BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC 109/10.
THIS THE 30th DAY OF JUNE 2011.
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 :- Rajappa S/o. Narsangouda, Age: Major,
Occ: Agriculturist, R/o. Masadoddi village,
Tq. & Dist: Raichur.
//VERSUS//
RESPONDENT :- The Manager, IFFCO TOKIO General
Insurance Company Ltd., New Cotton Market, Hubli.
CLAIM :- For to direct the opposite to pay a sum of
Rs. 1,50,000/- towards damage of vehicle, cost of the proceeding and miscellaneous expenses.
Date of institution :- 08-12-10.
Notice served :- 29-12-10.
Date of disposal :- 30-06-11.
Complainant represented by Sri.Vinod Sagar, Advocate.
Respondent represented by Sri. Vikram Nair, Advocate.
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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. Gururaj, Member:-
This is a complaint filed by the complainant Sri. Rajappa S/o. Narsanguda against the Opposite Manager, IFFCO TOKIO, General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay a sum of Rs. 1,50,000/- towards damage of vehicle, cost of the proceeding and miscellaneous expenses.
2. The brief facts of the complainant case are that, the complainant is the owner and possessor and RC Holder of Mahindra Maxi Pick Up-2007 bearing No. KA-36/6404 and the same was insured with the Respondent company vide Insurance cover Note No. 70416098 and the said policy covers period from 03-12-2009 to 02-12-2010. The said vehicle was met with an accident on 28-03-09 at about 9:30 pm near Balagera village on Jambaladinni Road, Raichur.
Soon after the accident the information has been given to the Respondent Insurance Company. The Respondent Insurance Company appointed one Mr. M.R. Srinivasan as the surveyor/loss assessor and he was inspected the vehicle and noticed the damages caused to the vehicle. He has submitted his final motor survey report by estimating the total damages to the tune of Rs. 1,07,407/-. Further, it is the case of the complainant that, he has got repaired the vehicle, through Automotive Manufacturers Pvt. Ltd., Kurnool by spending Rs. 90,500/- and he has also incurred an expenditure of Rs. 6,907/- towards transportation charges. Further it is contended that, he has also sustained a loss of Rs. 10,000/- towards his earning during the period of repair of the vehicle. The complainant has requested the Respondent Insurance Company to make the payment of loss of Rs. 1,07,407/- as assessed by the surveyor of the Respondent Company, but the Respondent Company has not settled the claim, even inspite of notice dt. 15-10-10. The complainant submitted all the relevant documents along with survey report to the Respondent Company, but even then, the Respondent Company has not made any efforts to settle the claim, this act of the Respondent is nothing but a deficiency in service on the part of the Respondent and for this he has claimed Rs. 1,07,407/- towards damages as estimated by the surveyor and Rs. 42,093/- towards mental tension agony and hardship and cost of the proceedings and Rs. 500/- towards miscellaneous expenses, in all he has claimed Rs. 1,50,000/- against the Respondent.
3. The Respondent Insurance Company appeared in this case through its Advocate and filed written version contending that, the vehicle was used for commercial purpose, hence the complainant is not a consumer within the meaning of C.P. Act and this Forum has no jurisdiction to entertain the present complaint. Further, it is contended that, the driving licence of the driver one who was driving the vehicle on the date and time of the accident was not having any endorsement from the competent authority to drive a transport vehicle. The driver of the said vehicle was holding only LMV licence and he does not possess a badge issued by the RTO to drive a transport vehicle and as per the RC, the vehicle involved in the above case is registered as a Transport vehicle. The complainant has not produced documents of the vehicle, driving licence of the driver etc., to the full satisfaction of this Respondent. All the requests made by the Respondent Insurance Company to produce valid documents to settle the claim went in vain. These are all breach of policy conditions consequently the complainant is not entitled for any monetary benefits from this Respondent. So the Respondent Insurance Company has repudiated the claim vide letter dt. 29-01-10. Hence there was no deficiency on the part of the Respondent. Further it is contended that, the claim made by the complainant is highly exaggerated, excessive and is without any basis. The net loss assessed by the surveyor is only Rs. 53,500/-. The complainant has filed false and frivolous case against the opposites Insurance Company. Under the above circumstances, the complainant is not entitled for the claim and sought for dismissal of the same with exemplary cost.
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 is the owner and possessor and RC Holder of Mahindra Maxi Pick Up-2007 bearing No. KA-36/6404 and the same was insured with the Respondent company vide Insurance cover Note No. 70416098 and the said policy covers period from 03-12-2009 to 02-12-2010. The said vehicle was met with an accident on 28-03-09 at about 9:30 pm near Balagera village on Jambaladinni Road, Raichur while Insurance Police was in force, the driver of the vehicle was holding valid driving licence, The complainant submitted all the relevant documents to the Respondent to settle the claim, the surveyor of the Respondent Company surveyed the damaged vehicle and assessed the loss to the tune of Rs, 1,07,407/-, but opposite has 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 judgment 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 and he was noted as PW-1. The documents Ex.P-1 to Ex.P-9 are marked. On the other hand, the Respondent Insurance Company has filed affidavit-evidence of Mr. Jagmohan Rao, Legal Officer of Respondent Insurance Company and noted as RW-1. Affidavit-evidence of surveyor was filed who is noted as RW-2. The documents filed by the Respondent Insurance Company are marked at Ex.R-1 to Ex.R-3.
7. In view of the pleadings of the parties, their respective evidences and documents. Some of the following facts are undisputed facts in between the parties are:-
1. It is undisputed fact that, the complainant is the owner and RC holder of Mahindra Maxi Pick Up bearing No. Ka-36/6404.
2. It is further undisputed fact that, the said vehicle was insured with opposite Insurance Company for a period of one year from 03-12-09 to 02-12-10 vide Insurance Cover Note No. 70416098.
3. It is further undisputed fact that, the said vehicle met with an accident on 28-03-10 at about 9:30 pm near Balagera village on Jambaladinni Road, Raichur.
4. It is also undisputed fact that, the vehicle was damaged in the said accident.
8. 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 the following points in their defences which are:-
1. The driver of the said vehicle was holding only LMV licence to drive the vehicle in question on the date and time of the accident, and there was no endorsement from the competent authority to drive the transport vehicle and no badge has been issued in this regard by the RTO.
2. No documents, such as driving licence of the driver, documents relating to the vehicle etc., submitted by the complainant to the Respondent Insurance Company.
9. In order to substantiate the case of opposite and defence as raised under these points, the opposite insurance company has produced three documents namely Ex.R-1, Ex.R-2 & Ex.R-3. Ex.R-1 is the claim form submitted by the complainant. Ex.R-2 is the Repudiation Letter dt. 21-09-10 and Ex.R-3 is the Survey Report. Apart from these three documents, no other documents were produced by the Respondent Insurance Company to show that, the driver of the said vehicle was not having valid driving licence to drive the vehicle in question at the time of date and time of the accident, and there was no endorsement from the competent authority to drive the transport vehicle and no badge has been issued in this regard by the RTO. On the other hand, in order to prove his case, the complainant has produced RC Book of the vehicle in question and DL of the driver who was driving the vehicle at the time and date of the accident under Ex.P-1 & Ex.P-2. On perusal of the Ex.P-1 at Page No-3 and Page No-4 respectively, it appears that, the class of vehicle as LMV and laden weight of the vehicle as 1400 and gross weight of the vehicle as 2300 kgs. No doubt, the gross weight of the vehicle is less then 7500 kgs, if the driver who wants to drive such transport vehicle, he should have LMV driving licence. Because driver who holds LMV licence is entitled to drive transport vehicle whose gross weight should not be more than 7500 Kgs. Further on perusal of Ex.P-2 the driving licence at Page No-6 it is clearly goes to show that, the driver has been allowed to drive LMV. Further on perusal of the said documents at Page No-7 it appears that, the driving licence is valid upto 21-03-2019. Hence the driving licence of the driver one who was driving the vehicle on the date and time of the accident is according to the Indian Motor Vehicle Act and it is valid one. So in this regard we have refereed section 2 (21) of the Motor Vehicle Act which defines ‘Light Motor Vehicle’ as:
“ a Transport vehicle or Omni bus the gross vehicle weight of either of which or a Motor Car or Tractor or road-roller the un-laden weight of any which does not exceed 7500 Kilograms”.
So the contention of the Respondent in this regard holds no good. Further when the vehicle is LMV and the driving licence of the driver is purely meant for LMV. Question of making of endorsement and issuing of badge does not arise. Under the said circumstances, we are of the view that, the Insurance Company is not right enough to say that, the driver has violated the policy condition as per Point No-1, so the objection raised under Point No-1 is hereby rejected.
10. In respect of the objection raised under Point No-1, the Respondent Insurance Company has relied upon the ruling of Hon’ble Supreme Court cited in 2008 ACJ 627 New India Assurance Company Ltd., V/s. Prabhulal Case. But the said ruling is not applicable to the facts in hand/present case. Hence with great respect, we have not followed the same. On the other hand, the complainant in order to prove his case, he has filed two rulings respectively cited in: AIR 1999 Supreme Court at Page No. 3181 and 2008 (3) Supreme Court Cases at Page No. 464. We have referred these two cases are aptly applicable to the case of the complainant. Hence, we have followed the principles of the said two rulings.
11. On perusal of the Ex.R-1 and Ex.R-2 these documents clearly goes to show that, the Respondent Insurance Company has received claim form and documents from the complainant. Particularly on perusal of Ex.R-2 i.e, Repudiation letter dt. 21-09-2010 it is very clear that, the complainant has submitted his driving licence and documents pertaining to the vehicle and they have clearly admitted regarding the receipt of the vehicle under this document and after that only they have repudiated the claim as ‘No claim’. Under such circumstances, the contention of the Respondent in their written statement at Para No-5 regarding non submission of the documents by the complainant holds no good. This contention clearly goes to show that, just to avoid the compensation the Insurance Company has taken such false contention. Hence the objection raised as per Point No-2, is hereby rejected. The rejection of the claim by raising such false objection is nothing but a deficiency in service on the part of the Respondent Insurance Company. Accordingly we are of the view that, complainant has proved his case and the deficiency in service on the part of the Respondent Insurance Company, accordingly we answered Point Nos-1 & 2 in Affirmative.
POINT NO.2:-
12. The complainant has sought compensation of Rs. 1,07,407/- towards damage of the vehicle, Rs. 42,093/- towards cost of the complaint including damages (mental tension, agony and hardship) and Rs. 500/- towards miscellaneous expenses, in all Rs. 1,50,000/-. The complainant has produced quotation under Ex.P-6 for an amount of Rs. 1,82,827/-, Cash receipt issued by Automotive Manufacturer Pvt. Ltd., Kurnool for an amount of Rs. 78,537/- at Ex.P-8 and for Rs. 10,000/- at Ex.P-9. to get repair the vehicle involved under the accident. On the contrary the Respondent Insurance Company produced survey report under Ex.R-3 and his affidavit-evidence wherein, the surveyor has assessed the total loss to the tune of Rs. 53,500/-. Apart from these documents another document has been placed before this Forum by the complainant under Ex.P-7 i.e, Letter dt. 29-09-2010 wherein the Works Manager who is representative of the Automotive Manufacturers Pvt. Ltd., Kurnool and who has undertaken the repair of the vehicle in question, the said Ex.P-7 is clearly speaks that, the total amount spent for repairs is Rs. 90,500/-. Now the question before us, the cost of repair of the vehicle is how much. ? No doubt, the complainant has produced estimation and bills under Ex.P-6, Ex.P-8 & Ex.P-9 respectively. But the Respondent has also submitted surveyor’s report and his affidavit-evidence wherein the loss has been assessed at Rs. 53,500/-, supported by the affidavit of the surveyor, the expenditure for to repair the vehicle is not more/less than Rs. 53,500/- hence we have rejected estimation and bills produced by the complainant.
13. 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.
14. As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 3,000/- towards cost from Opposite Insurance Company.
POINT NO.3:-
15. In view of our finding 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 recover a total sum of Rs. 59,500/- from the Respondent Insurance Company.
Respondent Insurance Company is hereby given one month time from the date of the judgment for to make payment of the total amount failing which they are liable to pay interest on the said amount at the rate of 9% p.a. till realization of the full amount.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-06-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
