sri Chandrappa, who was the owner of the car bearing its “Skoda Activa” Reg. No.KA16N1847, which was purchased with the financial assistance of OP No.2 bank, for which it is arraigned as OP No.2.
The said Sri Chandrappa died on 24/01/2018.

 

2. On 03/05/2018 at about 7 pm as stated by the complainant when the above said vehicle was parked in the car shed, due to heavy rain and wind there occurred, the car shed was destroyed, owing to which the above mentioned car was damaged. This fact is stated to be informed to the OP No.1 and 2, and on the instructions of OP No.1, the vehicle in question was shifted to workshop i.e. Tafe Access Ltd., Bengaluru which was compiled with by the complainant. The agent of
OP No.1 conducted survey. The OP No.1 assured that, the expenses are to be borne by the complainant, which shall be reimbursed by OP No.1.

 

3. The vehicle in question was repaired with, at a cost of Rs.58,770/-by the complainant which came to be submitted to the OP No.1 for reimbursement, and complainant claimed for settlement of his claim to OP No.1, who in turn has repudiated the claim assigning reasons, that, ownership is not changed within 90 days  after the death of original owner.

 

4. This in turn has ended up in issuance of legal notice to the OP No.1 and consequently filing this complaint as OP No.1 has not responded to the same.

 

5. This commission after registering this complaint ordered for issuance of notice to OPs, wherefor OPs have made their appearance, through their respective counsels and have filed their version.

 

The OP No.1 has tacitly admitted the, ownership of the vehicle and it being its insurer. But has stated, interllia in para No.5 of its version that “on the date of the alleged accident, complainant has not transferred the policy in his name, and there is no contractual agreement in between complainant with this OP No.1, when there is no contractual agreement with this OP No.1 is not liable to indemnify the complainant. Hence OP No.1 repudiate the claim of the complainant”.

 

        6. Though, as stated above OP No.2 is a formal party to this proceedings  has filed its version, and has stated in para No.2 and 3 on page No.2 of its version, that…

        “The father of complainant by name Sri Chandrappa and complainant jointly avail the loan for the purchase of Skoda Active Car from the OP. No.2 Bank in the year 2015, by executing the mercenary loan documents in favor of the OP No.2 and further the father of the complainant and complainant hypothecated the said vehicle in favor of complainant No.2, as on to day the borrower i.e. the complainant paying the installments and the loan was in force with the OP No.2. Bank”.

         “It is submitted that the said vehicle is insured with the OP No.1 and the complainant had paid the policy amount, and the policy is in force at the time of alleged incident stated in the complaint, hence the OP No.1 is sole, up held liable to pay all the damage caused to the said vehicle as alleged in the complaint if the complaint prove his case, as such the OP No.2 nowhere consent with transaction/agreement of complainant and the OP No.1, the OP No.2 is only financier to the complainant to purchase the said vehicle”.

The OP No.2 claims it to be an unnecessary party to this suit, and accordingly claimed for compensatory cost of Rs.10,000/- U/s 26 of CP Act.

 

        7. Having entered the stage of submission of evidence, the complainant got himself examined as PW-1 and got marked Exhibits at Ex.A-1 to A-9 and closed his side. The OP No.1 also lead evidence on its behalf through its branch manager and got marked Ex.B-1 to B-3. Though OP No.2 has filed its version, but has not chosen to examine any witness, nor produced any documentary evidence.

        8. On the assessment of the above facts, the following points arise for our consideration Viz.

 

1. Whether the complainant proves that, he is the consumer of OPs?
2. Whether the complainant further proves any deficiency of service on the part of OPs?
3. What order?

 

9.The findings of this commission on the Points for consideration are as below.

Point No.1: In the affirmative

Point No.2: In the affirmative

Point No.3: As per the final order for the following.

 

:REASONS:

10. We have heard, counsels on either side, perused, the oral and documentary evidence placed on record.

The first and for most issue is, to look into the matter as to the, status of the complainant as consumer of OPs. As could be gathered from the cursory reading of S2 (1) (d) of CP Act 1986 makes it clear that, the present complainant is the beneficiary of such service of OPs. Added to this the OP No.2 has filed its version, where it is found that… 

“The father of complainant by name Sri Chandrappa and complainant jointly availed the loan for the purchase of Skoda Activa Car from the OP. No.2 Bank in the year 2015, by executing the mercenary loan documents in favor of the OP No.2 and further the father of the complainant and complainant hypothecated the said vehicle in favor of OP No.2, as on to day the borrower i.e. the complainant paying the installments and the loan was in force with the OP No.2. Bank”.

This discloses the analogy that, the complainant is consumer of OP No.1 & 2. This compels us to hold Point No. (a) in the affirmative and we hold accordingly.

 

11. Reverting back to Point No.2 for consideration the deficiency of service shall be understood in the sense, spoken at S.2(1)(g) of CP Act 1986. We shall not be oblivious of the cumulative reading of these provisions to assess the legal concept of ‘deficiency’.

 

12. The case in hand is to be seen through the written and oral evidence available on record. Nothing prevents this commission to summarise the defense of OP No.1 in repudiating the policy is, non transfer of ownership of vehicle on the day of mishap, said to have occurred on 03/05/2018. This fact is also not disputed by the OP No.1, by production of Ex.B3 which is survey report. But the only defense put forth by the OP No.1 is, found at Ex.B-2.

 

 

13. We have gone through the recent judgement of the Apex Court in the matter of Gurmet Singh V/s National Ins. Co. reported in 2022 (2) CPR 390.SC where the apex court has hauled up the insurance companies. It’s observed there. “In many cases, it is found that, the insurance companies are refusing claim on flimsy grounds and/or technical ground’’.

 

14. In another case in the matter of Dharmendra Goel V/s Oriental Ins. Co. Ltd. reported in 2008 CTJ 917 SC the Apex court has held that, “The insurance companies being in dominant position often act in an unreasonable manner and after having the value of particular insured goods disown that, very figure on one pretext or the other when called upon to pay compensation. This “take it or leave it’’ attitude is clearly unwarranted, not only as being bad in law but ethically indefensible”.

 

15. Ex.B-3 explicitly makes it clear that, the surveyor has conducted the survey and assessed the damage “as per the intimation from M/s New India Assurance Company Motor OD Claim Hub Reg. office at Bengaluru”.

 

16. Such being the facts, the OP No.1, for the reasons best known to it, has unilaterality repudiated the claim of the complainant.

 

Hence we answer Point No. (b) in the affirmative.

17. For the foregoing reasons discussed supra, we proceed to pass the following.

::ORDER::

        The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby allowed in part, viz.

 

1. The OP No.1 shall settle the claim of complainant as per Ex.B-3 i.e. at Rs.51,507.54/-

 

2. The OP No.1 shall be liable to pay the toeing charges at the rate of Rs.10,000/- to the complainant.

 

 

3. The OP No.1 shall be liable to pay Rs.5,000/- towards legal charges/litigation expenses.

 

 

 

 

4. The OP No.1 shall be liable to pay Rs.25,000/- towards mental agony /Pain/suffering.

The aggregate amount shall be paid within a period of 30 days from the date of this order. Failure of same shall carry interest at the rate of 9% p.a. from the date of petition till its realization.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 10^th August 2022.)

 

 

 

     LADY MEMBER                                        PRESIDENT

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

1. Sri.Ekanthappa. A.C S/o late Sri Chandrappa

Witnesses examined on behalf of Opponent No.1:

DW-1:- Sri A.M. Shekaraiah S/o Mudalaiah

Witnesses examined on behalf of Opponent No.2:

DW-2:- Pradeep Patil G S/o Channabasvana Gowda

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Certificate of Registration (RC Card) copy
02	Ex-A-2:-	Certificate copy of Policy dated 19/01/2018
03	Ex-A-3:-	Tafe Access Limited Workshop order dated 08/05/2018
04	Ex-A-4:-	The New India Assurance Co. Ltd. letter dated 19/01/2019
05	Ex-A-5:-	Legal Notice dated 30/10/2019
06	Ex-A-6:-	Postal Acknowledgement
07	Ex-A-7:-	Death certificate
08	Ex-A-8:-	Adhar Card copy (Attested copy)
09	Ex-A-9:-	Driving licence copy (Attested copy)

 

Documents marked on behalf of opponent No.1:

 

01	Ex-B-1:-	Certificate copy of Policy dated 19/01/2018
02	Ex-B-2:-	The New India Assurance Co. Ltd. letter dated 17/01/2019
03	Ex-B-3:-	Final survey report dated 11/12/2018

 

 

Documents marked on behalf of opponent No.2:

 

01	Ex-B-4:-	Certificate copy of Insurance & Policy dated 19/01/2018
02	Ex-B-5:-	Annexure to Agreement NF 928
03	Ex-B-6:-	Loan Agreement dated 10/12/2015
04	Ex-B-7:-	Statement of Account dated 23/11/2021

 

 

LADY MEMBER                                           PRESIDENT

 

 

GM