The Manager, ICICI Lombard General Insurance Co. Ltd., V/S Shankarayya Swamy S/o. Revanayya Swamy - Consumer Court Case

Karnataka

Raichur

CC/09/79

Shankarayya Swamy S/o. Revanayya Swamy - Complainant(s)

Versus

The Manager, ICICI Lombard General Insurance Co. Ltd., - Opp.Party(s)

K.Krishnarao

05 Feb 2010

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/09/79

Shankarayya Swamy S/o. Revanayya Swamy						...........Appellant(s)
Vs.
The Manager, ICICI Lombard General Insurance Co. Ltd.,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by the complainant Shankrayya S/o. Revenayya Swamy against the Opposite ICICI Lombard General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for direct the opposite to pay a sum of Rs. 1,75,000/- compensation, with 12% interest, and cost with other reliefs as deems fit to this circumstances of this case. 2. The brief facts of the complainant case are that, the complainant is the owner and possessor and RC Holder of Toofan Cruser vehicle bearing No. KA-36/M -3415 and the same was insured with the Respondent company vide policy No. 3001/51812200/00/000 for the period from 2-05-07 to 01-05-08. The said vehicle was met with an accident on 01-05-08, while proceeding towards Manvi from Bagalwad in order to bring the relatives of the complainant from Manvi at about 7-00 a.m. Near the land of one K. Venkobayya Shetty on Bagalawad Manvi Road, after passing Kotnekal village. In the said accident vehicle was completely damaged. The said vehicle was driven by the driver Suresh who was holding valid and effective driving license. The vehicle was being used for domestic purpose on the said date. The Manvi Police, have conducted the Panchanama and estimated the damage cost to the tune of Rs. 1,25,000/- Soon after the accident the complainant has informed the Respondent Company on phone. The surveyor of Respondent Company visited the spot and conducted survey / inspection of the vehicle and submitted his report to Respondent Company. He also informed the complainant to get repair of vehicle and submit the bills for claming the damages. The complainant as per instruction of the survey got repaired the vehicle at Taware Traders Jamakandi of Bagalkot Dist: by spending Rs. 1,00,000/-. The receipts have been sent to the Respondent Company on 19-06-2008. Further it is the case of the complainant that, instead of settling the claim intentionally Respondent issued the notice on. 07-06-2008 stating that, the terms and conditions of policy have been violated; hence the insurance company is not liable for any compensation. The complainant further contended that, the complainant has not violated any condition and terms of the policy and used the vehicle for personal use as on the date of accident. The policy was in force and existence. It is the bounden duty of the insurance company to pay compensation. But, even in-spite of several requested and legal notice dated 19-06-08 the Respondent Company has not taken any steps to settle the claim, on the other hand by giving false reason rejected the claim, so this act of the Respondent is nothing but, a deficiency in service, hence he sought the compensation as prayed in the prayer. 3. The Respondent Insurance Company appeared in this case through its Advocate and filed written version by denying the use of the vehicle by the complainant for his personal use at the time and date of accident and the driver of the vehicle Suresh who was holding valid driving licence. Further they have denied that, the surveyor of Respondent Company informed the complainant to get repair the vehicle and submit the bills for claiming the damages and the amount will be paid by the Respondents and as per the instructions of surveyor got repaired the vehicle at Jamakhandi by spending more than Rs. 1,00,000/- and the bills have been sent on 19-06-08 and for request of the complainant regarding settlement of the claim. Further vehicle involved in the present case has been insured in a private car package policy for own use but, the vehicle in question was being used for hire and reward purpose which is policy exclusion. In view the same the claim made by the complainant is in admissible and Respondent has disclaimed the liability to the insured for any claim. Therefore in view of the policy condition the same was intimated to the complainant. The loss assessed by the surveyor is approximately to the tune of Rs. 56,830.50/- Ps. only, even for this damages complainant is not entitled in view of the violation of the policy condition and sought for dismissal of the complaint with exemplary cost and interest. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his Toofan Cruser vehicle bearing No. KA-36/M 4315 insured with Respondent Insurance company met with an accident on 01-05-08 near the land of one K. Venkobayya Shetty of Bagalwad- Manvi Road, whether the insurance policy was in force, his vehicle badly damaged, the complainant has used the vehicle for his own/domestic purpose, he informed the accident to opposite, thereafter he got repaired, filed claim petition but opposite is not settled his claim inspite of repeated oral and written requests, opposite is negligent in settling his claim and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in the complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement and as stated in the final order. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-16 are marked. 7. On the other hand affidavit-evidence of Legal Manager of Opposite Insurance Company was filed, he was noted as RW-1. Documents Ex.R-1 to Ex.R-3 are marked. 8. There is no dispute by the opposite that the complainant is the owner of the Vehicle bearing No. KA-36/M-3415, coverage of insurance policy and its in force, accident of the said vehicle on 01-05-08 near one K. Venkobayya Shetty of Bagalawad-Manvi Road after passing Kotnekal village 9. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondent insurance company, it is very clear that, the Respondent insurance company has raised only one point in their defence is:- 1. Vehicle of the complainant is registered as private car package policy for own use but on the said place, date and time of accident it was used for hire and reward purpose which is policy exclusion and as such claim was repudiated as it is one of the breach of the conditions of the insurance policy. 10. In order to substantiate the case of opposite and defence as raised under the point No-1, the opposite insurance company mainly depending upon the Ex.R-3 i.e, Certificate cum Policy issued by Respondent Company. On perusal of the said Ex.R-3 under limitation column it has mentioned as The policy covers use of the vehicle for any purpose other than; hire or reward, carriage of goods, organized raising pace making, speed testing etc., but in order to substantiate their defence the Respondent insurance company has not produced any other documents to show that the complainant has used the vehicle for hire or reward. But on the contrary the complainant in order to prove his case regarding use of the vehicle for his own purpose he has submitted statements of one Shankrayya S/o. Revanayya and statement of two panchas by name Mallangouda S/o. Basavarajappa, Huchappa S/o. Thimayya, R/o. Bagalawad under Ex. P-1 & Ex.P-2 these three persons in their statements given before the Manvi Police have clearly stated that the vehicle has been used for the purpose of domestic use/own purpose. These persons they have given their statements before the Manvi Police accordingly Manvi Police have recorded their statements and the said ExP-1 & Ex.P-2 are also having signatures of the persons who have given their statements and the police officials who have taken their statements. Under such circumstances the version of the complainant cannot be discarded. Hence we have rejected the defence of the Respondent Company in this regard. The contention of the Respondent Insurance company as per Ex.R-1 i.e, letter written by the Respondent insurance company to the complainant on 07-06-08 in respect of the claim of the complainant is concerned holds no good. 11. The Ex.R-2 i.e, survey report submitted by the Nagappaguda S. Patil reveals that the vehicle in question was met with an accident and the vehicle has been damaged due to the accident as stated by the complainant. Further it reveals that the driver of the vehicle is having valid driving licence. Under such circumstances bare contention of the Respondent regarding violation of policy condition on the basis of the use of the vehicle is concerned holds no good as stated supra. Further this report reveals that, the vehicle has been damaged due to the accident on date and time mentioned in the complaint and same has been got repaired by the complainant. From this also it is very clear that the accident and damaged to the vehicle and its repair is clear. Under such circumstances rejecting the claim of the complainant by giving false reason by the Respondent is clearly goes to show that there is a deficiency on the part of the Respondent. So we have hold that the complainant has proved his case against the Respondent in respect of deficiency in service. Hence we answered Point No-1 in affirmative. POINT NO.2:- 12. The complainant has sought total compensation of Rs. 1,75,000/- with 12% interest, cost. The complainant has produced bills in this regard to the tune of Rs. 1,01,676/-at Ex.P-6, Ex.P-8 to Ex.P-11. Ex.P-7 is quotation but not cash memo. The Respondent has produced investigation report of surveyor and loss assessor, investigator etc., under Ex.R-2, but in the said report the surveyor has assessed the total loss approximately to the tune of Rs. 56,813.50/- Ps. But the Respondent insurance company has not produced any affidavit-evidence of the surveyor. Though the surveyor report is valid document in order to consider the claim in respect of damaged vehicle but it is valid only if it is supported his affidavit. In support of our contention in this regard we have referred the ruling cited in 2002 CPJ II Page No. 420 wherein the Honble State Commission has held in Aghana Aqua Forms V/s. Divisional Manager, New India Assurance Company Ltd., wherein it has held that the survey report should be supported by the affidavit of surveyor for its evidentiary value. Therefore we have come to the conclusion to accept the bills submitted by the complainant and awarded to the tune of Rs. 1,01,676/- which is rounded to Rs. 1,01,600/-towards repair charges of his damaged vehicle. 13. Regarding the interest is concerned, the complainant has sought 12% interest but the same is excessive and exorbitant, hence we have granted only 9% interest on the total compensation. 14. We have noticed the deficiency in service on the part of the Opposite Insurance Company as such we have granted an amount of Rs. 3,000/- which is recoverable by the complainant from the Opposite under the head of deficiency in service. 15. As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 2,000/- towards cost from Opposite Insurance Company. POINT NO.3:- 16. In view of our finding on Point No-1 & 2 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total sum of Rs. 1,06,600/- with interest at the rate of 9% from the Respondent Insurance Company. Respondent Insurance Company is hereby given one month time from the date of the judgement for to make payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 05-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Gururaj, Member:- This is a complaint filed by the complainant Shankrayya S/o. Revenayya Swamy against the Opposite ICICI Lombard General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for direct the opposite to pay a sum of Rs. 1,75,000/- compensation, with 12% interest, and cost with other reliefs as deems fit to this circumstances of this case. 2. The brief facts of the complainant case are that, the complainant is the owner and possessor and RC Holder of Toofan Cruser vehicle bearing No. KA-36/M -3415 and the same was insured with the Respondent company vide policy No. 3001/51812200/00/000 for the period from 2-05-07 to 01-05-08. The said vehicle was met with an accident on 01-05-08, while proceeding towards Manvi from Bagalwad in order to bring the relatives of the complainant from Manvi at about 7-00 a.m. Near the land of one K. Venkobayya Shetty on Bagalawad Manvi Road, after passing Kotnekal village. In the said accident vehicle was completely damaged. The said vehicle was driven by the driver Suresh who was holding valid and effective driving license. The vehicle was being used for domestic purpose on the said date. The Manvi Police, have conducted the Panchanama and estimated the damage cost to the tune of Rs. 1,25,000/- Soon after the accident the complainant has informed the Respondent Company on phone. The surveyor of Respondent Company visited the spot and conducted survey / inspection of the vehicle and submitted his report to Respondent Company. He also informed the complainant to get repair of vehicle and submit the bills for claming the damages. The complainant as per instruction of the survey got repaired the vehicle at Taware Traders Jamakandi of Bagalkot Dist: by spending Rs. 1,00,000/-. The receipts have been sent to the Respondent Company on 19-06-2008. Further it is the case of the complainant that, instead of settling the claim intentionally Respondent issued the notice on. 07-06-2008 stating that, the terms and conditions of policy have been violated; hence the insurance company is not liable for any compensation. The complainant further contended that, the complainant has not violated any condition and terms of the policy and used the vehicle for personal use as on the date of accident. The policy was in force and existence. It is the bounden duty of the insurance company to pay compensation. But, even in-spite of several requested and legal notice dated 19-06-08 the Respondent Company has not taken any steps to settle the claim, on the other hand by giving false reason rejected the claim, so this act of the Respondent is nothing but, a deficiency in service, hence he sought the compensation as prayed in the prayer. 3. The Respondent Insurance Company appeared in this case through its Advocate and filed written version by denying the use of the vehicle by the complainant for his personal use at the time and date of accident and the driver of the vehicle Suresh who was holding valid driving licence. Further they have denied that, the surveyor of Respondent Company informed the complainant to get repair the vehicle and submit the bills for claiming the damages and the amount will be paid by the Respondents and as per the instructions of surveyor got repaired the vehicle at Jamakhandi by spending more than Rs. 1,00,000/- and the bills have been sent on 19-06-08 and for request of the complainant regarding settlement of the claim. Further vehicle involved in the present case has been insured in a private car package policy for own use but, the vehicle in question was being used for hire and reward purpose which is policy exclusion. In view the same the claim made by the complainant is in admissible and Respondent has disclaimed the liability to the insured for any claim. Therefore in view of the policy condition the same was intimated to the complainant. The loss assessed by the surveyor is approximately to the tune of Rs. 56,830.50/- Ps. only, even for this damages complainant is not entitled in view of the violation of the policy condition and sought for dismissal of the complaint with exemplary cost and interest. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his Toofan Cruser vehicle bearing No. KA-36/M 4315 insured with Respondent Insurance company met with an accident on 01-05-08 near the land of one K. Venkobayya Shetty of Bagalwad- Manvi Road, whether the insurance policy was in force, his vehicle badly damaged, the complainant has used the vehicle for his own/domestic purpose, he informed the accident to opposite, thereafter he got repaired, filed claim petition but opposite is not settled his claim inspite of repeated oral and written requests, opposite is negligent in settling his claim and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in the complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement and as stated in the final order. (3) In-view of the findings on Point Nos- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-16 are marked. 7. On the other hand affidavit-evidence of Legal Manager of Opposite Insurance Company was filed, he was noted as RW-1. Documents Ex.R-1 to Ex.R-3 are marked. 8. There is no dispute by the opposite that the complainant is the owner of the Vehicle bearing No. KA-36/M-3415, coverage of insurance policy and its in force, accident of the said vehicle on 01-05-08 near one K. Venkobayya Shetty of Bagalawad-Manvi Road after passing Kotnekal village 9. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondent insurance company, it is very clear that, the Respondent insurance company has raised only one point in their defence is:- 1. Vehicle of the complainant is registered as private car package policy for own use but on the said place, date and time of accident it was used for hire and reward purpose which is policy exclusion and as such claim was repudiated as it is one of the breach of the conditions of the insurance policy. 10. In order to substantiate the case of opposite and defence as raised under the point No-1, the opposite insurance company mainly depending upon the Ex.R-3 i.e, Certificate cum Policy issued by Respondent Company. On perusal of the said Ex.R-3 under limitation column it has mentioned as The policy covers use of the vehicle for any purpose other than; hire or reward, carriage of goods, organized raising pace making, speed testing etc., but in order to substantiate their defence the Respondent insurance company has not produced any other documents to show that the complainant has used the vehicle for hire or reward. But on the contrary the complainant in order to prove his case regarding use of the vehicle for his own purpose he has submitted statements of one Shankrayya S/o. Revanayya and statement of two panchas by name Mallangouda S/o. Basavarajappa, Huchappa S/o. Thimayya, R/o. Bagalawad under Ex. P-1 & Ex.P-2 these three persons in their statements given before the Manvi Police have clearly stated that the vehicle has been used for the purpose of domestic use/own purpose. These persons they have given their statements before the Manvi Police accordingly Manvi Police have recorded their statements and the said ExP-1 & Ex.P-2 are also having signatures of the persons who have given their statements and the police officials who have taken their statements. Under such circumstances the version of the complainant cannot be discarded. Hence we have rejected the defence of the Respondent Company in this regard. The contention of the Respondent Insurance company as per Ex.R-1 i.e, letter written by the Respondent insurance company to the complainant on 07-06-08 in respect of the claim of the complainant is concerned holds no good. 11. The Ex.R-2 i.e, survey report submitted by the Nagappaguda S. Patil reveals that the vehicle in question was met with an accident and the vehicle has been damaged due to the accident as stated by the complainant. Further it reveals that the driver of the vehicle is having valid driving licence. Under such circumstances bare contention of the Respondent regarding violation of policy condition on the basis of the use of the vehicle is concerned holds no good as stated supra. Further this report reveals that, the vehicle has been damaged due to the accident on date and time mentioned in the complaint and same has been got repaired by the complainant. From this also it is very clear that the accident and damaged to the vehicle and its repair is clear. Under such circumstances rejecting the claim of the complainant by giving false reason by the Respondent is clearly goes to show that there is a deficiency on the part of the Respondent. So we have hold that the complainant has proved his case against the Respondent in respect of deficiency in service. Hence we answered Point No-1 in affirmative. POINT NO.2:- 12. The complainant has sought total compensation of Rs. 1,75,000/- with 12% interest, cost. The complainant has produced bills in this regard to the tune of Rs. 1,01,676/-at Ex.P-6, Ex.P-8 to Ex.P-11. Ex.P-7 is quotation but not cash memo. The Respondent has produced investigation report of surveyor and loss assessor, investigator etc., under Ex.R-2, but in the said report the surveyor has assessed the total loss approximately to the tune of Rs. 56,813.50/- Ps. But the Respondent insurance company has not produced any affidavit-evidence of the surveyor. Though the surveyor report is valid document in order to consider the claim in respect of damaged vehicle but it is valid only if it is supported his affidavit. In support of our contention in this regard we have referred the ruling cited in 2002 CPJ II Page No. 420 wherein the Honble State Commission has held in Aghana Aqua Forms V/s. Divisional Manager, New India Assurance Company Ltd., wherein it has held that the survey report should be supported by the affidavit of surveyor for its evidentiary value. Therefore we have come to the conclusion to accept the bills submitted by the complainant and awarded to the tune of Rs. 1,01,676/- which is rounded to Rs. 1,01,600/-towards repair charges of his damaged vehicle. 13. Regarding the interest is concerned, the complainant has sought 12% interest but the same is excessive and exorbitant, hence we have granted only 9% interest on the total compensation. 14. We have noticed the deficiency in service on the part of the Opposite Insurance Company as such we have granted an amount of Rs. 3,000/- which is recoverable by the complainant from the Opposite under the head of deficiency in service. 15. As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 2,000/- towards cost from Opposite Insurance Company. POINT NO.3:- 16. In view of our finding on Point No-1 & 2 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total sum of Rs. 1,06,600/- with interest at the rate of 9% from the Respondent Insurance Company. Respondent Insurance Company is hereby given one month time from the date of the judgement for to make payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 05-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.