IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MADIKERI

ORDER DELIVERED BY HON’BLE MEMBER

SMT. GOWRAMMANNI

1. This complaint filed by the complainant to directing the opposite party to pay the sum of Rs.3,24,003/-with 9% interest to the complainant.  The opposite party is to pay the compensation of Rs.25,000/- to the complainant for cost of this complaint and pass such other relief as this Hon’ble Forum may deems fit under the facts and circumstances of this case.

2. Brief facts of the complaint is as follows;

That the complainant is the owner of the MAHINDRA JEETO X7-16 BSVI bearing REG No. KA-12-B-6972.The opposite party is the insurer of the said vehicle.The OP has issued a goods carry vehicle package policy bearing policy No.201350020118800055600000, dated: 22/09/2018.That on 10/09/2019 at about 6.30 AM the said vehicle had met with an accident near Madenadu on Madikeri to Mangalore public road by hitting a road side stone while overtaking another vehicle and due to the said accident the vehicle has been completely and extremely damaged.No police complaint registered to that effect.There after upon the complaint by the complainant M/s India Garage, Madikeri inspected the said vehicle and reported to opposite party.As per report the said vehicle has been completely damaged and not fit for repair.There after claim petition filed by the complainant to OP.The OP repudiate the complainant claim the ground that the complainant was not the driver of the said vehicle, and the driver of the said vehicle had not valid driving license to drive the said vehicle.There is no merit or valid grounds to repudiate the claim of the complainant and there is no legal grounds shown by the OP to repudiate the claim of the complainant.Due to the act of the OP the complainant has suffered from mental agony, non settlement of the claim complainant issued legal notice to opposite party on 25/02/2019 the said notice was served to OP.Inspite of service of notice OP has not respond the said notice of the complainant. During the proceedings of the complaint complainant passed away on 25/02/2022 after that deceased LRs brought before the Commission records on 29/08/2022. Non settlement of the claim it amounts to deficiency in service.Hence, this complaint.

3. After registration of the complaint, notice was issued to opposite party.  Inspite of service of notice opposite parties appeared through their counsel and filed their version. 

4. The brief facts of the Version is as follows;

That the above complaint is not maintainable under law and facts.The claim of the complainant is exorbitant, vexatious and mischievous.The opposite party specifically denies the contents, averments and allegations made against them are all false and imaginary.Further OP contended that it is true that the OP has issued a insurance policy under commercial vehicle package policy bearing policy No.201350020118800055600000, dated 22/09/2018 to 21/09/2019 subject covered risk of the vehicle bearingRC No.KA-12-B 6172 subject to certain terms and conditions under the policy.The conditions of the compliance of the Insurance Act the insured declared value of the vehicle is Rs.3,07,802/-.Further OP contended that the cause of action is for away from the truth.The complainant was not driving the alleged vehicle on the said date and time.The complainant was at difference location and the complainant suppressed the material of facts and he has misrepresent the material of facts pertaining to the driver.Driver details and also failed to provide the required information regarding the occupant details, goods carried details, goods purchased details.

Further OP raised in their objection that the said policy was also commercial package policy as per the terms and conditions complainant declared and accepted the terms of the policy.According to that declaration complainant is violated the terms and conditions of the policy.Complainant has not having valid driving license and at the time of accident he has not drive the said vehicle.Hence, the claim was repudiated for the reason misrepresentation of the facts.The said repudiation is legally bindings and it is fair and proper.There is no deficiency in service on the part of the opposite party that the complainant not approached this Hon’ble Commission with clean hands and he has not disclosed the true facts.Further the OP raised in their objection as per the survey report conducted by the OP the net loss incurred to the complainant is only Rs.2,46,174/- and not Rs.3,24,803/-.The complainant is not entitled to claim any loss or damage sustained in the said alleged accident.Therefore, the opposite party prays that the Honb’le court be please to dismiss the case with exemplary cost in the interest of justice and equity.

5. In this case complainant filed his examination-in-chief by way of affidavit evidence as CW-1 with documents marked as exhibits C-1 to C-9 and opposite party filed their examination-in-chief by way of affidavit evidence as RW-1 with documents marked as exhibits R-1 to R-6.  In this case both parties were filed their written arguments and heard the oral arguments of  both sides and posted for orders.

6. The points that would arise for our consideration are as under;
   1. Whether the complainant proves the deficiency in service by the opposite party and thereby they are entitled for the reliefs sought ?
   2. What order ?

7. Our findings on the above points are as under;
   1. Point No.1 :- Partly Affirmative
   2. Point No.2:- As per the final order for the  following ;

R E A S O N S

8. Point No.1:- That the complainant is the owner of the MAHINDRA JEETO X7-16 BSVI bearing REG No. KA-12-B-6972.  That the opposite party has issued a goods carrying vehicle package policy No.201350020118800055600000, dated 22/09/2018.  There is no dispute among them OP is admitted said insurance policy under the commercial vehicle package policy but the claim is subject to terms and conditions exceptions and limitation thereof and the conformation of the compliance of the insurance Act.  Complainant alleged in their complaint that on 10/09/2019 at about 6-30 AM the said vehicle had met with an accident  near Madenadu on Madikeri to Mangalore public road by hitting road sides stone by overtaking another vehicle.  Due to then said accident the above vehicle has been completely and extremely damaged.   Thereafter upon the complainant made a complaint before the M/s. India Garage, Madikeri.  The said garage faculty inspected the said vehicle reported the opposite party as per the report the said vehicle has been completely damaged and not fit for repair.  After that the complainant filed a claim petition as per reply to the claim the OP repudiated the claim petition on the ground that the complainant was not the driver of the said vehicle and the driver of the said vehicle has not having the valid driving license to drive the vehicle.  After that complainant issued a legal notice to OP for demanding the vehicle damage claim.  Opposite party did not paid any claim amount to the complainant.

9. Opposite party specifically raised in their objection and they take specific contention that they receive the accident intimation dated 12/09/2019 about the accident.  Accordingly on intimation of the claim the OP has assigned the survey to Mr.Lakshmi Chaitanya Surveyor duly licensed by the IRDI to inspect the vehicle and to assess the loss.  The vehicle was inspected at M/s India Garage, Mysore Surveyor assessed the loss for an amount of Rs.2,46,174/-.  The OP deputed an investigator to find the facts of the accident.  The cause of action is for away from the truth and the complainant was not driving alleged vehicle and in the said day and the time.  The complainant was at different location which is about 45 kilometer away from the accident spot on the particular date and time and also complainant has misrepresent the material facts pertaining to the driver details and also failed to provide the required information regarding the occupant details goods carried details and goods purchased details.  Complainant is suppressed the material facts therefore the claim was repudiated for the reason misrepresentation of the facts.  The said repudiation is legally binding and it is fair and proper. 
10. We gone through the records which were available in the records both parties were produced such documents complainant counsel argued that the occurrence of the accident no FIR registered that accident.   OP also no dispute that accident but they specifically argued that the accident incident was not within the time mentioned in the claim form.  Complainant is not drove the said vehicle at the time of accident and has not having valid driving license at the time of accident as per the Google time line shows.  The occurrence of the accident is different location.  In support of their arguments they produced Google time line reporter.  But opposite party did not raise this contention at the time of filing their version.  According to Evidence Act section 65(B) opposite party they have not adduce evidence with respect to this electronic report.  There is no certificate produced before this Commission.  Hence, opposite party argument does not consider by this Commission.  In this case complainant produced driving license and RC book of the said vehicle and also opposite party admitted the insurance policy and vehicle damage loss.  They deputed the surveyor to investigate the incident and assess the loss.  Complainant claimed the vehicle damage of Rs.3,24,003/- but as per the survey report the loss was assessed by the surveyor report is Rs.2,46,174/-. Hence, complainant argument does not hold by the Commission.  Opposite party specifically raised in their argument and their objection complainant was not having valid driving license at the time of accident.  Opposite party contention is not sustainable in the eye of law.  Hon’ble Supreme Court decided in the case law New India Assurance Company there is no sufficient ground to reject the claim on the basis of valid DL or RC.  In this case also complainant is having driving license at the time of accident.  He produced the DL and RC book to peruse the Commission.  Those documents were marked as exhibit C5 and C6.  It is clearly shows that the opposite party repudiate the claim of the complainant is not valid reasons.  Hence, OP contention is not considered by the Commission.

11. Opposite party already admitted the insurance policy and they also admitted the accident of the vehicle and due to that accident vehicle was completely damaged.  As per their Survey report the loss assessed by the surveyor the opposite party is not escape from their liability.  For the aforesaid facts and circumstances of the case complainant is entitled to get the vehicle damage loss of Rs.2,46,174/-.  The opposite party without valid reasons repudiated the claim it is amounts to deficiency in service. Accordingly we answer point no.1 in Partly Affirmative.

12.  Point No.2:- From the discussion made above and conclusion arrived at, we pass the following order;

O R D E R

1. The complaint of the complainant is partly allowed.
2. The opposite party is directed to pay Rs.2,46,174/- towards policy No. 201350020118800055600000 with interest from 22/10/2019  interest at the rate of 8% per annum within 45 days from the date of receipt of this order.  Failing which opposite party is directed to pay interest at 12% per annum with said amount till the realization of this order.
3. The opposite party is liable to pay the compensation of Rs.10,000/-  (Rupees Ten Thousand only) towards  deficiency in service, and Rs.5,000/- (Rupees Five Thousand only) towards mental agony and Rs.10,000/- (Rupees ten thousand only) towards cost of proceedings.
4. Copy of this order as per statutory requirements be forwarded to the parties free of cost and file shall be consigned to record room.

 (Dictated to the Stenographer, transcribed, corrected and pronounced in the open Commission on this 20^th DAY OF APRIL, 2023)

                (GOWRAMMANNI)                      (RENUKAMBA.C)                                                     

                      MEMBER                             PRESIDENT(I/C)         

ANNEXURE

Witnesses examined on behalf of the complainant

CW-1-  Sri. Hasainar

Documents marked on behalf of the complainant

Ex.C-1 : Copy of ‘B’ Register extract

Ex.C-2: Copy of Request letter

Ex.C-3 : Copy of vehicle delivery letter

Ex.C-4:- Copy of Insurance policy

Ex.C-5:- Copy of the R.C

Ex.C-6:- Copy of the DL

Ex.C-7:- Copy of the Manual job  slip

Ex.C-8:- Copy of the manual job slip

Ex.C-9:- Copy of the repudiation letter