C.C. filed on: 30-11-2009 <br /> Disposed on: 16-07-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT<br /> NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.2824/2009<br /> DATED THIS THE 16th JULY 2010<br /> <br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> <br /> Complainant: - <br /> <br /> Mr.P.J.Jacob S/o. Late Chacko Ouseph,<br /> Aged 59 years, Residing at # 70,<br /> 2nd A Main, Domlur Layout,<br /> Bangalore-71 <br /> <br /> V/s<br /> <br /> Opposite party: - <br /> <br /> <br /> The Divisional Manager, <br /> The New India Assurance Company Ltd,<br /> 4th Floor, Tower Block,<br /> Unity Building, JC Road,<br /> Bangalore-560 002 <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA, PRESIDENT.<br /> <br /> <br /> The grievance of the complainant against the OP in brief is that, he was the owner of the car bearing registration No.KA-03-MG-8528 was insured with OP and had valid insurance policy upto midnight of 28-3-2009. That on 12-4-2008 he had parked his vehicle outside his house and in the morning 13-4-2008 his vehicle was found missing, then on that day at about 9 pm he received a message from the Indira Nagara Police Station stating that, his car was met with an accident and a case was registered, then the police had registered a case in the Indira Nagara police station on 18-4-2008 disclose the facts stating that his car was stolen. Then he took the vehicle to Automobiles for repairs, then that Trident Automobiles (P) Ltd estimated the repair charge as Rs.3,25,494-50, then OP had appointed a surveyor to assess the loss. Service advising Trident Automobiles told him that the car has undergone major damage and estimated the costs of repair as Rs.5,28,074-32, but the surveyor did not assess the loss properly. When he made the claim to OP to reimburse the repair costs, OP through his letter dated 15-5-2009 rejected the claim, on the ground that, the occupants in the car were known to the complainant and the complainant received information on the same day at 9 am, that the driver of the car did not have valid driving licence, that occupants of the car were known to him and that the complainant has suppressed the facts. The complainant therefore attributing deficiency in the service has prayed for a direction to OP to reimburse as per the estimate or to take over the damaged vehicle and grant full value of the car besides to award compensation of Rs.2,00,000/- towards mental agony.<br /> <br /> <br /> 2. OP has appeared through his Advocate and filed version contending that the complaint is not maintainable, admitting that he had issued a policy covering the car but stated their liability is subject to terms and conditions of the policy. That their surveyor made detailed investigation and submitted the report. He has stated that the investigation reveled that one Goutham alongwith Sandeep, Avinash and another drove the car in a rash and negligent manner met with an accident on 13-4-2008 at 4.30 am and that Sandeep is none other than a relative of the complainant was staying with the complainant at his residence. It is stated further that the driver of the insured car was prosecuted by the jurisdictional police in CC No.2321/2008 U/s 279, 337 of IPC alongwith section 3[1) R/W 181 of MV Act and that driver Goutham pleaded guilty and paid fine on 24-7-2008 and the driver did not posses a driving licence to drive the said car and stated that the complainant has suppressed these facts and after accident on 13-4-2008 and knowledge of accident the complainant choose to give a complaint to the police only on 18-4-2008 and therefore justifying their action in repudiating the claim has prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant in addition has stated that the alleged accident is in no way concerned to him and denied that he has suppressed the real facts regarding his relationship with one Sandeep who was one of the inmates of the car. The complainant along with the complaint has produced copy of the police, complaint he had given to the concerned police, copy of the estimation of the repairs, copies of police investigation papers and copy of the letter of repudiation with copy of legal notice he got issued to OP. OP has also produced copy of insurance policy, copy of surveyor report, copies of police investigation report. We have heard the counsel for both the parties and perused the records. <br /> <br /> 4. On consideration of the above materials following points for determination arise:<br /> 1. Whether the complainant proves that OP has caused deficiency in his service in not reimbursing the repair charges of his car?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Answer Point No.1: In the Negative <br /> 2. Answer Point No.2: See the final Order.<br /> <br /> REASONS<br /> 6. Answer on Point No.1: As found from the contentions of both parties as narrated in brief above, there is no dispute with regard to the ownership of the car, that car had valid and effective insurance as on the date of alleged theft, its cover at a later stage and that the car which met with an accident had suffered extensive damage and also estimation of repair charges etc. But OP has very vehemently denied the contentions of the complainant that his car was stolen by unknown person on 13-4-2008 OP contrary to the stand of the complainant in his version and affidavit evidence has stated that as per report of investigation received by him one Sandeep was none other than a relative of the complainant was staying with the complainant had taken the car on the date of accident with permission of the complainant and has further stated that one Goutham one of the inmates was driving the car on the date of accident, he had not possessed valid driving licence and police had prosecuted him in CC.No.2321/2008 for certain offences under IPC and also under section 3(1) read with section 181 of IMV Act. That on that driver pleading guilty of are the offences he was convicted and sentenced to fine on 24-8-2008. The complainant as found from the pleadings and also in the affidavit evidence has not at all denied these material facts and the sworn affidavit of evidence of OP. The complainant in the affidavit evidence as against this evidence of OP has only stated as under: “Submitted that the opposite party in its version stating that one Mr.Sandeep who was my relative and he was also one of the inmates in the said vehicle alleged that I have suppressed the real facts. Hence I am not eligible to get any compensation or total loss of my vehicle. The entire version as well as contention taken by the opposite party is only to harass me and to cause wrongful loss as well as mental agony to me”. The complainant except saying so has not at all denied his relationship with Sandeep, that Sandeep taking the car with him with permission of the complainant and allowing that Goutham to drive the car and Goutham was driving the car at the time of accident. That he was prosecuted by Indira Nagara Police and on his pleading guilty convicted him sentence to pay fine and Goutham paid the fine. It is further found that Goutham has also been fined for having driven the car without an effective driving licence. OP has even produced copy of order passed by concerned court in criminal case. These facts and the documents have remained un-controverted and un-breached.<br /> <br /> 7. OP have produced copy of report of his investigator, who in the course of investigation into alleged theft and accident found to have enquired Avinash and Goutham and another person Raunaq Singh and stated that Mr.Sandeep who is the common friend of others happens to be the nephew of the insured. It is also further stated in the report that Sandeep is shifted to Pollachi by his uncle for studies who happen to be none other than the nephew of the insured and even by referring to police records has not denied that there was theft. If it further found that Sandeep relative of the complainant who was staying with him had taken the car with permission of the complainant on that day. The name of Sandeep is also figured as witness no-4 in the charge sheet submitted by the concerned police. Further from the police records produced by OP it is found that investigation officer shown to have recorded statement of Sandeep on 13-4-2008 in which he has stated that on 13-4-2008 he alongwith his friends in his car bearing No. KA 03 MG 8528 were going to attend the cricket tournament at Yelahanka, that Goutham was driving the car they were sitting in the car and Goutham hit against the flag pole and caused accident. The complainant has not at all denied correctness of this statement and the geniuses of the police investigation report. Therefore considering all these un-controverted materials on records they prove that Sandeep who has stated that he alongwith his friends were going in his car implies that he had taken the car for his use and it was not stolen. The complainant by suppressing these facts has set up of story of theft and given the complaint and made claim from OP. As evident from the criminal case proceeding records that Goutham a friend of Sandeep was driving the car without valid driving licence and he has been prosecuted for that offence also. Thus we do not find any substance in the contention of the complainant that his car was stolen. The complainant therefore has not proved theft of the car and when the fact that he allowed a person to drive the car without valid driving licence violation the terms and conditions of the policy as such the insurance company cannot be held liable to reimburse the loss of accident. Hence the OP has rightly repudiated the claim of the complainant. The counsel appearing for the complainant by filing written arguments relied upon two decisions reported in II (2008) CPJ 485 Union Territory Consumer Disputes Redressal Commission, Chandigarh and another decision reported in 1994 ACJ 635 of High court of Punjab and Harayana and third decision reported in I (2007) CPJ 98 by Orissa State Consumer Disputes Redressal Commission for alleging the complaint on facts we hold that none of these decisions would support claim of the complainant as such the complainant in our view do not derive any help from those decisions. Counsel for the OP alongwith written arguments produced a copy of the decision of the National Consumer Disputes Redressal Commission, New Delhi rendered in First Appeal No.321 of 2005 dated 9-12-009 in which the Hon’ble National Commission has dismissed the complaint filed for compensation on the ground of violation of condition No.5 of the insurance policy. Therefore for the reason, we have assigned above, we find no merits in this complaint and we answer Point no-1 in the negative and pass the following<br /> ORDER<br /> <br /> Complaint is dismissed. Parties to bear their own costs. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open Forum on this the 16th July 2010.<br /> <br /> <br /> <br /> Member Member President <br /> <br /> <br />