COMPLAINT FILED ON 18/04/2022

 DISPOSED ON 03/05/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:65/2022

DATED:03/05/2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

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

                  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER                

:JUDGEMENT:

Order Delivered by Hon’ble President, Kum. H.N. MEENA.

The complainants have filed this complaint under section 35 of Consumer Protection Act, 2019 for seeking the relief by praying to direct the opponent to pay Rs.1,62,149/-, to the complainant towards the loss caused to the complainant vehicle and Rs.50,000/- towards the cost of the proceedings and grant such other reliefs as  deems fit and proper in the  interest of Justice. 

2. The brief facts of the complaint:

The complainant is registered R.C. Owner of the vehicle Three wheeler Goods, Ape Piaggio bearing No.KA-16-C-5970 with Chassis and Engine No. MBX0000ZBUF307359/S6F8576318. The said vehicle insured with the opponent vide policy No.472108/31/2021/4034 and same is valid from 05-01-2021 to
04-01-2022 and opponent is the insurer of the said vehicle. The complainant is running his vehicle for his livelihood and he is lead his life on the income of the said vehicle with his family.

3. Complainant alleged that, the said vehicle met with an accident on 14-08-2021 at about 9-45am due to hit to another lorry which standing lorry bearing No. MH-14-GU-3689 near Sibara Grama, in front of Goshale on NH-48 Road, and said vehicle is completely damaged. Front wheel and mud guard damaged, front fork and suspension systems damaged, front body shape completely damaged, front both side head light and indicator damaged, front windscreen glass and wiper systems damaged, front both doors glasses damaged, both side rear view mirrors damaged. The Complainant has purchased spare parts for Rs.1,25,149/- to replace the damaged parts as per pill issued by the Busnoor Enterprises, Chitradurga. The complainant has spent totally
Rs. 1,62,149/towards the replacement and repair charges of the said damaged vehicle with labour charges.

4, The complainant has intimated on 25-08-2021 towards the accident caused to the vehicle and damages caused to the vehicle and made claim with the opponent. The opponent’s insurance company has deputed the surveyor for assessment of the damaged vehicle and the surveyor assessed the loss and submitted report to the opponent and the complainant has not received any report from the opponent surveyor. The complainant has collected the survey report on filing the application under the RTI Act. The Surveyor has not assessed the damaged vehicle properly and surveyor is assessed meager amount for damage of the vehicle, The complainants vehicle completely damaged and he has also purchased spare parts and the complainant has spent more than Rs. 10,000/- towards the labour and repair charges, And the complainant, the ‘spare parts for the worth of rupees 1,25,149/-but the surveyor is assessed Rs.93,725/-and labour charges assessed Rs.5,000/-instead of 10,000/-

5. That on 02-11-2021, the opponent has repudiated the claim of the complainant on the grounds that at the material time of the accident the driver did not have possess a valid and effective driving license to drive the vehicle, It is respectfully submitted that the complainant driver is having valid and effective driving licence at the time of the run the vehicle. The opponent has repudiated the claim on the false grounds, which amounts to deficiency in service on the part of the opponent. The opponent is committed unfair trade practice towards the complainant. Due to the repudiation of the claim, the complainant has suffered from shock and mental agony and loss caused to the complainant. Hence the opponent is liable to pay loss of Rs.1,62,149/caused to the complainant’s vehicle with compensation. Hence the complainant has filed this complaint.

6. After registering the complaint, The Hon’ble Commission has issued Notice to opponent, notice duly served on 28/04/2022 opponent has appeared through its counsel and filed their version.   

7. The opponent submits that the complaint filed by the complainant is not maintainable in law, facts and circumstances of the case. The averments stated in Para 2 of the complaint stating that the complainant is R.C-owner Ape Piaggio bearing Reg.No.KA16-C-5970 and the said vehicle is insured with this opponent insurance company vide policy No.472108/31/2021/4034 and the same is valid from 05-01-2021 to 04-01-2022 is true. Further averments of the same Para 2 are not known to this opponent Insurance Company. The complainant has to put strict proof of the same.

8. Further submitted that the averments stated in Para 3 of the complaint is partly true and the said vehicle met with accident Near Sibara Grama, infront of Goshale on NH-48 road on 14-08-2021 and this opponent puts the complainant to the strict proof of the same by documentary evidence. Further averments stated in Para 3 of the complaint stating that the complainant purchased the spare parts for Rs.1,25,149/-to replace the damaged parts and he spend total Rs.1,62,149/-towards replacement and repair charges of the said damaged vehicle with labour charges are not admitted by this opponent Insurance Company. The opponent Insurance Company puts the complainant for the strict proof of the same.

9. The averments stated in Para 4 of the complaint are partly correct. The intimation to the Opponent Company and the appointment of surveyor for assessment is true and correct. Further as the rules of Insurance Company the copy of survey report from the surveyor would not be shared to the complainant by the surveyor. Hence the copy was not given by the surveyor to the complainant.

      10. Further averments stated in Para 4 of the complaint stating that the surveyor has not assessed the vehicle properly and assessed the meager amount for damage of vehicle is false and incorrect. The amount-spend by the complainant towards labour, repair charges, spare parts are properly assessed by the Surveyor. The Surveyor assessed the final amount after depreciation is deducted on metal parts, rubber / fiber parts except glasses which comes to Rs.66,574/-on 11-10-2021. Hence the question improper assessment is frivolous and not tenable in law.

11. It is submitted that the averments stated in Para 5 of the complaint are partly true i.e., On 2-11-2021 the opponent has repudiated the claim of the complainant on the grounds that at the material time of   the accident the driver did not possess a valid and effective driving license to drive the vehicle, Further averments of the Para 5 are all false, incorrect and concocted by the complainant for the sake of this case. Further there is no deficiency in service by Opponent Company. Hence, the complaint is liable to be dismiss in limine.

12. Without prejudice it is submitted that the for settling the O.D claim the driver of vehicle has to holds an effective D.L at the time of accident. That on the alleged date of accident D.L was not valid & effective & the complainant has violated the terms & conditions of policy. Hence the Opponent company informed the complainant through R.P.A.D on 02-11-2021 as the claim was repudiated for the reason “At the material time of accident the driver did not possess a valid and effective driving license to drive this class of vehicle which leads to violation of motor vehicles act & the insurance policy terms & conditions”.

13. All other averments which have not been specifically admitted by this opponent company are all hereby denied as false, incorrect and not admitted by this opponent and the complaint has to put strict proof of the same. Complaint is not sustainable in law and the same is filed with a malafide intention to make unlawful gain. The complainant is not entitle for the relief as sought for the in the prayer column of the complaint. Hence, it is respectfully prayed that the Hon’ble court may kindly be pleased to dismiss the complaint against this opponent company with costs.

14. The complainant got himself examined as PW-1 by filing her affidavit as  a part of examination-in-chief  and the documents Ex.A-1 to Ex.A-7 were got marked and closed their side evidence.

15. The opponent have examined as DW-1 and the documents were not marked closed the evidence on their side Complainant and opponents have filed their written Arguments, Arguments of Complainants and Opponent were heard.

        16. Now, the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that the opponent is negligent and there is deficiency in service?
2. Whether the complainant is entitle for reliefs as sought in the complaint?
3. What order?

17. Our finding on the above points are as follows:

a) (i) Affirmative.

b) (ii) Partly in Affirmative.

c) (iii) As per final order.

REASONS

18. Point No.1 & 2: The complainant complained is that, The complainant is registered R.C. Owner of the vehicle Three wheeler Goods, Ape Piaggio bearing No.KA-16-C-5970 with Chassis and Engine No. MBX0000ZBUF307359/S6F8576318. The said vehicle insured with the opponent vide policy No.472108/31/2021/4034 and same is valid from 05-01-2021 to 04-01-2022 and opponent is the insurer of the said vehicle.

19. The complainant is running his vehicle for his livelihood the above said vehicle met with an accident on 14/08/2021 at about
9-45am due to hit to another lorry which standing lorry bearing No. MH-14-GU-3689 near Sibara Grama, in front of Goshale on NH-48 Road, and said vehicle is completely damaged.

20. In this regard, the complainant has intimated on 25-08-2021 towards the accident caused to the vehicle and damages caused to the vehicle and made claim with the opponent. The opponent’s insurance company has deputed the surveyor for assessment of the damaged vehicle and the surveyor assessed the loss and submitted report to the opponent. The Surveyor has not assessed the damaged vehicle properly and surveyor is assessed meager amount for damage of the vehicle, the complainant has spent more than Rs. 10,000/- towards the labour and repair charges, And the complainant has purchased the ‘spare parts for the worth of Rs.1,25,149/-but the surveyor is assessed Rs.93,725/- and labour charges assessed Rs.5,000/-instead of 10,000/-

21. On 02-11-2021, the opponent has repudiated the claim of the complainant on the grounds that at the material time of the accident the driver did not have possess a valid and effective driving license to drive the vehicle, in this background of above said fact, we perused the documents of complainant that is F.I.R. Chargesheet, Statement of complainant, Repudiation letter, Request for information under RTI Act 2005, Survey report, Photos and Driving licence of Kiran.A., Registration certificate of complainant vehicle. The above said documents are public documents and having evidentiary values and also having statutory prominence on these documents taken into consideration in believing the alleged accident.

22. The insurance company has taken the contention that for settling the O.D claim the driver of vehicle has to holds an effective D.L at the time of accident. That on the alleged date of accident D.L was not valid & effective & the complainant has violated the terms & conditions of policy. Hence the Opponent company informed the complainant through R.P.A.D on 02-11-2021 as the claim was repudiated for the reason “At the material time of accident the driver did not possess a valid and effective driving license to drive this class of vehicle which leads to violation of motor vehicles act & the insurance policy terms & conditions”.

23. In this regard, we observed the Ex.A-6, it is very clearly reveals the truth that, deceased Kiran.A., has having valid and effective D.L. at the time of accident it is valid from 07/12/2019 to 31/03/2040. Driving licence is exist at the time of accident. The complainant has proved the deficiency in service on the part of the OP. Ex.A-7 is R.C. of complainant, the complainant is RC owner of the vehicle three wheeler goods Ape Piaggio bearing No.KA-16-C-5970. The said vehicle insured with the opponent vide Policy No.472108/31/2021/4034 and same is valid from 05/01/2021 to 04/01/2022 at the time of accident the insurance policy is exist.  

24. The complainant has prayed for Rs.1,62,144/- towards the purchase spare parts and repair charges. But it is not support by evidence. The complainant has submitted the survey report. In this the loss is assessed at Rs.66,574/-

25. The report of the surveyor is an important document in settling the claim of the  insured vehicle, for this, we rely on ruling reported in 2008 (4) CPR 83 (NC) The National Insurance Company Ltd., through its Branch Manager and another V/s Shree Shyam Cold Storage through its Director.  

“Report of the surveyor appointed under the provision of  

  Insurance Act has to be given greater importance”

26. The complainants are proved deficiency in service on the part of OP, he is entitled for Rs.66,574/- and claim for compensation. Mental agony and cost of proceeding of Rs.15,000/- along with interest accordingly we answer the Point No. 1 and 2 Partly in the affirmative.

The complainant has submitted the citations, Judgment of Supreme Court of India, New Delhi, Civil Appeal No.5826/2011 Mukund Dewangan V/s Oriental Insurance Co. Ltd., and Judgment of Supreme Court of India, CA No.5412 of 20107 arising out of SLP © No.23853 of 2013 New India Assurance Co. Ltd., V/s Shanti Bopanna and others.

27. Point No.3:  Hence, in the light of above discussion we proceed to pass the following.

::ORDER::

1. The complaint filed by the complainant U/s.35 of Consumer Protection Act, 2019 is Partly allowed.

2. The OP, shall pay Rs. 66,574/- towards compensation along with interest at the rate of 6% p.a. from the date of complaint to the complainant.

3. The OP, shall pay Rs.15,000/- towards the mental agony and cost of proceeding to the complainant.

4. The OP, shall pay the above said award amount within 30 days from the date of this order.

5. Send the free copies to both parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 03^rd May 2023.)

  Sd/-                                      Sd/-                                Sd/-

     LADY MEMBER                MEMBER                 PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1:- Sri Ashoka S/o. Nagarajappa by way of   affidavit of   

            evidence.

Witness examined behalf of opponent:

DW-1:- Sri Ajith.M. S/o Ranganath.M.  by way of affidavit

           of evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil

           Sd/-                                      Sd/-                                Sd/-

     LADY MEMBER                MEMBER                 PRESIDENT

GM**