BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

       C.C.No.54/2018

              Date of filing: 13/04/2018

              Date of disposal: 29/12/2018

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to pay a sum of Rs.2,02,322.07 towards Vehicle repair charges alongwith interest from the OP.No.1 till realization and pay Rs.50,000/- towards compensation for mental agony & harassment and Rs.5,000/- towards cost of the proceedings and any other reliefs etc.,

2.      The facts of the case in brief are that;

          The OP.No.1 is the Insurance company obtaining the premium to the vehicle and OP.No.2 is the Head Office of the said Insurance Company and OP.No.3 is the formal party to decide the case on territorial jurisdiction and complainant has not claimed any compensation against this OP.No.3 in the present complaint.  

It is further contended that, the complainant is the owner of Mahindra & Mahindra Bolero Pickup CBC vehicle No.KA-28/C-2526 and he had insured the said vehicle to the OP.No.1/Insurance Company vide policy No.2410003116 P 101477349 w.e.f. 30.04.2016 to 29.04.2017 and further the complainant is the resident of Hoovinhipparagi, Tq: B.Bagewadi. Unfortunately, on dtd: 25.03.2017, at 10-30 P.M, the said vehicle was parked beside his shop on Muddebihal road, one Lorry No.KA-22-B-14165 had rashly came and dashed to the front side of his vehicle, due to this, the above said vehicle was completely damaged. After the accident of the said vehicle, the complainant has lodge the complaint before Basavan Bagewadi Police Station on dtd: 26.03.2017 and the said police station Registered the case under PS Cr.No.91/2017 and further the complainant has intimated to the OP.No.1/Insurance Company regarding the same.

It is further contended that, after receiving the intimation, the OP.No.1/Insurance Company has immediately deputed  N. S. Patil, Surveyor to inspect the vehicle and submit the report and further the complainant has brought the said vehicle to Bijjaragi Car Solution Showroom and got estimated the damages of the said vehicle and obtained the service estimation and list of replacements of the damaged parts and also labour charges and accordingly the said company has issued the estimation to the tune of
Rs. 2,02,322.77 and further the complainant had submitted the claim form alongwith all the documents and sought for the damages caused to his vehicle. But, OP.No.1 Company registered the said claim and repudiated the claim of the complainant vide letter on dtd: 27.11.2017 and stating that, the driving license has been expired at the time of accident and as per the terms and condition of the policy the persons or classis of person entitled to drive any person including insured provided that, a person hold an effective driving licence at the time of accident and it is not disqualified from holding or obtaining such a licence and further the complainant has requested several times to  OP.No.1 for settled his claim, but OP.No.1 has kept quite. Eventhen, it is not necessary to hold a valid DL of complainant vehicle driver, as a lorry was dashed to complainant vehicle, when complainant vehicle is extremely parked one side. Hence there is no breach of policy terms and conditions and further the complainant had already submitted all the relevant documents to the OP.No.1, in view of non settlement of the claim, the complainant is unable to get repair his said vehicle and said vehicle is lying in the above said showroom till today and as such complainant is put to inconvenience and hardship. Hence, having no alternative, the complainant is constrained to file this complaint.

3.      The Forum registered a case and issued a notice to the OPs. After service of the notice, the Op.No.1, has appeared through his Counsel and resisted the claim of the complainant by filing his written version and Op.No.2 & 3 has filed memo stating that, the written version of Op.No.1 adopt the same. Later, the Adv. for complainant has filed an application U/o 1 rule 10 C.P.C. and stating that, the Op.No.2 may kindly be deleted in the cause title of the said complaint. In view of the said application, this Forum has allowed the I.A. and permitted to deleted the name of Op.No.2 in the cause title as per order on I.A. dtd:12.07.2018.       

          Brief fact of the Written Version

The OP.No.1 contended that, the complaint of the complainant is false, frivolous and vexatious and also it is contrary to law and facts obtaining in the instant case and as such the complaint deserves to be dismissed with costs and further contended that, the Light Goods Carrying Vehicle bearing No. KA-28/C-2526 was insured with this OP for a period from 30.04.2016 to 29.04.2017 and the said policy was issued subject to the terms and conditions as enumerated therein and also as per the provisions Chapter X and XI of M.V. Act and the rules frames there under.

It is further contended that, this Forum has no territorial Jurisdiction to try and decide this case in view of the fact that, the complainant is the resident of Huvinhipparagi of B. Bagewadi Taluka, the alleged accident was occurred in the same village and the insurance policy is issued to the said vehicle from Vijayapur Divisional Office. The complaint has misrepresented his residential address as Bagalkot. Therefore, the complaint deserves to be dismissed for want of territorial jurisdiction.

It is admitted fact that, on dtd: 25.03.2017, the said vehicle met with an accident in which some portion of the vehicle became damaged and further on dtd: 26.03.2017, the complainant has intimated to the OP.No.1 regarding the said  accident of his vehicle and further on dtd: 05.04.2017, the complainant has submitted the claim form to the OP.No.1. After receiving the accident intimation, this OP has tried to settle the claim of the complainant and immediately this OP deputed Nagappagouda S. Patil, an independent licensed surveyor to carryout the spot survey and the said surveyor inspected and submit his report On dtd: 08.11.2017 and the same was received by this OP and thereafter, this OP has also deputed another surveyor by name Sri.Sameer D. Dhanashetti, an independent licensed Surveyor and loss assessor to carryout the final survey. After carrying out the final survey, the said surveyor has submitted the final survey report, the amount of loss assessed is Rs.1,21,302/-.   

It is further contended that, to settle the claim legally, the complainant has to provide the valid and effective driving license, R.C., F.C. and permit, the complainant has provided the driving license of his driver Sangangouda S/o Bhimangouda Nadagouda which was not valid on the date of accident. Driving license of the said driver was valid from 08.12.2017 to 07.12.2020 as on the date of accident, the said driver was not at all holding the driving license to drive transport vehicle. Therefore, without a valid driving license, it was not possible for the OP to settle the claim legally. Accordingly, the OP has sent a letter dtd: 27.11.2017 to the complainant and stating the reason for denying the claim and closed the file. Hence, there is no deficiency of service on the part of the OP and prayed for dismissal of the complaint with costs.         

4.      The complainant has filed his chief affidavit along with 8 documents which are as follows;

The OP.No.1 also filed his chief affidavit and produced 6 documents on behalf of them are as follows;

5.      Now on the basis of above said pleadings, written arguments, oral and documentary evidence, the following points arises for adjudications are as follows;

Our Answer to the above points are:-

Point No.1 – Affirmative.

Point No.2 – Partly Affirmative.

Point No.3 - As per the final order for the following:

                                          R E A S O N S

6.  POINT NO.1:  The complainant filed this complaint against the OPs stating that, his Light goods carrying vehicle bearing No.KA-28/C-2526 vide Insurance Policy No.241000/31/16/ P1/01477349 the said policy was in force from 30.04.2016 to 29.04.2017 and the said policy has been insured with OP No.1, further complainant stated in this complaint that, on dtd: 25.03.2017 the said vehicle met with an accident and the same had been intimated to the OP.No.1 and further on dtd: 05.04.2017 claim form has been submitted by the complainant to the OP No.1. But, OP/Insurance Company  has repudiated the claim of the complainant that, the driver does not hold a valid license to drive the vehicle.

          On the other hand, OP No.1 admitted the policy issued by him but, submits that, the Forum has no territorial jurisdiction to try and decide this case, in view of the fact that, the complainant is resident of Hoovinahipparagi of Bagewadi, taluka and the accident occurred in the same place and even policy is issued to the said vehicle by Vijayapur Divisional Office, all the above addresses are from Vijayapur District only and further submits that, they have not made any error by repudiating a claim, since driver does not hold a valid license to drive the vehicle.

          The undisputed fact in this case is that, OP No.1 issued the policy to the complainant and during the accident, the policy was in force and even Ops are not denying the accident but, OPs raise the contention that, the above complaint does not falls under the jurisdiction of this Forum. It is very important to discuss the point on jurisdiction, Section 11 of Consumer Protection Act, sub Class B says as follows;

11. (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business, [or have a branch office] personally works for gain; or

  (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business [or has a branch office] or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business, [or have a branch office] or personally works for gain, as the case may be acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

 On the reading of the above, it clears that, as per the Sec.11 (a) the OP.No.1 has a Branch Office at this jurisdiction, hence there is no need to discuss more about the jurisdiction point.  The complainant filed a citation, it is very much resemblance to this case, I (2008) CPJ 219 (NC), Venkatesh & Ors., V/s. Vishwanath & Ors.   The Hon’ble National Commission discussed clearly that, since the Consumer Protection Act, 11 (2) (a), there is a no dispute fact that, since there is a branch of petitioner at this jurisdiction and it is also important to note that the said Bank was
ex-parte in this case.  Hence in the view of the above said discussion, we answered the point No.1 in the affirmative.

7.  POINT NO.2   We have carefully considered the arguments advanced by both the parties and have gone through the records, the repudiation of the Insurance Company is based on only driving license of the driver.  That the contention of the OP.No.1 is that, on the date of the accident, the driver of the said vehicle does not hold a valid driving license.  This is the foremost point to discuss here that, whether the accident occurred while travelling or parked.  In this case, the complainant clearly said that, he parked the vehicle before his shop, while parking the vehicle the accident occurred. 
It is not acceptable by the OP.No.1 saying that, the driver does not having valid driving license. Here we have to observe the FIR and even Surveyor Report filed by the Insurance Company itself, the Surveyor himself filed the survey report and stated  in his survey report that, in the remarks column;

       * We inspect the damage which is confirming to the nature of accident described in the claim form.

* I have verified, Xerox R.C. and D.L. and policy copy, driving license is expired, but at the time of accident IV was parked, please note.

Then it is clear that, without proper justification, OP.No.1 cannot be repudiated the claim, without valid reason.  Then it is clear that, the OP No.1 has made deficiency in service.

    Then we have to discuss and clarify that, at what extent the complainant is entitled for relief, here the complainant filed the documents pertaining to the estimation, Job Card.  Here we observe that, as per the Job card filed by the complainant, the total damages and claim made by the complainant is Rs.2,02,322.77/- Ps.   When scan on the documents, there is no signature found on the Job card, to say that, this job card is issued by authenticated person.  Hence we should not believe the job card. Again we go through the survey report filed by the surveyor of the
OP.No.1/Insurance Company, he assessed the total loss amount of Rs.1,21,302.10/- as he estimated, even complainant has not object on survey report. Hence this Forum came to the conclusion that, the complainant is entitled Rs.1,21,302/- as per survey report given by the OP/Insurance Company and also the complainant is entitled Rs.5,000/- towards mental agony and Rs.1,000/- towards cost of the litigation. Hence, we answer to point No. 2 in the partly affirmative.

8)  POINT NO. 3:  In view of our findings on the above points, in the result, we pass the following: 

     O R D E R

1. The Complaint is partly allowed.

2. The OP.No.1 is directed to pay the estimated amount of Rs.1,21,302/- to the Complainant along with interest
   @ rate of 12% p.a. from the date of repudiation within 30 days failing to which, OP No.1 is liable to pay interest @ 18 % p.a. till realization.
3. The OP.No.1 is directed to pay Rs.5,000/- towards mental agony and Rs.1,000/- towards litigation charges to the complainant.

4. Send the copies of this order to the parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Forum on this 29^th day of December, 2018).