BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 23rd March 2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 313/2015
Complainant/s: Gulappa Virupaxappa Shiraguppi, Age:43 years, Occ: Minitruck owner & Driver, R/o.Yaliwal, Tq.Kundgol, Dist.Dharwad.
(By Sri.A.F.Doddamallappanavar, Adv.)
v/s
Respondent/s: General Manager, Magma HDI General Insurance Co. Ltd., Desai Cross, Pinto Road, Hubli.
(By Sri.S.J.Baddi, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay a sum of Rs.143698/- along with interest @18% towards cost of the damaged vehicle and to grant cost of the proceedings and such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is the owner of mini truck bearing registration No.KA 19 D 5652. The said vehicle is insured under the policy No.P00154000002/ 4103/127634 with the respondent covering own damages claim with a premium of Rs.2811/-. While the said policy was in force the vehicle on 18.06.2015 met with accident at the place 1.5 kms., from Aralikatti village to Yeliwal village of Kundgol Tq. At the time of accident complainant was driving the vehicle. Immediate to the accident the same was informed to the respondent company agent Sri.Ramlingeshwar. The said agent visited the spot and inspected the damaged vehicle and advised the complainant to shift the vehicle and to get it repaired and not to lodge police complaint. Accordingly complainant shifted the vehicle to S.J.Asraf Garage Hubli & as per the advise of the mechanic of the said garage complainant purchased spare parts and got repaired after repair along with bills claim was made along with all documents of insurance, DL, repair chargesheet, bills etc. The respondent instead of settling the claim sent the letter on 03.09.2015 stating that the complainant was not holding valid DL. Inspite of complainant hold valid DL to the date of accident the respondent without inspecting the same sent the above said letter rejecting the claim. Thereafter the complainant got issued legal notice to the respondent claiming the amount. The said legal notice served on respondent on 22.09.2015. Despite of it the respondent neither complied nor replied & kept all the original bills with them. The rejection letter amount to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing all the complaint averments stating those are false, frivolous, vexatious and prays for dismissal of the complaint by fixing liability on the complainant to establish the liability. Among such other admissions & denials the answering respondent denies the possession of valid DL to drive the transport vehicle as contemplated under policy terms and conditions & justified in repudiating the claim. While the respondent admits the issuance of the policy subject to terms and conditions of the policy. Further the respondent admits the deputation of the surveyor and assessment of damages by the surveyor. While the answering respondent denied and disputes the claim made by the complainant & replacement of the spare parts as per the direction of mechanic of the repaired garage and prays for dismissal of the complaint with cost.
3. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Apart from examining themselves both the parties have led additional evidence by examining witness on behalf of them in support of their case, relied on documents apart from argument both have filed notes of argument, relied on citations. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- As per order
R E A S O N S
P O I N T S 1 & 2
4. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the vehicle in question is insured with the respondent and to the date of accident there was coverage of the risk subject to terms and conditions of the policy.
5. Now the question to be determined is, whether the complainant possess valid DL to the date of accident to drive the specified insured vehicle and repudiation of the claim by the respondent amounts to a deficiency in service, if so, for what relief the complainant is entitled.
6. Since the facts have been revealed in detail which requires no repetition.
7. Even though both the parties have disputes with regard to the possession and non possession of valid DL to drew the insured vehicle on the date of accident the complainant in support of his contention he possess valid DL to drew the vehicle in question on the date of accident the complainant relied on Ex.C-3 renewal fee paid to the licensing authority dt.08.06.2015. The facts to be noted the vehicle in question met with accident on 18.06.2015 the DL expires on 31.05.2015, renewal fee as per Ex.C-3 remitted to the transport authority on 08.06.2015. Hence, earlier to the date of accident renewal fee has been remitted by the complainant for renewal of the DL during the subsistence of pending renewal the vehicle met with accident that too say the complainant is possessing valid DL to the date of accident. In as much the said DL has been renewed subsequently & not rejected by the competent licensing authority. Hence, there is no violation of terms and conditions of the policy by the complainant & accordingly the respondent is liable to make good of claim in accordance with the terms and conditions. The contents of Ex.C-3 and facts of submission of application by the complainant to the licensing authority is categorically admitted by the respondent at the time of argument. Hence, there is no dispute with regard to possession of valid DL by the complainant to the date of accident. Perusal of Ex.C9 extract of driving license dt.12.01.2016 further rectify the complainant is possessing valid DL to the date of accident.
8. Coming to the quantum of reliefs & liability of the respondent both the parties have led additional evidence by examining PW2 mechanic and RW2 surveyor.
9. Perusal of evidence of PW2 reveals the PW2 mechanically deposed the facts on oath. He has not produced any document to show that he is mechanic, works under employer S.J.Asraf Garage. The PW2 has not prepared any estimation. Ex.C6(1) to (8) are not signed by the PW2 but by the S.J.Asraf Garage authorized signatory. Under those circumstances the evidence of PW2 is not acceptable in the absence of production of authorization by the employer. Coming to the evidence of RW2 surveyor the statement of RW2 is supported with survey report Ex.R1. The surveyor admits net liability of the company to an extent of Rs.52915/-. The complainant neither produced rebuttal evidence to the surveyor report nor produced corroborative evidence in support of his claim to the tune of Rs.143698/-. Under those circumstances the evidence of IRDA License hold surveyor RW-2 be believed. In support of this factum the respondent relied on citation Jagaram Bahirav murthy vs. Oriental insurance company (NC) with the relevant judgment 2007 (4) CPJ 196 (NC) wherein it, it is held the report of the licensed surveyor cannot be brushed aside lightly in the absence of rebuttal evidence. Apart from this citation the respondent also relied on RP-3226/13 Goodrich Carbohydrates Ltd., vs. New India Assurance Co. & Another; RP 90/16 (NC) Manoj Maheshwari vs. Royal Sundaram Alliance.
10. On perusal of pleadings, evidence supported documents the complainant has established his case of liability of the respondent and deficiency in service by the respondent. Accordingly complainant is entitled for the reliefs.
11. In view of the above discussions we have arrived we inclined to hold issue.1 and 2 in affirmatively and accordingly.
12. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is allowed in part. The respondent is directed to settle the claim to a tune of Rs.54,915/- along with Rs.2,000/- as compensation and Rs.1,000/- towards cost of the proceedings within 60 days from the date of receipt of copy of this order. Failing to comply the same within stipulated period the said amount shall carry interest @9% P.A. from the date of order till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 23rd day of March 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
