BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:24^th July 2015        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 130/2015  

Complainant/s:

                                Manjunath Parappa Akki,

Age: 40 years, Occ: Agriculture/business, R/o.Bhadrapur, Tq. Navalgund, Dist.Dharwad.

(By Sri.M.A.Pujar, Adv.)

v/s

Respondent/s:

The Manager, Bajaj Allianz General Insurance Co. Ltd., 4^th Floor, V.A.Kalburgi Mansion, Opp: Municipal Corporation, Lamington Road, Hubli 580026.

(By Sri.A.S.Shetty, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to  pay estimated cost of the damaged vehicle by setting aside the order of repudiation order of the respondent, to pay idling charges, bank interest charges, driver, helper wages, to pay damages for mental agony and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, complainant is the owner of JCB KA-25/21944 and the same was insured under the policy 09-16-1704-1811-00000022 of respondent covering the risk commencing from 03.07.2014. During the currency of the policy met with accident on 11.11.2014 at about 8 PM on Shirhatti Yelishirund road. In the said accident the vehicle recklessly damaged. The same was registered under Crime No.7714 at Mulgund PS. The complainant estimated the damages to an extent of Rs.3 lakhs. The complainant also obtained quotation from PR Naik Associates Hubli. As per the estimation it was Rs.537263/-. The complainant requested to honour the claim to the respondent. Through letter dtd.18.02.2015 the respondent disclaimed for the reason “as per RC and policy the seating capacity of the vehicle is ‘one’ but at the time of accident two persons were traveling in the vehicle which amounts to violation of terms and conditions of the policy”. At the time of accident one Basangouda Venkangouda Patil was driving the said vehicle and he possess the valid DL to drive the same. While one Kallappa was assisting the driver as helper and the said Kallappa was not inmate of the vehicle at the time accident. The non payment of the claim amounts to a deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments and puts the complainant to strict proof of the complaint averments. While respondent admits issuance of the policy, coverage of the risk subject to the terms and conditions, exceptions and limitations thereof and in confirmation of compliance of Sec.64 VB of Insurance Act 1938. Further the respondent taken contention that, owner do not come within the purview of meaning consumer as the owner of the JCB is hiring the vehicle which amounts to a commercial transaction. On the alleged day of accident the vehicle was plying to carryout hire works of Nagarjun Contractors. As per the information of the police records and as per the own admission of the complainant/owner of the JCB the owner while lodging complaint specifically stated, at the time of incident there were 2 persons, as per the RC of the vehicle only 1 person (driver) is allowed in the said JCB. So also permitting to travel additional person in the JCB which amounts to violation of terms and conditions of the policy and also violation of MV Act. Accordingly looking into all the aspects and after coming to the proper conclusion only respondent repudiated the claim and have justified in disclaiming the claim as such there does not arise question of committing deficiency in service. Among such other admissions and denials the respondent reveals the terms and conditions, nature of contract of insurance in detail by quoting the apex court judgments. Further asserted, immediately after the information the respondent deputed the IRDA surveyor, got surveyed, the surveyor submits the report. While the complainant in order to have unlawful benefits purposefully submits highly valued damages report with false estimate and has claimed higher compensation. However due to violation of terms and conditions complainant is not entitled for any claim and inturn prays for dismissal of the complaint with exemplary cost.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents. The respondent apart from submitting argument filed notes of argument and relied on citations.  Heard. Perused the records.

Finding on points is as under.

1. Affirmative 
2. Accordingly
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the impugned JCB in question is covered with the insurance policy issued by respondent to the date of accident.

6.     Now the question to be determined is, whether repudiation of the claim amounts to deficiency in service, if so, for what relief the complainant is entitled.

7.     At the same time the respondent raised question of not maintaining the complaint on the ground of commercial transaction. The act of trade carried out of the vehicle and owning of the vehicle in question might be a commercial one but as far as claim under the insurance policy and settlement of claim is concerned the question of allegation of commercial purpose does not sustainable. Hence, the present complaint is maintainable and the Forum has got jurisdiction to adjudicate the same on this point.

8.     The pivotal point is cause of action i.e. repudiation of the claim. The repudiation of claim Ex.R5 reveals the respondent insurer has repudiated the claim on the ground as per the RC and policy the seating capacity of the vehicle is one. But at the time of accident 2 persons were traveling in the vehicle, which may be a reason for accident and violation of RC terms/ policy issued. Vehicle was intend to carry one person and if more than one person traveled it can effect the safe driving of the insured vehicle.

9.     Though the respondent had repudiated the claim on the aforesaid grounds the respondent did not adduced evidence to establish the additional person who was in the vehicle cause reason for the said accident. Permitting to travel additional person against one person might be a violation of terms and conditions of the RC but at the same time  it has to be seen the additional person has got direct nexus with regard to the accident in question. Perusal of the complaint EX.R7 lodged by the owner of the vehicle & contents of Ex.C1 FIR reveals that the said accident had occurred due to rash & negligent driving driven by the driver of the JCB who was on the wheel at that time. In rebuttal to the claim and in corroboration to repudiation of the claim the respondent led the evidence of respondent RW1 and the surveyor RW2. Apart from evidence respondent in support of their case relied on citations 1992 (1) CPJ 271 Rajasthan ; Surajmal Ram Nivas Pvt. Ltd., Vs. United India insurance co., Civil Appeal 1375/2003 SC; RP/3176/2011 NC; RP/2636/2010 NC; RP/2316/2012 NC; First Appeal 166/2003 NC; The aforesaid first relied citation with regard to commercial transaction as already decided on this point the said decision is not applicable to this case as this being an insurance claim case. 2^nd citation is concerned to the courts have to observe the terms and conditions strictly construed to determine the extent of the liability of the insurer. Third one is with regard to allow more person to travel exceeding the number permitted amounts to violation. 4^th one is also with regard to overloading traveling of passengers & 5^th one with regard to strict governance of terms and conditions of the policy while settling the claim& 6^th relied case is also with regard to limitation as to use of vehicle. Relying on these case laws coupled with argument and notes of argument the LC for respondent prays for dismissal of the complaint on the ground of violation of terms and conditions. In the written argument the LC for respondent also pointed out that the driver of the JCB was drunken at the time of accident. But no evidence is led on this point and no whisper either in police records or in the repudiation letter of respondent, for the first time it is raised without corroborative evidence.

10.   On perusal of the policy in question Ex.C9 under column schedule of premium liability wherein the owner of the vehicle has paid additional amount of Rs.100/- covering the risk for 2 persons. While perusal of RC Ex.C8 and B register extract Ex.R8 in which it is specifically mentioned seating capacity is, one. Further perusal of Ex.C8 RC extract column detailed description item no.13 seating capacity one in the bracket it is mentioned “including driver”. When the insurer has received additional Rs.100/- covering the risk of 2 persons as per Ex.C9  it gives meaning 2 persons are allowed in the JCB. Otherwise what is the necessity in receiving additional premium covering the risk for 2 persons. It is not the insurer who received the additional premium. When once they have received additional premium why they have raised objections and contend violation of the policy terms and conditions while settling the claim. So also as discussed supra the insurer failed to establish the additional person travelled cause nexus for the accident. Under those circumstances the insurer cannot escape from the clutches of the liability & liable to settle the claim as undertaken by it as per Ex.C9.

11.   Whereas the insured/ complainant estimate the loss to a tune of Rs.5,67,005/-. In support of estimation and parts replaced the complainant did not adduce the evidence of any witness or of mechanic who attended the repairs. While the respondent/ insurer got appointed and surveyed the damaged vehicle and the surveyor has submitted survey report assessing the net loss       Rs.2,21,564/-. In the absence of rebuttal evidence to the surveyor report the survey report remained unchallenged. The surveyor also been examined as RW-2.

12.   In view of the above evidence & discussions arrived the complainant has established his case of deficiency in service against the respondent. Interalia the respondent failed to justify the repudiation of the claim. Hence, complainant entitled for relief.

13.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmative and accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        Complaint is allowed in part. Respondent is directed to pay Rs.2,21,564/- to the complainant under the policy towards the damages and repair charges along with Rs.3,000/- towards compensation and Rs.1,000/- towards cost of the proceedings with interest @9% P.A. from the date of this order till realization, payable within 60 days.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24^th day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR