Karnataka

Belgaum

CC/795/2013

Shamsunder M Naik - Complainant(s)

Versus

The Law Officer/Manager, Bajaj Allianz General Insurance Co Ltd - Opp.Party(s)

S M Hanchinmani

26 May 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.795/2013

 

                       Date of filing: 02/12/2013

 

                                                                                                                 Date of disposal:26/05/2017

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Shri. Shamsunder Marthu Naik, Age: 45 Years, Occ: Business, R/o: H.No.368/2, Dhakul Maina, Navelim, Sanquelim, Bicholim, North Goa.                 (Rep.by Sri.S.M.Hanchinamani, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Law Officer/Manager, Bajaj Allianz General Insurance Co. Ltd., Madewale Arcade, 1st Floor, Club Road,   Belagavi.                         (Rep. by Sri.S.P.Chaugule, Adv.)

 

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay Rs.17,00,000/- towards vehicle damages as per estimation with interest @ 10% p.a. from the date of accident till its realization and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant has purchased the Toyota Fortuner vehicle for his personal use, No.GA-04/C-6776, after obtaining the H.P. loan from the Canara Bank, Sanquelim, Goa, on 16.03.2011 and the said vehicle is duly insured with OP/Bajaj Allianz General Insurance Co. Ltd., on 17.03.2012 and further Op is received the premium by undertaking the risk of Own damages as well as third party and Personal Accident cover and the same is valid up to 16.03.2013 and further the complainant’s driver is holding valid driving license to drive the said vehicle and the said vehicle is met with an accident while his driver coming from Kholapur to Belgaum on
NH-4 on 31.05.2012 at 8.00 hrs, driven rash and negligently and dashed to the road divider. Due to said impact, the vehicle is totally damaged and not in reparable condition. Which is well within the knowledge of the OP. After the accident, the complainant has informed the OP and submitted the claim form alongwith documents, to get compensation for the accidental damages and further the OP/company made the survey of the damaged vehicle.

 

          Further, it is case of the complainant that, even after submitting all relevant documents in respect of claim to the Op Insurer, the OP/company is repudiated the claim of the complainant through letter dtd: 28.11.2012 and stating that, carriage of passengers more than the permitted seating capacity and hence thereby violated the provisions of law and policy terms and conditions for that, the OP has repudiated the claim and complainant further contended that, this observation is made only with an intention to avoid the liability on the OP/company and further the OP is not given the service as assured and there is deficiency of service on the part of the OP/Insurance Company and further contended that, out of 11 persons in the said vehicle, 4 were children’s and hence minor children’s can’t be treated as passenger as they are coming alongwith their parents. Therefore, no any excess passenger and the sitting capacity in the said vehicle is 7 and no any violation of the provisions of law and policy terms and conditions.  

         

          It is further case of the complainant that, after the accident, the complainant got it valued through Sharayu Toyota Automobiles and they have made estimate of the damaged insured vehicle to the tune of Rs.17,00,000/- and it is clear case of total damage. Hence, the complainant has constrained to file this complaint.

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant is that, the contents of para 1 to 11 of the complaint denied by OP and it is further OP contended that, the complainant is the permanent resident of H.No.368/2, Dhakul Mina, North Goa and as such the said vehicle in question was insured with the OP/Bajaj Allianz General Insurance Co. Ltd., and the policy has been issued from the Branch Office of Goa and as such there was a correspondence between the complainant who is based at Goa and as well as the Branch Office of the Bajaj Allianz General Insurance Co. Ltd., Goa and as such U/s 11 of the C.P. Act this Hon’ble Forum has got no territorial jurisdiction to entertain and try this complaint and further submitted that, the complaint filed by the complainant may kindly be dismissed on this count alone. 

 

          It is further case of the OP that, the said vehicle belongs to insured Owner complainant was duly registered and insurance under private car package policy and as per the Registration Certificate and as well as under the Policy in question, the sitting capacity or the number of persons who were allowed to travel in the said vehicle in question being 7 and as such on the alleged date of accident, the said vehicle in question around 11 persons were traveling, under the terms, conditions, Limitations and Exceptions of the Policy in question, the insured owner complainant has allowed more number of persons to travel than the sitting capacity and he has willfully violated the terms, conditions, Limitations and Exceptions of the Policy in question and after thorough investigation and going through all the Police documents/papers, it is found that, on the alleged date of accident more number of persons were traveling in the insured vehicle and accordingly the OP/insurance company has rightly and legally repudiated the claim of the complainant and further Op contended that, the complainant did not discloses the facts regarding the number of persons travelled in the insured vehicle under the contract of insurance. On this count also the complaint of the complainant is liable to be rejected and there is no negligence or deficiency in service on the part of the OP and prayed for dismissal of the complaint.

 

 

4.      Both parties have filed their affidavit in support of their case and on behalf of complainant has produced 13 documents, which are marked as Ex.P-1 to Ex.P-13. On the contrary the OP has produced 4 documents, which are marked as Ex.R-1 to Ex.R-4, for sake of our convenience, we have marked P & R series. Heard the argument on both sides.

 

 

Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant has proved that, there is deficiency of service on the part of the OP for not paying the claim amount?

 

 

2. What order?

 

 

5.       Our findings to the above points are as under:

 

                              

1. In the Affirmative.
2. As per the final order for the following:

 

 

R E A S O N S

 

6.      POINT NO:1:-  We have perused the pleadings of the parties and the evidence and documents placed on record of both parties and the arguments advanced, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy. The case of the complainant that, complainant has intimated about the said accident to the OP insurance company and submitted a letter dtd: 14.01.2015 requesting to settle the bill issued by the Toyota Authorized Service center estimate of repairs bill which is marked as Ex.P-2 towards the damaged of the said vehicle in accident, the vehicle has sustained damages to the tune of Rs.1,95,422-40ps which is quite evident from the estimation submitted by the complainant.  Inspite of submission of all the relevant documents for settlement of the claim of the complainant, the OP has send a letter enclosed with discharge voucher alongwith bank details and further OP sent a letter on dtd:19.03.2015 stating that, once again request the complainant to written the voucher duly discharged alongwith bank details to enable to OP Company to effect the transfer of complainant account to full and final of settlement of claim and further the case of the complainant is that, the vehicle was got repaired in the Toyota Shodha Motors Ltd., and charged of Rs.1,95,422-40ps, towards the bill for having effected repairs to the vehicle and requesting letter on dtd:14.01.2015 to settle the said bill, since the vehicle was covered under the insurance policy. The complainant claimed an amount of Rs.1,95,422-40ps as per estimation, for that proposition, the complainant has not produced the original bill towards expenses actual incurred and payment was made by cash/cheque, what was actual cost paid by complainant and even the complainant has not convince the Forum, why the Police complaint has been not registered though the complainant is a legal practitioner and he has not explained in respect of same and even the complainant not made effort to substantiate as alleged in the complaint regarding the claim of Rs.1,95,422-40ps and even the complainant has not substantiate to hold that, the complainant has spent Rs.1,95,442-40ps as claimed, therefore the complainant is not entitled to claim as stated in the complaint and same is not believable, as such the said bill is estimation. The said contentions are without provision of law and cogent documents to hold that, the complainant claim is justifiable.   Therefore in our views such contention has no merit and it is not acceptable in law.     Further the complainant has not tried to convince the Forum under what circumstances insurance company is liable to indemnify the insured to pay the estimation bill, the complainant has failed to substantiate the case as alleged in the complaint.   

 

The case of the OP is that, after the incident, the complainant without informing to the police nor reporting to the OP, lifted the vehicle and there is no evidence to show that, the said vehicle was damage and how it occurred, at least to substantiate the facts that, the spot photos would have been taken by the complainant to informed about the incident to the OP, but, the complainant did not do so for, on filing of the claim form on dtd:04.09.2014. Thereafter the OP arranged a surveyor namely one Abhasaheb  K. Patil, and visited the Toyota Shodha Authorised Service Center and taken the photographs there only and after the repairs conducted final survey and submitted that, the net loss would be Rs.1,11,234/- after deducting excess of Rs.2,000/- and salvage of Rs.2,000/-. After receipt of the final survey report,  the OP sent letter dtd:03.03.2015 and 19.03.2015 to the complainant to sign the discharge voucher towards full and final settlement of the claim for Rs.79,000/- by applying non standard base by deducted 25% on Rs.1,11,234/- for violation of terms and conditions of the policy i.e. no police report and spot survey  and net assessment is Rs.79,000/- as full and final settlement.  In order to prove this contention, the OP as not lead any corroborate evidence to hold that, the complainant is entitle on non-standard basis  and further the said contentions are without provision of law and cogent documents to hold that the OP assessment  is justifiable.   Therefore in our views such contention has no merit and it is not acceptable in law.     Further the OP has not tried to convince the Forum under what circumstances insurance company is liable to pay the Non standard basis to the insured, the OP has failed to substantiate the case as alleged in the written version and further also the OP has not established the case that, the complainant has give duly signed discharged voucher as alleged by the OP for that proposition neither the OP has analysis the same to give discharge voucher as full and final settlement. Therefore, the OP has insisting the complainant to give discharge voucher of Rs.79,000/- itself is deficiency of service for the reason that, there is no binding contention or there is no any terms and conditions contemplated in the policy bond. Therefore, in our consider view, the said contention alleged in the written version is not acceptable and it has no force in the said contentions.  More ever the complainant has paid the premium towards insurance and the duty of the insurer to indemnify the insured by way of settling the claim of the complainant. Looking to the facts and circumstances of the case, consequently with above observation we are of the consider opinion that, there is a deficiency of service on the part of OP, by insisting the complainant to endorse the voucher, it would be proper we award damage cost as per surveyor report after deducting the salvage and excess, it would be meets ends of justice and equity.  So, we award a damage cost of the vehicle is Rs.1,07,234/- (Rs.1,11,234 - Rs.4,000 salvage and excess). 

 

Now our considered opinion, we have no hesitation to hold that the insurance company is to be held liable to pay Rs.1,07,234/- as per surveyor report which is not disputed and challenge by the complainant. Hence we award of Rs.1,07,234/- towards damages to the vehicle, after deducted salvage and excess amount and the complainant is entitled for compensation of Rs.4,000/- towards mental agony and also Rs.1,000/- towards costs of the proceedings.  Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following:

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby allowed, partly with costs.

 

           The OP shall pay a sum of Rs.8,14,746/- to the complainant towards damages.

 

          The OP shall pay a sum of Rs.3,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

 

          The OP is granted 10 weeks time for compliance of this order, failing to which the OP is liable to pay interest @ 8 % p.a. on the said amount from the date of complaint i.e. 02.12.2013 till its realization. 

 

 

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 27^th December -2016).

 

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,                Lady Member.

.