Karnataka

Belgaum

CC/421/2014

Anant R Kumbar. - Complainant(s)

Versus

The divisional Manager. The National Assurance Co.Ltd - Opp.Party(s)

J.Y.Patil

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 that there is deficiency and short coming in rendering service and also the O.P. contended complainant is not a consumer nor beneficiary as defined under C.P. Act and also there is no cause of action to file the complaint and seek damage. The O.P. has denied that the vehicle is under repair and standing ideal and the complainant has spent Rs.20,000/- towards repair and Rs.1,000/- for lifting of vehicle from the place of accident and O.P. further denied that inspite of complying the terms and conditions of the policy the O.P. has rejected the claim. The O.P. further denied the claim made by the complainant to the tune of Rs.26,000/- with interest at the rate of 12% as the same is exuberant excessive and falsely claimed. The O.P. further contended that the complainant has suppressed the fact which lead to accident on 9/2/2012, invoice vouchers bills are examined by the O.P. and also contended that the O.p. has appointed the surveyor by name Vastrad who submitted the final report and the assessment arrived at sum of Rs.11,428/- towards replacement of parts and 50% depreciation as per the terms and conditions of the policy and also the labour charges of Rs.1,511/- and they excess Rs.747/- is deducted, Rs.392/- towards salvage and the amount payable to the complainant is Rs.11,800/- subject to terms and conditions of the policy. The O.P. further contended that at the time of accident the complainant was carrying two pillion riders that is Anita Kumbar and Nambrata Kumbar aged 13 years and has violated the terms and conditions of the policy and prayed to dismiss the complaint.

          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 Motor cycle bearing No.KA-22 E.P./4171 and insured with the O.P. under policy No. 351007311162032307045 valid from 20/1/2012 to 19/1/2013. The complainant contended that on 19/9/2012 at 21.45 hours after completion of Bhajan programme at Kalavati Mandir Khanapur along with minor daughter and wife returning on motor cycle towards is house at Zad Ankali at Khanapur Road with a normal speed and when reached near the Maratha Mandal College khanapur one vehicle Hero Delux vehicle bearing KA-22/EG-7995 came from Belgaum side towards Khanapur with high speed on the wrong side dash to the complainant vehicle and the complainant sustained injuries and also his wife and child. The complainant further submits that the vehicle was damaged in the said accident crime was registered with the Khanapur P.S. Belgaum and immediately on next date complainant intimated the said fact to the O.P. The complainant got repaired the vehicle in the show room and spent Rs.15,580/- towards the spare parts and over all for the repairs the complainant spent Rs.20,000/-. The complainant further contended that the rejection of the claim by the O.P. is not based on justifiable cause and not tenable in eye of law and prayed to allow the complaint as prayed.

8) The O.P. on the other hand O.P. in the version denying the deficiency in service contended that there is deficiency and short coming in rendering service and also the O.P. contended complainant is not a consumer nor beneficiary as defined under C.P. Act and also there is no cause of action to file the complaint and seek damage. The O.P. has denied that the vehicle is under repair and standing ideal and the complainant has spent Rs.20,000/- towards repair and Rs.1,000/- for lifting of vehicle from the place of accident and O.P. further denied that inspite of complying the terms and conditions of the policy the O.P. has rejected the claim. The O.P. further denied the claim made by the complainant to the tune of Rs.26,000/- with interest at the rate of 12% as the same is exuberant excessive and falsely claimed. The O.P. further contended that the complainant has suppressed the fact which lead to accident on 9/2/2012, invoice vouchers bills are examined by the O.P. and also contended that the O.p. has appointed the surveyor by name Vastrad who submitted the final report and the assessment arrived at sum of Rs.11,428/- towards replacement of parts and 50% depreciation as per the terms and conditions of the policy and also the labour charges of Rs.1,511/- and they excess Rs.747/- is deducted, Rs.392/- towards salvage and the amount payable to the complainant is Rs.11,800/- subject to terms and conditions of the policy. The O.P. further contended that at the time of accident the complainant was carrying two pillion riders that is Anita Kumbar and Nambrata Kumbar aged 13 years and has violated the terms and conditions of the policy and prayed to dismiss the complaint.

          9) The complainant in all have produced documents and so also the O.P. The point to be considered hearing that the complainant was carrying more than two persons on his motor cycle at the time of accident and has violated the terms and conditions of the policy. But the accident in question took place as contended by the complainant, is by the another motor cycle which was dashed to the complainant vehicle and the charge sheet filed is against the opposite vehicle which dashed to the complainant vehicle No. KA-22/EG-7995. We would have admitted the contention of the O.P. that the complainant has violated the terms and conditions of the policy, if the complainant himself was dash to some other vehicle by driving rash and negligently and the cause of accident was due to carrying excess passengers then permitted as per the policy. But in the present case on hand the accident caused was due to rash and negligent driving of the vehicle which came from opposite direction and dashed to the complainant vehicle. Hence in this present case we do not find any grounds that the complainant has violated the terms and conditions of the policy carrying additional passenger at the time of driving. 

          10) The complainant relied on the decision reported in 1996 (4) Supreme Court cases 647 wherein the lordship has held that “Breach of carrying humans in goods vehicle more than the number permitted in terms of the insurance policy-Held, cannot be said to be such fundamental breach so as to afford ground to the insurer to deny indemnification unless there were some factors which contributor to the cause of the accident…….’’

          11) As per lordship decision mentioned supra the insurance company has to show the justifiable grounds to deny the accident and the factors caused at the time of accident and also by reading of the decision it is the insurance company to show the nexus to the accident caused. In this case on hand the O.P. failed to show the factors of contribution cost to the accident and that there is a violation of terms and conditions of the policy.

          12) 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.12,339/- to the complainant towards the claim and vehicle repair with interest at the rate of 9% P.A. from 4/12/2012 till realization of the entire amount.

          Further, O.P. shall pay a sum of Rs.2,000/- to the complainant towards costs of the proceedings. So also, the O.P. is hereby directed to pay a sum of Rs.5,000/- towards compensation for mental agony and inconvenience caused to the complainant.

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.

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