Karnataka

Chitradurga

CC/2/2016

Sri.B.Ajjappa S/o. Bommappa - Complainant(s)

Versus

The Manager, National Insurance Co.Ltd., - Opp.Party(s)

Shri.A.J.Ashokkumar

17 Aug 2016

ORDER

 

COMPLAINT FILED ON : 13/01/2016

     DISPOSED ON: 17/08/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 2/2016 DATED:  17th August 2016

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.N. THIPPESWAMY             MEMBER

                                         B.A., LL.B.,                   

COMPLAINANT	B. Ajjappa, S/o Bommappa, R/o Janakonda Village, Chitradurga Taluk & District.   (Rep by Sri. Y.J. Ashok Kumar, Advocate)
OPPOSITE PARTIES	1.  The Branch Manager, National Insurance Co. Ltd., Jagalur Mahalingappa Towers, I Floor, Above HDFC Bank, Chitradurga-577 501.   2. Saketh Automobiles, Authorized Maruthi Suzuki Dealers, Rep. by its Proprietor, Opp. to Yatri Nivas, Medehalli Road, NH-4, Chitradurga City.      (Rep by Sri. P.M. Umapathi,  Advocate for OP No.1, T.S. Niranjan for OP No.2)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to the OPs to pay Rs.1,22,830/- with interest at the rate of 18% p.a, Rs.25,000/- towards damages, towing charges, physical and mental agony, Rs.10,000/- towards costs and such other reliefs.  

2.     The brief facts of the case of the complainant are that, he purchased Maruthi Swift Vdi Car bearing Reg. No.KA-16 N 0120 from OP No.2 in the year 2014.  OP No.1 is an insurance company.  OP No.2 is an agent to the OP No.1, who provides an insurance facility.  OP No.2 insisted the complainant to take insurance policy from OP No.1 by saying that, OP No.1 is the good and well reputed insurance company.  On believing the words of the OP No.2, complainant obtained insurance policy bearing No.610301/31/14/6100007117 from OP No.1 by paying an amount of Rs.15,320/-, which was valid for the period from 01.10.2014 to 30.09.2015 and the ID value of the said car was 6,11,040/-.  The premium amount has been collected from the complainant through OP No.2.  It is further submitted that, on 08.03.2015 at about 12-00 PM when the vehicle moving near Aimangala, Hiriyur Taluk, suddenly a stray dog came in front of the said car, while avoiding the same, the vehicle met with an accident and the front portion of radiator, bumper was damaged and the vehicle was seized at the spot.  Immediately, complainant informed about the accident to the OP No.1 and the OP No.1 deputed a surveyor to assess the damages.  After conducting the survey, as per the advice of the concerned person of the OP No.1, complainant got repaired his vehicle by spending Rs.1,50,000/- and submitted all the bills along with claim form to OP No.1 to settle the claim.  Surprisingly, OP No.1 sent a cheque for Rs.27,170/- against the claim amount of Rs.1,50,000/-, the same was accepted by the complainant under protest.   Complainant approached OP No.1 over phone on many occasions and also written a letter on 22.07.2015 seeking explanation about sending of a cheque for Rs.27,170/- against Rs.1,50,000/- but, the complainant has not received proper reasons from OP No.1, which caused financial loss and mental agony to the complainant.  Thereafter, complainant issued notice to OPs to pay the balance amount but, OP No.1 neither settled the claim nor replied to the said notice.  The conduct of the OPs amounts to deficiency of service so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

3. On service of notice OPs appeared through their respective Advocates.

Sri. P.M. Umapathi, Advocate for OP No.1 filed version admitting the fact that, complainant has purchased Maruthi Swift Vdi Car bearing Reg. No.KA-16 N 0120 in the year 2014 from OP No.2 and the same was insured by OP No.1 for an IDV of Rs.6,11,040/- by collecting premium amount of Rs.15,320/- from the complainant and issued Policy No.610301/31/14/6100007117 in the name of complainant, which was valid for the period from 01.10.2014 to 30.09.2015.  The allegations made in para 5 of the complaint that, the said car met with an accident and front portion, radiator and bumper of the said car was seized at the spot.  The surveyor assessed the damages and as per the advice of the concerned person of the OP No.1, complainant got repaired his vehicle by paying Rs. 1,50,000/- and submitted all the bills along with claim form to OP No.1 to settle the claim, OP No.1 sent a cheque for Rs.27,170/- against the claim of Rs.1,50,000/- and the complainant accepted the same under protest except the concerned person of this OP No.1 advised to got his vehicle repair by paying Rs.1,50,000/- and received a cheque for Rs.27,170/- under protest. 

It is denied that, the complainant telephoned to OP No.1's office on several occasions and also written a letter on 22.07.2015 seeking explanation for sending the cheque for Rs.27,170/- and also issued notice to OP No.1 but, not replied nor settled the claim.  It is further stated that, as per the letter dated 22.07.2015, complainant requested OP No.1 to give more amount than Rs.27,170/- which he received but, no where it is stated that, the complainant has received the said amount under protest and not produced any document to show prove the same.  It is further stated that, OP No.1 has endorsed in the letter dated 22.07.2015 that, the claim already settled with your consent but, the complainant has not replied to the same till today and the OP No.1 settled the claim with the consent of complainant for an amount of Rs.27,170/- through cheque by receiving voucher dated 25.06.2015 as full and final settlement.  The surveyor has given loss assessment final report for Rs.30,077/- on 07.03.2015 out of which, Rs.1,000/- and Rs.1,500/- has been deducted towards nil depreciation and excess policy and Rs.407/- towards salvages and remaining amount of Rs.27.170/- has been paid to the complainant, which is in accordance with the law.  It is further submitted that, in the Motor Final Survey Report dated 25.03.2015, it is observed that, after dismantling repair has given supplementary estimate of Rs.1,39,594-17 for engine damages.  But the engine was not damaged externally and also there was no impact to the engine assembly but the engine was seized because of running the engine without coolant i.e., after the accident driver of the IV try to crank the vehicle which leads to engine jam.  Engine damages were not allowed and the same was informed to the insured and repairer.  Therefore, OP No.1 is not liable to pay Rs.1,39,594-17 and hence, prayed for dismissal of the complaint.   

4.     Sri. T.S. Niranjan, Advocate for OP No.2 filed version stating that, the complaint is not maintainable either on law or on facts and the entire allegations made in the complaint are denied as false.  It is submitted that, complaint is bad one against OP No.2 and complainant knows very well that the OP No.2 is not having any responsibility/liability regarding insurance claim.  For the sake of formal party, OP No.2 is made as one of the OP in this case and therefore, prayed for dismissal of the complaint against OP No.2.   It is only a formal objection.       

        5. Complainant himself examined as PW-1 by filing affidavit evidence and documents are marked at Ex.A-1 to Ex.A-6. 

5.     On behalf of OP No.1 one Sri. Palanna, the Administrative Officer of OP No.1 examined as DW-1 by filing affidavit evidence and Ex.B-1 and B-2 documents have been produced.   

 

        6. Written arguments and filed and oral Arguments heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, OP No.1 has committed deficiency of service in settling the claim made by him  and he is entitled for compensation as stated in her complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Partly affirmative.

        Point No.2:- As per the final order.

                                        ::REASONS::

 

9. Point No. 1:- It is not in dispute that, complainant purchased Maruthi Swift Vdi Car bearing Reg. No.KA-16 N 0120 from OP No.2 in the year 2014 and insured the same with OP No.1 insurance company under policy No.610301/31/14/6100007117 by paying premium amount of Rs.15,320/-, which was valid for the period from 01.10.2014 to 30.09.2015 and the ID value of the said car was 6,11,040/-.  On 08.03.2015 at about 12-00 PM near Aimangala, Hiriyur Taluk, the said car met with an accident and the front portion of radiator, bumper was damaged and the vehicle was seized at the spot.  Immediately, complainant informed about the accident to the OP No.1 and the surveyor of OP No.1 assessed the damages.  As per the advice of the concerned person of the OP No.1, complainant got repaired his vehicle by spending Rs.1,50,000/- and submitted all the bills along with claim form to OP No.1 to settle the claim.  But, OP No.1 sent a cheque for Rs.27,170/-, the same was accepted by the complainant under protest.   Complainant on 22.07.2015 written a letter to OP No.1 seeking explanation about sending of a cheque for Rs.27,170/- against Rs.1,50,000/- but, OP No.1 did not reply to the said letter, therefore, he sustained financial loss and mental agony.

 

 

10.  So, as on the date of accident, insurance policy was in force.  It is the main contention of the complainant that she made a claim to the OP No.1 by producing all the relevant documents and in spite of policy was in force, OP No.1 settled the claim by sending a cheque for Rs.27,170/- only by taking signature on the voucher as full and final settlement.   

 

       11.  In support of his contentions,  complainant has relied on his affidavit evidence in which she has reiterated the contents of complaint.  Complainant has also relied on documents like copy of acknowledgement slip dated 19.10.2013 marked as Ex.A-1, Copy of Insurance legal notice dated 09.10.2013 issued to OP No.2 marked as Ex.A-2, Copy of letter written by OPs to the complainant marked as Ex.A-3, Copy of Postal receipts marked as Ex.A-4, Copy of legal notice dated 11.07.2014 marked as Ex.A-5, Copy of letter dated 16.07.2014 issued by the office of the insurance ombudsman marked as Ex.A-5. 

 

12.  On the other hand, it is argued by the Advocate for OP No.1 that, the complainant has purchased Maruthi Swift Vdi Car bearing Reg. No.KA-16 N-0120 from OP No.1 and the same was insured with OP No.1 under policy No.610301/31/14/6100007117 by collecting premium through OP No.2 which was valid from 01.10.2014 to 30.09.2015 for an IDV of Rs.6,11,040/-.  It is admitted by the OP No.1 that, the said vehicle met with an accident on 08.03.2015 and the front portion, radiator, bumper were damaged and the vehicle was seized at the spot.  The said fact was informed to OP No.1, the surveyor of the OP No.1 assessed the damages and given a final survey report.  It is further argued that, complainant got repaired his vehicle by spending an amount of Rs.1,50,000/- and after repair, complainant submitted claim for along with necessary documents.  OP No.1 settled the claim for Rs.27,170/- through cheque and the complainant received the said cheque and signed on the voucher as full and final settlement.  It is further argued that, in the motor final survey report dated 25.03.2015, the surveyor has given supplementary estimate for Rs.1,39,594-17 for engine damages and the engine was seized because of running the engine without coolant i.e., after the accident, driver of the IV tried to crank the vehicle which leads to engine jam. 

In support of its contention, OP No.1 has relied on the following decision:

2015(2) CPR 482 (NC)

Aradhna Fabrics Pvt. Ltd., Through Sh. Ashok A Vasthi, Managing Director

Vs.

United India Insurance Co. Ltd., & Anr.

Consumer Protection Act, 1986 – Section 21 – Contract Act, 1872 – Section 20 – Insurance – Damage to building, plant and machinery as well as stock kept in factory due to fire – Though issue of a discharge voucher accepting a particular amount in full and final settlement of its claim is not conclusive when there are allegations of fraud, undue influence etc., mere bald allegations are not sufficient in this regard and such allegations cannot be accepted by Court/Forum which would substantiate plea of fraud, undue influence taken by him – If it is found that discharge voucher was obtained by use of fraud, undue influence, coercion, it has to be ignore and claim needs to be examined and decided on merits – Complainant was already before National Commission when discharge voucher came to be executed and submitted by it, to insurance company – Interim payment of Rs.3.00 Crores had already been made to complainant before it approached National Commission – Complainant voluntarily entered into settlement with insurance company accepting amount of Rs.2,00,46,882/ in full and final settlement of its claim – case dismissed.    

 

13.   On the rival contentions of both the parties and on perusal of the complaint, version and documents, it is seen that, complainant purchased Maruthi Swift Vdi Car from OP No.2 and the same was insured with OP No.1 by paying premium and the policy was valid for the period from 01.10.2014 to 30.09.2015, the accident took place on 08.03.2015.  So, on the date of accident, the policy was in force.  In the motor (final) survey report dated 25.03.2015, the surveyor made an observation that, after dismantling, repairer has given supplementary estimate for Rs.1,39,594-17 for engine damages.  But the engine was not damaged externally and also there was no impact to the engine assembly but the engine was seized because of running the engine without coolant i.e., after the accident driver of the IV tried to crank the vehicle which leads to engine jam that cannot be accepted because without coolant, the vehicle cannot move on the road.  Ex.A-1, the letter dated 20.03.2015 written by Saketh Automobiles, Tumkur clearly shows that, when vehicle met with frontal accident due to that radiator damaged and coolant has been leaked out, so that engine get over heated and engine seized.  With regard to the full and final settlement of the claim, OP No.1 has argued that, the complainant has received cheque for Rs.27,170/- by putting signature on the voucher.  But, the complainant never come forward voluntarily to receive the said amount as full and final settlement in other words, insurance company itself has sent a cheque and get a signature on the voucher as full and final settlement.  After receiving the said cheque, the complainant written a letter dated 22.07.2015 informing the OP No.1 that, he has received a cheque for Rs.27,170/- but, he spent huge amount for repairs and the amount sent by them was very meager and requested the OP No.1 to verify the bill and fulfill the loss sustained by him.   So, in our considered opinion that, when the accident occurred, the coolant has been leaked out and the engine get over heated and the engine seized.  Therefore, the report given by the surveyor of the OP/insurance company cannot be accepted.  The repairer has given estimate for Rs.1,39,594-17 for engine damages.  The complainant repaired his vehicle by paying Rs.1,50,000/-.  To that effect, the complainant has produced three receipts issued by OP No.2.  In the policy, under the head limit of liability, it is mentioned as: Limit of the amount of Company's Liability Under Section II-1(i) in respect of any one claim or series of claims arising out of one event: UPTO Rs.7,50,000.  Such being the case, the acceptance of Rs.27,170/- as full and final settlement by the complainant cannot be accepted.  Therefore, OP No.1 has committed deficiency of service in making payment of the claim made by the complainant i.e., Rs.1,50,000/-, the amount spent towards repair of his vehicle.  Out of which, complainant has received Rs.27,170/- only through cheque sent by the OP No.1.  Therefore, the remaining Rs.1.22,830/- is to be paid by the OP No.1.  Therefore, the citation given by the OP is not applicable and the facts and circumstances of each case are different to the present case on hand.  Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP No.1/insurance company in settling the claim of the complainant.  The complainant has made the OP No.2 is the dealer of the vehicle and there is no deficiency of service on its part and therefore, the complaint as against OP No.2 is liable to be dismissed. Hence, the complainant is entitled for compensation as claimed.  Accordingly, this Point No.1 is held as Partly Affirmative to the complainant.

 

14.  Point No.2:- For the foregoing reasons, we pass the following.

ORDER

        The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OPs are directed to pay Rs.1,22,830/- to the complainant along with interest at 6% p.a from the date of complaint till realization.

It is further ordered that, the OPs are directed to pay Rs.10,000/-  to the complainant towards mental agony.

It is further ordered that, the OP is to pay a sum of  Rs.5,000/- towards the costs of this to the complainant.

It is further ordered that, the OP is directed to comply the above said order within two months. 

 

        (This order is made with the consent of Member after the correction of the draft on 15/08/2016 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                -Nil-

On behalf of OPs one Sri. Palanna, Administrative Officer of OP No.1 by filing affidavit evidence taken as DW-1

 

Witnesses examined on behalf of OPs:

 -Nil-

Documents marked on behalf of Complainant:

01	Ex-A-1:-
02	Ex-A-2:-
03	Ex-A-3:-
04	Ex-A-4:-
05	Ex-A-5:-
06	Ex-A-6:-

 

Documents marked on behalf of Opponent:

-Nil-

 

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.