HON'BLE Mrs. YASHODA BHASKAR PATIL,

                                                      B.Com, L.L.B(Spl.,) M.Ed.,

                                                             WOMAN MEMBER                  

Complainant:               1. Venkatesh S/o Srikanthsa Hadimani

                                             Age:about 30 Yrs, Occ:Poulterer

                                             R/o Gudur Tq:Ilkal Dist:Bagalkot now R/o Gadag-Betageri

                                            (Rep. by Sri.M.N.Aravatagi, Advocate)

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT. YASHODA.B.PATIL, WOMAN MEMBER

            The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019, seeking direction against the Op to pay damage of Rs.4,50,000/- along with interest at the rate of 18% p.a, and for suffering mental agony and any other reliefs.  

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

            The complainant is an owner of Make: TATA Motors Ltd.,    TATA INTRA V-10 Goods bearing No.KA-66 1737 Engine No.800 CCD101 EPYS 72023. The said vehicle was insured with Op under the policy No.2315204169079900002 for the period from 06.06.2021 to 05.06.2022 for a assured sum of Rs.4,50,000/- (IDV).  On 11.02.2022 at about  5.30 p.m. the driver of the vehicle following the traffic rules drove in a moderate speed on Gadag-Mulagund road towards Kurtakoti Road, unfortunately due to  short circuit, there was smoke in engine compartment and fire broke on the vehicle. The driver stopped the vehicle to avoid the fire, but it was  beyond the control and the vehicle completely burned and was damaged. Complainant intimated the police, who came to the spot and conducted the panchanama on 15.02.2022 and the complainant also gave an intimation to the OP. The authorized officer came to the spot and inspected the vehicle and advised to shift the vehicle. On 07.03.2022 a claim form was given to Op under claim No.CL/01/2022-23 along with documents. But Op did not settle the claim. Legal notice was issued on 11.07.2022 to settle the claim, inspite of service of notice, they did not reply or settle the claim. Therefore, Op has committed the deficiency of service. Hence, filed this complaint.

          3.   In pursuance of service of notice, Op appeared through counsel and filed their written version.

4. The brief facts of  written version filed by OP  is as under:-

          OP denied the various allegations and contended that, during investigation itself letter was sent on 03.10.2019 requesting to submit some documents, reference of their own earlier mails and latest mail dtd:25.04.2022, and technical report/RCA for Fire from the OEM TATA MOTORS, there was no response by the  complainant. Hence, claim is not settled and there is no deficiency of service committed by the OP.

         5. To prove the case, the complainant has filed evidence on affidavit and was examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-6. Sri. SayedFarooq for OP filed evidence on affidavit and was examined as RW-1 and got marked the documents as Ex.Op-1 to Ex.Op-5

       6. Heard, the arguments on both sides.

        7.   The points for consideration to us are as under:-                       

1. Whether the complainant proves the deficiency of  service committed by the Op?

2. Whether the complainant is

entitled for therelief?

3. What Order?

   8.        Our findings on the above points are as under:-

               Point No. 1:  In the  affirmative.

               Point No. 2:  In the partly affirmative.

               Point No. 3:  As per the final Order

R E A S O N S

            9.       Point No.1 :- The learned counsel for complainant argued that, as per evidence of PW-1 and documents Ex.C-1 to Ex.C-6, complainant has proved the case. The learned  counsel for OP argued that, complainant has failed to prove that, deficiency of service is committed by  the OP.

          10.     On perusal of the materials placed before us, PW-1 has filed evidence on affidavit and reiterated the contents of the complaint. PW-1 has stated that, the complainant is the owner of Make TATA Motors Ltd.,    TATA INTRA V-10 Goods bearing No.KA-66 1737 Engine No.800 CCD101 EPYS 72023. The said vehicle was insured with Op under comprehensive motor policy No.2315204169079900002 for the period from 06.06.2021 to 05.06.2022 for an assured amount of Rs.4,50,000/-. (IDV).  On 11.02.2022 at about  5.30 p.m. the driver of the vehicle following the traffic rules drove in a moderate speed on Gadag-Mulagund road towards Kurtakoti Road, unfortunately due to  short circuit, there was smoke in engine compartment and fire broke on the vehicle. The driver stopped the vehicle to avoid the fire, but it was  beyond the control and the vehicle completely burned and was damaged. Complainant intimated the police, who came to the spot and conducted the panchanama on 15.02.2022 and the complainant gave an intimation to the OP. The authorized officer came to the spot and inspected the vehicle and advised to shift the vehicle. On 07.03.2022 a claim form was given to Op under claim No.CL/01/2022-23 along with documents. But Op did not settle the claim. Legal notice was issued on 11.07.2022 to settle the claim, inspite of service of notice, they did not reply or settle the claim. Therefore, Op has committed the deficiency of service.

          11.  Per contra, RW-1 has filed affidavit and reiterated the contents of the written version filed by OP.  RW-1 has stated that, the OP denied the various allegations and contended that, during investigation itself a letter was  sent on 03.10.2019 requesting to submit some documents with reference to their own earlier mails and latest mail dtd:25.04.2022 and technical report/RCA for fire from the OEM TATA MOTORS, there was no response by the complainant.  Hence, claim is not settled and there is no deficiency of service committed by the OP.  

12.  At the very outset, Op has not disputed the insurance which was in existence, as on the date of fire incident and it was found that fire in the vehicle had originated from the Battery compartment.  The only contention of Op is that complainant has not submitted the documents in respect of reference to their own earlier mails and latest mail dtd:25.04.2022 and technical report/RCA for Fire from the OEM TATA MOTORS.

13.   Ex.C-1 RC, Ex.C-2 complaint lodged to the police, Ex.C-3 Panchanama drawn by investigation officer are not disputed,  Ex.C-4 Legal notice sent to the OP and same is duly served as per  Ex.C-6 Postal acknowledgment.  However, Op has not replied nor settled the claim. Ex.Op-2 Claim form, Ex.Op-3 investigating report, Ex.Op-4 letter issued to complainant to produce document within 7 days. Ex.Op-5 reminder letter was issued to the complainant are also not disputed. As far as non-joinder of party is concerned it is not required as the complainant has nowhere pleaded that there is loan against the vehicle and the surveyor for Op himself in his Ex.Op-3 MOTOR OD FIRE INVESTIGATION REPORT at point No.(12) Observation and findings has submitted at point No.6 “There was no loan over the vehicle and the vehicle he purchased second hand from Shriram Auto Mall, Gadag”.  As per investigation report submitted by one Sri. Mayuresh Khot Claims Manager, investigation, clearly confirmed the occurrence of fire incident, in the Ex.Op-3 at (13) conclusion of investigation report, point No. 4 & 6. At point No.4, he reports that, “Fire Pattern analysis it seems that the fire was caused due to internal means which is from the battery compartment” and at point No.6 reports that “There was no suspicion noted regarding the case of accident occurrence”.  Such being the case, unnecessarily, Op issued letter i.e. Ex.OP-4 and Ex.OP-5 to the complainant asking to produce the documents the earlier E-mails and latest E-mail dtd:25.04.2022 and technical report/RCA for fire from the OEM TATA MOTORS which are not in the custody of complainant, and the said E-mails are sent by Op themself and are well within the custody of OP. The Op seeking the document the technical report/RCA  (Root cause analysis report) from TATA MOTORS, which is also beyond the control of the complainant. Now the question is whether the complainant knows meaning of RCA, who will issue it, how to obtain, from whom to obtain as he is not an expert. The complainant is neither an expert nor may be aware what RCA means.  Even, nowhere in the policy condition, it is mentioned that, on an unforeseen incident, the insured has to produce the RCA report. The complainant has done his best to inform the OP about the incident and submit all the required documents, like  complaint copy,  Police Panchnama, DL, RC book, insurance copy, claim copy.  However, the Ops are calling for documents, which are beyond his control which is not proper.  The conduct of the Op can be construed here as they have not  settled the claim without genuine or reasonable grounds. The act of the Op is not in accordance with terms and conditions of the policy.  Instead of settling the claim, after receipt of investigation report, Op has not settled the claim on flimsy and technical ground stating that, if you do not produce the documents within 7 days, the claim will be considered as closed and another letter stating that, the insured shall give all information and assistance to company as required which is not done by the complainant, despite reminder, therefore they close the claim as “No Claim” which can be perused at Ex.Op-4 & Ex.Op-5.  Further, contended that, complaint is premature, as Op did not repudiated the claim. It is the practice of insurance companies that, instead of using the word repudiation they use a convenient way and have taken as no claim filed by complainant. The delay to settle the claim after fulfilling all the requirements by producing necessary documents and still taken as no claim, amounts to repudiating the claim. So, complaint is filed after cause of action arose and it is not a premature complaint.  The Hon’ble National Commission repeatedly have held that, the claim should not be declined, on flimsy or technical grounds.

             As per decision, Civil appeal No.407/2022 dtd:20.05.2022, in Gurmelsingh V/s The Branch Manager National Insurance Company. Ltd., Wherein, it is held that;

             “While settling the claims, insurance company should not seek documents which are beyond the control of insured to furnish”.

              Further, held that, insurance company should not be too technical and ask for the documents, which, the insured is not in position to produce due to circumstances beyond his control.  It is found that the insurance companies are refusing the claim on flimsy grounds and on technical grounds”.

         The facts, circumstances and ratio of the above decision is aptly applicable to case on hand, as insurance company repudiated the claim on flimsy grounds.

Thus, for the aforesaid reasons, the complainant has proved that, Op has committed the deficiency of service. Accordingly, we answer point No.1 in the affirmative.

14. Point No.2:- For the reasons stated above, the complainant has proved that he is entitled for the relief a sum of Rs.4,50,000/- and the damaged vehicle shall be taken back by the OP. Complainant is claiming interest at the rate of
18% p.a., it is on higher side, it is proper to award interest @ 9% p.a. from the date of complaint till realization. Complainant has suffered mental agony due to deficiency of service committed by the Op. Therefore, complainant is entitled for a sum of Rs.30,000/- towards mental agony and Rs.15,000/- towards cost of litigation. Accordingly, we answer point No.2 in the partly affirmative.        

          15. Point No.3:-In the result, we pass the following: 

 //O R D E R//

The complaint filed U/Sec.35 of the Consumer Protection Act, 2019 is partly allowed against OP.

           The complainant  is entitled for the claim amount of Rs.4,50,000/- from OP with an interest at 9% p.a. from the date of complaint i.e. 10.08.2022 till realization.

Further, the complainant is entitled for a sum of Rs.30,000/- towards mental agony and  Rs.15,000/- towards cost of litigation.  

Op is directed to pay the above claim amount within two months from the date of this order. After payment made by the OP to the complainant, the damaged vehicle shall be taken back by the OP immediately.

Office is directed to send the copies of this   order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer corrected and then pronounced by us in the Open Commission on this 8^th  day of March-2023)

 (Shri Raju N. Metri)     (Shri. D.Y. Basapur)  (Smt.Yashoda Baskar.Patil)

        MEMBER                       PRESIDENT                 WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Venkatesh S/o Srikanthsa Hadimani

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 : Copy of R.C.

Ex.C-2: True copy of intimation to Gadag Rural Police.

Ex.C-3: True copy of panchanama.  

Ex.C-4: Copy of legal notice.

Ex.C-5: Postal receipt.

Ex.C-6: Postal acknowledgment.

EVIDENCE ON BEHALF OF OPs:

RW-1 : Sayed Farooq S/o Sayed Shalam

DOCUMENTS ON BEHALF OF OPs:

Ex.Op-1 :  Authorization letter.

Ex.Op-2 : Copy of Motor Insurance Claim Form.

Ex.Op-3 : Copy of Motor Fire investigation Report.

Ex.Op-4 : Copy of letter by issued ERGO General Insurance

               Company Ltd. to complainant dtd:02.05.2022.

Ex.Op-5:  Copy of letter by issued ERGO General Insurance

               Company Ltd. to complainant dtd:29.07.2022.

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)      (Smt.Yashoda Bhaskar. Patil)

      MEMBER                      PRESIDENT                  WOMAN MEMBER