BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.108/2021

DATED ON THIS THE 19^th September 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                        2) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri B.NARAYANAPPA,

PRESIDENT

1.       The complainant  Sri S.M.Malegowda, resident of K.R.Nagara Town, Mysuru District has filed this complaint against the OP – Manager, HDFC ERGO General Insurance Company, Bengaluru, praying to direct the OP to pay car repair charges of Rs.43,955/- with interest at 18% p.a. to complainant and Rs.50,000/- towards mental agony caused to complainant and Rs.10,000/- as cost of the litigation.     
2.       The brief facts are that:-

The complainant is a customer of OP and he is a doctor by profession and he is running a clinic at K.R.Nagar Town and owner of Maruthi Brezza car bearing registration No.KA-45-M-4594 and he using the said car to go to his clinic and to return to home and he obtained insurance policy from OP for the said car valid from 17.02.2021 to 16.02.2022.On 17.02.2021 at about 9.30 PM, when he was taking his car from his clinic to go to his house, at that time his son Dr.Sunil who is running the dental clinic nearby came there and took the car to the road and run the same for about 50 mtrs, thereafter the complainant took the car and was driving himself to go to his house, at that time, a Bolero vehicle was parked by the side of the road, when he tried to over take the said Bolero vehicle, his vehicle hit the said Bolero causing damages to his vehicle.Therefore, he left the vehicle to Mandavi Motors for repair and spent Rs.43,955/-towards repair charges.He is having valid driving license and his son also having valid driving license and he made claim form to OP for reimbursement of car repair charges of Rs.43,955/-.But, the OP on 23.03.2021 rejected his claim stating that at the time of accident, the complainant was not driving the car instead one unknown person was driving it and the complainant was sitting on the co-driver seat and it is further contended that the complainant himself was driving the car at the time of alleged accident.The OP is liable to pay the damage caused to the vehicle of the complainant but it has rejected the claim of the complainant.Therefore, it is alleged deficiency in service on the part of OP, hence this complaint.

3.       After registration of this complaint, notice was ordered to be issued to OP.  In response to notice, OP appeared before this Commission and filed version contending that this Commission has no jurisdiction to entertain this complaint.  Hence, the complaint is liable to be dismissed.  The case on hand involves intricate questions of facts and law, which require voluminous evidence, oral as well as documentary, to be lead for proper adjudication of the matter.  This is not possible in summary procedure followed by this Commission.  Hence, the complaint be returned to be present before the competent court and admitted that the OP had issued insurance policy to Maruthi Vitara Brezza bearing registration No. KA-45-M-4594 vide policy No.2311204023317500000 valid from 17.02.2021 to 16.02.2022. As per the intimation given by the complainant, that on 17.02.2021 at about 9.00 PM he was driving the said car from his clinic to his home at that time one Bolero vehicle was parked on the left side of the road and while overtaking the said vehicle, he heard a loud horn from back side vehicle, so he got confused and the vehicle dashed against the parked Bolero resulting in damage to the car and the complainant preferred a claim by submitting a claim form dated 18.02.2021 stating that he was driving the car at the time of the accident.  The OP had arranged for a surveyor for assessment of loss, the surveyor N.Pavan Gangadhar conducted survey and assessed the loss of Rs.35,678/-, the  liability of the policy is as per the terms and conditions. The OP has also engaged M/s Naveen Investigator to investigate the matter who after investigation submitted his report and collected materials stating that the complainant was not the driver at the time of the accident, an unknown person was driving the car, the complainant was seated in co-driver seat.  The CC TV footage collected by the investigator clearly reflects that the complainant was not driving the car, but a unknown person was driving it. Therefore, OP repudiated the claim and it is further alleged that the false declaration made by the complainant constitutes fraud in claiming damages and denied that the complainant is entitled to Rs.43,955/- as repair charges and there is no deficiency in service on the part of OP.  For all these reasons, OP prays to dismiss the complaint.        
4.        The complainant has filed affidavit on behalf of complainant by way of examination in chief and the same was taken as P.W.1 and got marked Ex.P.1 to Ex.P.10.      On the other hand, OP has filed his affidavit by way of examination in chief and the same was taken as R.W.1. It is pertinent to note that on the submission of OP counsel this case was referred to National Lok Adalath which was to be held on 17.01.2022, but the case was not settled.  From this, it appears that the OP was ready to settle the matter.
5.      We have heard the arguments of complainant’s counsel. He has also filed written arguments.  The OP and counsel were not present and not addressed the arguments. 
6.        The points that would arise for our consideration are as under

1. Whether the complainant proves that the alleged deficiency in service on the part of the opposite party and thereby he is entitled to the reliefs as sought for?
2.  What order?

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

      Point No.1 :- Partly in the affirmative

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.          Point No.1:- It is undisputed fact that the complainant is a owner of Maruthi Brezza car bearing registration No.KA-45-M-4594 and insured the said vehicle with OP and the OP had issued insurance policy valid from 17.02.2021 to 16.02.2022.  The OP has admitted this fact in the written version.  It is specific contention of the complainant that he is a doctor by profession and running a clinic at K.R.Nagar Town and he used to use the said car to go to his clinic and return home.  On 17.02.2021 at about 9.30 PM in order to go to his home, he was taking his car from his clinic, at that time, his son Dr.Sunil who is dental doctor running dental clinic nearby the clinic of the complainant came there who took the car to road and run the same for about 50 mtrs. Thereafter, the complainant himself started to drive the car, at that time, a Bolero vehicle was parked by the side of the road, the complainant while over taking the said Bolero vehicle, hit the same, causing damages to his vehicle.  Therefore, he left the vehicle with Mandavi Motors and spent Rs.43,955/- towards repair charges and made claim with OP it rejected the claim of the complainant vide letter dated 23.03.2021 on the ground that at the time of accident, the complainant was not driving the car but one unknown person was driving it.  The complainant produced job card issued by Mandavi Motors it billed a sum of Rs.43,955/- towards repair charges and also the complainant produced receipt issued by Mandavi Motors for having received Rs.43,955/-.  From job card and receipt issued by Mandavi Motors, it is clear that the complainant had spent Rs.43,955/- towards repair charges of his vehicle. The complainant also produced claim rejection letter issued by OP rejecting the claim of the complainant on the ground that as per claim form driver on wheel at the time of accident mentioned name yourself as Mr.Malegowda but during claim investigation found insured vehicle driven by unknown person and Dr.Malegowda was seated in Co-driver seat in the vehicle.  The certificate of policy issued by the OP clearly reflects that the complainant insured his vehicle with OP which was valid from 17.02.2021 to 16.02.2022.  The complainant also produced registration certificate of the vehicle bearing registration No.KA-45-M-4594 standing in his name and also copy of the D.L. which shows that the complainant was having valid driving license to drive LMV vehicle valid till 01.07.2024.  So, it is crystal clear that the complainant was having valid driving license on the date of accident and admittedly the OP has issued insurance policy in the name of the complainant to the vehicle bearing registration No.KA-45-M-4594 which was valid from 17.02.2021 to 16.02.2022 and at the time of accident, the said insurance policy was inforce.  It is the contention of the OP that after receipt of claim form from the complainant, the OP has appointed N.Pavan Gangadhar, surveyor who conducted the survey of the damaged vehicle and assessed the loss to the tune of Rs.35,678/- and OP has also appointed investigator M/s Naveen Investigator who investigate the incident and submitted his report stating that on the date of accident, the complainant was not driving the car instead one unknown person was driving the car, the complainant was sitting in Co-driver seat and further stated that the CCTV footage collected by the investigator reflects that the complainant was not driving the car, but unknown person was driving it.  On the basis of report of the investigator, the OP repudiated the claim.  But, the OP has failed to prove its aforesaid contention and it has not produced CCTV footage showing that on the date of accident, the complainant was not driving the car, but an unknown person was driving it.  Therefore, the contention of the OP that on the basis of investigator Mr.Naveen that the complainant was not driving the car on the date of accident, but one unknown person was driving it, cannot be believed and accepted and as we have stated above, the OP was ready to settle the matter.  Therefore, this case was referred to National Lok Adalath which was to be held on 17.01.2022 but the matter was not settled.  The reference of the complaint to Lok Adalath on the request of the OP, appears that the OP was ready to settle the matter.  But, for the reasons best known to it, it did not come forward to settle the matter and as per the report submitted by Surveyor appointed by the OP, the surveyor assessed the damage to the tune of Rs.35,678/-. But, the OP by taking into the consideration of the report submitted by the investigator that on the date of accident, the complainant was not driving the car but, one unknown person driving it, rejected the claim which is absolutely not correct on the part of OP.  Since it has failed to prove that on the date of accident, the complainant was not driving the car and it was driven by one unknown person and it has also failed to produce CCTV footage showing that on the date of accident, the complainant was not driving the car but one unknown person was driving it.  The non-settlement of claim as assessed by the surveyor appointed by the OP to the tune of Rs.35,678/- is nothing but deficiency in service on the part of OP.  Hence, we are of the opinion that OP is liable to pay its own admitted assessment of damages to the tune of Rs.35,678/- as assessed by the surveyor N.Pavan Gangadhar who has been appointed by the OP.   Hence, we answer point No.1 partly in the affirmative.
9.       Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby allowed in part.
2. The opposite party is hereby directed to pay a sum of Rs.35,678/- the loss assessed by it to the complainant with interest at 10% p.a. within 3 months from the date of this order till payment. 
3. Further, opposite party is hereby directed to pay compensation of Rs.5,000/- towards mental agony and deficiency in service caused to complainant and Rs.3,000/- towards cost of the litigation within 3 months from the date of this order, failing which compensation of Rs.5,000/- + cost of litigation of Rs.3,000/- = 8,000/- shall carry interest at 10% p.a till payment.
4. The complainant is at liberty to take action against the opposite party under Section 72 of the C.P.Act, 2019 for non-compliance of this order.
5. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 19^th September, 2022)