Complaint filed on:11-07-2023

                                                      Disposed on:28-02-2024

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 28^th DAY OF FEBRUARY 2024

//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

Consumer Complaint.No.89/2023

Mr. K.S. Vasu S/o Shivaraju

A/a 38 years, Present Resident of

Sadashivanagara, Tumkur Town,

Tumkur Taluk and Tumkur District.

……….Complainant

 (By Sri. Srinivasa Murthy N.H.Advocate)

V/s

1.       The Manager,

          Reliance General Insurance Co., Ltd.,

          Office at No.28, 5^th Floor,

          Centenary Building,

          East Wing – MG Road,

          Bangalore – 560 001.

2.       The Branch Manager,

          Kanaka Durga Finance Limited,

          Office at No.1, Chamundeshwari

          Complex, Barline Road,

          K.R.Extension, Near Chamundeshwari

          Temple, Tumkur.

…….Opposite Party/s

(OP1 – By Sri.H.K.Ramamurthy, Advocate)

(OP No.2 – Served absent)

//:ORDER://

SMT.G.T.VIJAYALAKSHMI -  PRESIDENT

          This complaint has been filed by the complainant alleging deficiency in service against the OPs with a request to direct the OPs to pay the ID value of the car bearing registration No.KA-52-A-3246 of Rs.4,48,000-00 with interest and also damages of Rs.1,00,000-00 and other incidental charges of Rs.1,00,000-00 together with damages of Rs.1,00,000-00 for mental agony, cost and such other incidental charges. 

2.       The brief facts of the complaint is as under:-

          The complainant is the owner of Toyota Etios Car bearing registration No.KA-52-A-3246 and the said car was insured with OP/General Insurance Company and thereby the OP has issued the private car package policy by collecting premium of Rs.24,701-00 from complainant and OP assessed the ID value at Rs.4,48,000-00.  The policy was issued on 30.08.2022 which was valid till 30.08.2022 to 29.08.2023 vide policy No.140122223380011350.  It is further submitted that the said car met with an accident on 14.01.2023 at about 8.30 AM at Gottigere, Kunigal Kempohalli Road, Near Avverahalli, Sompura Hobli, Nelamangala Taluk, Bangalore District due to wrong full act of the driver by name Mohan Kumar S/o Jayanna who was possessed valid driving license at the time of accident.  The complainant further submitted that after the accident, the complainant left the car at BOSCH car service for repair and informed the same to OP’s authorized agent for survey and thereafter the OP has visited the Gurage in first week of February 2023 and recorded the history of accident and also collected all necessary documents as per the terms and conditions as mentioned in the policy schedule.  It is further submitted that the OP has refused the claim on (06.02.2013) 06.02.2023 stating that particular documents are not furnished, even the complainant has furnished the documents for the claim as under total loss of his vehicle and also the OP has replied on 05.05.2023 as the accident is suspicious and not matched with records and statement of driver.   It is further submitted that the OP assured the complainant that they will reimburse the ID value of the said car, but OPs have failed to do so till today.  Hence, the complainant issued legal notice, but the OPs have not replied even the legal notice served on them.  Hence, the complaint.

3.       After service of notice, the OP No.2 remained absent and OP No.1 appeared and filed the version admitting issuance of policy in favour of vehicle bearing No.KA:52:A:3246 under policy No.140122223380011350, which is valid as on the date of loss and the liability of the OP if any is in accordance with the policy terms and conditions.   The complaint is not maintainable either in law or on facts and hence the same is liable to be dismissed.  The OP further contended that on 20.01.2023 having received the information regarding accident that occurred on 14.01.2023, immediately the OP appointed the surveyor for inspection of the damaged vehicle and accordingly, the surveyor and loss assessor has assessed the loss after inspection of the vehicle and also submitted his report to the company. 

It is further submitted by the OP that upon inspection and findings, it is being observed that accident described by the complainant not in accordance with the damages sustained to the vehicle as per accident spot and observations as;

1. The insured vehicle has sustained damages on multiple planes.  The damage on the front plane is due to horizontal forces whereas the damage on the side planes and roof is due to non-horizontal forces. 
2. The insured vehicle spot photos show that the insured vehicle is rested on its left plane at the edge of the unpaved road.  The damages to the insured vehicle front portion, right plane and front plane do not correlate with the accident spot.
3. Vehicle rolled over on the road and the driver of the insured vehicle has sustained injuries.  Hence, the damage to the right plane and front plane cannot be correlated with the spot evidence.
4. In spot spillage of coolant/oil leak and damaged parts not found.
5. Hiding actual facts and demanding artificial man made damage.
6. Hence, the present complaint is not maintainable as the complainant has suppressed the facts and misrepresentation of facts.

The OP No.1 further contended that the amount claimed by the complainant as compensation is highly exorbitant, excessive, arbitrary, unreasonable and without any legal basis. As per the surveyor and loss assessor, they have assessed the loss to an extent of an amount of Rs.1,48,563-00 and that liability if any on the part of the OP shall be limited to.  The vehicle got hypothecated with Kanaka Durga Finance Ltd and the complainant has failed to make the financier as one of the party to the complaint. The OP No.1 further submitted that the OP No.1 unable to process the claim due to breach of condition No.1 and condition No.8 of the Motor Insurance Policy and hence the claim stands repudiated as per the policy terms and conditions and the OP No.1 further contended that there is suppression of facts and misrepresentation of facts by the complainant.  Hence, there is no deficiency of service in repudiating the claim.  On these among other grounds, the OP prayed to dismiss the complaint.

4.       After filing the application by the complainant to implead Manager, Kanakadurga Finance Limited as OP No.2, notice came to be issued to proposed OP No.2, but the proposed OP No.2 failed to appear before this Commission after receipt of notice and not filed any version and affidavit.

5.       The complainant has filed his affidavit evidence and marked the documents at Ex.P1 to P17.  Miss.Apporva Majakar D/o D P Majakar, Deputy Legal Manager, has filed her evidence by way of affidavit on behalf of OP No.1. 

6.       We have heard the arguments of complainant.   On the submission made by the counsel for OP, the argument of OP No.1 is taken as heard. 

7.       The points that would arise for our consideration are:

1)                    Whether there is any deficiency in service on the part of OPs?

2)                     Whether the complainant is entitled for reliefs sought for?

8.       Our findings to the aforesaid points are as under:

Point No.1: Partly in the Affirmative

Point No.2: As per the final order

//:R E A S O N S://

Point Nos.(1) & (2):-

9.       On perusal of pleadings, evidence and documents submitted by the parties, it is an admitted fact that the complainant is the owner of Toyota Etios Car bearing registration No.KA-52-A-3246 and the said car was insured with OP/General Insurance Company.  The OP has issued the private car package policy by collecting premium of Rs.24,701-00 from the complainant and OP assessed the ID value at Rs.4,48,000-00.  The policy was issued on 30.08.2022 which was valid till 30.08.2022 to 29.08.2023 vide policy No.140122223380011350. It is also an admitted fact that the car met with an accident on 14.01.2023 at about 8.30 AM at Gottigere, Kunigal Kempohalli Road, Near Avverahalli, Sompura Hobli, Nelamangala Taluk, Bangalore District  due to wrong full act of the driver by name Mohan Kumar S/o Jayanna who was possessed valid driving license at the time of accident.  After the accident, the complainant left the car at BOSCH car service for repair and informed the same to OP’s authorized agent for survey.  Thereafter, the OP has visited the Guarage in 1^st week of February 2023 and recorded the history of accident and collected all necessary documents, later the OP repudiated the claim on the ground as the accident is suspicious and not matched with records and statement of driver. 

10.     The main allegation of the complainant is that even though the complainant submitted the documents for the claim as under, the total loss of the vehicle and OP assured the complainant that they will reimburse the ID value of the said car, but OPs have failed to do so till today. 

11.     Per-contra, the OP admitted the issuance of the policy in favour of the vehicle bearing No.KA:52:A:3246 under policy No.140122223380011350, which is valid as on the date of loss and the liability of the OP if any is in accordance with the policy terms and conditions.  

12.     The OP contended that on 20.01.2023 having received the information regarding accident that occurred on 14.01.2023, immediately the OP appointed the surveyor for inspection of the damaged vehicle and the surveyor has assessed the loss after inspection of the vehicle and also submitted his report to the company and on the basis of the report, the OP made some observations, they are;

1. The insured vehicle has sustained damages on multiple planes.  The damage on the front plane is due to horizontal forces whereas the damage on the side planes and roof is due to non-horizontal forces. 
2. The insured vehicle spot photos show that the insured vehicle is rested on its left plane at the edge of the unpaved road.  The damages to the insured vehicle front portion, right plane and front plane do not correlate with the accident spot.
3. Vehicle rolled over on the road and the driver of the insured vehicle has sustained injuries.  Hence, the damage to the right plane and front plane cannot be correlated with the spot evidence.
4. In spot spillage of coolant/oil leak and damaged parts not found.
5. Hiding actual facts and demanding artificial man made damage.
6. Hence, the present complaint is not maintainable as the complainant has suppressed the facts and misrepresentation of facts.

From the basis of above observations, the OP repudiated the claim of the complainant.  As per the surveyor, they have assessed the loss to an extent of an amount of Rs.1,48,563-00 and that liability if any on the part of the OP shall be limited to.    

13.     On perusal of Exhibits of both parties, it is seen that after lapse of one week, the complainant intimated about the accident to the OP No.1 Insurance Company and later, the OP appointed the surveyor.  The survey and inspection carried out by an independent surveyor.  Hence, it is very difficult to find-out the damaged parts and spillage of coolant/oil leak in the accident spot and also it is very difficult to find-out exact reasons for damages to the vehicle.  Sometimes, the vehicle sustained damages due to man handling of the vehicle by the people at the accident spot/some other reasons.  Therefore, observations made by the OP is not taken into account.  Moreover, the OP failed to establish his case by examining the surveyor/any other expert and OP filed only one page of surveyor report.  The OP also contended that the complainant intimated regarding the accident occurred on 14.01.2023 after one week i.e. on 20.01.2023.  The Ex.C1 reveals the fact that the complainant immediately intimated to the police authorities regarding accident on 14.01.2023 at 2.00 PM.  Therefore, the defence of the of the OP i.e. delayed intimation is not sustained.  From the above facts, it is clear that repudiation of the claim of the complainant by OP amounts to deficiency of service. 

14.     The complainant claimed ID value of the vehicle in question i.e. Rs.4,48,000/- and furnished estimation (dated:21.01.2023) for repairs given by the ‘perfect Auto care’ for Rs.11,12,973/- (Ex.C14) only.  The complainant not furnished any actual repair bills pertaining to the vehicle No.KA52:A:3246 and not examined the mechanic in this regard.  Hence, in the absence of actual repair bills, the estimation submitted by the complainant cannot be looked into. Therefore we accepted the surveyor loss assessment.  Accordingly, the OP is liable to pay Rs.1,48,563/- as per surveyor loss assessment with interest @ 9% PA from the date of repudiation i.e. 05.05.2023 to till realization. 

15.     For the acts of OP, the complainant compelled to approach this Commission and suffered mental agony.  Hence, the OP is liable to pay Rs.15,000/- as compensation and Rs.10,000/- as litigation expenses to the complainant.  We do not find any allegations of deficiency against OP No.2. Therefore, the complaint against OP No.2 is liable to be dismissed.  Accordingly, we proceed to pass the following:-

:ORDER:

The complaint is allowed in part.

The OP No.1 is directed to pay Rs.1,48,563-00 along with interest @ 9% PA to the complainant from the date of repudiation i.e. 05.05.2023 to till realization.

The OP No.1 is further directed to pay Rs.15,000/- as compensation and Rs.10,000/- as litigation expenses to the complainant.

Further, the OP No.1 is directed to comply the above order within 45 days from the date of receipt/knowledge of this order.

The complaint against OP No.2 is dismissed. 

Supply copy of this order to both parties with free of costs immediately.