Complaint filed on: 25-06-2021

                                                      Disposed on: 22-04-2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

CC.No.48/2021

DATED THIS THE 22^nd DAY OF APRIL, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

Complainant: -

Shri.Gangadhara.K.C.

S/o late Chennigaiah,

Aged about 42 years,

R/at No.683, Doddapet,

Kunigal Town, Kunigal

Tumkur district-572130

(By Sri.K.Nisar Ahamed, Advocate)

V/s

Opposite parties:-    

1. The Manager,

M/s Cholamandalam MS General Insurance Co. Ltd, Nandi Arcade, Ground floor, Opp. NEPS, Shankarpuram, BH Road, Gandhinagar, Tumkur

2. The Manager, `

M/s Cholamandalam MS General Insurance Co. Ltd, Golden Heights Building, 4^th Floor, 59^th “C” Cross, Rajajinagar, Near Sujatha Talkies, Bengaluru-560010

                                                 (OP Nos.1 and 2-by Sri.N.V.Naveen Kumar, Advocate)

ORDER

SMT.G.T.VIJAYALAKSHMI, PRESIDENT

This complaint was filed by the complainant under Consumer Protection Act, to direct the Opposite parties (hereinafter called as OPs) to take action as per law and pass suitable compensation, cost and interest to the complainant.

2. It is the case of complainant that the complainant is the registered owner of car bearing Reg. No.KA-06-P-1875 (TATA Bolt) and hypothecated with the M/s HDFC Finance Ltd. The said vehicle was insured with the 1^st OP Insurance Company vide policy bearing No.3362/01685532/000/00 and it was valid from 28-2-2019 to 27-02-2022. On 27-6-2019 at about 5.20 a.m. Mr.Vijayakumar was driving the said vehicle near Chidrahalli gate, T.Narasipura Taluk, Mysore District and he lost control over his vehicle and dashed against to the road side tree, due to which the vehicle was badly damaged. After the accident, the jurisdictional police have registered a case under crime no.158/2019 under Section 279 of IPC against the driver of the car. On the date of accident, the driver of the said vehicle was having valid and effective driving licence. The said vehicle was released from the police authority, kept in the garage and given intimation to the 1^st OP through telephone and made several requests to appoint company surveyor to conduct survey in respect of damaged vehicle and they appointed company surveyor and the surveyor submitted report to the company. The 1^st OP has refused to pay or settle the claim and sent a letter dated 7-10-2019 to the complainant stating that there was a delay for intimation. The complainant has given intimation and also submitted all relevant documents to the OP, there was no proper explanation from the 1^st OP and evaded to pay the amount. Hence, the OPs are liable to pay compensation/settling the claim. There is a deficiency of service on the part of the OPs and failed to fulfill the terms of the policy, due to illegal act and omission of the 1^st OP, the complainant has suffered the loss, financially and harassed mentally. Hence, this complaint.

3. After the service of notice, the OPs have appeared through their learned counsel and filed written version admitting the averment made in the para-3 are true and correct. The complainant’s vehicle is insured with the OPs vide bearing policy no.3362/01685532/000/00 and valid from 28-2-2019 to 27-2-2020 is subject to terms and conditions, exceptions and limitations thereof and the confirmations of compliance of Section 64 VB of the Insurance Act, 1938 and other averments made in the complaint denied as false and the complainant is put to strict proof of the same. The OPs submitted that the complaint is not maintainable either in law or on facts hence, the complaint is liable to be dismissed in limine. The OPs further submitted that, the insured vehicle is a private car and the policy was also issued as “PACKAGE-PRIVATE CAR POLICY”, but as per the complaint lodged by the complainant clearly shows that the complainant was using the insured vehicle for commercial purpose to bring the flowers and it is a clear violation of the policy terms and conditions. The OPs further submitted that the alleged incident was took place on 27-6-2019 at about 5.05 a.m. but the complainant has intimated the same to the OPs on 18-7-2019 and there was a delay of 21 days and this is a serious breach of policy terms and conditions by the complainant.  The OPs further submitted that, after receipt of the claim intimation, a claim was registered as claim no.336243371 and appointed on IRDA approved surveyor namely Tharun Pawar.S to assess the loss caused to the insured vehicle and the said surveyor has assessed the loss to a sum of Rs.2,77,342-00 and submitted his report to the OPs. After receipt of the entire documents in respect of the claim, on 27-8-2019 the OPs sent a letter/show cause notice to the complainant asking for clarification and justification for the delay of 21 days in claim intimation. The said notice was served personally on the complainant and failed to comply the same. On 7-10-2019 the OPs issued a repudiation letter to the complainant and the complainant was failed to provide satisfactory reply to the notice. Hence, the OPs have rightly repudiated the claim o the complainant for the justifiable reasons and breach of policy terms and conditions stated in the repudiation letter. The OPs have not committed any deficiency of service as alleged by the complainant in the complainant hence, the OPs prays to dismiss the complaint with exemplary cost.     

4. The complainant counsel filed affidavit in lieu of evidence and produced Exs.P1 to P16 documents. On behalf of OP’s company one Sri.Sagara.G.L, Senor Legal Manager has filed his affidavit evidence and produced the copy of policy, copy of policy terms and conditions, latter dated 27-8-2019 and repudiation letter dated 7-10-2019 which were not marked.     

5. We have heard the arguments of the learned counsel for the complainant and OPs and also pursued the materials on record as well as written arguments of complainant. The points that would arise for determination are as under:

1)      Whether the complainant proves that there is deficiency in service on the part of OPs in not settling the claim for damaged vehicle?

2)      Is complainant entitled to the reliefs sought for?  

6. Our findings aforesaid points are as under:

Point No.1: In the affirmative

Point No.2: As per the final order  

REASONS

Point Nos.1 and 2:

7. The facts involved in this case, which lead us to list the admitted facts. They are;

1) The complainant is the registered owner of the car bearing Reg. No.KA-06-P-1875 (TATA BOLT) and hypothecated with the M/s HDFC Finance Ltd. 

2) The complainant had obtained insurance policy vide policy bearing No.3362/01685532/000 /000 from the 1^st OP company. The policy was in force from 28-2-2019 to 27-2-2022. In this regard the complainant has produced insurance policy/Ex.P7.

3) The vehicle in question was met with an accident on 27-6-2019 at about 5.20 a.m. near Chidrahalli gate, T.Narasipura taluk, Mysuru district,

4) The jurisdictional police have registered a case under Crime no.158/2019 u/s 279 of IPC against the driver of the car.

5) The complainant intimated the 1^st OP and submitted relevant documents to the insurance company and after receipt of the claim intimation, the OPs appointed company surveyor and the surveyor has assessed the loss to a sum of Rs.2,77,342-00  and submitted the report to the OPs.

6) The 1^st OP has repudiated the claim of the complainant stating that there was a delay for intimation (Repudiation letter dated 7-10-2019).    

8. The main contention of the complainant is that though the complainant has valid insurance policy and the policy was in force at the time of accident. The complainant has submitted all the relevant documents to the OPs, but the OPs have not settled the claim of the complainant.

9. On the contrary, the OPs have taken a contention that, the insured vehicle is a private car and the policy was issued as “Package Private Car Policy” and the complainant was using the insured vehicle for commercial purpose to bring flowers. Hence it is a clear violation of the policy terms and conditions.

10. Further, the OP submitted that, the alleged incident was taken place on 27-6-2019 about 5.05 a.m. and the complainant has intimated the same to the OPs on 18-7-2019. Hence, there was delay of 21 days in intimation and it is breach of policy terms and conditions by the complainant. Further on 27-8-2019 the OPs sent a letter/show cause notice to the complainant asking for clarification and justification for the delay of 21 days in claim intimation. But the complainant has not produced any documents in this regard and failed to provide satisfactory reply to the notice. Hence, the OPs right repudiated the claim of complainant.

11. On perusal of the documents produced by the complainant, it is seen that the complainant has not produced any documents to explain regarding delay in intimation to OPs insurance company. But after the accident i.e. on 27-6-2019 at 5.20 a.m, the complainant immediately informed to the jurisdictional police station and registered a case under Crime No.1598/2019. Later the vehicle was released from the police authority. This fact is admitted by the OPs and it is sufficient. That insurance company should not have repudiated claim merely on account of delay in giving information mere delay in informing the accident of the said vehicle to the OP insurer/OPs, when the same was already informed to the law enforcement authorities cannot amounts to breach of condition.

12. Insurance company had not produced any evidence in addition to the report of the surveyor. The OPs produced the following citations to substantiate their case;

1. The Hon’ble State Commission of Chattisgarh in FA No.2017/326 dated 11-8-2017
2. The Hon’ble Supreme Court of India in CA No.4487/2004 by justice Markandy Katju and HL Dattu dated 24-8-2009

The above citations produced by the OPs are not applicable to the facts and circumstances of the present case. In the present case, the complainant immediately informed to the jurisdictional police/law enforcement authorities regarding accident of the said vehicle, but not properly explained the reasons for delay in intimation. Therefore, the complainant is entitled to claim interest at the rate of 8% per annum only. 

          13. In the above facts and circumstances of the case, the OPs have committed deficiency of service and failed to settle the claim of the complainant. Hence, we are of the opinion that, it is just and proper to direct the OPs to pay the amount of Rs.2,77,342-00 with interest @ 8% per annum (as per survey report) and also litigation cost of Rs.10,000-00 to the complainant. Accordingly, we proceed to pass the following:

ORDER

1. The complaint is allowed in part.

2.  The OPs are directed to pay a sum of Rs.2,77,342-51 with interest @8% per annum from the date of the complaint to till the date of realization to the complainant. 

3. The OPs are further is directed to pay Rs.10,000-00 to the complainant towards cost of this litigation.

4. This order is to be complied by the OPs within 45 days from the date of receipt/knowledge of the order. Otherwise, it carries interest @ 9% per annum.

5. Supply free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 22^nd day of April, 2022).

LADY MEMBER                  MEMBER                           PRESIDENT