Karnataka

Belgaum

CC/529/2014

Ninganagouda B Patil - Complainant(s)

Versus

The Divisional Manager. New India Assurance Company Ltd - Opp.Party(s)

S M Kinagi

29 Jun 2015

ORDER

(Order dictate by Sri V.S. Gotakhindi,  Member).

ORDER

          U/s. 12 of the C.P. Act, the complainant has filed the complaint against O.P. alleging deficiency in insurance service of repudiation of the claim pertaining to vehicle damage.

         2) O.P. in the version denying the deficiency in service contended and admitted that the vehicle is insured with the O.P. and that met with the accident at given place. The O.P. denies that the complainant has spent Rs.3,95,344/- demanding the strict proof of the same and that the O.P. got surveyed the vehicle the report dated 22/5/2013. The O.P. further submitted that one Sri.Suresh S. Gull a licenced surveyor was appointed to conduct the final survey and the report is dated 11/7/2013 and the net assessment and liability of the O.P. shown in the report is Rs.2,94,121/- after submitting the salvage. The O.p. further contended that at the time of accident one Sri. Savant Subhas Godageri along with him 7 other persons were traveling in the vehicle from Belgaum to Talikoti to attend the marriage and the vehicle was hired from the complainant and violated the terms and conditions of the policy. The O.P. further submitted that Sri. Savant Subhas Goudageri lodged complaint with Nesargi P.S. wherein he has contended that along with him 7 others persons were traveling and the vehicle in question was hired. The O.P. further contended that they requested the complainant through letter dated 20/1/2014 and 18/5/2014 to give concerned letter for Rs.2,04,517/-, but as sufficient time was lapsed O.P. were constrained to transfer the amount to bank account of the complainant on 21/8/2014 and also contended that said fact was intimated to the complainant in respect of deposit of amount by R.P.A.D. on 21/8/2014 as such there is no deficiency in service on the part of the O.P. and there is no cause of action to file the complaint and also contended that whatever claim made by the complainant in the complaint is imaginary and untenable in eye of law etc.,

          3) Complainant has filed affidavit and some documents are produced. Officer of the O.P. has filed his affidavit and some documents are produced.

          4) For complainant written argument is filed and also we have heard both learned counsel and perused the records.

5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.P. and is entitled to the reliefs sought?

6) Finding on the point is partly in affirmative for the following reasons.

REASONS

          7) It is proved from the oral and documentary evidence on record that the complainant is the owner of Tempo Trax Toofan  (Cruiser) KA-22/ Tempo-0976. Said vehicle was insured with O.P. under policy No. 6711031130100001507 on 17/5/2013. The complainant submitted that one of his friend by name Sri. Savant Subhas Goudageri of Talikoti Town requested the complainant to avail is Tempo to attend the marriage at Belgaum and as per the request on 17/5/2013 the complainant handed over the cruiser and after attending the marriage along with other friends while returning back to Talikoti from Belgaum, on 18/5/2013 at about 6.00 P.M. Belgaum Bagalkot road near somanatti village one Tata Indgo Car bearing registration No.KA-22 N.9356 who was towards Nesargi from Yergatti came in high speed and in negligent manner endangering human life dash to complainant Tempo trax and the same was turned turtle and the persons sustained injury. The complainant further submits that criminal case was registered in Nesargi P.S. under crime No.81/2013 and F.I.R. was lodged and under criminal case No.47/2014 before the J.M.F.C. Bailhongal the said driver of the Tata Indigo car was found guilty and paid fine. The complainant further contended that on 22/5/2013, he intimated to the O.P. company about the said accident and submitting the printed format and that he has incurred huge investment of Rs.3,95,344/- to repair the said vehicle and along with the application the complainant submitted the bills to be O.P. but the Opponent remained silent event after oral and written request by the complainant. The complainant looking to the attitude issued legal notice to the counsel on 12/5/2014 and after receipt of the notice on 13/6/2014 the O.P. wrote a letter agreeing to pay Rs.2,04,517/- towards and full and final satisfaction. As the amount was meager the complainant did not accept the same. The complainant in the complaint shown the total expenses and loss to the extent of Rs.4,95,344/- and prayed to direct the opponent to pay the said amount 24% from the date of accident etc.,

8) The O.P. on the other hand in the version denying the deficiency in service contended and admitted that the vehicle is insured with the O.P. and that met with the accident at given place. The O.P. denies that the complainant has spent Rs.3,95,344/- demanding the strict proof of the same and that the O.P. got surveyed the vehicle the report dated 22/5/2013. The O.P. further submitted that one Sri.Suresh S. Gull a licenced surveyor was appointed to conduct the final survey and the report is dated 11/7/2013 and the net assessment and liability of the O.P. shown in the report is Rs.2,94,121/- after submitting the salvage. The O.p. further contended that at the time of accident one Sri. Savant Subhas Godageri along with him 7 other persons were traveling in the vehicle from Belgaum to Talikoti to attend the marriage and the vehicle was hired from the complainant and violated the terms and conditions of the policy. The O.P. further submitted that Sri. Savant Subhas Goudageri lodged complaint with Nesargi P.S. wherein he has contended that along with him 7 others persons were traveling and the vehicle in question was hired. The O.P. further contended that they requested the complainant through letter dated 20/1/2014 and 18/5/2014 to give consent letter for Rs.2,04,517/-, but as sufficient time was lapsed O.P. were constrained to transfer the amount to bank account of the complainant on 21/8/2014 and also contended that said fact was intimated to the complainant in respect of deposit of amount by R.P.A.D. on 21/8/2014 as such there is no deficiency in service on the part of the O.P. and there is no cause of action to file the complaint and also contended that whatever claim made by the complainant in the complaint is imaginary and untenable in eye of law etc.,

          9) The complainant in all have produced 8 documents. The complainant’s one of the document is the letter addressed by the opponent on 13/6/2014 along with settlement intimation voucher wherein the O.P. has approved the claim of the complainant to the extent of Rs.2,04,517/- but the complainant has contended in the complaint has denied to accept the same, as the approved amount is too meager than the amounts spent by the complainant towards repairs. The surveyor report submitted by the Gull appointed by the O.P. wherein report shows total liability of Rs.2,94,121.45/- and the O.P. has approved to Rs.2,04,517/-. The O.P. has failed to show how they has arrived to said figure which is lesser than the liability shown by the surveyor appointed by the O.P. and the difference amount is Rs.90,000/-. The O.P. on the other hand has contended in the objection and affidavit that when the complainant denied to accept the said approval they have constrained to transfer the amount to the bank account. These itself shows that the O.P. forced the complainant to accept the said approval amount and on the denial they were constrained to transfer the said amount.

          10) The O.P. at para No.5 of the objection has contended that the decision of the settling the claim of the complainant is justified therefore there is no deficiency in service on the part of the O.P. The O.P. has fail to prove the payment for hiring the said Tempo Trax and same was not used for personally.  Considering the documentary evidence and argument submitted by the complainant and O.P. we are of the opinion that the amount of Rs.2,04,517/- which has been approved by the O.P.’s competent authority is to meager and also not according to the survey report submitted by their own surveyor showing net liability of Rs.2,94,121/-.

          11) The complainant relied on the decision reported in 2010 Kant MAC 190 (Supreme Court), wherein the lordship have held that “….Claim of compensation-Repudiated by Insurer on ground that case at time of accident being driven on hire and not used for personal use-Payment for hiring charges not proved-Claim cannot be repudiated in toto by Insurer-Impugned orders not sustainable-Insurer directed to pay a consolidated sum of Rs.2,50,000/- against claim of Rs.5,00,000/- within 6 weeks from the date of order.”

          12) In the said decision the lordship have referred the decision of National Commission wherein the said decision some of the guidelines where set and claim was settled on non standard basis when the vehicle carrying passengers by violating terms and conditions of the policy. But in the present case on hand this is not the fact that there were more passengers than permitted but the accident in question took place due to the negligent driving of the opposite vehicle which dashed to the Tempo Trax of the complainant and upon that the driver of the opposite vehicle has been found guilty. In the case on hand the only contention of the O.P. is that the said vehicle was being hired by the friend of the complainant and the said fact which the O.P. relies is on the complaint filed before the concerned police station that they hired the Tempo from the complainant to attend the marriage. But the O.P. has fail to establish that the vehicle was hired and the nexus of accident and also has not submitting any document to show that they arrival of the approval amount as discussed supra. Therefore considering the fact and circumstances discussed supra the complainant has proved deficiency of service on the part of the O.P. and is entitled for the claim.

          13) Thus, repudiation of the claim by O.P. is unjust and illegal. Accordingly, following order;

ORDER

          The complaint is partly allowed.

          The O.P. is hereby directed to pay a sum of Rs.90,000/- to the complainant towards the claim and vehicle repair with interest at the rate of 9% P.A. from 21/8/2014 the date of deposit of Rs.2,04,517/- to the account of complainant till realization of the entire amount.

          Further, O.P. shall pay a sum of Rs.3,000/- to the complainant towards costs of the proceedings.

Order shall be complied within 30 days from the date of the order.

(Order dictated, corrected & then pronounced in the Open Forum on this 29^th day of June 2015.)

          Member                    Member            President.

gm*