Complainant:       1)   Siddalingesh S/o Mahadevappa                                                    Karibishti,  

                                       Age:Major, Occ:Engineer,

                                          R/o Killa Oni, Betageri,
                                           Tq & Dist:Gadag.

                                       (Rep. by Sri. P.S.Dharmayat, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER

          The complainant has filed the complaint U/Sec. 35 (1) of C.P Act, 2019, for compensation of Rs.2,00,000/- with interest @18% p.a. Rs.50,000/- towards mental agony and Rs.10,000/- cost of litigation.

          2. The brief facts of complaint is as under:

          Complainant is owner of Motorcycle KA-26 ED-6309 and insured his vehicle for the period 24.10.2020 to 23.10.2021. On 01.04.2021 Praveen Kumar was riding the motorcycle towards Mundargi and near Mevundi accident has occurred due to rash and negligent riding by him. The motorcycle was completely damaged and caused a loss of about Rs.2,00,000/-. Hence, complaint is lodged and registered in crime No.40/21. Motorcycle was left for repair to Chadha Auto Agency the Hero Honda Showroom Gadag this fact was informed to Op and he assured that, they would settle the claim after survey. Later, did not settle the claim and was repudiated on 15.02.2022. Therefore, Op has committed the deficiency of service. Hence, filed this complaint.

          3.      After admitting the complaint, notice was issued to the OP, who appeared through his counsel and filed the written version.

          4.     The brief facts of written version by OP is as under:

          OP denied the various allegations and admitted the vehicle is insured bearing policy No.3397/01730947/000/00 which is having OD and CPA coverage from 24.10.2020 to 23.10.2021 and TP coverage from 24.10.2020 to 23.10.2025. Op submitted that the rider Praveen Kumar did not possesses the valid and effective driving license to drive particular category of the vehicle involved and thereby violated the condition and such breach exonerates the liability.  The alleged accident occurred on 01.04.2021 and the claim was intimated on 24.08.2021 belatedly this constitutes breach of condition No.1 and 9 of the policy. As per condition No.1, notice should be given in writing to the company immediately upon the accidental loss or damage and all such information. As per the police MVA report only few parts of the motorcycle were damaged, but the complainant submits that entire motorcycle was damaged. So, there is no deficiency of service committed and prays for dismissal of the complaint.

          5.  To prove the case, the complainant has filed affidavit and was examined as PW-1 and got the documents marked as  Ex.C-1 to Ex.C-13. Shri. Bahubali Kuge for OP, filed affidavit and was examined as RW-1 and got marked the documents as Ex.OP-1 to Ex.OP-3.  

6. Heard the argument on both sides.

          7. The points for consideration are,

                    1. Whether the complainant proves the deficiency of                        service committed by the Opponent?

                    2. Whether the complainant is entitled for the reliefs

                     as sought for?

                    3. What order?

          8.  Our findings on the above points are as under:

               Point No 1. In the affirmative.

               Point No 2. In the partly affirmative.

              Point No 3. See final order.

REASONS

9 .Point No.1 and 2: The point No.1 and 2 are taken together to avoid the repetition of facts. The learned counsel for complainant argued that, as per evidence of PW-1 and Ex.C-1 to Ex.C-13 complainant proved the deficiency of service committed by the OP. The learned counsel for Op argued that, policy is repudiated due to violation of policy conditions as rider was not having valid DL.

10. On careful perusal of all the documents and materials placed before the commission,  complainant filed affidavit and was examined as PW-1 and he has reiterated the contents of complaint.  PW-1 has stated that, Complainant is owner of Motorcycle KA-26 ED-6309 insured the vehicle from 24.10.2020 to 23.10.2021.  On 01.04.2021 Praveen Kumar while riding the motorcycle towards Mundargi near Mevundi  met with an accident due to rash and negligent riding by him. The motorcycle completely got damaged and caused a loss of about  Rs.2,00,000/-. Hence, complaint is lodged and registered in crime No.40/21. Motorcycle was shifted for repair at Chadha Auto Agency a Hero Honda Showroom Gadag, this fact was informed to Op and he assured that they will settle the claim after survey. Later, they did not settle but the claim was repudiated on 15.02.2022. Therefore, Op has committed the deficiency of service.

11. RW-1 has filed affidavit and reiterated the contents of the written version filed by OP.  RW-1 has stated that, the vehicle is insured bearing policy No.3397/01730947/000/00 which is having OD and CPA coverage from 24.10.2020 to 23.10.2021 and TP coverage from 24.10.2020 to 23.10.2025. Op submitted that, the rider Praveen Kumar did not possess the valid and effective driving license to drive a particular category of the vehicle involved and thereby violated the condition and such breach exonerates the liability.  The alleged accident occurred on 01.04.2021 and the claim was intimated on 24.08.2021 belatedly this constitutes breach of condition No.1 and 9 of the policy, as per condition No.1, notice should be given in writing to the company immediately upon the accidental loss or damage and shall give all such information. As per the police MVA report only few parts of the motorcycle were damaged, but the complainant submits that, entire motorcycle was damaged. So, there is no deficiency of service

          12. At the very outset, Op has admitted the accident and insurance was valid. Ex.C-1 FIR, Ex.C-2 complaint, Ex.C-3 Crime details, Ex.C-4 MVA report, Ex.C-5 charge sheet, Ex.C-6,  additional charge sheet and Ex.C-9 policy repudiation letter are not disputed by the Op. Complaint was lodged on the very next day of the accident there is no delay in lodging the complaint. Main ground for repudiating the policy is violating the conditions of the policy, as  claim was intimated belatedly whereas in the written version OP submit that, the rider was not having DL. Ex.C-5 charge sheet reveals that, case was registered for the offence U/Sec.279, 304(A) IPC only. No charge sheet is filed against accused Praveen Kumar for riding the motorcycle without DL  and no charge sheet is filed for the offence punishable under Motor Vehicle Act.    Ex.OP-1 & Ex.OP-2 survey report, Ex.Op-3 policy are produced, but Op has not produced any documents to show that, the rider was not having valid DL, in absence of adducing cogent evidence for riding the motorcycle at the time accident without DL is not believable.  Op has not obtained any endorsement from RTO to show that, Praveen kumar was not having DL for riding the motorcycle.  The contention of OP that, conditions of the policy are violated by the complainant cannot be believed and accepted. If, driver is not having DL, the investigation officer would have filed charge sheet under MVA. So, reasons stated for repudiating the policy are not reasonable as they have relied on two different grounds in written version they contend that rider of the vehicle was not having valid DL and another reason is that the claim is reported belatedly.  But in the repudiation letter it is declined on the sole ground for delay in intimating the claim belatedly and now they cannot travel away from the reason of repudiation and therefore, the OP’s on flimsy and technical grounds have repudiated the policy which cannot be believed.  So, complainant has proved that, Op has committed the deficiency of service.

          13. PW-1 is claiming Rs.2,00,000/- stating that entire motorcycle has been damaged. Complainant has not mentioned the date of purchase and value of the motorcycle. Ex.C-7 and Ex.C-8 report issued by Chadha Auto Agency on 21.10.2021 reveals damage caused to the motorcycle and estimated the repair charge in all Rs.31,130/-, Ex.C-4 MVA report reveals that, damage is  caused to front head light, dome, Mudgaurd, both indicators etc., Ex.C-10 to Ex.C-13 Photo’s reveal that motorcycle damage is caused on some parts,  but not entire motorcycle, Ex.OP-1 survey conducted by OP also clearly goes to show that, damage cause to the motorcycle and estimated the expenses for different parts separately, but total estimate is Rs.30,270/-  in the report. Ex.OP-1 & Ex.OP-2  are zerox copies. Op has not stated in the written version about total estimate of repair of the motorcycle.  As per survey report simply stated that, only few parts of the motorcycle were damaged, but complainant submits that the entire motorcycle was completely damaged. Therefore, the oral and documentary evidence as per Photo’s Ex.C-10 to
Ex.C-13, MV report Ex.C-4, survey report Ex.C-8 amd Ex.Op-2 survey report complainant is entitled for the compensation.
Ex.C-8 report issued by Chadha Auto Agency is Rs.31,130/- and  Op has also produced the amount for repair of the motorcycle a sum of Rs.30,270/- vide Ex.OP-2 and when both these reports are compared there is no much difference. In addition, complainant has spent the expenses towards  transportation of motorcycle from accident spot to garage.  Accident has occurred near Mundargi at Mevundi village, motorcycle was shifted to garage at Gadag. So, complainant is also entitled for transport charge, Petrol charge and loss of complainant for frequently attending the garage till handing of the vehicle. So, complainant is entitled for the compensation a sum of Rs.40,000/-. Complainant is claiming interest @18% p.a. it is on higher side, it is proper to award interest @9% p.a. from the date of repudiating the claim as intimated by the OP as 24.08.2021 as contended in the repudiation letter Ex.C-9 and even in the written version para No.7.  Complainant has suffered loss due to repudiating the policy without sufficient grounds, he is entitled a sum of Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of the litigation. Accordingly, we answer point No.1 in affirmative and point No.2 partly in affirmative. 

          14.    Point No.3:- In the result, we proceed to pass the following: 

ORDER

          1. The complaint filed U/Sec. 35 of the consumer Protection Act, 2019 is hereby partly allowed. 

2.      Op is directed to pay the compensation of    Rs.40,000/- with interest @ 9% p.a. from, 24.08.2021 till realization.

3.  Further, OP is directed to pay Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of litigation within a period of two months from the date of this order.

4.    Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Commission on this 9^th Day of
December-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Siddalingesh S/o Mahadevappa Karibishti,  

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 : Copy of FIR

Ex.C-2 : Copy of Police complaint.

Ex.C-3 : Copy of Crime details form.

Ex.C-4 : Copy of Motor Vehicles Accident Report.

Ex.C-5 : Charge sheet.

Ex.C-6: Additional charge sheet.

Ex.C-7 & 8:Chadha Auto Agencies report.    

Ex.C-9: Copy of letter issued by OP to complainant.

Ex.C-10 to 13: Photos

EVIDENCE ON BEHALF OF OPs:

RW-1 : Bahubali Kuge

DOCUMENTS ON BEHALF OF OPs

Ex.OP-1 : Copy of letter issued by OP to complainant.

Ex.OP-2 : Copy of Satish Havale Surveyor & Loss assessor

               report.

Ex.OP-3 : Copy of Policy.

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER