BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH,                                                                                      MANGALORE

Dated this the 21^st November 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : MEMBER

ORDER IN

C.C.No.56/2014

(Admitted on 5.02.2014)

Mr.Vasantha Kayara

S/o Veerappa Kayara,

Aged about 39 years,

R/at Kayara House,

Mupperia Post,

Sullia Taluk, D.K.

                                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

The Manager,

Royal Sundaram Alliance Insurance,

Co. Ltd., 3^rd Floor,

Emkeys Shalimar Complex,

Kankanady, Mangalore.

                                                               …...OPPOSITE PARTY

 (Advocate for the Opposite Party: Sri. UKS)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs to refund Rs.4,17,167/ with 12% interest from 23.02.2012 till payment, to pay Rs.1,68,750/ as parking charges, to pay Rs. 1,00,000/ as rent, to pay Rs.1,00,000/ towards compensation and Rs.50,000/ as expenses.

The brief facts of the case are as under:

     We perused the complaint and the version of the parties. Complainant’s allegation is that he obtained an insurance policy for his vehicle No KA 19 MB 0953 for assured amount of Rs. 4,17,167/ from the opposite party for a period from 22.02.2012 to 21.02.2013. During the subsistence of the policy the insured vehicle met with an accident on 23.02.2012 and there was a heavy damage to the vehicle. They have registered the police complaint and also orally by telephone informed the Opposite party of the accident and kept the vehicle with the authorized service center of the Maruthi cars. On submission of the claim form with the estimated repair cost of the car to the Opposite party, the opposite party not responded for long and on 04.09.2013 sent a repudiation letter stating that the claim cannot be entertained due to misrepresentation while obtaining the policy. Opposite party contended that the policy was taken by misrepresentation showing photographs of some other cars of similar model on the vehicle which was already damaged vehicle. Apart from this Opposite party alleges that, the complainant informed about accident after 80 days gap, the present policy was renewed after lapse of 8 months from the date of previous policy etc. If these are being the core facts of the dispute we considered the following points to be adjudicated in resolving this dispute.

1. Whether the complainant is the consumer under the Consumer Protection Act 1986?
2. Whether the complainant proved deficiency in service on the part of the Opposite party?
3. Whether the complainant entitled for the relief prayed for?
4. What order?

     We have thoroughly examined the documents produced and evidence led by the rival parties and answered the above points as under:

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per the delivered order.

REASON

POINT NO 1: We referred the documents Ex C1 the insurance policy copy which is issued in the name of the complainant for his vehicle number as aforesaid. The opposite party not disputed the issue of policy to the complainant. Hence there formed the relation of consumer and the service provider between the complainant and the Opposite party. Hence we answered the point no 1 in the affirmative.

POINT NO 2: The complainant s allegation is that his vehicle which was insured with the Opposite party met with an accident and got damaged during the subsistence of the policy. To prove his case he has produced the EX C1 the policy copy, the FIR copy (EX C2), charge sheet filed by the police with regard to offence under Sec. 173 of Cr.p.c (EX C3), wound certificate (EX C4), the copy of mahajar conducted by the police with regard to accident of the vehicle (EC C5), Motor Accident Report (Ex C6). All these documents establish the vehicle insured with the Opposite party met with an accident. The vehicle register number, the engine number and the chassis number written in these documents fairly tallies with the corresponding numbers entered in the insurance policy. We have no doubt that the policy has been issued on the vehicle which was met with an accident on 23.02.2012. The Opposite party contention that (in Para 7 of the version) the complainant shown photograph of some other vehicle of same make and model of Maruti Swift which was in a good condition for ensuring that the policy obtained from the Opposite party for his already damaged vehicle and later made a claim after a lapse of more than 2 months from the date of policy inception by alleged accident took place on 23.02.2012.  is ridiculous and based on worthless grounds. The Opposite party is expected to issue the policy on inspection of the vehicle which is mandatory. Once the policy is issued it establishes the coverage of the insurance for the insured vehicle. The childish contention that (in page 4 of Para 7 of the version),  there were glaring disparities between the vehicle was shown in the photos while taking the policy and the vehicle for which claim is being made as the vehicle which was shown for taking policy on 22.02.2012 had some extra fittings like door molding, bumper molding, and the alloy wheel however the vehicle which alleged to have met with accident on 23.02.2012 did not have such extra fittings therefore the same shows that the vehicle which is shown to have met with accident by the complainant is not the one which was insured with the Opposite party is not acceptable at any stretch of imagination. It is the bounden duty of the Opposite party to insure the vehicle with due care and caution. We need not say it is a common sense when the engine number the chassis number and the vehicle number of the vehicle tallies with the numbers entered in the policy the vehicle was insured under that policy. We say the complainant has proved the policy and the accident and the damage to the vehicle during the subsistence of the policy. The other allegation of the opposite party with regard to delay in information, delay in renewal, etc. will not throw any light on the issue on hand. The Opposite party appointed a surveyor after getting information and survey conducted by the Opposite party is admitted facts. Also complainant stated that he had informed through telephone where there is practice of telephonic communication and the Opposite party not specifically rebutted the telephonic information.

       There is also unanswered the delay in settling the claim issue either honour or repudiation which amount to admission of claim as per regulation 9 of the IRDA as held in  STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASTRA

In M/S.Jyoti Impex vs New India Assurance Co.Ltd. on 29 April, 2013. The insurer is duty bound to respond either settle or repudiate otherwise the adverse inference can be drawn and treated as claim admitted.

        We are of the opinion that opposite party had repudiated the claim illegally and the complainant proved deficiency on the part of the Opposite party and hence we answered the point no 2 in the affirmative.

POINT NO 3: As per above discussion we hold the complainant proved the insurance coverage at the time of accident and  Opposite party liable for deficiency in service and hence the complainant is entitled to get relief. We noticed the Opposite party has not provided with the copy of the survey report to the complainant, even though admitted to have surveyed and assessed the loss. However produced before us the copy of the survey report of 07.09.2012 on 14.07.2015 through memo. Anywhere throughout the pleading the Opposite party stated that they have provided the complainant with the copy of the survey report for his verification and confirmation for giving an opportunity for clarification. Even the surveyor has not been examined by the opposite party. Neither providing a copy of the survey report to the complainant nor not examining the surveyor, in our opinion the survey report not to be relied upon. Also we had close observation on the survey report EX R5 page no 3 (as given by us for convenience) where it is stated total net amount payable as 324181.38(Parts  Labor). Again in the bottom it is stated as Insured liability may increase by 10% after dismantling. But the page no 6 of the same EX R5 sated as net amount payable is Rs.. 233033.90 (Parts Labour). This discrepancy not properly explained.  However the complainant produced a certificate from the licensed surveyor shri Rakesh Bolar who has been examined and estimated the loss as total loss and the vehicle said to be not road worthy condition. This being the facts we cannot accept the survey report produced by the Opposite party is depend worth and brushed aside. Hence we hold the complaint is entitled for an amount of Rs 4,17,167/ the IDV amount of the vehicle with an interest at 9% per annum from the date of repudiation till the date of payment. As for as the parking charges of garage of Rs.168750/, it is not the case of the complainant that under instruction from the Opposite party he had kept the vehicle in the work shop and as such we decline the relief. Also the alterative arrangement made by the complainant for his travelling is the voluntary one and there is no clause in the policy or separate agreement for the payment of alternative arrangement provision and the claim not considered. However for compensation claim, there we see a negligence on the part of the Opposite party in not dealing with the things as per provision and law while insuring the vehicle and later taking shelter under whimsical reason and repudiated the legal claim and we consider an amount of Rs. 25000/ as compensation and Rs. 10000/ as litigation expenses. Hence we answered the point no 3 in the affirmative.

POINT NO 4: in the light of the above discussion and the adjudication we pass the following:

ORDER

     The complaint is allowed. The opposite party shall pay the complainant an amount of ₹ 4,17,167/ with an interest of 9% per annum from the date of repudiation till the date of payment and an amount of ₹ 25000/ towards compensation and ₹ 10000/ as litigation expenses. The order shall be complied with in 30 days from the date of copy of the order received by the Opposite party.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 9 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21^st November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Vasantha Kayara,

                CW2: Mr. Rakesh Bolar, Insurance Surveyor/Loss Assessor

 Documents marked on behalf of the Complainant:

Ex C1: 22.02.2012     Copy of the Insurance Policy issued by  Opposite party

Ex C2: 23.02.2012     Copy of the FIR

Ex C3:  04.05.2012     Copy of the Charge Sheet

Ex C4: 21.04.2012     Copy of the Wound Certificate

Ex C5: 24.02.2012     Copy of the Mahazar

Ex C6: 24.02.2012     Copy of the Motor Vehicle accident report

Ex C7:                      Settlement intimation voucher

Ex.C8: 17.04.2012     Estimate issued by Mandovi Motors Sullia

Ex.C9:                      Photographs (4)

Ex.C10: 28.8.2013     O/c of the letter addressed by the  Complainant to the opposite party

Ex.C11: 04.09.2013     Repudiation letter of opposite party

Ex.C12: 16.12.2013     Letter issued by Mandovi Motors Sullia

Ex.C13: 01.03.2012

             To

Ex.C14: 30.10.2013     Receipt issued by Nandi Tours and Travels

Ex.C15: 20.06.2013     Original Ssurvey Report of Rakesh Bolar

Ex.C16: 21.11.2013     O/c of Regd notice

Ex.C17: 22.11.2013     Postal acknowledgment of opposite party    

Witnesses examined on behalf of the Opposite Party:

Rw1: Aneesh Bhaskaran,

Rw2: G. Vinay Prakash,

Documents markedon behalf of the Opposite Party:

Ex.R1: Copy of the Policy

Ex.R2: Copy of the Claim Form

Ex.R3: Copy of the Photos of the damaged vehicle

Ex.R4: Copy of the claim denial letter dated 4.9.13

Ex.R5: Copy of the Survey Report of Sashi Kumar

Dated:  21.11.2016                             MEMBER