Karnataka

Kolar

CC/43/2017

Smt.Sujatha w/o Mr.Manjunath - Complainant(s)

Versus

The Manager, Prerana Motors Pvt Ltd - Opp.Party(s)

V.K.Prashanth

28 Mar 2018

ORDER

Date of Filing: 19/05/2017

Date of Order: 28/03/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 28^th DAY OF MARCH 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 43 OF 2017

Smt.Sujatha

W/o Mr.Manjunath

#658-D,4^th Block

Gowna Palli Village & Post,

Srinivasapura taluk,

Kolar District.                                                        ….  COMPLAINANT.

(Rep. by Sri. V.k. Prashanth, Advocate)

 

- V/s -

1.The Manager,

Prerana Motors Private Limited,

KIADB Industrial Area

Tamak Kolar-563101

(Rep. by Sri. B. Kumar, Advocate)

 

2.The Manager,

(Motor Claims Department)

ICICI Lombard General Insurance Company Limited,

9^th Floor, The Estate121,

Dickenson Road, M.G.Road,

Bangalore-560042.

(Rep. by Sri. Reddeppa Gowda.S.G, Advocate)

 

3. Sri. Mubarak Basha,

S/o. Abdul Latheef Sab,

M.K.Puram Village,

Boyanapalli Post,

Santhi Puram Mandal,

Kuppam Taluk,

Chittor District (AP).

(Rep. by Sri. Chowdareddy.N, Advocate)           …. OPPOSITE PARTIES.

-: ORDER:-

BY SMT. A.C. LALITHA, LADY MEMBER,

01.   The complainant having submitted this complaint as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) has sought relief as issuance of directions to Ops to deposit Rs.12,00,000/- for the total loss of her vehicle bearing Registration No. KA-07 A-6069 and for causing of mental agony, emotional suffering, harassing intentionally for non-usage of the vehicle due to damage travelling, telephone expenses for wandering to Ops and etc., with interest at the rate of 12% per annum from the date of accident till realization and any other reliefs as this Forum deems to be fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, she had purchased a Brand New Tata SFC 407 EX-TT BSIII bearing registration No. KA-07 A-6069 from OP No.1 Ex-show room price of Rs.8,57,574/- (Eight lakhs Fifty Seven Thousand five hundred seventy four) excluding insurance, registration, taxes, etc., and got it insured for an amount of Rs.8,14,695/- (Rupees Eight lakhs fourteen thousand Six hundred and ninety five only) with OP No.2 through OP No.1 for the period valid from 01.12.2015 to 30.11.2016 vide policy No.3003/TM-00348977/00/00. 

 

(b)    Further she has contended that, on 07.07.2016 at 06.20 PM the vehicle met with an accident as head on collusion due to rash and negligent driving of another vehicle lorry bearing registration No. TN-23 AC 1779 and thus her vehicle was damaged and driver i.e., OP No.3 got shocked and went to Government CHV hospital, V.Kote, for treatment.  Bethamangala police have lodged FIR in Cr. No.0070/2016 on 07.07.2016 against the driver of the lorry bearing Registration No. TN-23 AC 1779 Under Sections 279, 337 of IPC by taking complaint from the person who was the laborer and not aware of the name of the driver or not its occupiers.

 

(c)    Further she has been contended that, as soon as she got information about accident immediately she intimated to OP No.1 & 2 and submitted claim with OP No.2 on 08.07.2016, as OP No.2 have indemnified for the accidental loss to the complainant and OP No.2 have allotted claim No: MOTO 5753467 for the settlement of claim to the complainant, the OP No.2 appointed their insurance Surveyor and loss assessor Mr. Semiulla Khan who visited the accident spot and taken photographs and also visited police station at Bethamangala and collected fee of Rs.5000/- from the complainant for issuing loss assessment spot report.

 

(d)    The OP No.1 directed complainant to towing disabled vehicle to the place of OP No.1 at Kolar and on inspection the OP considered as total loss and instructed complainant to tow the vehicle to their higher service branch at Nelamangala Bangalore for repair and final loss assessment and the same was intimated by the complainant to OP No.2 and OP No.2 insurance surveyor and loss assessor has visited OP No.1 service branch at Nelamangala Bangalore and collected all the documents from the complainant and took photographs and assured for the release of payment at the earliest, as the vehicle Tata SFC 407 Ex-TT BS III bearing registration No. KA 07 A 6069 has undergone with total loss as the repair estimation cost issued by the service branch of OP No.1 is of Rs.8,12,960/- and IDV of the vehicle is of Rs.8,14,695/-.  This loss to complainant caused by the accident only due to the rash and negligent driving of the Driver of the Lorry bearing Registration No. TN.23.AC 1779, and complainants vehicle registration No. KA 07 A 6069 driver is OP No.3 he had a valid driving license and all the documents of the complainant vehicle Tata SFC 407 Ex-TT BS III bearing Registration No.KA07 A 6069 are intact, even all police documents shows that, OP No.3 is the driver of the complainant’s vehicle Registration No. KA-07 A 6069. 

 

(e)    Further she has contended that, on 21.07.2016 OP No.1 had issued estimation of repair and demanded for parking charge.  On several approaches also Ops never shown any response and on 07.10.2016 OP NO.2 issued letter after delay of 92 days with reference No. 6332262 by repudiating her claim on the ground that, “mis-presentation of facts and complainant has given the details of the driver as OP No.3 at the time of registration of claim.

 

(f)     She has further contended that, the details of the driver furnished to the OP No.2 while registering claim is same as the driver details as given in the form of indemnity in the police station on 13.07.2016 while releasing the vehicle.  The Bethamangala police has done error in filing the charge sheet Final report No.48/2016 dated: 09.08.2016 in which they have done error in mentioning the accused name of the Driver of the Lorry bearing registration No. TN.23.AC 1779, in final report Bethamangala police has mentioned in column No.10 complainant Sri Suresh Babu and accused name in column No.12 as Sri Suresh Babu and in column No.14 Sl No.1 witness as Sri Suresh Babu, the same person Sri Suresh Babu cannot be the complainant accused and the eye witness No.1 in the charge sheet, for the error of the Bethamangala police complainant is not responsible for no fault of complainant as there is no negligence part on the complainant of this complainant or the driver OP No.3, the owner of the Lorry bearing registration No. TN.23.AC 1779, has given indemnity declaring his driver as Vinayagam but Bethamangala police but ignoring and overlooking the facts Bethamangala police made error in charge sheet even all police documents shows that OP No.3 is the driver of the complainant’s vehicle registration No. KA-07 A 6069 and accused name Vinayagam Driver of the lorry bearing registration No. TN.23.AC 1779, even with the clear documents, Bethamangala police made error in charge sheet, for which innocent complainant should not be the victim to suffer from the OP No.2.

 

(g)    And that she had availed rural light commercial vehicle loan from HDFC Bank Limited vide loan A/c No. 36447673 by hypothecating the said vehicle and paid EMI’s regularly without default till the date of accident, after that she is unable to pay.  Thus she had incurred loss and mental agony due to unfair trade practice and negligence and deficiency in service of Ops.

 

(h)    And that on 14.02.2017 she got issued legal notice to Ops through her learned counsel to settle the claim, since served with notice for which there could be no reply from OP No.2 and OP No.1 replied by ignoring the facts.  So contending, the complainant has come up with this complaint by seeking the above set-out reliefs.

03.   In response to the notices issued Ops have put in their appearance through their learned counsel and have submitted written version.

 

(a)    The contention of OP No.1 is that, being an dealer sold the said vehicle to complainant on 01.05.2015, apart from this denied all the allegations of complainant in toto and specifically contends as, this complaint is bad for non-joinder of HDFC Bank Limited as necessary party and OP No.1 is only a formal party to this complaint and denied the allegation of complaint as the accident occurred on 07.07.2016 at 06.20 PM and that the vehicle was damaged extensively and that the Bethamangala Police have registered a case against the driver of the lorry for his rash and negligent act that the nature of damages caused to the vehicle is of total loss and that the complainant has informed about the accident to the OP No.1 & 2 and that the complainant has submitted the estimate to an extent of Rs.812960/- and that the insured estimated value of the vehicle is Rs.814695/- and that the OP No.3 had driving license to drive the same.  So, prayed for dismissal of the complaint.

 

04.   OP No.2 by admitting issuance of insurance policy to the said vehicle and contended that, it has received information about the said accident from the complainant on 18.07.2016.  Immediately it has appointed investigator and Surveyor for spot inspection of the damaged vehicle but complainant has not given any opportunity to conduct spot survey.  Later on by request the complainant has submitted claim form with documents.  On verification of police reports, it is clear that, Narayanaswamy resident of Kodigenahalli was the driver and Suresh resident of Rajpet Road was the cleaner of the said vehicle. 

 

(a)    It is contended that, after receipt of estimation report, OP No.2 had appointed independent surveyor and loss assessor, had given report as loss assessed is of Rs.19,550/- on detailed discussion had with the concerned person in Prerana Motors since the tempo was not sustained damages as alleged by the complainant.

 

(b)    It is contended that, the complainant has submitted the vehicle documents, wherein one Narayanaswamy resident of Kodigenahalli was driving the insured tempo on the date of accident, but surprisingly the complainant herein was submitted the claim form stating that one Mubarack Bhasa S/o. Abdul Lathif was the driver of the insured tempo and therefore it is clear that by colluding with the other, driver has been falsely implicated in the alleged accident, even though Mubarack was not on the wheel as on the date of accident and therefore it is clear complainant herein was plying fraud by misrepresenting the truth in order make unlawful gain and hence the claim is not payable and accordingly the OP herein repudiated the claim of the complainant on 29.09.2016 and same was duly communicated to the complainant herein and hence the present complaint is not maintainable and the same is liable to be dismissed with cost.

 

(c)    It is contended that as per the IMV report and other documents does indicates that, insured driver side cabin was damaged in the accident and further the alleged Mubarak Basha was not sustained any injury and therefore it is clear that driver has been implanted in the case even though Narayanaswamy was the driver of the insured tempo on the date of accident and therefore he has sustained chest injury and facial injury and other grievous to his body and therefore it is clear that driver has been implanted and hence the claim of the complainant is liable to be dismissed.

 

(d)    It is further contended that, since Narayanaswamy was not having valid and effective driving license to drive the insured vehicle and because of that reason, driver has been impleaded by the complainant by violating the terms and conditions of insurance policy and motor vehicle act.

 

(e)    Without prejudice to the above contention, if at all this Forum holds that, this OP is liable one payable as per the compensation and then the same is limited to as per the Surveyor report.  Therefore there is no deficiency on service on the part of it, so prayed for dismissal of the complaint.

 

05.   The submission of OP No.3 is, he admits that, he was driving the said vehicle on the day of accident.  Since he suffered shock from the accident he went to Government CHV Hospital, V.Kota for treatment, the police have registered FIR in CC No.0070/2016 on 07.07.2016 by taking information from Suresh Babu laborer also was unaware of the whereabouts of occupiers, against driver of the lorry bearing registration No. TN.23.AC 1779 under section 279, 337 of IPC, by name V. Vinayagam license No: TN 23 Y 20000001377 of RTO Vaniyambadi issued on 01.06.2000 valid till 15.07.2018 and that on 09.07.2016 statement stating that, V. Vinayagan was driver and driving lorry bearing registration No. TN.23 AC 1779 was taken by Bethamangala police, and that on 13.07.2016 statement from OP No.3 has been taken him by police that the vehicle registration No. KA-07 A 6069 was driving by him.  The said accident was occurred due to rash and negligent driving of the vehicle registration No. TN-23 AC-1779 resulting in severe damage to the vehicle  registration No. KA-07 A-6069 which cannot be repaired in general total loss of the vehicle, and he had also given his statement to police on 08.07.2016 as he was driving the vehicle on the day of incident.

 

(a)    It is submission of OP No.3 is that, he admits the visit of surveyor and loss assessor Mr. Semiulla Khan and taken photographs and collected statement of OP No.3 and also collected the photo copy of his driving license and as per instructions of OP No.1 the vehicle was shifted to service branch Nelamangala, Bangalore, and on 21.07.2016 OP No.2 surveyor and loss assessor had visited the spot and assured for the release of claim at earliest as under vehicle is total loss, even on repeated follow-up of complainant was of no response from OP No.2 and rest of all allegations of complainant he submits as he is not aware and prayed for dismissal of the complaint against him as he is only formal party. 

 

06.   The complainant has submitted her affidavit evidence by way of examination-in-chief.  And on behalf of complainant the learned counsel has submitted below mentioned Xerox copies of documents and citations:-

(i) Copy of PDI Delivery Noted issued by OP.1

(ii)Copy of certificate cum policy schedule issued by OP-2

(iii) Copy of registration certificate vehicle bearing No.KA 07 A 6069.

(iv) Copy of permit

(v) Copy of FIR and complaint

(vi) Copy of wound certificate

(vii) Copy of the spot sketch

(viii) Copy of the spot Mahazar

(ix) Copy of the Statement of OP.3

(x) Copy of the 133 statement of OP.3

(xi) Copy of the statement of Narayanaswamy

(xii) Copy of the 133 statement of V.Vinayagam Driver of Lorry bearing Reg. No. TN.23.AC 1779

(xiii) Copy of the indemnity and Bail of V.Vinayagam Driver of Lorry bearing Reg No. TN.23 AC 1779

(xiv) Copy of the statement of complainant

(xv) Photos of the accidental damaged vehicle of the complainant

(xvi) Copy of the Repair Estimation given by OP-1

(xvii) Copy of the Claim status notification of OP.2

(xviii) Copy of the Indemnity bond of complainant taken by Bethamangala Police

(xix) Copy of charge sheet

(xx) Copy of the driving license of OP.3

(xxi) Copy of notice issued by HDFC Bank

(xxii) Copy of legal notice with postal receipts

(xxiii) Copy of postal acknowledgements of OP.2

(xxiv) Copy of legal notice not claimed by OP-1

(xxv) Copy of legal notice with postal receipts to OP.1

(xxvi) Copy of postal acknowledgements OP-1

(xxvii) Copy of legal reply notice issued by OP-1

(xxviii) Judgment of the State Commission, Delhi, in complaint Case No.72/2013, Sh.Mukul Aggarwal & Others V/s M/s Bajaj Allianze General insurance Co. Ltd, decision dt: 22.12.2014, which is very much relevant to the above case.

(xxix) Judgment of Supreme Court of India in Lakshmi Chand V/s. Reliance General Insurance (Civil Appeal No.49-50 of 2016 arising out of SLP (C) Nos.37534-37535 of 2013) Leave granted.

(xxx) Motor Loss Assessment Report with 12 photographs and CD.

(xxxi) IMV report

(xxxii) Reportable judgment of the Supreme Court of India in Civil Appeal No.3253 of 2002 New India Assurance Company Limited v/s Pradeep Kumar.

 

07.   Sri. A.R. Gopal, S/o. Late. A.R. Rao, Assistant General Manager of OP No.1 has submitted affidavit evidence on behalf of OP No.1.  The learned counsel of OP No.1 has submitted below mentioned documents on behalf of OP No.1:-

(i) Copy of estimate based on the visual inspection of the vehicle bearing Reg No.KA 07 A 6069.

 

08.   Sri. Nagendra.R, S/o. Ramamurthy.C.L. has submitted his affidavit evidence on behalf of OP No.2.  The learned counsel of OP No.2 has submitted below mentioned documents:-

(i) FIR along with complaint

(ii) Surveyor report

(iii) Repudiation letter

 

09.   As per the proceedings noted in the order-sheet dated: 07.12.2017, the evidence of OP No.3 is considered as closed.  Along with version OP No.3 submitted below mentioned documents:-

(i) Copy of Driving License of OP No.3

(ii) Statements of OP No.3 before the Bethamangala Police

(iii) Statement of complaint before the Bethamangala Police

(iv) Statement of V. Vinagayam who was driver and driving the Lorry bearing Reg. No. TN.23.AC1779.

 

10.   The learned counsel appearing for complainant has submitted written arguments.  Heard oral arguments of both sides.

 

11.   Therefore the points that do arise for our consideration are:-

(1) Whether the complaint is bad for non-joinder of HDFC Bank Limited as necessary party?

 

(2) Whether OP No.1 and OP No.3 are necessary parties to the case on hand?

 

(3) If so, whether the repudiation on the part of the OP No.2 with regard to claim of the complainant would amount to deficiency in service?

 

(4) If so, whether the complainant is entitled for the claim as she sought?

 

(5) What order?

 

 

12.   Our findings on the above stated points are:-

POINT (1):-      In the Negative

POINT (2):-      In the Affirmative

POINT (3):-      In the Affirmative

POINT (4):-      In the Affirmative

POINT (5):-      As per the final order

for the following:-

REASONS

POINTS (1):-

13.   The very insurance policy was issued to complainant by ICICI Lombard General Insurance (OP No.2).  The HDFC Bank Limited being a financier to the said vehicle would remain outside the scope of insurance policy.  In other words the said financier was not within contract in party to the insurance policy.  Hence being financier HDFC Bank Limited is not a necessary party to adjudicate the present case on hand.  Therefore in our view this case is not bad for non-joining of HDFC Bank Limited as necessary party. 

 

POINT (2):-

14.   The complainant has alleged as she had purchased the said vehicle from OP No.1 and got the same insured with OP No.2 through OP No.1 and also alleged with regard to loss assessed of damage of the vehicle etc.,.  And the cause of repudiation of complainant’s claim by OP No.2 is on the ground of mis-matching of the driver details.  Therefore to render justice and to elicit the truth of the case these OP Nos.1 & 3 are very much necessary parties for adjudication of present case on hand.

 

 

 

POINT (3) & (4):-

15.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time.

 

16.   It is an admitted fact that, the complainant had purchased the said vehicle from OP No.1 and same got insured with OP No.2 vide policy No.3003/TM-00348977/00/00 which was effect from 01.12.2015 to 30.11.2016.  The risk covered in this policy was to the tune of Rs.8,14,695/-. 

 

17.   It is also an admitted fact that, the accident of the vehicle of the complainant was caused on account of rash and negligent driving of the offending vehicle bearing registration No. TN.23.AC1779, an FIR No.0070/2016 dated: 07.07.2016 was registered under Section 279, 337 of IPC against the driver of the vehicle.

 

18.   The said claim was rejected by OP No.2 on the ground that, the complainant had violated terms and conditions of the policy and motor vehicle act by giving mis-presentation of details of driver.

 

19.   So in this context it is worth to careful observation and discussion with regard to police reports in Cr. No. 0070/2016 dated: 07.07.2016 Bethamangala P.S.  The first information was given by one Sri. Suresh Babu, S/o. Venkataswamy, about the accident and as Narayanaswamy was driving the vehicle (Reliance on Annexure.C5).

 

20.   As per Annexure-C.9 the spot mahazar of the spot by said police it clearly reveals that, one Mubarak was driving the vehicle bearing registration No. KA-07 A-6069 at the time of accident and he had been sustained simple injuries.  To this Annexure C.9, Suresh Babu, S/o. Venkataswamy (complainant in FIR CR No.0070/2016) was also one of the witness and he had duly signed to this Mahazar too.

 

21.   As per Annexure-C.10 statement of witness recorded by Bethamangala PS, and Annexure C.11, information Under Section 133 of Motor Vehicle Act, and Annexure C.12 statement of eye witness Narayanaswamy clearly reveals that one Mubarak Basha, S/o. S. Abdul Lathif was driving the vehicle bearing No. KA-07 A-6069 at the time of incident.  Annexure-C.9 is the wound certificate issued by Medical officer CHC V.Kota clears that this Mubarak Basha availed treatment on 07.07.2016 at 06.45 PM.

 

22.   With the above discussion it is clear that, Suresh babu is the labourer, by unknowingly he had given false information with regard to details of driver etc.  Therefore we opined as, it was expected by the Insurance company surveyor to verify the genuineness of the information and incident before rejecting the claim.  So it amounts to deficiency in service and negligence on the part of the OP No.2 Insurance Company.  Since OP No.1 is dealer and OP No.3 is driver we opined there is no deficiency in service since litigation is with regard to insurance.

 

23.   OP No.2 had failed to prove that, Narayanaswamy was driving the vehicle at the time of accident nor produced any medical report (evidence) as this Narayanaswamy had availed treatment for his hurt if at all he was driving the vehicle at the incident time.  So we opined that, this OP No.2 to escape from liability rendered gross negligence by repudiating the claim of complainant.

 

24.   As per estimated report dated: 21.07.2016 issued by OP No.1 Prerana Motors (P) Ltd, total amount is in a tune of Rs.8,12,960/-  We do not consider this report to award the claim of complainant, since this report is incomplete as to Authorized Engineer Surveyor of who has given the report.  Hence we reject the same in consideration and also we do not consider the survey assessment of OP No.2 as Rs.19,550/- and in continuation sheet of same report dated: 20.09.2016 it reveals liability amount is Rs.3,01,163/- it is not considered on the ground of contradictions in estimated, liability amount.

 

25.   Therefore we relied on Annexure-C.35, which is Motor Loss Assessment Report issued by S.N. Venugopal, Insurance Surveyor and loss assessor, opinion reads as here under:-

“Net liability

          The liability under the subject vehicle without dismantling the vehicle which works out to Rs.7,47,169/- and the vehicle repair may go on higher side after dismantling the vehicle, as the IDV of the subject value is Rs.8,14,695/- the repair cost is exceeding the 75% of the IDV, hence the loss comes under total loss of vehicle Rs.7,47,169/-.”

 

Based on this report and also by relying on the principles of the citations submitted by the learned counsel of complainant we are of the definite opinion that, the complainant is held entitled for the claim of Rs.7,47,169/- towards insurance and Rs.10,000/- as compensation exclusively from OP No.2 (ICICI Lombard General Insurance).

 

POINT (5):-

26.   In view of the above discussions on Point (1) to (5) we proceed to pass the following:-

ORDER

01.   For foregoing reasons the complaint stands allowed with costs of Rs.5,000/- as against OP No.2 as here under:-

(a)    The complainant is held entitled to recover a sum of Rs.7,47,169/- towards insurance claim vide policy No.3003/TM-00348977/00/00 for the vehicle bearing registration No. KA-07 A 6069 together with interest @ 9% per annum from the date of pronouncement of this order and also entitled to receive compensation of Rs.10,000/- from OP No.2 Insurance Company.

(b)    The case against OP No.1 & OP No.3 is hereby dismissed with no costs.

(c)    Complainant is not entitled for the solvage. 

(d)    We grant 30 days time to OP No.2 to comply the order from the date of receipt of this order.

 

02.   Send a copy of this order to both parties free of cost.

 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 28^th DAY OF MARCH 2018)

 

 

 

LADY MEMBER                                PRESIDENT