CC No.849.2015

Filed on 04.05.2015

Disposed on 01.08.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE1^stDAY OF AUGUST-2016

CONSUMER COMPLAINT NO.849/2015

PRESENT:

     Sri.H.S.RAMAKRISHNA

                                PRESIDENT

               Smt.L.Mamatha, B.A., (Law), LL.B.

                                 MEMBER

                                             V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 07.04.2015U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay the damages of Rs.6,71,590/- with interest @ 18% p.a. from the date of accident till the date of realization.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant is the RC owner of the Eicher Goods Tempo bearing Registration No.KA-08-5253.  The said vehicle was of 2011 Model.  The Complainant insured his vehicle with Opposite Party’s Company vide package policy No.3379/00724510/000/02 valid in between 10.06.2014 to 09.06.2015.  The Complainant has paid final premium of Rs.24,701/- and obtained policy.  The IDV of the vehicle is Rs.7,90,700/-.  The said vehicle was roadworthy condition.   On 30.10.2014 at about 11.45 p.m in front of Nag leather Engineering Company, Chennai-Chittor NH-04 Road, Tamil Nadu, the Complainant’s Eicher Goods Tempo while going to Chennai from Malur with a load of Rose flowers met with an accident.   On the way one Petrol Tanker bearing registration No.KA-03-AA-3558 came from opposite direction at High speed in a rash and negligent manner came to the wrong side of the road and dashed against Complainant’s slowly and cautiously moving Goods Tempo.  In the result, the Complainant’s vehicle was completely damaged beyond repairs. The driver of the Tempo namely E-Rajanna sustained fatal injuries, the cleaner namely Manjunath sustained grievous injuries and the owner of the Goods namely Santhosh was also sustained injuries.   At the time of accident the driver E.Rajanna was driving the vehicle by taking Manjunath as cleaner along with owner of the Rose flower goods Santhosh slowly, cautiously on correct side of the road.  The Tiruvalam police of Vellore District, have registered a case in this regard in Crime No.317/2014 against the driver of the petrol Tanker, the driver E.Rajanna who died in the accident had a valid D.L vide D.L.No.KA0720070004358 valid up to 16.12.2016 for drive transport vehicles. After the accident, immediately the Complainant intimated the accident to Opposite Party’s office at Chennai, the damaged vehicle was towed to Hi-tech motors sales and service centre at Chittor which is Authorized Service Centre for Eicher motor vehicles. The authorized surveyor from Opposite Party’s office Inspected the vehicle took photos, estimated the damages and instructed to get repaired the vehicle.   In the service centre, the damages are estimated at Rs.6,71,590/-.  Thereafter the vehicle was shifted to service centre at Mulbagal, Kolar District and get repaired by paying Rs,6,00,000/-.  Thereafter, the entire police documents, vehicle documents, estimate etc., are handed over to Opposite Party’s office. After submitting all the necessary documents, the Complainant was expecting the damages amount from the Opposite Party.   To utter surprise and dismay the Complainant received a Repudiation Letter dt.13.01.2015.   In the Repudiation Letter, the Opposite Party stated that at the time of accident the Complainant’s driver E.Rajanna was consumed alcohol and there is a serious violation of section 185 of MV Act. The Complainant clarifies that his driver E.Rajanna was not consumed any alcohol and he was not having any habit of consuming alcohol during his life time.   The repudiation of genuine claim of the Complainant is amounts to deficiency of service.  The Complainant has issued Legal Notice dt.05.02.2015 to the Opposite Party.  So far the Opposite Party neither paid the damage amount nor issued any reply notice.   Hence this complaint. 

3. In response to the notice, the Opposite Partyput their appearance through their counsel and filed their version.  In the version pleaded that the complaint is filed by the Complainant is misconceived and not maintainable either in law or on facts.   The Complainant is the owner of Eicher Goods Tempo bearing Registration No.KA-08-5253 of 2011 model and insured with the Opposite Party vide Policy No.3379/00724510/000/02 between 10.06.2014 to 09.06.2015 and the liability of the Opposite Party, if any, is strictly in terms and conditions of the policy.  In the present claim the insured vehicle said to have been suffered damages on 30.10.2014 at about 11.45 p.m on Chennai-Chittor Highway, near Nag Leather Engineering Company when a Petrol Tanker No.KA.03/AA-3558 came from the opposite direction in the high speed and dashed against the insured vehicle.  Mr.Rajanna, the driver of the Tempo, suffered fatal injuries, Cleaner by name Manjunath and owner of the goods that was being carried Mr.Santhosh also suffered injuries.  The claim of the Complainant was registered by the Opposite Party, processed the same, assessed the loss caused to the insured vehicle and finally, repudiated the claim of the Complainant by sending Repudiation Letter dt.13.01.2015, explaining the reasons for the repudiation. As per case summary of Mr.Rajanna in Koshy’s Hospital, Bengaluru, it is mentioned that Mr.Rajanna was driving Van under the influence of alcohol and had a head on collision with tanker lorry.  Since the driver had consumed alcohol at the material time of accident, which is serious violation of Section 185 of M.V.Act, 1988 and falls under the exclusions of the policy terms and conditions, the claim of the Complainant could not be settled by the Opposite Party.   Since, the Opposite Party acted strictly adhering to the terms and conditions of the policy, the Complainant cannot allege deficiency of service merely because his claim was not settled.   The insured has violated basic terms and conditions of the policy by entrusting the vehicle to a person who was under the influence of alcohol and therefore he cannot claim his own damages caused to his vehicle.   If a claim is not payable in terms and conditions of the policy, the same cannot be treated as deficiency of service on the part of the Opposite Party.  At an undisputed point of time, when Mr.Rajanna the driver of the insured Tempo, was taken to Christian Medical College, Vellore, in the hospital records, it is clearly mentioned that Rajannawas driving Eicher Van under the influence of alcohol and had a head on collision with Tanker Lorry, he was taken to GVMCH and later on brought to that hospital.  Subsequently, after getting discharge from CMC, Vellore on 05.11.2014, he got admitted to Koshy’s Hospital on 06.11.2014 and died at 12.45 a.m on 07.11.2014.  In death summary, it is mentioned that hospital “History of Road Traffic Accident on 31.10.2014 he was driving Van under the influence of alcohol and had a head on collision with a Tanker Lorry”.   Therefore, the Driver of the insured vehicle drove the same under the influence of alcohol at the time of incident.  Without disclosing these facts, the Complainant submitted Claim Form seeking reimbursement of amount spent for carrying out repairs and the same was repudiated by the Opposite Party, as it was not payable.   The Surveyor appointed by the Opposite Party submitted his Report and the Opposite Party could not settle the claim of the Complainant since the Driver of the vehicle was under the influence of alcohol at the time of accident. Hence prays to dismissal of the complaint.

4.      In support of the complaint, the Complainant K.M.Govindappahasfiled his affidavit by way of evidence and closed his side.On behalf of the Opposite Party, the affidavit of one Sunil Ramesh, Assistant Managerhas been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant hasproves the alleged deficiency in service by the Opposite Party?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-Negative

                POINT (2):- As per the final Order

REASONS

7.POINT NOs.1& 2:On perusal of the complaint and also version filed by the Opposite Party, it is not in dispute that the complainant is the RC owner of the Eicher Goods Tempo bearing Registration No.KA-08-5253.  The said vehicle was of 2011 Model.  The said vehicle was insured with the Opposite Party vide Policy No.3379/00724510/000/02 valid in between 10.06.2014 to 09.06.2015.  Further to substantiate this fact, the Complainant in his sworn testimony, reiterated the same and also produced the Form No.47.  By looking into this document, the vehicle bearing Registration No.KA-08-5253, Eicher Model, Engine No.E483CDBB522995, and Chassis No.MC233GRC0BB050747 is stands in the name of the Complainant and also produced the Insurance Policy.   By looking into this document, it is clear that the Complainant insured his vehicle Eicher Model, Engine No.E483CDBB522995 with Opposite Party bearing Policy No.3379/00724510/000/02 from 10.06.2014 to 09.06.2015.  This evidence of the Complainant remains unchallenged.  To discard the evidence of the Complainant there is no contra evidence, thereby, it is proper to accept the contention of the Complainant that the Complainant is the owner of the Eicher Goods Tempo bearing Registration No.KA-08-5253 of 2011 Model and it was insured with the Opposite Party for a period from 10.06.2014 to 09.06.2015 bearing policy No.3379/00724510/000/02. 

8. It is further case of the Complainant that, on 30.10.2014 at about 11.45 p.m in front of Nag Leather Engineering Company, Chennai-Chittor NH-04 Road, Tamil Nadu, the Complainant’s Eicher Goods Tempo while going to Chennai from Malur with a load of Rose flowers met with an accident.   On the way one Petrol Tanker bearing Registration No.KA-03-AA-3558 came from opposite direction at High speed in a rash and negligent manner came to the wrong side of the road and dashed against the Complainant’s vehicle, the complainant’s slowly and cautiously moving Goods Tempo.  In the result, the Complainant’s vehicle was completely damaged beyond repairs. The driver of the Tempo namely E-Rajanna sustained fatal injuries, the cleaner namely Manjunath sustained grievous injuries and the owner of the Goods namely Santhosh was also sustained injuries.   In order to substantiate this fact, the Complainant in his sworn testimony, reiterated the same and also produced the copy of the F.I.R.  By looking into this document, it reveals that theManjunath Cleaner of the Eicher Van lodge an oral complaint with the Tiruvalam Police.   On that basis, the Tiruvalam Police registered a case in Crime No.317/2014 for the offence punishable Under Section279, 338 and 304(A) of IPC and also further reveals that the alleged accident took place at 11.45p.m on 31.10.2014 in front of Nag leather Engineering Company, Chennai-Chittor NH-04 Road. In the said accident, the Complainant, Manjunath sustained injury as well as one Santhosh, who is the invite of the Eicher Temp who carrying the goods i.e., Rose Flower to Chennai and The Eicher Van was damaged.  As a result of the lorrybearing Registration No.KA-03-AA-3558 dashed against the Eicher Van and also produced the Post Mortem Report of E.Rajanna.  As looking into this document, it reveals that on 07.11.2014Dr.K.RathnaSabapathy of Hoskote Taluk Hospital conducted the Post Mortem with a history of Road Traffic Accident and as per his opinion the cause of death is due to shock and Hamarageinjury of vital structure with occipital bone and structure of the Body and also produced the Discharge Summary of the Venkatesh.  By looking into this document, it reveals that the insured Venkatesh taken treatment as an inpatient for the Crush injury Left Arm with Type IIIC open Fracture Shaft of Left Humerus with transected Brachial Artery and Vein, Transected Median & Ulnar Nerves/Radial Nerve Palsy and to Ischemia, as a result of the Road Traffic Accidentin Christian Medical College, Vellore from 31.10.2014 to 12.11.2014and also produced the Death Summary of Rajanna issued by the Koshys Hospital.  As looking into this document, it is dt.07.11.2014 it reveals that the Rajanna died, as a result of the injury sustained caused to him in the Road Traffic Accident and also produced the Death Certificate of Rajanna.  This evidence of the Complainant also remains unchallenged.  To discard the evidence of the Complainant, there is no rebuttal evidence, therefore, it is proper to accept the contention of the Complainant that the Complainant goods vehicle Eicher Van while going to Chennai from Malur with a load of Rose Flowers along with the owner of the goods i.e., Santhosh at about 11.45 p.m in front of Nag leather Engineering Company, Chennai-Chittor NH-04 Road Tamil Nadu, lorry bearing registration No.KA-08-5253 coming from opposite direction dashed the Complainant van.  As a result of the accident, the driver of the Eicher Van,Rajanna sustained fatal injuries and Cleaner Manjunath sustained grievous injuries as well as the owner of the goods Santhosh was sustained injuries and in this alleged accident the EicherVan of the Complainant completely damaged.

9. It is further case of the Complainant thatafter the accident, immediately the Complainant intimated the accident to Opposite Party’s office at Chennai, the damaged vehicle was towed to Hi-tech motors sales and service centre at Chittor which is Authorized Service Centre for Eicher motor vehicles.  The Authorized Surveyor from Opposite Party’ Inspected the vehicle took photos, estimated the damages and instructed to get repaired the vehicle.   In the service centre, the damages are estimated at Rs.6,71,590/-.  Thereafter the vehicle was shifted to service centre at Mulbagal, Kolar District and get repaired by paying Rs,6,00,000/-.  Thereafter all the relevant documents, estimate etc., are handed over to Opposite Party.  After submitting all the necessary documents to the Opposite Party for settling he claim, but Opposite Party fails to settle the claim.  On the other hand, the letter dt.13.01.2015 Opposite Party repudiate the claim of the Complainant.  In order to establish the same, the Complainant in his sworn testimony, reiterated the same and also produced the repair estimation issued by the Hitech Motors Branch Office, Vellore Bangalore Bye Pass Road, Chittor.  As looking into this document, the repair estimate is addressed to the Complainant with respect to the vehicle bearing No.KA085253, Chassis No.MC233GRC0BB050747, Engine No.E483CDBB522995.  As per this estimate, the total cost of repair of the vehicle is Rs.6,71,590/- and also Inspection Report issued by the S.Sakthivel, Motor Vehicle Inspector Gr-I, Regional Transport Office, Vellore.  By looking into this document, S.Sakthivel, Motor Vehicle Inspector inspected the vehicle at this spot i.e., Chennai to ChittorNH Road-Serkadu near Nag Leather Engineering Shoe Company opposite inspected the vehicle bearing No.KA-08-5253 Model of 2011, Front Bumper, Cowl, Centre body completely damaged, Front both head light, indicator glass broken, door glasses broken, Steering box, linkages & steering wheel damaged, ABC Assydamaged, Dash Board, Driver & Passenger seat Assy damaged, Front right spring Assy main leaf broken and leafs scratched, Rear body at front end and right and rear side with body frame and rear body badly damaged, Diesel tank at right side damaged and also further reveals that the damages caused to the vehicleRegistration No.KA085253as a result of accident on 30.10.2014 with KA 03-AA-3558 and also produced the letter dt.13.01.2015 addressed by the Opposite Party to the Complainant informing that the company shallnot be liable to make any payment in respect of any accidental loss damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs, inability to consider the claim.  So from this evidence, it is very clear that the Eicher Van belongs to the Complainant while on going to Chennai along with goods on 30.10.2014 met with an accident near Nag leather Cenginnering Company, on Hennai-Chittor Highway which were completely damaged and the driver sustained fetal injury, cleaner of the lorry sustained grievous injury and the owner of the goods also sustained injuries.  When the claim of the Complainant presented to the Opposite Party, the Opposite Party have rejected the claim informing the Complainant that inability to consider the claim since the driver of the Eicher Van goods vehicle driving the same under the influence of intoxication liquor.  The Opposite Party also taken the defence in their version that the driver of the Eicher Van under the influence of alcohol and driving the vehicle rashly and dashed the opposite lorry.  As a result violates the provision of Section 185 of the Motor Vehicle Act.  Thereby, as per the terms and conditions of the policy, the Complainant is not entitled for any claim.  To substantiate this fact, the Sunil Ramesh, Assistant Manager of the Opposite Party filed his affidavit and reiterated the same and produced the Death Summary of E.Rajanna issued by the Koshy’s Hospital.  By looking into this document, it clearly reveals that the deceased E.Rajanna admitted to the Hospital on Road Traffic Accident on 30.10.2014 he was driving the Van under the influence of alcohol.  This evidence of the Opposite Party has not denied or disputed by the Complainant to disbelieve the evidence of the Sunil Ramesh.  Therefore, it is proper to accept the defence taken by the Opposite Party that the driver of the Eicher Van belongs to the Complainant was driving the vehicle which was involved in the accident under the influence of alcohol.   For that reason, the Opposite Party failed to settle the claim of the Complainant under by addressing the letter dt.13.01.2015 intimated the same to the Complainant.  

10. The learned Counsel for the Complainant argued before us, the driver of the Eicher Van belongs to the Complainant Mr.E.Rajanna was driving slowly and cautiously.  On the other hand, the lorry which was going from the opposite direction in a rash and negligent manner dashed the van belongs to the Complainant due to this accident, but Eicher Van belongs to the Complainant was completely damaged and driver of the Eicher Van E.Rajanna sustained fetal injury as well as the Cleaner sustained grievous injury and also the owner of the goods Santhosh also sustained injuries.  After fulfilling all the formalities, the Complainant produced all the necessary documents along with Claim Form with the Opposite Party.  But Opposite Party even though the vehicle was insured and the alleged accident was occurred, while policy is inforce instead of honouring the settle claim of the Complainant which amounts to deficiency of serviceon the part of the Opposite Party.  Thereby, the Complainant is entitled for refund of the repair charges and as well as compensation.  

11. On the other hand, the learned Counsel for the Opposite Party argued that after the Complainant filed the Claim Form with document Opposite Party scrutinize the Claim Form and it is noticed that in the Death Summary History issued by the Koshy’s Hospital clearly mentioned that the driver E.Rajanna of the Complainant’s vehicle was driving under influence of alcohol at the time of the accident.  This clearly violates the provision of Section-185 of the Indian Motor Vehicle Act and also violates the terms and conditions of the policy, thereby, the claim of the Complainant was not considered at the same was intimated to the Complainant through a letter dt.13.01.2015 rejection of the claim of the Complainant will not amounts to deficiency of service on the part of the Opposite Party.  Since the rejection of the claim of the Opposite Party is improper manner after adopting new procedure.   Thereby,there is no deficiency of service on the part of the Opposite Party.

12. With this argument and on considering the evidence placed by the parties, it clearly reveals that the driver of the EicherVan bearing No.KA-08-5253of Model 2011 belongs to the Complainant met with an accident on 30.10.2014 near Nag leather Engineering Company, Chennai-Chittorwhile on the way to Chennai lorry bearing Registration No.KA-08-5253 which was coming from Chennai to Chittor, as a result, the Eicher Van of the Complainant was completely damaged and the driver of the EicherVan E.Rajanna sustained fetal injuries and Cleaner of the Lorry Manjunath sustained grievous injury and the owner of the vehicle Santhosh sustained also injuries.  Further from the evidence placed by the parties, it reveals that sustained E.Rajanna at the time of alleged accident was driving the vehicle i.e. Eicher Van No.KA-08-5253 under the influence of the alcohol.  This fact clearly violates the terms and conditions of the policy and also violate the provision of Seciton-185 of I.M.V Act.  On this ground, the claim of the Complainant for refund of the repair charges of the damaged Eichervan was rejected and intimated the same to the Complainant through a letter dt.13.01.2015.  Therefore, the rejection of the claim of the Complainant is proper and after adopting due procedure i.e., after verification of the claim application presented by the Complainant.  Therefore, the rejection of the claim of the Complainant is not amounts to deficiency ofservice as argued by the learned Counsel for the Opposite Party.  On the other hand, the Complainant fails to prove that there is deficiency of service by the Opposite Party.  Hence, this point is held in the Negative.

13. POINT NO.2:-In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaintis dismissed. No costs. 

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 1^stday of August 2016)

  MEMBER         PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Sri.K.M.Govindappa, who being Complainant has filed his affidavit.

List of documents filed by the Complainant:

1. Copy of the Legal Notice dt.05.02.2015
2. Copy of the post Masters Report,
3. Accident Register,
4. Copy of the Ration Card,
5. Copy of the Letter dt.13.01.2015,
6. Copy of the Voter Card,
7. Copy of the permit from Transport Department,
8. Copy of the Pan card,
9. Copy of the R.C.Book,
10. Copy of the Insurance Cover Note,
11. Discharge Summary,
12. Copy of the D.L and Voter I.D,
13. Copy of Death Summary,
14. Copy of Motor Policy,
15. Copy of Permit Letter,
16. Copies of Repair Estimate,
17. Copy of Insurance Policy,
18. Copy of Pollution Check,
19. Copy of Temporary Permit,
20. Copies of Inspection Report,
21. Copy of F.I.R,
22. Original Death Certificate of Rajanna E
23. Copy of the Sketch.
24. Copy of Accident Register extract of Government

Hospital, Thiruvalam P.S, Valaja District, T.N,

25. Copy of Repudiation Letter dt.13.01.2015
26. Reply Notice dt.11.03.2015.

Witness examined on behalf of the Opposite Party:

1. Sri.Girish Kumar,has filed his affidavit on behalf of the Opposite Party.

List of documents filed by the Opposite Party:

1. True copy of the Policy issued by Opposite Party to the Complainant with wordings,
2. Discharge Summary issued by Christian Medical College Vellore relating to Mr.Rajanna,
3. Death Summary issued by Koshys Hospital, relating to Mr.Rajanna E,
4. Copy of Letter of repudiation dt.13.01.2015 sent by Opposite Party to the Complainant.

MEMBER                                   PRESIDENT