Complaint filed on: 20-04-2010 <br /> Disposed on: 06-09-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.883/2010<br /> DATED THIS THE 6th SEPTEMBER 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> SRI.GANGANARASAIAH., MEMBER<br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> Sri.M.Nazeer Khan <br /> S/o. M.D.Khan, <br /> Aged about 35 years, <br /> R/at No.804/A, 4th cross,<br /> Vijayananda Nagara,<br /> Nandini Layout,<br /> Bangalore-96 <br /> <br /> V/s<br /> Opposite parties: - <br /> <br /> 1. The ICICI Lombard General <br /> Insurance Co. Ltd, <br /> SVR complex, 2nd floor, <br /> No.89, Hosur Road, <br /> Bangalore-68<br /> Represented by its Manager, <br /> 2. The ICICI Lombard <br /> Motor Insurance Co. Ltd, <br /> Zenith complex, <br /> Keshavrao Khade Marg, <br /> Mahalakshmi, Mumbai-34 <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The brief facts of the complaint filed by the complainant against the opposite parties [hereinafter called as OPs for short) are that, he had insured his lorry bearing No.KA-02-AA-4321 and that policy was in force from 1-6-2009 till 31-5-2010. That he had taken finance from the TATA Motors Finance Limited is paying Rs.20,295/- towards EMI. On 28-11-2009 his lorry met with an accident and the complaint came to be filed to the concerned police. That the vehicle was damaged to the maximum extent and he got the damage estimated from Arvind Motors which was estimated as Rs.3,19,117/- and Rs.37,505/-. That he made claim with the 1st OP and also written a letter on 10-12-2009. But he received a letter of OP on 20-1-2010 rejecting his claim on untenable, baseless grounds. That without getting repair charges he is not able to use the vehicle and he is suffering loss and stated that rejection of the claim is bad and therefore has prayed for a direction to the Ops to reimburse Rs.3,56,622/- and to award other damages as claimed in the complaint. <br /> <br /> 2. The 1st OP was only notified with the notice of the complaint. But both the Ops have appeared through their advocate and filed versions, admitting that the insurance policy was in force as on the date of accident have stated that liability is limited to the terms and conditions of the policy. That the complaint is bad for non-joinder, the financier who had advanced loan for purchase of the lorry. After receipt of information of accident, they appointed investigator and surveyor for spot inspection and assessment damages. One A.C.Mahesh after conducting spot survey has submitted his report regarding damages. The complainant alongwith claim application had not produced the driving licence of his driver, inspite of repeated request, in order to appoint the final surveyor and loss assessor to assess the loss. Scrutiny of the documents produced by the complainant, their surveyor had spot inspection and assessed the loss as Rs.84,794/-. The investigator also revealed that one Hanumantha Reddy was the driver of the vehicle at the time of accident. But the complainant has suppressed the fact by contending as if one M.Srinivasa was the driving the vehicle. That Hanumantha Reddy who was the actual driver of the vehicle did not possess valid licence to drive the vehicle. That the complainant was also carrying 8829 ton of load as against the capacity of 7880 ton which is violation of condition of the policy and therefore denying the liability have further contended if the forum hold that they are liable to pay compensation towards damage and cost, their liability is limited as per surveyor report and thereby prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant, the legal manager of the Ops the Surveyor and the investigator of the OPs have filed their affidavit evidence. The complainant and the Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced a copy of the insurance policy, copy of the FIR, copy of estimating of damage and photographs of damaged lorry. The Ops have produced copy of policy, copy of claim form, then copy of reports of surveyor and investigator with a letter of Surat Goods Transport Private Limited. The counsel for the complainant has filed written arguments. We have heard the counsel for both parties and perused the records.<br /> <br /> 4. On the above contentions following points for determination arise.<br /> 1. Whether the complainant proves that Ops have <br /> Caused deficiency in their service by repudiating his claim?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> Point no.1: In the negative <br /> Point no.2: See the final Order<br /> <br /> REASONS<br /> 6. Answer on Point No.1: As could be seen from the complaint averments and the contentions taken by the Ops, we find no dispute between the parties regarding the ownership of the vehicle, date of accident, the claim made by the complainant for reimbursing cost of repairs and repudiation of the claim of the complainant. We shall thus straight away come to the disputed point to find whether repudiation of the claim of the complainant by the Ops is justified or not. <br /> <br /> 7. The 1st OP through his letter dated 20-1-2010 repudiated the claim of the complainant on two grounds, number one is, breach of trust by mis-presentation of the facts, Secondly, the vehicle was over loaded at the time of accident. The complainant has called these grounds as untenable grounds. On the first point raised by the OP. The Ops in their version as well as in the affidavit evidence have contended when they sought certain documents particularly the driving licence of the driver who was the driving the lorry at the time of accident, the complainant did not furnish the driving licence. But in the course of investigation by their private investigating agency, the investigator came to know that one Hanumantha Reddy was driving the lorry at the time of accident. But the complainant mis-represented the said fact by stating as if one M.Srinivasa was the driver driving the lorry at the time of accident. The complainant though has produced copy of the FIR, but it do not disclose the name of the driver. Therefore, even at the stage of early investigation and filing of police complaint, name of the driver was not disclosed. The investigator of the Ops namely Chandrashekar Murthy besides submitting his report has also filed his affidavit evidence stating that the complainant has mis-represented while filing the claim form stating that one M.Srinivasa was the driver. But the fact was that one Hanumantha Reddy was the driver of the vehicle. The complainant as against this has not produced any documents to prove that M.Srinivasa was the driver of the lorry. Further the complainant has not made attempt to deny the contention of the Ops or to deny the affidavit evidence filed by the Ops and also their investigator. The complainant in the affidavit evidence except reproducing what he has stated in the complaint in his affidavit evidence has not at all traversed the contention of the OPs and not even attempted to deny affidavit evidence of the Ops and their investigator. The contentions in the version and affidavit evidence of the Ops have remained undisputed and uncontroverted. The complainant after coming to know as to what is stated in the version regarding the name of the driver could have filed affidavit evidence denying that fact. But did not do so and further not chose to contradict the Ops and investigator by challenging their affidavit evidence. Thus on considering the uncontroverted evidence of the Ops, we find no reason to discard the evidence of the OPs and hold that it was one Hanumantha Reddy was driving the lorry at the time of accident. <br /> <br /> 8. The Ops have also produced a letter issued by Surat Goods Transport Pvt Ltd, wherein it is stated that they had hired the vehicle of the complainant for transportation of copper consignment from Hindaloc Bangalore to their customer at Kadappa, the vehicle met with accident at enroute and that one Hanumantha Reddy was its driver. The complainant has also not disputed this letter and submission of the counsel for the Ops that the vehicle of the complainant had been leased to Surat Goods Transportation Pvt Ltd for transporting their goods and that the lorry met with accident. Therefore as on the date of accident one Hanumantha Reddy was the driver remains proved and that M.Srinivasa was the driver is falsified. Even the complainant in the complaint has not stated as to who was the driver of ill fated lorry on the date of accident. Thus it is proved by the Ops that one Hanumantha Reddy was the driver of the lorry at the time of accident. The Ops have also produced documents to prove that Hanumantha Reddy was issued driving licence in the year 2010 and it is proved that the said driver was not having valid driving licence as on 28-11-2009. The complainant having allowed a person to drive the lorry without valid licence has contravened the condition of the insurance policy and violation of Rule 3 of Motor Vehicle Rule 1989. Therefore the complainant is not entitled for reimbursement of repair charges. The complainant has also not rebutted the contention of the Ops that the complainant has violated the condition of the policy by carrying the load morethan permissible limit. The complainant therefore has suppressed the name of the driver of the lorry, has made mis-representation and having controverted the condition of the policy is not entitled for the relief. Therefore the rejection of the claim by the Ops, under these circumstances, cannot be held us deficient. For the above reasons, we answer point no.1 in the negative and pass the following order:<br /> <br /> ORDER<br /> <br /> Complaint is dismissed. Both the parties to bear their own costs. <br /> <br /> Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 6th September 2010.<br /> <br /> <br /> Member Member President<br /> <br /> <br />