1

                                                                   Date of filing: 08.07.2019

                                                               Date of Disposal:04.11.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 4^th DAY OF NOVEMBER, 2022

CONSUMER COMPLAINT NO.1120/2019

PRESENT:

SRI.RAJU K.S,

Sri.R.Sridhar Murthy,

S/o Ramaiah,

Aged about 34 years,

Residing at No.6,

Huchegowdanapalya Village,

T.Begur post,

Nelamangala Taluk,

Bengaluru Rural District-562 123.……COMPLAINANT

(Rep by Sri.P.R.Dhananjaya, Adv).

V/s

The Manager,

Bajaj Allianz General Insurance Company Limited,

Golden Heights,

Bengaluru-560 010.……     OPPOSITE PARTY-1

The Manager,

Bajaj Allianz General Insurance Company Limited,

Bajaj Allianz House,

Airport Road,

Pune-411 006. ……     OPPOSITE PARTY-2

Rep by Sri.H.N.Keshava Prashanth, Adv.,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party No.1 & 2 to pay the amount of estimated bill for a sum of Rs.2,80,000/- to the RNS Motors Limited, No.2275, Tumkur Main Road, Goraguntepalya, Yeshwanthpur, Bengaluru vide J.C.No.JC19000959 dt.23.04.2019 and for compensation of Rs.50,000/- towards negligence on the part of the opposite parties and a sum of Rs.20,000/- towards litigation cost. 

2. It is not in dispute that the complainant had approached the opposite party no.1 & 2 and had obtained insurance policy in respect of the car bearing registration No.KA-52-A-3585 and a Motor insurance policy has been issued by the opposite parties for the period from 07.10.2018 to 06.10.2019 and it was a commercial vehicle package policy.  Further, the said policy was issued in favour of the complainant.  Further, it is not in dispute that the said vehicle met with an accident on 09.04.2019 near Bukkarahalli Gate, Challakere Taluk, Chitradurga District and on the date of accident the policy was in force.  Further, it is not in dispute that the opposite parties had repudiated the claim of the complainant on the ground that the complainant had sold the said vehicle in the month of Jaunuary-2017 to one Vishwanatha, who was driving the car at the relevant point of time.  Further, it is not in dispute that the opposite parties had issued a letter dt.27.05.2019 to the complainant stating that the complainant had sold the vehicle to one Vishwanatha and sought explanation as to why the claim cannot be repudiated.  Further, it is not in dispute that the complainant had sent the reply dt.03.06.2019 to the said letter. 

3. It is the further case of the complainant that in spite of reply been given stating that he did not sell the vehicle the opposite parties had repudiated the claim.  Further, the complainant is the owner of the vehicle and he had purchased the same by borrowing loan from M/s Kotak Mahindra Private Limited and had entered into an agreement dt.08.10.2016 with regard to the loan for Rs.5,44,270/- and the EMI was commenced from 05.11.2016 for a sum of Rs.15,800/- and upto April-2019 in total 31 months.  The complainant had paid the EMI regularly through his bank.  Further, after the accident for the repair he had sent the vehicle for repair at RNS Motors Limited and it gave an estimate cost of Rs.2,80,000/- and earlier it was approved by the opposite parties. 

4. Further, it is the further case of the opposite parties that on investigation the opposite parties came to know that the complainant had sold the vehicle in the month of January-2017 itself to one Vishwanatha and at the time of accident Vishwanatha was driving the vehicle.  Further, the complainant himself had given letter to the opposite parties stating that he had sold the insured car to one Vishwanatha.  Further, the opposite parties had deputed IRDA licence surveyor and he had conducted the survey and assessed the damage to the vehicle at Rs.2,02,058/-.  Hence, it is sought to dismiss the complaint.

5. To prove the case, the complainant (PW1) and one                  Sri.Vishwanatha (PW2) have filed affidavits in the form of their evidence in chief and got marked EX.P1 to 12 documents.  The Senior Executive of opposite party no.1 & 2 has filed affidavit in the form of her evidence in chief and got marked EX.R1 to R21 documents. 

6. Counsels for both the parties have filed written arguments.

       7. Heard the arguments.

8. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite parties ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

  9.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative   

Point No.3 :  As per the final order for the following;

REASONS

10.POINT NO.1:- The complainant (PW1), one Vishwanatha (PW2) and Senior Executive of opposite party no.1 & 2 (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  The only contention taken by the counsel for the opposite parties in the written arguments as well as in the version that the complainant had sold the vehicle in favour of one Vishwanatha in the month of Januar-2017.  Hence, the complainant has no insurable interest to substantiate the said fact, the opposite parties apart from the oral evidence has produced EX.R4 the investigation report stating that the insured as stated in his statement that he had sold to one Vishwanatha and the accident was genuine.  EX.R6 is the copy of the FIR.  R7 is the copy of the complaint.  Further, the counsel for the opposite parties relied EX.R10 a letter dt.17.05.2019 said to have been given to opposite parties stating that in the month of January -2017 he had sold the subject vehicle in favour of one Vishwanatha for a sum of Rs.1,90,000/- and Vishwanatha had informed the complainant over phone.  Further, the counsel for opposite parties relied EX.R11 a letter said to have been given by one Vishwanatha to the opposite parties stating that the said vehicle belongs to one Sri.R.Sridhar Murthy (complainant) and since two years he (Vishwanatha) has been driving the said vehicle.  Further, the counsel for opposite parties relies EX.R12 i.e., xerox copy of the agreement, in which it is stated that he had agreed to sell the subject vehicle in favour of one Vishwanatha for the price of Rs.8,88,700/- and he had signed the required documents for transfer of the vehicle to his name.  Further, the counsel relies the EX.R13 the letter undated said to have been given by the complainant to the opposite parties stating that the complainant had already sold the vehicle and he has no way in connection with the claim.   

11. Contrary to that, the complainant got examined the said E.Vishwanath as PW2.  PW2 has filed affidavit in the form of his evidence in chief.  According to him, he was the driver of the subject car belongs to the complainant and he was working under the complainant as a driver since from January-2017 and the complainant has been paying monthly salary of Rs.13,000/- per month and while returning from Mantralaya to Bengaluru, the said vehicle met with an accident.  Further, he did not purchase the vehicle as alleged by the opposite parties.  Further, on perusal of EX.P2 RC relates to the subject vehicle the name of complainant is shown as owner of the vehicle and it indicates that the registration of the car was done on 07.10.2016 and registration was up to 06.10.2018.  Since it was a commercial vehicle, the RC was for a period of 2 years.  Further, in EX.P4 copy of the motor vehicle policy in respect of the vehicle for the period from 07.10.2018 to 06.10.2019, the name of insured is shown as Sridhara Murthy R (complainant).  Further, in the permit in respect of vehicle for the period from 18.10.2016 to 17.10.2021 the name of complainant is shown as permit holder.

12. We feel since RC and other relevant documents stand in the name of complainant and since no documents been produced by the opposite parties as required under Indian Motor Vehicles Act, to substantiate that the vehicle was sold to one Vishwanatha, the oral evidence coupled with the documentary evidence produced by the complainant is sufficient to hold that at the relevant point of time the complainant was the owner of the vehicle.  The opposite parties without ascertaining the true fact, only on the basis of letters said to have been issued by the complainant has wrongly repudiated the claim of the complainant.  One can become the owner of the vehicle only after the transfer of the name of the transferee in the records maintained by the concerned authority stated under the Indian Motor Vehicles Act.  Hence, documentary evidence produced by the complainant prevails over the oral evidence and the documentary evidence produced by the opposite parties.  Hence, there is no merit in the contention of learned counsel for the opposite parties.  Hence, the letter issued by the opposite parties vide EX.R3 dt.25.05.2019 repudiating the claim of the complainant is not correct and the opposite parties should have honoured the claim of the complainant in accordance with law.  Therefore, there is deficiency of service on the part of the opposite parties. Accordingly, we answer this point in affirmative. 

13.POINT NO.2:- The complainant claimed a sum of Rs.2,80,000/- the estimate bill to pay to the RNS Motors Limited, wherein the complainant got repaired the vehicle.   In support of the same, the complainant apart from the oral evidence filed in the form of affidavit has produced EX.P8 the Job Card dt.23.04.2019 issued by RNS Motors Limited, in which the total claim is mentioned at Rs.2,80,000/-.  Contrary to that, apart from the oral evidence the opposite parties have produced EX.R16 Professional Survey Report, in which the net assessed amount (parts report + labour details) after deducting the depreciation amount of Rs.70,767/-is shown at Rs.2,02,058/-.  Further, the service estimate sent by RNS Motors Limited to the opposite parties vide EX.R17 indicates that the net estimate of Rs.3,36,824.50/-.  EX.R5 is the xerox copy of Motor Insurance Claim Form submitted by the complainant before the opposite parties.  EX.P2 RC indicates that the manufacturing date of the vehicle was in the month of July-2016.  In the Professional Survey Report vide EX.R16 depreciation amount on the parts fixed on the vehicle has been deducted.   Since the manufacturing of the vehicle was in the Year-2016 the depreciation requires to be reduced.  Hence, we feel the amount ascertained by the opposite parties for a sum of Rs.2,02,058/- is a correct one.  Hence, the complainant is entitled for the said amount of Rs.2,02,058/-.  The opposite parties should have been honoured the claim.  Since the opposite parties repudiated the claim, the complainant is entitled for interest at the rate of 9% p.a. from the date of repudiation i.e., on 27.05.2019 till realization.  Further, the complainant claimed compensation of Rs.50,000/-.  We feel the complainant is entitled for a sum of Rs.20,000/- towards mental agony caused and a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative.

14.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite parties are directed to pay a sum of Rs.2,02,058/- to the RNS Motors Limited, No.2275, Tumkur Main Road, Goraguntepalya, Yeshwanthpur, Bengaluru with interest at the rate of 9% p.a. from 27.05.2019 till realization. 

Further, the opposite parties are directed to pay a sum of Rs.20,000/- towards mental agony caused to the complainant and a sum of Rs.10,000/- towards litigation expenses.

The opposite parties shall comply the order within 30 days. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 4^th day of November, 2022)                                            

• RAJU K.S)                                        (SHIVARAMA. K)    
•  
•  

Witness examined for the complainants side:

Sri.R.Sridhar Murthy, the complainant has filed his affidavit.

Sri.E.Vishwanath has filed affidavit in the form of his evidence in chief.

Documents marked for the complainant side:

1.Copy of the adhar card bearing No.613261789451.

2. Copy of the registration certificate in respect of the vehicle bearing No.KA-52A 385.

3. The Certificate of fitness issued by the transport department dt.10.10.2018.

4. The certificate cum policy schedule bearing policy No.OG19-1723-1803-00000104 in respect of the vehicle bearing No.KA-52-A-3585.

5. The permit dt.18.10.2016 issued by the RTA in respect of eh vehicle bearing No.KA-52A-3585.

6. Copy of the driving licence of Vishwanatha E.

7. Copy of the FIR in crime No.37/2019 dt.09.04.2019 registered by Thalak Police Station, Chalkere Circle for the offence u/s 279 and 337 of IPC.The complaint submitted by Thippeswamy to the police on09.05.2019.

8. Job card dt.23.04.2019 issued by RNS Motors.

9. The copy of letter dt.25.07.2019 sent by Bajaj Allianze to the complainant calling upon the complainant fulfills the requirement mentioned therein.

10.The copy of the legal notice dt.03.06.2019 got issued by the complainant to the opposite parties through advocate. The postal receipt and postal acknowledgements.

11.Copy of the computer generated bank statement in respect of complainant’s account No.4433101000498 maintained at Canara Bank by the complainant.

12.The certified true Xerox copy of car finance agreement dt.08.10.2016.

Witness examined for the opposite party side: 

Smt.Prerana V.N, Senior Executive of opposite party has filed affidavit in the form of her evidence in chief.

Documents marked for the Opposite Party side:

1. Authorization letter dt.16.10.2020.

2. Legal notice of complainant dt.03.06.2019.

3. Repudiation letter dt.27.05.2019.

4. Copies of investigation report.

5. Copy of claim form dt.23.04.2019.

6. Copy of FIR in Crime No.37/2019.

7. Copy of complaint copy dt.09.04.2019.

8. Copy of Adhar card No.613261789451 of complainant.

9. Copy of RC of complainant.

10. Complaint copy of complainant to opposite party dt.17.05.2019.

11. Complainant received from present owner of vehicle to opposite party.

12. Copy of Sale agreement dt.18.02.2017.

13. Copy of letter of complainant to opposite party.

14. Copy of claim summary sheet.

15. Copy of certificate cum policy schedule.

16. Copy of the provision survey report dt.26.04.2019.

17. Copy of service estimate dt.24.04.2019.

18. Copy of certificate of fitness.

19. Copy of permit in respect of contract carriage.

20. Copy of pan card of complainant.

21. Copy of transcript of proposal for commercial vehicle package policy.

• RAJU K.S)                                    (SHIVARAMA. K)    
•