Karnataka

Chitradurga

CC/3/2016

Sri Ganganna S/o. Myganna, - Complainant(s)

Versus

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

Shri.C.M.Veeranna

14 Nov 2016

ORDER

COMPLAINT FILED ON : 18/01/2016

     DISPOSED ON: 14/11/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

CC. NO. 3/2016 DATED:  14th November 2016

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

                        SRI.N. THIPPESWAMY             MEMBER

                                         B.A., LL.B.,          

COMPLAINANT

Sri. Ganganna, S/o Myganna, Age 56 Years, Retired Lecturer, R/o Manjunatha Nilaya, Karnataka Housing Board, 4th Cross, C.K.Pura, Chitradurga.   (Rep by Sri. C.M. Veeranna, Advocate)

OPPOSITE PARTIES

1. The Manager, Royal Sundaram Insurance Co. Ltd., Vishranthi Melaram Towers, No.2/319, Rajiv Gandhi Salai (OMR), Karapakkam, Chennai-97.   2.  Saketh Automobiles, (Authorized Maruthi Suzuki Dealers),  Rep. by its Proprietor, Sira Road, Tumkur-572106.   3. Saketh Automobiles, (Authorized Maruthi Suzuki Dealers),  Rep. by its Proprietor, Opp. to Yatri Nivas, Opp. Medehalli Road, NH-4, Chitradurg.   (Rep by Sri.B.S. Shivamurthy, Advocate for OP No.1 and T.S. Niranjan, Advocate for OP No.2 & 3)

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 No.1 to pay Rs.54,780 /- with 18% interest, Rs.30,000/- towards damages for mental agony, to grant court cost of Rs.10,000/- and such other reliefs.

 

2.     The brief facts of the case of the complainant are that, complainant purchased Maruthi Swift Dizire Vdi Car bearing Reg. No.KA-16 M-9667 in the year 2014 from OP No.2.  OP No.1 insured the said Car by collecting premium through OP No.2.  It is further submitted that, as per the renewal letter of OP No.2, complainant renewed the insurance policy by paying premium of Rs.13,844/- to OP No.3 under policy No.MOP2954730 valid for the period from 02.06.2015 to 01.06.2016.  It is further submitted that, on 13.07.2015 at about 12-00 PM, when the complainant moving on the said motor cycle near Purlahalli village, Challakere taluk a stray dog came infront of the vehicle, while avoiding the same, it met with an accident and the vehicle got damaged.  Immediately complainant informed about the accident to OP No.3. OP No.3 appointed a Surveyor and after survey as per the advice of concerned person of OP, complainant got repaired his motor cycle by paying an amount of Rs.70,000/- and submitted all the bills along with claim form to OP No.2 to settle the claim.  But, on 24.08.2015 OP No.1 sent a cheque for Rs.15,220/- against the claim of Rs.70,000/-, which was accepted by the complainant under protest.  On 25.08.2015 complainant visited the Branch Office of OP No.1 situated at Bangalore seeking explanation for paying Rs.15,220/- instead of paying the entire expenses spent for repair of the vehicle by the complainant but, they have not responded properly.   Complainant telephoned the OP No.1 on several occasions seeking explanation for sending the cheque for Rs.15,220/- against the claim amount of Rs.70,000/- but, OPs have not responded which caused the complainant to suffer physically, mentally and financially.  Therefore, complainant got issued legal notice to OPs to pay the balance amount but, OPs neither settled the claim nor replied to the notice, which is a deficiency of service and prayed for allow the complaint.      

 3.    On service of notice, OP No.1 appeared through Sri.B.S. Shivamurthy, Advocate and filed version stating that, the complaint filed by the complainant is unwarranted, untenable and misconceived as the claim was rightly settled under the agreed policy terms and conditions.  It is submitted that, condition No.7 of the policy states that, if any dispute arise as to the quantum to be paid under policy it should be referred for arbitration as agreed by policy terms and conditions.   It is further submitted that, the complainant had taken a private car package policy from OP No.1 for his Swift Dzire VDi Car bearing Reg. No.KA-16 M 9667 for the period from 02.06.2015 to 01.06.2016 under the agreed terms and conditions.  The claim was lodged with the OP No.1 on 01.08.2015 with respect to the accident took place on 13.07.2015 narrating that, suddenly a dog came across and insured driver lost control and sustained damage and on receipt of the claim form, it was duly registered and the insured vehicle was surveyed on the same day by licensed surveyor Mr. M.C. Himath Kedar who submitted final survey report dated 12.08.2015 assessing the loss to the tune of Rs.11,500/-, the same was settled.  It is further submitted that, under Sec.64UM(2) of the Insurance Act of 1938, no claim should be settled unless it is approved by a licensed surveyor.  It is further submitted that, the complainant has claimed a sum of Rs.70,000/- based on the repair bills and the same is not payable as the surveyor assessed the loss for a sum of Rs.11,500/- only.  The surveyor in the survey report made the following observation.

Earlier the vehicle was left for repairs at Saketh Automobiles, the Authorised Dealer, Chitradurga on the accident date and odometer reading on that date was 9347 KMs, reported front bumper radiator and coolant leakage. 

Later on 30.07.2015, once again he left the vehicle for repairs at Saketh Automobiles, Chitradurga and at that time of Odometer reading is 9525 KMs.  So, insured ran the vehicle after accident for 178 KMs. 

 

It is submitted that, as per the Saketh Automobiles, the accident occurred near Purlahalli-Challakere-Pavagada road, but as per the claim form, the accident occurred at Kurudihalli-Chitradurga-Challakere road.  On 31.07.2015 insured left the vehicle in the local work shop, Chitradurga and claimed for the damages.  The engine damages come under aggrevation loss, which is not covered under the policy condition.  It is submitted that, from the observation of the surveyor, it is very clear that, as a result of the accident there was damage to radiator and there was coolant leakage and para 4 confirms that, the vehicle was plied for 178 KMs after the alleged loss from the odometer readings, which shows that, plying of vehicle without coolant and radiator damage to all probability will result in engine damage.  The assessment made by the surveyor for the damage to the vehicle has been rightly paid by the OP No.1.  It is further submitted that, the insurance policy does not undertake the risk of aggrevation damage, the risk that is undertaken is only of damage due to accidental means and the damage resultant of accidental external means was settled for a sum of Rs.11,500/- as assessed by the surveyor.  The policy condition reads that, if the private car be driven before the necessary repairs are effected any extension of the damage or any further damage to the private car shall be entirely at the insured's own risk and this OP has acted in a bonafide and legal manner and therefore, there is no deficiency in service or unfair trade practice and hence, prayed for dismissal of the complaint.    

4.     OP No.2 and 3 appeared through Sri. T.S. Niranjan, Advocate and filed its version denying all the allegations made in the complaint.  It is submitted that, the complaint is not maintainable either on law or on facts and the same is liable to be dismissed.   It is submitted that, the complaint is bad against OP No.2 and 3 and the complainant knows very well that, the OP No.2 and 3 are not having any responsibility/liability regarding the alleged insurance claim, only for the sake of formal, OP No.2 and 3 are included as parties in this case.  It is submitted that, OP No.3 received a phone call from complainant stating that, the vehicle in question has met with an accident and the same was not in a moving condition and as per the request of the complainant OP No.3 arranged for towing the car to the service station and the complainant has paid the towing charges.  Thereafter, complainant took his car to another repair shop and OP No.3 has not attended any repair works as per the direction of the complainant.  Therefore, the question of deficiency of service on their part does not arise and they are not having any liability in settling the insurance claim, it is only between the complainant and OP No.1/insurance company.    Therefore, prayed for dismissal of the complaint.      

        5.     Complainant himself examined as PW-1 by filing affidavit evidence reiterating the contents of complaint and documents are marked at Ex.A-1 to   Ex.A-10. 

6.     On behalf of OP No.1 one Sri. Aneesh Bhaskaran, the Senior Executive Legal of OP No.1 examined as  DW-1 and documents have been marked as Ex.B-1 and Ex.B-2.  

 

7.     Written arguments have been filed and oral arguments heard.

 

8.     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 his claim and he is entitled for compensation as stated in her complaint?

 

Point No.2:- What order?

 

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

 

        Point No.1:- Partly Affirmative.

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

                                        ::REASONS::

 

10. Point No. 1:- It is not in dispute that, complainant purchased Maruthi Swift Dzire Vdi Car bearing Reg. No.KA-16 M-9667 in the year 2014 from OP No.2 and the same has been insured with OP No.2 and as per the renewal letter of OP No.2, complainant renewed the insurance policy by paying premium of Rs.13,844/- to OP No.3 under policy No.MOP2954730 valid for the period from 02.06.2015 to 01.06.2016.  On 13.07.2015 at about 12-00 PM, the said motor cycle met with an accident near Purlahalli village, Challakere taluk a stray dog came infront of the vehicle, while avoiding and damaged.  Immediately complainant informed about the accident to OP No.3. OP No.3 appointed a Surveyor and after survey, complainant got repaired his motor cycle by paying an amount of Rs.70,000/- and submitted all the bills along with claim form to OP No.2 to settle the claim.  But, on 24.08.2015 OP No.1 sent a cheque for Rs.15,220/- against the claim of Rs.70,000/-, which was accepted by the complainant under protest.  Thereafter, on 25.08.2015 complainant visited the Branch Office of OP No.1 situated at Bangalore seeking explanation for paying Rs.15,220/- instead of paying the entire expenses spent for repair of the vehicle by the complainant but, they have not responded properly, which caused the complainant to suffer physically, mentally and financially. 

11.  In support of her contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also relied on documents like copy of Counter Sale Retail Cash Memo of ESSAR Automotives dated 08.08.2015 for Rs.45,273/- marked as Ex.A-1, copy of Counter Sale Retail Cash Memo of ESSAR Automotives dated 08.08.2015 for Rs.390/- marked as Ex.A-2, copy of Counter Sale Retail Cash Memo of ESSAR Automotives dated 10.08.2015 for Rs.855/- marked as Ex.A-3, copy of job card/cash bill pertains to Creative Zone dated 11.08.2015 marked as Ex.A-4, Copy of Cash/Credit Bill dated 10.08.2015 pertains Rameshwara Automobiles marked as Ex.A-5, Cash Bill dated 08.08.2015 pertains to Mruthunjaya Automobiles marked as Ex.A-6, Cash/Credit Bill dated 09.08.2015 pertains to Car Wheel Zone marked as Ex.A-7, Cash/Credit Bill dated 16.06.2015 pertains to S.G.P. Auto Works marked as Ex.A-8, Cash/Credit Bill dated 16.08.2015 pertains to S.G.P. Auto Works marked as Ex.A-9 and cheque bearing No.877601 dated 24.08.2015 for Rs.15,220/- by OP No.1 towards settlement marked as Ex.A-10.

12.   On the other hand, it is argued by the Advocate for OP No.1 that, the complainant had taken a private car package policy from OP No.1 for his Swift Dzire VDi Car bearing Reg. No.KA-16 M 9667 for the period from 02.06.2015 to 01.06.2016 under the agreed terms and conditions.  The claim was lodged with the OP No.1 on 01.08.2015 with respect to the accident took place on 13.07.2015 and on receipt of the claim form, it was duly registered and the insured vehicle was surveyed by licensed surveyor Mr. M.C. Himath Kedar who submitted final survey report dated 12.08.2015 assessing the loss to the tune of Rs.11,500/-, the same was settled.  Under Sec. 64UM(2) of the Insurance Act of 1938, no claim should be settled unless it is approved by a licensed surveyor.  The complainant has claimed a sum of Rs.70,000/- based on the repair bills and the same is not payable as the surveyor assessed the loss for a sum of Rs.11,500/- only.  Earlier the vehicle was left for repairs at Saketh Automobiles, the Authorised Dealer, Chitradurga on the accident date and odometer reading on that date was 9347 KMs, reported front bumper radiator and coolant leakage.  Later on 30.07.2015, once again he left the vehicle for repairs at Saketh Automobiles, Chitradurga and at that time Odometer reading was 9525 KMs.  So, insured ran the vehicle after accident for 178 KMs.  The engine damages come under aggrevation loss, which is not covered under the policy condition.  From the observation of the surveyor, it is very clear that, from para 4 confirms that, the vehicle was plied for 178 KMs after the alleged loss from the odometer readings, which shows that, plying of vehicle without coolant and radiator damage to all probability will result in engine damage.  The assessment made by the surveyor for the damage to the vehicle has been rightly paid by the OP No.1.  The policy does not undertake the risk of aggrevation damage, the risk that is undertaken is only of damage due to accidental means and the same has been settled for a sum of Rs.11,500/- as assessed by the surveyor.  If the private car be driven before the necessary repairs are effected any extension of the damage or any further damage to the private car shall be entirely at the insured's own risk and this OP has acted in a bonafide and legal manner.

13.   It is argued by the Advocate for OP No.2  and 3 that, the complaint is bad against OP No.2 and 3 and the complainant knows very well that, the OP No.2 and 3 are not having any responsibility/liability regarding the alleged insurance claim, only for the sake of formal, OP No.2 and 3 are included as parties in this case.  As per the request of the complainant OP No.3 arranged for towing the car to the service station and the complainant has paid the towing charges and thereafter, complainant took his car to another repair shop and OP No.3 has not attended any repair works as per the direction of the complainant.  Therefore, the question of deficiency of service on their part does not arise and prayed for dismissal of the complaint.  

14.      In support of its contention,  OP No.1 has relied on affidavit evidence its Senior Executive Legal in which he has reiterated the contents of version and also relied on documents like survey report marked as Ex.B-1 and Policy marked as Ex.B-2.

15.   We have carefully gone through the pleadings, version of OPs, evidence and written arguments as well as oral arguments and documents submitted by both parties.  According to the complainant, he purchased Maruthi Swift Dzire Car bearing Reg.No.KA-16 M-9667 from OP No.2 and the same has been insured with OP No.1 insurance company valid for the period from 02.06.2015 to 01.06.2016 under policy No.MOP 2954730 by paying premium of Rs.13,844/-.  The said vehicle met with an accident on 13.07.2015 at Purlahalli village in Challakere Taluk and the complainant informed the same to OP No.1 immediately as per the terms and conditions of the policy.  The authorized surveyor visited the spot and verified the vehicle and given a report assessing the damages for Rs.11,500/-.  The complainant repaired his car by spending huge sum of Rs.70,000/- which is evident from the bills produced by him i.e., Ex.A-1 to Ex.A-9.  Except the Ex.A-8 dated 16.06.2015 for Rs.5,100/- all the bills produced by the complainant are after the occurrence of accident.  The date of accident was on 13.07.2015.  The surveyor given his report assessing the loss to the tune of Rs.11,500/- but, the OP No.1 has sent a cheque for Rs.15,220/- against the bill produced by the complainant for Rs.70,000/-.  It is evident that, complainant has spent huge sum towards repair of his car, which is liable to be compensated by the insurance company as the policy was in force as on the date of accident.  OP No.1 never stated anywhere in its version or in the affidavit, the complainant never produced bogus bills and it has not produced any documents before this Forum to show that, the bills produced by the complainant are bogus bills.  The surveyor's report is against the bills produced by the complainant.  As on the date of accident, insurance policy was in force.  It is the main contention of the complainant that he 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 has settled the claim by giving a cheque for Rs.11,220/- only which is not acceptable as the complainant has repaired his car by spending huge sum of Rs.70,000/-.  The bill for Rs.5,100/- dated 16.06.2015 is before the accident which is not liable to be payable by the  OP  No.1 and the remaining sum of Rs.64,900/- is liable to be paid by OP No.1.  OP No.1 sent a cheque for Rs.15,220/- which was received by the complainant which is to be deducted and the remaining amount of Rs.49,680/- is liable to be paid by OP No.1. Therefore, the OP No.1 has committed a mistake and deficiency of service and it is responsible to settle the claim made by the complainant.  OP No.2 and 3 are only a formal parties because, there is no contract entered into between the complainant and   OP  No.2  and 3.  Therefore, complainant as against OP No. and 3  is liable to be dismissed.  Accordingly, this Point No.1 is held as partly Affirmative to the complainant.

16.   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 OP No.1 is hereby directed to pay a sum of Rs.49,680/- and compensation of Rs.10,000/- in total a sum of Rs.59,680/- along with interest at the rate of 12% p.a to the complainant from the date of filing of the complaint till realization. 

It is further ordered that, the OP No.1 is hereby  directed to pay Rs.5,000/- towards costs of this proceeding.  

The complaint filed against OP No.2 and 3 is hereby dismissed.

It is further ordered that, the OP No.1 is hereby directed to comply the above order within 30 days from the date of this order.

 (This order is made with the consent of Member after the correction of the draft on 14/11/2016 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                                         PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                          -Nil-

On behalf of OP No.1 one Sri. Aneesh Bhaskaran, the Senior Executive Legal examined as DW-1 by filing affidavit evidence. 

Witness examined on behalf of OPs:

                                                          -Nil-

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Counter Sale Retail Cash Memo of ESSAR Automotives dated 08.08.2015 for Rs.45,273/-
02	Ex-A-2:-	Counter Sale Retail Cash Memo of ESSAR Automotives dated 08.08.2015 for Rs.390/-
03	Ex-A-3:-	Counter Sale Retail Cash Memo of ESSAR Automotives dated 10.08.2015 for Rs.855/-
04	Ex.A-4:-	Job card/cash bill pertains to Creative Zone dated 11.08.2015
05	Ex.A-5:-	Cash/Credit Bill dated 10.08.2015 pertains Rameshwara Automobiles
06	Ex.A-6:-	Cash Bill dated 08.08.2015 pertains to Mruthunjaya Automobiles
07	Ex.A-7:-	Cash/Credit Bill dated 09.08.2015 pertains to Car Wheel Zone
08	Ex.A-8:-	Cash/Credit Bill dated 16.06.2015 pertains to S.G.P. Auto Works
09	Ex.A-9:-	Cash/Credit Bill dated 16.08.2015 pertains to S.G.P. Auto Works
10	Ex.A-10:-	Cheque bearing No.877601 dated 24.08.2015 for Rs.15,220/- by OP No.1 towards settlement.

 

Documents marked on behalf of Opponent:

01	Ex-B-1:-	Survey report
02	Ex-B-2:-	Insurance Policy

 

 

MEMBER                                                 PRESIDENT

Rhr.