BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 34/11.
THIS THE 18th DAY OF JANUARY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Mohammed Khaja Hussain S/o. Khader Basha,
Age: 30 years, Occ: Kirana Merchant, C/o. Noor Pasha Kirana Shop, APMC Complex, Kustagi Road, Sindhanoor, Dist: Raichur.
//VERSUS//
OPPOSITE PARTY :- Manager, ICICI Lombard, Motor General
Insurance Company Ltd., Garaladinni, Sharanappa Gouda Complex, SNT Talkies, Raichur.
CLAIM :- For to direct the opposite Insurance Company
to pay an amount of Rs. 3,40,000/- with 15% interest, to pay another amount of Rs. 10,000/- with other reliefs as deems fit to the circumstances of this case.
Date of institution :- 19-05-11.
Notice served :- 10-06-11.
Date of disposal :- 18-01-12.
Complainant represented by Sri. Gourish, Advocate.
Opposite represented by Sri. Shashidhar.B.Hiremath., Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Mohammed Khaja Hussain against the opposite ICICI Lombard, Motor, General Insurance Company Ltd., under section 12 of Consumer Protection Act for to direct the opposite Insurance Company to pay an amount of Rs. 3,40,000/- with 15% interest, to pay another amount of Rs. 10,000/- with other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant’s case are that, he is the owner of in possession of the lorry bearing No. KA-07/6064 which is comprehensively insured with opposite company met with an accident on 16-03-09, while insurance policy was inforce, his lorry badly damaged in the accident, he got repaired it by spending an amount of Rs. 3,40,000/- and thereafter he submitted claim petition along with necessary records but opposite Insurance Company shown its negligence in settling his claim and thereafter it repudiated his claim with untenable grounds and thereby opposite Insurance Company found guilty under deficiency in its service.
3. Opposite Insurance Company appeared in this case through its advocate, filed its written version by contending that, the complainant falsely claimed an amount of Rs. 3,40,000/- as he got repaired it, surveyor was appointed and assessed the loss to the extent of Rs. 27,060/-. The said vehicle is a goods vehicle, the driver of it was allowed to travel four persons at the time of accident which is contrary to permit to carry persons in the goods vehicle as noted in the RC Book and thereby it is contravention to the terms and conditions of the policy and thereby it rightly repudiated the claim of complainant, there was no deficiency in its service and accordingly, it prayed for to dismiss the complaint among other grounds.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he is the owner in possession of the lorry bearing No. KA-07/6064 which is comprehensively insured with opposite Insurance Company, met with an accident on 16-03-09 while insurance policy was in force and the said vehicle badly damaged in the accident, he got repaired by spending an amount of Rs. 3,40,000/-, thereafter he filed claim petition with necessary records, but opposite Insurance Company shown its negligence in settling his claim and repudiated his claim by showing untenable grounds and thereby opposite Insurance Company found guilty under deficiency in its service.?
2. Whether complainant is entitled for the relief’s as prayed in his 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 noted 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 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. Further affidavit-evidence was filed on 02-12-11. He also filed affidavit-evidence of one M.A. Bepari, Proprietor of Sri Sai Baba Motor Mechanic, Bijapur, who is noted as PW-2. Totally documents Ex.P-1 to Ex.P-12 are marked. On the other hand, the Manager (Legal) of Opposite Insurance Company was filed, who is noted as RW-1. The documents Ex.R-1 to Ex.R-5 are marked.
7. In view of the pleadings of the parties, their respective affidavit- evidences and documents filed by them,
1. It is a fact that, parties have no dispute regarding the ownership of the complainant of the lorry bearing No. KA-07/6064.
2. It is a fact that, the coverage of the said vehicle under the comprehensive Insurance Policy issued by opposite for a period of one year commencing from 29-08-08 to 28-08-09.
3. The said vehicle met with an accident on 16-03-09 on the said time and place while insurance policy was in force is also not in dispute. Claim petition filed by the complainant and repudiating it by the Insurance Company is also not in dispute.
8. In the light of the undisputed facts in between the parties, we have not discussed the related documents filed by the parties, as it is unnecessary. We have taken note of the affidavit-evidence of the parties and the documentary evidences pertaining to disputed points.
9. The first point which was taken urged before us, is with regard to limitation point. The said was decided on merits while dealing on IA-1. We have passed considered order on 02-11-11 by condoning the delay. Opposite not preferred any Revision or Appeal against that order hence, as on today the point of limitation is not surviving.
10. The only one main point for our consideration is, as to whether complainant violated the terms and conditions of the policy by allowing four persons to travel in the goods vehicle at the time of accident and repudiation of the claim of the complainant on that ground is justified or not.
11. In support of the claim of the complainant, he submitted the following rulings:
1) AIR 1996 Supreme Court 2054.
B.V. Nagaraju V/s. M/s. Oriental Insurance Company Ltd.,
2) 2011 (4) CPR 56 NC
New India Assurance Company Ltd., V/s. Smt. Mohanbai.
12. The learned advocate for opposite relied on the following rulings in support of his contention:
1) AIR 2007 NOC 259 (NC).
National Insurance Company Ltd., V/s. Suresh Babu & Anr.
2) AIR 2008 NOC 1668 (NC)
Santosh V/s. National Insurance Company Ltd.,
3) AIR2007 SCW 2279
National Insurance Company Ltd., V/s. Laxminarayana & Other.
13. The learned advocate for complainant submitted with support of the rulings submitted by him is that, the alleged violation of the terms and conditions of the policy with regard to allow four persons in the lorry at the time of accident is not directly connected to either in attributing rash driving or negligent driving of the driver of it. Carrying more persons against to the permit granted by the authority is not a contributing factor for the alleged accident and damage caused to the vehicle of complainant.
14. The learned advocate for opposite denied of such contention of the learned advocate for complainant in reference to the rulings referred by him.
15. We have perused the entire submissions made by both the advocates and also gone through the principles of the rulings referred by each of them. The ruling cited at Sl.No. 1 & 2 supports the case of complainant. The rulings referred by the learned advocate for opposite shown at Sl.No. 1 & 2 supports the case of Opposite Insurance Company. The facts of the case shown in the ruling at Sl.No-3 are different to the facts of the present case.
16. Keeping in view of the principles of the Hon’ble Supreme Court in a ruling cited at Sl.No-1 referred by the learned advocate for complainant, we have gone through the facts pleaded by the opposite Insurance Company in its written version and affidavit-evidence of RW-1 and documents we are of the opinion that, the alleged carrying of persons in goods vehicle against to the permitted capacity is not contributing factor to the said accident. There is no direct relationship in between the alleged breach of condition with the damage to the vehicle while insurance policy was in force. Even if, for the sake of arguments, we accept it as the driver of the lorry was allowed to travel four persons in the lorry at the time of accident, which is against to the permitted capacity, is not a fundamental breach of the terms and conditions of the policy. The same was stated by their lordships of the Hon’ble Supreme Court in AIR 1996 S.C. 2054, as such we have followed the principles of the ruling of the Hon’ble Supreme Court cited above, and with great respect to their lordships of the Hon’ble National Commission, we have not followed the principles of the rulings noted at Sl.No. 1 & 2 referred by the learned advocate for opposite Insurance Company and opined that, non settling the claim of the complainant on that ground by the Insurance Company is a deficiency in its service towards its customer, accordingly we have accepted the case of complainant by holding that, he proved the facts involved in Point No-1.
17. As regards to the assessment of the damage is concerned, the complainant is claiming that, his lorry badly damaged in the accident and he spent an amount of rs. 3,40,000/- and got repaired it in the workshop of PW-2. In support of this contention he filed affidavit-evidence of the Proprietor of Sai Baba Motor Mechanic, Ashok Ley Land Specialist, Bijapur. In his affidavit-evidence, he stated regarding the repair of the damaged lorry of the complainant bearing No. KA-07/6064 with cost of Rs. 1,40,600/- and he issued bills for the receipt of the said amount.
18. The learned advocate for opposite denied the said claim of the complainant and contended that the surveyor was appointed by the Insurance Company, who visited the spot, he noticed and assessed the loss to the extent of Rs. 27,060/- only.
19. Now, the question before is, whether the surveyor’s report is to be accepted or whether the affidavit-evidence of PW-2 is to be accepted. The learned advocate for complainant relied on the judgment of the Hon’ble Karnataka State Commission in Appeal No. 4101/09, Appeal NO. 1084/10 and also another ruling of the Hon’ble Supreme Court IV (2009) CPJ 46 (SC).
20. Their lordships of the Hon’ble State Commission clearly stated in those two cases that, there were no supporting affidavit-evidences of the surveyor’s with regard to assessment of loss to the vehicle. Accordingly the Hon’ble State Commission accepted the claims of each complainant to the extent supported by bills.
21. In the instant case, opposite Insurance Company not filed affidavit-evidence of surveyor, said to have appointed and assessed the loss to the extent of Rs. 27,060/- only. No clarification is out coming from the side of the Insurance Company, as to why it not filed the affidavit-evidence of surveyor. Under the said circumstances, we are constrained to reject the say of opposite that, the damage to the vehicle was to the extent of Rs. 27,060/- only as per surveyor’s report. Under such circumstances, now the course left to the complainant to say his claim with support of the bills issued by PW-2 regarding the repair to the vehicle.
22. Ex.P-7 & Ex.P-7(1) are of two bills dt. 21-04-09 for Rs. 14,100/- and Rs. 37,600/-. Ex.P-7(2) & Ex.P-7(3) are pertaining to Rs. 4,200/- and for Rs. 157/- are accepted. Ex.P-7(4) is not having date as such, it is rejected. Ex.P-7(5) is for Rs. 2,450/- which has no signatures on the bill who issued it, accordingly, it is also rejected. Ex.P-7(6) is for Rs. 4,040/- it is accepted. Ex.P-7(7) is not having any dates, hence it is rejected. Ex.P-7(8) is for Rs. 910/- & Ex.P-7(9) is for Rs. 2,002/- are accepted. Ex.P-7(10) is not having any date, hence it is not accepted. Ex.P-7(11) is for Rs. 424/- which is accepted. Ex.P-7(12) is for Rs. 35,000/- which is accepted and Ex.P-7(13) is for Rs. 1,100/- Ex.P7-(14) is for Rs. 1,675/- are accepted. Hence the complainant is entitled for total amount under Ex.P-7, Ex.P-7(1), Ex.P-7(2), Ex.P-7(3), Ex.P-7(6), Ex.P-7(8), Ex.P-7(9), Ex.P-7(11), Ex.P-7(12), Ex.P-7(13), Ex.P-7(14) to the extent of Rs. 1,01,208/- which is rounded to Rs. 1,01,210/-. Apart from this amount, the complainant also entitled to recover lump sum amount of Rs. 3,000/- under the head of deficiency in service and another amount of Rs. 2000/- towards cost of the litigation. Hence totally, complainant is entitled to recover an amount of Rs. 1,06,210/- from the opposite insurance company.
The complainant is also entitled to recover future interest at the rate of 9% p.a. on Rs. 1,06,210/- from the date of this complaint till realization of the full amount. Accordingly we answered Point No-2.
POINT NO.3:-
23. In view of our findings on Point Nos-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 get an amount of Rs. 1,06,210/- from the opposite Insurance Company.
The complainant is entitled to recover interest at the rate of 9% p.a. on Rs. 1,06,210/- from the date of this judgment till realization of the full amount.
Opposite is hereby granted one month time to make the above payment to the complainant from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-01-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
