Per: Akatha.H.D.
JUDGMENT
The Complainant has filed this complaint U/s 12 of the Consumer Protection Act 1986 against the OP alleging deficiency in service in not settling the insured vehicle policy claim of Rs.6,50,000/-. Hence prays for relief to settle the policy claim of the vehicle to the tone of Rs.6,50,000/- along with compensation of Rs. 18,000/- towards Rent of the vehicle and Rs. 25,000/- towards physical and mental agony and Rs. 50,000/- towards deficiency in service and Rs. 25,000/- towards the loss to the complainant and Rs.5,000/- towards cost of the proceedings and the miscellaneous expenses.
Brief averments of the complaint are:-
2) That the complainant had purchased a Tipper and the income from the tipper earnings he used for his livelihood. The said vehicle registered No: is KA37/A-4255. The complainant alleged that for the said vehicle a policy was insured with the OP. The details of the policy are, the policy No: 55270031144 6360108016, the validity of the policy commences from 07-10-2014 to 06-10-2015. The Total sum assured of the vehicle insurance policy is Rs. 19,95,790/- and the premium of the policy is Rs. 52,795/-.
The complainant further alleged that on 03-07-2015 the said vehicle met with an accident at Dadegal Village of Koppal Taluk. The said vehicle was damaged. The complainant shifted the damaged vehicle with the help of another vehicle on pent basis to the Garage in Hosapete. The said rent of the vehicle was Rs. 18,000/-.
The complainant further alleged that the said matter was informed to the OP and then the OP sent this surveyor for inspection of the damaged vehicle. The said damaged vehicle was repaired and its cost of the repair was Rs.6,50,000/-. The said amount was paid by the complainant and has obtained the receipt. Few receipts of it are not available. The damaged vehicle was repaired in Hosapete.
The complainant further alleged that he had informed the matter to the OP insurance branch and submitted the claim form along with the necessary documents On 15-09-2015 the OP sent a letter stating that to submit the receipt of the weighing stones which were loaded in that vehicle. The complainant alleged that immediately on the next day only he gave the receipt to the OP. Till today the OP has not settled the claim and when it is asked they give silly reasons today or tomorrow. The complainant has taken loan from other people for the payment of the damaged vehicle.
The complainant further alleged that the vehicle was taken for his livelihood. The OP has not settled the claim amount and committed deficiency in service and have filed this complaint praying for settling the damaged vehicle policy claim amount of Rs. 6,50,000/- along with Rs. 18,000/- towards vehicle rent, and Rs. 25,000/- towards physical and mental agony and Rs. 50,000/- towards deficiency in service and Rs. 25,000/- towards the loss to the complainant and Rs. 5,000/- towards litigation and miscellaneous expenses as prayed above.
3) The forum after admitting the complaint, a notice was issued to the OP and the said notice was served upon him. The OP appeared through their counsel before the Forum and filed Vakalatnama and main objections/written version to the complaint and the said case was posted for the complainant evidence.
4) The main objections/written version of the Opponent.
That the OP submits that the complaint filed by the complainant is vexatious, frivolous and it is contrary to the law and facts of the case.
That the OP further submits that the contents of Para No. 1 of the complaint are true and correct and hence, they are admitted.
That the OP further submits that the the averments and allegations of the complaint under para No.1 to 7 are exclusive knowledge of the complainant and all are false and concocted and designed to file the false complaint, hence denied in toto and he is called upon to prove each averments, except expressly admitted by this respondent. That, since there is no deficiency of service, hence this Forum has no jurisdiction to entertain the complaint, hence liable to be dismissed in limini.
That the OP further submits that, the Motor vehicle Tipper No. KA-37/A-4255 was insured with this respondent as shown by the Complainant in the cause title. That due to the following reasons, this respondent is administrative divisional office, hence this policy is again subject to confirmation from the concerned branch and this respondent does not admit the vehicle involved in the accident dated 03-07-2015 was covered under the policy as alleged in the claim petition.
That the OP further submits that, the complainant stated that, on 03-07-2015, when the said vehicle was met the accident, near Dadegal; village of Koppal taluka and due to this accident the said vehicle was completely damaged and he has paid Rs. 18,000/- rent for transportation of vehicle to Hospet garage and he spent Rs. 6,50,000/- for repairs are all false and denied in toto.
That the OP further submits that, the Complainant submitted the claim form on 07-07-2015 with inflated estimation, hence this respondent appointed the independent surveyor and loss assessors for Loss Assessment and accordingly independent Surveyor submitted the loss assessment and bill check report as per the policy terms and condition. That, accordingly the respondent have settled the claim for Rs. 1,53,930/- towards full and final settlement of claim within the scope of policy terms and condition.
That the OP further submits that, the Complainant as stated in its para No.5 of the complaint, the respondent has not paid the claim amount till filing of the complainant is utterly false. That, the respondent has settled the above said claim amount and it is sent to his bank account through RTGS and complainant is very well known this fact of payment, but by stating as above he is misleading this Court.
That the OP further submits that, the complainant has wrongly approached this Court for not payable i.e. deductions under the insurance policy, namely policy excess, depreciation bills submitted by complainant, nature of damages subject to cause of accident, which are not payable under insurance policy. That, the estimation submitted by complainant of Rs. 8,08,912/- is inflated estimation, but the photos of accident spot show loss of accident and based on the independent Surveyor report, the assessed loss by him, this respondent settled the claim as above said as full and final. In addition to the claim an amount the respondent has settled Rs. 10,919/- towards the surveyor fee which is part of the claim settlement.
That the OP further submits that, however without prejudiced to the above said contention, the repair and the claim of Rs. 6,50,000/- and some of documents produced and bills are concocted, false, hence denied and the total claim of Rs.7,73,000/- is imaginary and without any basis. That, the some of the allegations set out in the para No. 4 to 7 of the complaint are all false and the same are hereby specifically denied.
That the OP further submits that, this respondent cannot be held liable for payment of any compensation unless and un-till it is proved that, the registration certificate, Insurance, driving license and it was valid and effective at the time of accident. Further, liability, if there is any, of this respondent will be subject to provisions of M.V. Act and subject to the terms, conditions, exceptions and limitations as enumerated in the policy of Insurance Act 1938.
That the OP further submits that, this respondent crave leave of this Hon’ble Forum to file additional written-Statement in future whenever fresh information are made available and/or report of investigation by the concerned Investigator is obtained by him and seeks permission to urge all the defenses available under law. That, there is no basis at all for the Complainant to say that there has been any deficiency in service and resort to this forum, hence complaint liable to be dismissed with cost. Hence, prays for the dismissal of the complaint with cost.
5) On the basis of the above pleadings, the following points that arise for our consideration are;
POINTS
1) Whether the complainant proves that there is deficiency in service in not settling the vehicle policy claim amount after the accident of the vehicle?
2) Whether the complainant is further entitled for any relief as sought for?
3) What order?
6) To prove the case of the complainant, the complainant himself examined as PW1 and he has got marked documents as per Ex. A 1 to Ex. A 26 and closed their side evidence. The OP himself examined as RW 1 and he has got marked the documents as per Ex. B 1 to B 9 and closed their side of evidence and then posted for argument.
7) Heard the arguments of the counsel and perused the records.
8) Our findings on the above points are as under;
Point No. 1: In the Negative
Point No. 2: In the Negative
Point No.3: As per final Order for the following
REASONS
9) POINT No. 1 and 2: As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.
10) On perusal of the pleadings, evidence coupled with the documents of respective parties on record, it is the case of the complainant alleging deficiency in service in not settling the claim of the vehicle policy claim amount of the damaged vehicle to the tone of Rs. 6,50,000/-. There is also no dispute regarding validity of the policy at the time of the accident. There is also no dispute that the premium of the policy is not paid. The complainant approached the OP Company and claimed for the claim amount by submitting the claim form and all necessary documents. But till today the OP Company has not settled the claim. Hence the complainant alleged deficiency in service.
11) To prove the case of the complainant the PW-1 has reiterated the complainant averments in his examination in chief and in support of his he case he has produced the Insurance policy of the vehicle and the said policy has been marked as Ex. A-5 and Ex. B-5. Ex. A-5 and Ex. B-5 clearly reveals that this insurance policy was issued in the name of the complainant and the premium was paid and the said policy covered insurance from 07-10-2014 to mid night 06-10-2015.
12) PW-1 averred and deposed that the OP have not settled the claim inspite of several request made by him for so many times. He has further averred that the OP has asked to submit the receipt of the load challan. The complainant submitted then the load challan receipt and the same is marked as Ex. A-1 and A-2 further with respect to point No.1 the RW-1 who is the OP has deposed as per their specific defense set up in written version that the complainant had submitted the claim settlement voucher for Rs. 1,53,930/- and the amount also has been deposited in his account through NEFT-IDBI Bank Bellary branch to his bank after on 07-10-2015 which is marked as Ex. B-1 and B-3 . To substantiate the same the OP has produced the cash settlement voucher and the Bank Statement of complainant regarding payment of compensation through NEFT i.e. Ex. B-1 and B-3. But to disprove the said entries in Ex. B-1 and Ex. B-3 the complainant has not produced any other cogent and corroborative evidence except putting suggestion to that they have not settled the claim and the said suggestions have been categorically denied by the OP.
18) The only question which arise for our consideration in this case is as to whether consent is given by the complainant to the settlement of the claim of Rs. 1,53,930/- was a free consent or not. On the perusal of the complainant and the affidavit of PW-1, it is crystal clear that the complainant has not at all uttered a single word regarding the settlement of the claim.
19) Where as the complainant has not all deposed in his complainant that the payment is already given by the OP with regard to the claim of the policy. In the interrogatories for the Q.No: 10, the PW-1 did not reply to the question and has not produced any document to show that, the OP has not paid the claim amount. Therefore when he fails to depose with respect to the claim settlement voucher and the amount deposited to his bank through NEFT is not told by him, believing his version with respect to that claim amount is not given in the above said case is not justifiable. So also on perusal of Ex. B-4 and B-6 i.e. standard form of commercial vehicle package policy and copy of Indian Motor Tariff IMT-21 and ImT-23. Ex. B-4 and B-6 clearly reveals that in the policy the depreciation in deducted for all Rubber/nylon/plastic parts tyres tubes, batteries and airbags to the extent of 50% and for all glass component it is 30% and as far as age of the vehicle is its 10% exceeding 1 year but not exceeding 2 years and the same is calculated and copy of work sheet regarding payable of claim amount has been submitted and the same has been marked as Ex. B-2. Ex. B-2 clearly reveals that after calculating all the depreciation and assessment of loss the net assessed loss is mentioned as 1,61,000/-. Therefore on perusal of Ex. B-1 to Ex. B-4 and Ex. B-6 the claim voucher and the surveyor report and the Bank Statement which have been produced by the OP regarding settlement of the policy claim. Therefore it can be presumed that the complainant has taken the amount regarding the policy claim of the damaged vehicle and the claim is settled
Consequently it cannot be said that the signature in the claim settlement voucher which was given to the OP Company was not signed by the complainant.
Further the documents which have been relied by the complainant more specifically with respect to Ex. A-9 to Ex. A-20 and Ex. A-22 to Ex. A24. These are all the bills given by K.K. Automobile among them Ex. A-22 is given by S.R. Glass Works and Ex. A-23 and A-24 is given by H.K.G.N. Engineering and Enterprises on perusal of these bills, the date of 1st bill begins on 13-07-2015 and the last bill date is on 28-07-2015, so in between these days the bills have been given daily and the receipt no in the bills starts from 527 to 539 there is no specific mentions about why the bills where taken after signing the settlement voucher of the claim amount and depositing the claim amount in his account. Though, he has alleged to have deposed that the said damaged vehicle was repaired and is cost went to the tone of Rs. 6,50,000/- but fails to depose in the interrogatories regarding the bills when the OP asked him. When he fails to depose with respect of the bill in interrogatories, believing his, the version is not justifiable one. Hence his version is not believable with respect to specific allegation set up by the complainant. But to substantiate the said allegations as alleged when there is no cogent documents have been produced by the said complainant the question of considering the OP have not settled the policy claim is not believable.
20) Obtaining of receipts in regard to regular routine payments, the payment is mode only on a future date long after obtaining claim amount. If the date of execution of the receipt is mentioned in the receipt and the payment is given long thereafter, the receipt acknowledging the amount as having been received on a much earlier date will be absurd and meaningless.
21) The counsel for the complainant has relied upon the citation reported in IV (2009) CPJ 46 in Supreme Court of India, New India Assurance Complainant. Ltd. V/s Pradeep Kumar,
Insurance Act, 1938 – Section 64UM(2) – Insurance – Assessment of loss – Pre-requisite for settlement of claim – Surveyor’s report not last and final word – It may be basis for settlement of claim but neither binding upon insurer nor insured – Complainant’s claim accepted by Consumer For a as duly supported by original vouchers, bills and receipts – No interference required in appeal.
The facts and circumstances of the case in hand and the fact and circumstances of the said citations all together different.
22) In view of discussion here in above, the documents now furnished Ex. A-3 to Ex. A-4, Ex. A-6 to Ex. A-8 and Ex. A-25 will no way help the complainant to prove that the OP has committed deficiency in service towards in not settling the policy claim of the insured vehicle. After considering the documents we are unable to change the view which are have earlier taken. Therefore the complainant fails to prove the deficiency in service by the OP. On contrary as per the oral evidence coupled with the documentary evidence the complainant failed to prove that the OP has not settled the policy claim of the damaged vehicle and the said fact has been clearly discloses in Ex. B-1 to Ex. B-6. Which are the claim settlement vouchers, Bank Statement, Survey Report which have been already discussed supra. Hence in the light of above observation the complainant failed to prove the deficiency in service by the OP is not settling the policy claim of the damaged vehicle. Hence in the light of above observation the complainant failed to prove that deficiency in service on part of OP in not settling the claim of the vehicle policy. Hence, in the light of above observations we constrained to hold point No: 1 and 2 in the Negative.
23) Point No: 3:- Hence in the result we proceed to pass the following;
ORDER
- The complaint filed by the complainant is hereby dismissed.
- No order as to cost.
- Send the free copies of this order to both parties.
Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 01st day of August, 2016.
//ANNEXURE //
List of Documents Exhibited for the Complainant.
Ex. A 1 Insurance Letter Date:15-09-2015
Ex. A 2 Trip Receipt Date: 03-07-2015
Ex. A 3 FIR and Complaint Date: 04-07-2015
Ex. A 4 R.C. Book Date: 11-11-2013
Ex. A 5 Policy Bon Date: 22-09-2014
Ex. A 6 Form KMV 45 Date: 11-11-2013
Ex. A 7 Adhar Card Date: 06-10-2013
Ex. A 8 D.L. Copy Date: 09-07-2008
Ex. A 9 Tax Invoice Date: 13-07-2015
Ex. A 10 Tax Invoice Date: 16-07-2015
Ex. A 11 Tax Invoice Date: 17-07-2015
Ex. A 12 Tax Invoice Date: 17-07-2015
Ex. A 13 Tax Invoice Date: 18-07-2015
Ex. A 14 Tax Invoice Date: 19-07-2015
Ex. A 15 Tax Invoice Date: 20-07-2015
Ex. A 16 Tax Invoice Date: 20-07-2015
Ex. A 17 Tax Invoice Date: 20-07-2015
Ex. A 18 Tax Invoice Date: 21-07-2015
Ex. A 19 Tax Invoice Date: 23-07-2015
Ex. A 20 Invoice Date: 22-07-2015
Ex. A 21 Invoice Date: 22-07-2015
Ex. A 22 Cash Bill Date: 27-07-2015
Ex. A 23 Cash Bill Date: 28-07-2015
Ex. A 24 Cash Bill Date: 15-07-2015
Ex. A 25 Photo Copies
Ex. A 26 Receipt No: 264 Date: 03-07-2015
List of Documents Exhibited for the OP
Ex. B 1 Claim Settlement Voucher Date: 07-07-2015
Ex. B 2 Loss Assessment Date: 03-07-2015
Ex. B 3 Bank Statement Date: 01-10-2015
Ex .B 4 Insurance Policy
Ex. B 5 Certificate of Insurance copy
Ex. B 6 Indian Motor Tariff-IMT-21
Ex. B 7 Work Sheet
Ex. B 8 Motor Claim Form
Ex. B 9 Claim Form Date: 07-07-2015
Witnesses examined for the Complainant / Respondent.
P.W.1 | Sri Nagaraj S/o Chintamani Majjigi Age: 35 years,
Occ: Owner of the Vehicle, Allanagar, Hirebaganal, Tq: Dist: Koppal. |
R.W.1. | B. Nagendra, Age: 53 years, Occ: Divisional Manager, National Insurance Complainant. Ltd., Divisional Office, R/o Bellary, Tq:Dist: Bellary. |
