Karnataka

Chitradurga

CC/62/2016

Sri.K.R.Ramesh s/o Rudrappa - Complainant(s)

Versus

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

Shri.K.R.Rangaswamy

13 Feb 2017

ORDER

COMPLAINT FILED ON:21.06.2016

DISPOSED      ON:13.02.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 62/2016

 

DATED:  13^th FEBRUARY 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                                 B.A., LL.B.,                   

……COMPLAINANT	K.R. Ramesh S/o Rudrappa, Age: 52 Years, Owner of Sumo SE   KA-16 B-1004, R/o New Bus-stand Road, Hosadurga Town.      (Rep by Sri. K.R. Rangaswamy, Advocate)
V/S
…..OPPOSITE PARTIES	The Branch Manager, Oriental Insurance Co. Ltd., Branch Office, Sri Sharada Complex, I Floor, Opp: KSRTC Bus Stand, Chitradurga-577501.   (Rep by Sri. O.L. Gnanesh Kumar, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OP to pay Rs.6,30,363/- with interest at 12% p.a, Rs.1,00,000/- towards loss, mental agony and such other reliefs.

2.      The brief facts of the case of the above complainant are that, complainant is the RC owner of Sumo SE bearing Reg. No.  KA-16 B-1004 and the same was insured with OP under policy No.472108/31/2013/4688 valid for the period from 29.11.2012 to 28.11.2013.  It is further submitted that, on 21.02.2013 at about 11-30 PM, the complainant along with his wife and two others were proceeding from Davanagere to Hosadurga in TATA Sumo SE bearing Reg. No.KA-16 B-1004. While said vehicle was proceeding near Madhure Dibba, Hosadurga Taluk, the complainant lost his control over the vehicle, due to sudden burst of left side tyre and the said vehicle hit to the road side tree and caused accident.  Due to the said accident, the complainant and other were sustained injuries and the vehicle was completely damaged.  It is further submitted that, after the accident, the complainant took the vehicle to TATA Motors i.e., Adishakthi Cars Pvt. Ltd., No.21, Shankarmat Road, Sheshadripuram, Shimoga to get it repair wherein the concerned Authority have estimated its repairs at Rs.6,30,363/- and the vehicle is laying in the premises of Adishakthi Cars Pvt. Ltd., No.21, Shankarmat Road, Sheshadripuram, Shimoga for repairs.  It is further submitted that, the complainant has intimated the same to the OP, the OP have promised to settle the claim of the complainant at initial stage.  Later the OP postponed the matter on one or the other pretext and later on OP has kept deaf ears.  In this regard, the complainant has requested the OP several times, but the efforts made by the complainant went in vain. Till today the OP has not settled the claim of the complainant thereby he has committed deficiency of service towards the complainant.  Hence, the complainant has suffered both financially and mentally.  It is further submitted that, the complainant has got issued legal notice to the OP on 13.05.2016 requesting the OP to settle the claim of the complainant.  The said notice was duly served upon the OP.  In spite of service of notice, the OP has issued reply notice dated 02.06.2016 through his counsel by making false allegations and not settled the claim of the complainant till today.  It is further submitted that, the cause of action arise for the complaint when complainant obtained policy from the OP and got issued legal notice to the OP is within the jurisdiction of this Forum. 

3.      The complainant also filed an application u/Sec.5 of Limitation Act with affidavit for condonation of delay in filing the complaint.        

4.      On service of notice OP appeared through Sri. O.L. Gnanesh Kumar, Advocate and filed version along with objections to the I.A U/Sec. 5 of Limitation Act stating that, the complaint filed by the complainant is not maintainable in law, facts and circumstances of the case.  The application filed by the complainant for condoning the delay in filing the complaint is not sustainable in law.  The complainant has sworn a false affidavit, incorrect and concocted documents for the sake of this case.  There is no cause of action arose for the complaint as stated in the complaint.  The complainant never specifically stated in his affidavit about how many days delay for filing this complaint. 

5.      It is further submitted that, the averments made in para 2 of the complaint are true and correct.  The averments made in para 3 of the complaint are partly true and correct.  Further the vehicle met with an accident near Madhure Dibba, Hosadurga Taluk on 21.02.2013, and the complaint is strict proof of the same on documentary evidence.  The averments made in para 4 of the complaint are denied as false.  The averments made in para 5 of the complaint are partly admitted i.e., the OP company has postponed the matter on one or other pretext, later the OP company have kept deaf ears, not properly responded and not properly taken any decision for settlement are denied as false.  It is further submitted that, the OP Company has issued a letter on 03.08.2013 to settle the O.D claim and the said letter was duly served on him but, no response was made by the complainant.  Then again the OP company issued a reminder letter dated 08.01.2014 to produce valid and effective DL.  On 17.01.2014 the complainant has replied and furnished some documents.  It is further submitted that, on the date of alleged accident, the Driver was not having valid DL and the complainant violated the terms and conditions of the policy.  The OP company informed the complainant through RPAD on 24.01.2014 stating that, the claim of the complainant was repudiated for the reason “at the material time of accident the Driver have not valid and effective DL it leads to violation of Policy Terms and Conditions and clauses of the Central Motors Vehicles Act.  It is further submitted that, the final repudiation letter was duly served to the complainant and the claim of the complainant was closed.  It is further submitted that, the complaint filed by the complainant is barred by limitation.  Hence, on this ground also, the above complaint is liable to be dismissed and all the averments made in remaining paras are all false and frivolous and untenable in law and therefore, there is no deficiency of service on their part and prayed for dismissal of the complaint.                

6.      Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-12 were got marked. On behalf of OP, one Sri. H.N. Govindaraj, Divisional Manager has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to B-8 documents have been got marked.   

7.      Arguments of both sides heard.

8.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service in settling the claim made by him and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          9.      Our findings on the above points are as follows:-

          Point No.1:- Partly in Affirmative.

          Point No.2:- As per final order.

REASONS

10.    It is not in dispute that, complainant is the RC owner of Sumo SE bearing Reg. No.KA-16 B-1004 and the same was insured with OP under policy No.472108/31/2013/4688 which was valid for the period from 29.11.2012 to 28.11.2013.  On 21.02.2013 at about 11-30 PM, the complainant along with his wife and two others were proceeding from Davanagere to Hosadurga in TATA Sumo SE bearing Reg. No.KA-16 B-1004 and the same was proceeding near Madhure Dibba, Hosadurga Taluk, due to sudden burst of left side tyre, the complainant lost his control over the vehicle and hit to the road side tree and caused accident and all of them were sustained injuries and the vehicle was completely damaged.  The complainant took the vehicle to TATA Motors i.e., Adishakthi Cars Pvt. Ltd., No.21, Shankarmat Road, Sheshadripuram, Shimoga to get it repair wherein the concerned Authority have estimated its repairs at Rs.6,30,363/.  The complainant has also intimated the same to the OP, the OP have promised to settle the claim of the complainant at initial stage, but postponed the same on one or the other pretext.  The complainant requested the OP several times, but it went in vain.  Till today the OP has not settled the claim of the complainant, which is a deficiency of service which caused both financial and mental agony to the complainant. 

11.    In support of his contention, the complainant has filed his affidavit evidence and reiterated the contents of complaint and relied on the documents like R.C marked as Ex.A-1, Copy of policy marked as Ex.A-2, Receipt for having collected premium marked as Ex.A-3, Copy of the FIR marked as Ex.A-4, Statement of one Smt. Sowbhagyamma marked as Ex.A-5, Copy of Charge Sheet marked as Ex.A-6,  Motor Vehicles Accident Report marked as Ex.A-7, Spot Mahazar marked as Ex.A-8, Invoice marked as Ex.A-9,  Copy of Legal Notice marked as Ex.A-10, Postal Receipt and acknowledgement marked as Ex.A-11 and Reply Notice marked as Ex.A-12.

12.    On the other hand, it is argued by the OP that, the vehicle met with an accident near Madhure Dibba, Hosadurga Taluk on 21.02.2013 and the complaint is put to strict proof of the same on documentary evidence.  The averments made in para 4 of the complaint are denied as false.  The averments made in para 5 of the complaint are partly admitted i.e., the OP company has postponed the matter on one or other pretext, later the OP company has kept deaf ears, not properly responded and not properly taken any decision for settlement are denied as false.  The OP Company has issued a letter on 03.08.2013 to settle the O.D claim and the said letter was duly served on him but, no response was made by the complainant.  Again the OP company issued a reminder letter dated 08.01.2014 to produce valid and effective D.L.  On 17.01.2014 the complainant has replied and furnished some documents.  It is argued that, on the date of alleged accident, the Driver was not having valid DL and the complainant violated the terms and conditions of the policy.  The OP Company informed the complainant through RPAD on 24.01.2014 stating that, the claim of the complainant was repudiated for the reason “at the material time of accident the Driver have not valid and effective DL, which leads to violation of Policy Terms and Conditions and clauses of the Central Motors Vehicles Act.  The final repudiation letter was duly served to the complainant and the claim of the complainant was closed and the complaint filed by the complainant is barred by limitation and the above complaint is liable to be dismissed as there is no deficiency of service on the part of OP and prayed for dismissal of the complaint.        

13.    In support of its contention, the OP has filed affidavit evidence of its Manager (Legal) and reiterated the contents of version and relied on the documents like endorsement issued by RTO regarding DL of the complainant marked as Ex.B-1, RC Book marked as Ex. B-2 stands in the name of complainant, Investigation Report/Claim Synopsis marked as Ex.B-3, Investigation Report/Instructions of the vehicle and party marked as Ex.B-4, Pre-repudiation letter violating validity of the license marked as Ex.B-5, Final repudiation letter marked as Ex.B-6, Served Postal Acknowledgement marked as Ex.B-7 and Reply Notice by the OP to the complainant.         

14.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, the complainant is the RC owner of TATA Sumo SE bearing Reg.No.KA-16 B-1004 and the same was insured with the OP for the period from 29.11.2012 to 28.11.2013.  The complainant along with their family members were proceeding from Davanagere to Hosadurga.  The complainant was having valid DL to drive the said vehicle.  On 21.02.2013 while they were travelling in the said vehicle, the same was met with an accident at about 11-30 PM.  But the OP Insurance Company has taken a contention that, the driver/complainant was not having valid Badge to drive the same.  But, the repudiation made by the OP is not sustainable under law and more over the OP never taken that contention in his version and never produce any documents to show while the complainant was violating the terms and conditions of the policy.  When there is the complainant is having LMV license, but TATA Sumo it comes only 2650 Kg., but the LMV weight nearly 7500 Kgs.  Accordingly, the complainant is having valid license.   The OP stated in his version the complainant was not valid license at the time of accident, it is not correct.  The repudiation taken by the OP in its version not sustainable under law.  Regarding with the Limitation Point is concerned the final repudiation of the OP is on 14.01.2014 and its calculated filing date of the complaint and last repudiation of the OP is only five months three days and also complainant clearly stated in his affidavit why the complaint was filed after lapse of five months. Accordingly, the complainant has stated in his affidavit the OP have collected entire documents from the complainant and promised to settle the matter on the words or promise made by the OP, the complainant still wait for filing complaint.  Again the OP dodge the matter one or the other reasons.  Finally, the OP send a final repudiation letter to the complainant stating that, it is not ready to settle the matter as promised earlier.  After that, the complainant contact his Advocate and collect the necessary documents, then he filed this complaint.   It is pertinent to note that the complainant is the owner of the vehicle, he himself driving the vehicle at the time of accident, such being the case, the requirement of Badge does not arise.  Therefore, the decisions given by the Advocate for OP is not applicable to the case on hand.  Accordingly, the complaint is well in time.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.           

            15.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The Application filed u/Sec. 5 of the Limitation Act, is hereby allowed.  The delay in filing the complaint is condoned.  The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

It is ordered that, the OP is hereby directed to pay a sum of Rs.3,72,500/- along with interest at the rate of 9% p.a from the date of filing of the complaint till realization.   

It is further ordered that, the OP is hereby directed to pay Rs.1.00,000/- towards loss of earnings.

It is further ordered that, the OP is hereby directed to pay Rs.5,000/- towards costs of this proceeding.  

It is further ordered that, the OP is hereby directed to comply the above order within 45 days from the date of this order.

 

 (This order is made with the consent of Member after the correction of the draft on 13/02/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP:

DW-1:  Sri. H.N. Govindaraju, Manager (Legal) of OP by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	RC Book pertains to Complainant
02	Ex-A-2:-	Insurance Policy
03	Ex-A-3:-	Receipt for having collected towards premium amount
04	Ex-A-4:-	Copy of the FIR
05	Ex-A-5:-	Statement of Smt. Sowbhagyamma
06	Ex-A-6:-	Charge Sheet
07	Ex-A-7:-	Motor Vehicle Accident Report
08	Ex.A-8:-	Spot Mahazar
09	Ex.A-9:-	Proforma Invoice
10	Ex.A-10:-	Legal Notice
11	Ex.A-11:-	Postal Receipt and served Acknowledgement
12	Ex.A-12:-	Reply Notice

 

Documents marked on behalf of OP:

 

01	Ex-B-1:-	Endorsement issued by the RTO
02	Ex-B-2:-	RC Book
03	Ex-B-3:-	Investigation Report of Claim Synopsis
04	Ex-B-4:-	Investigation Report of Instructions of the vehicle
05	Ex-B-5:-	Pre-repudiation letter
06	Ex-B-6:-	Final repudiation letter
07	Ex-B-7:-	Served Acknowledgement
08	Ex.B-8:-	Reply Notice

 

MEMBER                                                            PRESIDENT

Rhr**