BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.75/2018

Date of filing: 06/07/2018

Date of disposal: 10/06/2019

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay Rs.6,76,651/- with 18% interest from the date of filling of the claim and pay Rs.1,00,000/- towards charges imposed by the authorized service centre and also towards loss of interest and other charges by the finance and pay Rs.5,00,000/- towards financial loss, mental agony and harassment and Rs.25,000/- towards cost of the litigation and any other reliefs etc.,

2.      The facts of the case in brief are that;

          It is case of the complainant that, the complainant is the owner of TATA Bolt XM 1.3 vehicle bearing Reg.No.KA-29/B-3472 and the said vehicle was insured with the OP/Insurance company under policy No.552700311763 60164848 for a period upto 02.01.2018 to 01.01.2019 and the IDV of the vehicle is Rs.5,41,355/- and further on dtd:15.02.2018 at about 3-30PM the said vehicle belonging to the complainant is met with an accident near Nadwadgi Village in Hunagund Taluka and the same has been reported to the Ilkar Rural Police Station and the case has been registered on 16.02.2018 in Ilkar Rual Police Station Crime No.41/2018 for the offences punishable U/s.279, 337 and 338 of IPC. Due to the said incident, the vehicle was completely damaged and the same has been reported to the OP/Insurance Co., and said company surveyor visited and conducted the survey.

          It is further contended that, after the accident, the complainant has submitted the claim on dtd: 26.02.2018 alongwith relevant documents to the OP. Thereafter, the said vehicle was shifted to Bijjargi Motors Authorized Passenger Car Dealer of Tata Motors for repair and they made estimation of the vehicle for Rs.6,76,651/- as per the intimation of the OP, the complainant supplied all the documents for settlement of his valid claim. But, Op has issued a letter dtd: 28.03.2018 and stated that, the driver on the wheel is having driving license and the claim is repudiated on the basis of alleged deficiency in service and negligence on their part and also amounts to Unfair Trade practice under the provisions of the C.P. Act 1986.

          It is further contended that, the complainant has purchased the said vehicle on loan from the Tata Finance on installment basis and further the complainant has used the said vehicle for his self employment and family livelihood and to earn monthly income of more than Rs.35,000/- to 45,000/- per month. Now due to the said accident to the vehicle, the complainant is not getting any income to lead his life and for payment of installment. Previously, the complainant used to pay the installments from the income derived from the vehicle, now the complainant became the defaulter and finance company is threatening to file cheque bounce cases against the complainant. Therefore, due to the deficiency of service by the OP/Insurance Company complainant suffered mental agony, harassment and financial loss. The non-providing of proper service to complainant in time amounts to dereliction of duty, unfair trade practice and deficiency of service on the part of the OP. Hence, having no alternative, the complainant is constrained to file this complaint.  

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and filed objection and contended that, the allegation made in the complaint are all false, frivolous and vexatious and it is true that, the complainant is the owner of the TATA Bolt XM 1.3 vehicle bearing Reg.No.KA-29/B-3472 and the said vehicle was insured with the OP/Insurance company under policy No.55270031176360164848 for a risk period upto 02.01.2018 to 01.01.2019 and further it is unaware that, on dtd:15.02.2018 at about 3-30 PM the said vehicle belonging to the complainant is met with an accident near Nadwadgi Village in Hunagund Taluka and the same has been reported to the Ilkar Rural Police Station and the case has been registered on 16.02.2018 in Ilkar Rual Police Station Crime No.41/2018 for the offences punishable U/s.279, 337 and 338 of IPC. But, it is false to allege that, due to the said incident, the vehicle was completely damaged and it is false to say that, the complainant has submitted the claim on dtd:26.02.2018 alongwith all relevant documents to the OP and it is true that, the OP had repudiated the claim of the complainant and the same was informed to the complainant vide letter dtd: 28.03.2018 as per the prevailing Acts and Rules and there is no deficiency in service and negligence on their part. On this count also the complaint of the complainant is liable to be rejected and there is no negligence or deficiency in service on the part of the OP.

It is further contended that, the OP had given liberty for re-opening of the claim to the complainant after furnishing the valid driving licence of the driver for settlement of the case, inspite of best services rendered by the OP, but the complainant with an intention to harass this Op filed false complaint and further as per the Terms and Conditions of Policy, the driver on the wheel has to possess valid and effective driving licence at the time of accident, in this case the said mandatory requirement is lacking. On all these among other grounds, it is most humble prayed that, the complaint is dismissed with costs.

4.      In support of the claim in the complaint, the complainant has filed his affidavit and produced some documents, which are as under;

5.      On the other hand OP has filed his affidavit on behalf of this case and produced only one document i.e. Survey report.  

Based on the above materials, the following point arises for adjudications are as follows;

1. Whether the complainant has proved that, there is negligence and deficiency in service on the part of the OP in not settling the claim of the Complainant?
2. What order?

6.      Our findings on the above points are as fallows;

1. Point No.1 In the partly affirmative.    
2. As per final Order.

                      R E A S O N S

7.     Point No.1:- We have perused the pleadings of the parties and the evidence and documents placed on record of both parties, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy and further the case of the complainant is that, since the vehicle was covered under the insurance policy, the vehicle bearing No.KA-29/B-3472 and the policy valid from 02.01.2018 to 01.01.2019.

           It is an important to note that, on dtd: 15.02.2018 at about 3.30 P.M. the said vehicle met with an accident and the same had been intimated to concerned Ilkal Police Station and the case has been registered on 16.02.2018 vide Crime No.41/2018 offences punishable U/s. 279, 337 & 338 of IPC. Due to the said accident the insured vehicle has been completely damaged and further the said incident has been also reported to the OP and OP/Insurance company surveyor has visited and conducted the survey and further on dtd: 26.02.2018, the claim form has been submitted by the complainant to OP. But, OP/Insurance Company has repudiated the claim of the complainant that, the driver does not hold a valid license to drive the vehicle.    

On the other hand OP denied that, after the accident the vehicle has been completely damaged and complainant has made repairs estimation of Rs.6,76,651/- and it is false to say that, the settlement of complainant valid claim and OP has not made any error by  reproducing a claim since driver does not hold a valid license to drive the vehicle, as per terms and conditions of policy and the driver of the wheel has to possess valid and effective driving license at the time of accident, in this case, the said mandatory requirement is lacking.   

Looking to the facts and circumstances of the case, we have carefully considered the arguments advanced by both the parties and we have gone through the records on the date of the accident i.e. 15.02.2018, at that time the driver of the said vehicle has hold L.M.V. driving license, then it is clear that, without proper justifications, OP cannot be repudiated the claim without valid reason. Therefore, it is clear that, the OP has made deficiency in service and further the contention of complainant is that there is no violation of terms and conditions of the policy and the claim should be settled on legal basis, therefore complainant is entitled for compensation from the OP. For that proposition the counsel of the complainant has relied a latest decision of Hon’ble Supreme Court of India in AIR 2017 SC 3668 dtd: 03-07-2017 in Civil Appeal No: 5826/2011 (Mukund Devangan V/s Oriental Insurance Co. Ltd.) is aptly applicable to the instant case.  

 Further the OP vehemently argued and submitted that, there is clear violation of the terms and condition of the policy, hence the complainant is not entitled for claim and the OP is not to indemnify the same. For that proposition the OP did not produced any provision of law, to hold that said DL is not proper to drive the said vehicle.

        Here we observe that, the estimation of vehicle for Rs.6,76,651/- is not sufficient when again we have gone through the survey report filed by the surveyor of the OP/Insurance Company and he assessed that, the total loss amount of Rs.4,59,855/- as OP estimated, even complainant has not object on OP survey report. It is a mandatory duty of OP/Insurance Company that, the OP is required to be indemnified on the basis of settled legal position i.e. as per admitted survey report of the Insurance Company. Though, there is no any violation of policy condition as contended by the OP, the Insurer cannot be repudiate the claim of the complainant in toto and claim should be settled as per survey report. Therefore in our opinion that, the repudiation by the OP/Insurance Company is not correct and justifiable, it amounts to deficiency in service on the part of the OPs. 

          So, we are of the view that, by applying the observation of the Hon’ble Supreme Court, therefore there is no merit in the contention of the OP at all and hence in our opinion that, the repudiation of the claim of the complainant is amount to deficiency in service on the part of the OP and the OP/Insurance company has appointed surveyor to assess the loss to the vehicle of Rs.4,59,855/- after deducting salvage and excess etc., the said surveyor report has been not challenged by the complainant towards procedure or method of assessing loss caused to the vehicle.  Therefore, in our considered view, it would be just and proper to award a surveyor assessed amount of Rs.4,59,855/- towards damages of vehicle with interest @ 12 % p.a. from the date of repudiation and the complainant is entitled for compensation of Rs.5,000/- towards mental agony and also Rs.2,000/- towards costs of the proceedings. Accordingly, we answer Point No:1 in the partly Affirmative and proceed to pass the following: 

O R D E R

The complaint is hereby partly allowed with costs.

The OP shall pay a sum of Rs.4,59,855/- with interest 
@ 12 % p.a. from the date of repudiation to the complainant towards damages within 30 days, failing to which OP is liable to pay interest @ 18% p.a. till realization.

          The OP shall pay a sum of Rs.5,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

Send the copies of this order to the parties free of cost.

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  10^th day of June, 2019).