::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                                   C.C. No.53/2019.

                                                                                                                                    Date of filing: 04.09.2019.

                                      Date of disposal: 09.03.2023.

P R E S E N Ts:-    

                                (1) Shri. Mabu Saheb H.Chabbi,                                                                                                               B.Com.,LL.B.,(Spl.),

                                                                                                  President.,  

                                (2) Kum. Kavita,

                                                               M.A.,LL.B.,(Spl.),  

                                                                         Member.

                                   (3) Shri.Thriyambakeshwara,

                                                                                   B.A.,LL.B.,(Spl.), 

                                                                                           Member.

COMPLAINANT/S                           Sri Srimanth S/o Arjun,

                                                            Age:52 years, Occ: Business and
                                                      Agriculture, R/o H.No.191, Hunsagara
                                                       Tq:Humnabad, Dist:Bidar.                                                                                                  

                                                    (By Smt.Padma M., Advocate.)                    

                 V/s

OPPONENT/S       

1. The MOD ASSESMENTS and CLAIMS-
         Corporate Roayl Sundaram General 
          Insurance company Limited (Formerly
          known as Royal Sundaram alliance
          Insurance Company limited) Vishranthi
          Melaram Towers, No.2/319, Rajiv Gandhi
          Salai (OMR) Karapakkam, Chennai-600097.

    2.         M/s Roayal Sundaram Alliance, General
           Insurance, No.30, 3^rd Floor JNR city Central
           Behind IBIS Hotel, Raja Ram Mohan Roy
           Road, Sampangi Rama Nagar, Richmond
           Road, Banglaore-25.

    3.         The Manager, Roayal Sundaram Alliance 
           General Insurance company limited
            Door No.3, Plot No.40, 41 Mahanath
            Acarde Mahanath Nagar,
            Gulbarga-585 103.

  4.         The Branch Manager,  
           Roayal Sundaram, Alliance General
           Insurance Company Limited
           Above SBI Bank, Khuba complex,    
           Tripuranath, Basavakalyan,
           Tq:Basavakalyan Dist: Bidar.                                                 

                                                         (OP No.1&2 By.Sri.V.M.Prakash., Advocate,.

                                                     And OP No.3 and 4 Ex-parte.)

                                                                        ::  J U D G M E N T  ::

By. Sri. Mabu Saheb H.Chabbi,. President.

The complaint has been filed by complainant under section 12 of the Consumer Protection Act, 1986, against the opponents for the deficiency of service by not settling the insurance claim of complainant based on policy.  Hence, passed the following judgement.

Brief facts of the complaint.

The brief facts of the complaint in nut-shell are summarized as follows: -

1.         The complainant is the registered owner of truck Ashok Leyland bearing its Reg.No.KA 39-9585, insured with OPs under policy bearing No.VGC0393914000100 valid from 07.12.2015 to 06.12.2016 and it covers the risk of damage to the insured vehicle.  On 28.06.2016 in the mid night at 1.30 hours the complainant was proceeding in front Indira Atya Dhaba within the village limits of Vanagali, Indupur Taluk. At that time, a tanker bearing Reg.No.AP 05-TC-2247 came from the opposite direction with the high speed and a wrong side and dashed against to the truck of the complainant and caused accident and damaged to the vehicle.  Indupur Police Registered the case in FIR No.313/2016 for the offence punishable u/s 279,337,338 and 304(a),427 of IPC and section 184 of Motor vehicles Act.  The complainant informed the accident and damages of the insured vehicle to OP No.4 and later the complainant filed the claim papers before OPs for claiming the damages/insurance of the vehicle.  On the basis of the information given by complainant, the OP NO.1 issued letter on 26.12.2016 stating that, the accident was caused due to over loaded with 7 passengers as against the seating capacity of 5 as per registration certificate.  And also misrepresentation of facts with regard to the driver details, who was on wheels at the time of accident. The investigation officer has not shown in his investigation regarding over loaded passengers.  However, OPs repudiated the claim of the complainant without any valid reason.  As per the seating capacity, the complainant had not violated any terms and conditions of the policy, as it is good vehicle and the word used by the police persons and OPs regarding 7 passengers which contradicts each other.  It is false to allege in the papers of Police regarding 7 passengers in their investigation papers.  The OP has not independently assessed and investigated the matter. However, based on the police report the insurance company has repudiated the claim of the complainant.  The Policy premium has been regularly paid by the complainant and renewed time to time by paying required premium amount by the complainant.  The complainant has not violated any terms and conditions of the policy issued by the insurance company despite of all the compliances by the complainant. The OP has repudiated by showing flimsy grounds in repudiation letter to the complainant.  The complainant had filed complaint on 08.03.2017, before the 04^th addl. DCDRC Bangalore Urban, on the advice of the earlier counsel as the head office of the OP is located at Bangalore. But on perusal of the same by the same court and after hearing the parties, the complainant withdrawn by the complainant and filed the same before this Commission against the OPs on the same cause of action and prayed to condone the delay and filed complaint against OPs for damages and compensation to complainant. 

Written version of OP No.1 and 2.

2.         The notices issued by this commission to the OPs served upon OP NO.3 and 4 but they remained absents before this commission, hence the have been placed ex-parte.  The OP No.1 and 2 appeared before this commission through their counsel, and filed their written version, and the gist of the written version is as below.

            The OP No.1 have denied the averments of the complaint except the policy issued by the OPs to the complainant and also issued letter of repudiation to the complainant as per the records available by OP No.1 and 2, on the date of alleged accident One Manjunath So/ Vaijinath who was cleaner was driving the complainant vehicle. But the complainant has created false records as if he was driver on the date and time of accident in question with the collusion of others filed the complaint before Hon’ble Commission.  The complainant was shown his name at the time of claiming the own damages before this OP as misrepresentation of facts before this OP as against to the records as he himself was driving his vehicle on the alleged date and time of accident instead of his cleaner Manjunath S/o Vaijinath as driving.  The OP company has appointed the investigator to investigate the matter and company came to know that, through investigation that, as on the date of accident one Mr.Manjunath the cleaner was driving the vehicle.  The OP No.1 has verified all the records of investigation and issued proper endorsement on 26.12.2016, and rejected the claim of the complainant.  As per claim form, driver at the time of accident is Mr.Srimanth (insured) and as per newspaper cuttings Manjunath, the cleaner of the said vehicle was driving the vehicle. By suspecting the details furnished by the complainant, the OP company has conducted investigation for confirming the same. The investigator confirmed that, the cleaner Manjunath was driver at the time of accident and driver on the wheel.  As per the claim papers that, for carrying capacity was 05 seats as per RC.  But, as per the FIR, the complainant vehicle was carrying 07 passengers including driver against to the seating capacity of 05 persons.  Hence, the OPs deny the liability and there is no deficiency of service and no unfair trade and practice by OPs.  The complainant is delayed in filing his complaint before this commission, hence the complaint is liable to dismissed.  Without admitting the damages of the complainant vehicle in question, the OPs alternatively  submits that, the complainant has violated the provisions of section 157 and 180 of IMV Act by allowing the unauthorized person to drive vehicle.  And  knowing full well that, the driver of the complainant is not holding DL or is not holding valid and effective DL to drive the complainant vehicle.  In view of violation of conditions and vehicle had no fitness certificate  on the alleged date of accident, the insurer can avoid liability which is enumerated u/s 149(2) of IMV Act, as the specific condition of policy is violated, hence is ops are not liable for the breach of policy conditions by the complainant.  Hence, prayed to dismiss the complaint. 

3.         The OP No.1 and 2 raised objections that, there is delay in filing in complaint before this commission however, after hearing by the both parties on the delay condonation application and objection by the OPs this commission has passed an order on 14.07.2022, allowed the delay condonation application of the complainant and so for there is no such revision or appeal filed by the OPs on the orders of this commission dt:14.07.2020, which attained finality, hence, the question of delay in filing complaint need not be again discussed in detail in for going discussion, therefore, the complaint filed by the complainant is well within limitation. 

Evidence of complainant.

4.         The complainant examined himself by filing his evidence affidavit as PW-1 on 24.09.2020 and got marked 12 documents as per Ex.P.1 to Ex.P.12 on behalf of complainant those are as follows,

      1.   Ex.P.1-The copy of letter issued by OP company to the complainant 
           dt:26.12.2016.

2. Ex.P.2-Copy of Policy certificate issued by OP company in the name of complainant.
3. Ex.P.3-Copy of registration certificate pertaining to the complainants vehicle bearing registration No.KA 39/9585.
4. Ex.P.4-Copy of DL pertaining to complainant.
5. Ex.P.5-Copy of Crime Details Form in crime No.29/2016 by Indupur P.S.
6. Ex.P.6-Copy of complaint given by complainant of this case to Indupur P.S. in crime No.29/2016.
7. Ex.P.7-Copy of statement of M.S. Nimbalkar the Asst.Police Inspector of Indupur P.S.
8. Ex.P.8-Copy of final report submitted by indupur P.S. to the judicial Magistrate Class-I Indupur Court.
9. Ex.P.9-Certified copy of the complaint filed by the complainant before IV Addl.DCDRC Bangalore urban in CC No.365/2017.
10. Ex.P.10-Copy of estimate of labour charges issued by KGN Motor Garage.
11. Ex.P.11-Copy of legal notice issued by the complainant Advocate to the OPs dt:22.05.2019.
12. Ex.P.12-Postal receipts and acknowledgements for having issued and received the legal notice to the OPs by the complainant.

Evidence of OPs.

5.         One Sri Purushotam Singhal legal officer of OP company filed his evidence affidavit on 22.11.2022, and noted as R.W.1 and got marked 7 document as per Ex.R.1 to Ex.R.7 on behalf of OP.

            1. Ex.R.1-The copy investigation report of OP company conducted
                by Mr.Dilip D. Garule dt:13.12.2016.

            2.  Ex.R.2-copy of letter issued by OP company to the complainant
                 reminder II letter dt:01.11.2016.

            3. Ex.R.3-Copy of RPD receipt for having issued letter to the
                 complainant by the OPs.

            4. Ex.R.4- Copy of letter of reminder 1 issued by OP to the
                 complainant dt:24.10.2016.

            5. Ex.R.5-Copy of RPD receipt for having issued letter to the
                 complainant by the OPs.

6.  Ex.R.6-Copy of letter issued by OP company to the complainant
      dtp26.12.2016.

            7.  Ex.R.7-Copy of letter issued by OP company to the complainant
                 dt:23.12.2016.

Points/Issues.

6.         Heard the arguments advanced by the complainant and OP No.1 and 2 and based on the pleadings and documents produced by the complainant and OP No.1 and 2 the points that arose for consideration before this Commission are as below. 

1. Whether the complainant proves that, he is consumer to OPs and further proves the deficiency of service from the OPs?  
2. Whether the OP No.1 and 2 prove that, the complainant has violated the terms and conditions of policy issued by OP company and substantiated the repudiation of claim of the complainant through letter dt:28.12.2016?

3. Whether complainant proves that he is entitled for relief as sought in the complaint?
4. What orders? 

7.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. In the negative.
3. In the affirmative.
4. As per the final order.

8.         In order to decide the complaint issues, this commission discussed points/issues No.1 to 3 altogether for discussion as both points are inter related to each other- as follows.

9.         The complainant and OPs in order to prove their respective cases  have been examined themselves as P.W.1 and R.W.1 respectively and reiterated the facts of their respective pleadings, and got marked documents  by their side.  The complainant’s case is that, as he is registered owner of bearing Reg.No.KA 39-9585 and got insured with the OP company and purchased policy bearing No.VGC0393914000100, valid from 07.12.2015 to 06.12.2016, covering the risk of damage to the insured vehicle.  On 28.06.2016, in the night at 1.30hours the complainant when he was proceeding in front of Indira Atya Dhaba near Wanangalli Village Indupur Taluk in his insured vehicle by driving himself, at that time, one tanker lorry bearing Reg.No.AP 05TC-2247 came from opposite direction in a high speed and in a wrong side came and dashed to the complainant’s truck. The cleaner Manjunath S/o Vaijinath who was accompanied with him in lorry died on the spot.  The opposite Lorry driver also died on account of the impact of the accident.  The said complainant has given complaint to the Indupur police and they registered a case in Crime No.29/2016, for the offence punishable u/s 279,337,338,304(a)427 of IPC R/w 184 of IMV Act, and police have filed charge sheet against the opposite wrong doer lorry driver for the above said offence.  The complainant has submitted claim application before the OP company for claiming the damages and compensation form OP company, but they have repudiated the claim of the complainant, on the ground that, as at the time of accident the vehicle was over loaded with 7 passengers as against the seating capacity of 5 as per registration certificate and also misrepresentation of facts with regard to driver details.   

10.       To substantiate the case of the complainant as stated above the complainant has produced Ex.P.2 the insurance certificate which has been issued by OP company in the name of the complainant Srimanth by mentioning the coverage of insurance between 07.12.2015 to 06.12.2016, for the vehicle bearing Engine and Chassis No. FTHZ 427070, MBIA3CFD5FRSM9530, mentioning the IDV value Rs.15,00,000/-, by looking Ex.P.2 document it is clear that, the complainant has purchased the policy from the OP company covering the damages of his vehicle in the event of any event or accident. This fact has not been denied by OPs in their W.V. or in their evidence, hence, the complainant proved that, he is consumer to the OP company.

11.       The OP company has issued letter as per Ex.P.1 to the complainant on 26.12.2016, repudiating the claim of complainant for settlement of insurance claim for damages of his vehicle by mentioning that, the above said vehicle was over loaded with 7 passengers as against the seating capacity of 5 as per registration certificate, but if we go through the conditions of policy Ex.P.2 at Page No.2 under the head of “B liability” clause C reads as under, “ c) to paid driver/cleaner (not exceeding 7 persons) Endr.  IMD-28”.  In view of this conditions mentioned in Ex.P.2 policy issued by OPs that the complainant can carry up to 7 persons including driver\cleaner in his lorry.  The fact of this condition in Ex.P.2 has not been denied by the OP either in his W.V. or in his evidence affidavit submitted before this commission.  The complainant has produced the copies of accident report submitted by the Indupur P.S. as per Ex.P.5 to Ex.P.9, which are in Marathi language and each documents translation in English also been accompanied with the said documents, which disclose the fact of accident took place on 28.06.2016, at 1.30 night hours by the tanker No.AP 05-TC-2247, to the insured vehicle of complainant and the Indupur police have registered the case in Cr.No.29/2016 for the offence punishable u/s 279,337,338,304(a),427 of IPC R/w 184 of IMV Act.  In Ex.P.6 the complaint given by the complainant discloses that, he himself was driving his insured vehicle as on the date and time of accident and he has given information in Ex.P.6 that, his cleaner Manjunath was also died on the impact of accident.  One Mahendra Singh Sambhaji Rao NImbalkar ASI of Indapur P.S. has given statement as per Ex.P.7, and reiterated the facts of Ex.P.6.  Ex.P.8 is the final report submitted by Indapur P.s. u/s 173 of Cr.P.C. before the JMFC Class-I Indapur Court against the driver of the opposite vehicle bearing its Reg.No.AP-05-TC-2247, for the above said offences during the course of investigation by the police they found it clear that, One Srimanth was the driver and driving the insured vehicle as on the date and time of accident.  As the investigation report as per Ex.P.5 to Ex.P.9, is before this commission and can be believed the report as per Ex.P.5 to Ex.P.9, and there is no cogent rebuttal evidence to dis-believe these documents produced by the complainant. 

12.       The OPs company has conducted investigation and submitted report as per Ex.R.1 stated that, one Mr.Manjunath who was cleaner of the said lorry was driven the vehicle at the time of accident and further reported that, the said vehicle was carrying 7 passengers including driver as against the seating capacity of 5 but, this report does not holds good because, the surveyor has not recorded any of the witness statement or the surveyor has not been examined himself on behalf of OP company to substantiate his investigation report and the case of OP company.  But, the police investigation papers have disclosed the fact of the owner of the said lorry Sri.Srimanth was the driver as on the date and time of accident. The said factum is not challenged by the OP doubting the very final report of Indupur police before competent court. The OP company through surveyor has assessed the value of damaged sustained to the complainant lorry to the extent of Rs.3,50,000/-, by deducting the salvage, but, to support this report the surveyor has not been examined himself before this commission, hence, in view of the above said discussion the investigation as per Ex.R.1 and re-inspection report as well as final survey report as per Ex.R.7, cannot be accepted by this commission in the absence of surveyor  evidence.

13.       The OP company has issued letter to the complainant as per Ex.R.2 and Ex.R.4 to produce  original D.L. of One Mr. Manjunath and number people traveled at the time of accident and relationship between occupants and owner of the vehicle, injury wounded certificate of Mr.Srimanth on 01.11.2016 and on 24.10.2016 respectively.  As per the investigation report submitted by the Police as per the Ex.P.4 to Ex.P.9 discloses Prima-facie that, Srimanth the complainant was the driver at the time and date of accident, when this fact has been established by the police investigation the question of asking D.L., of a cleaner Manjunath is not warranted on the part of the OP company, and as per the terms and conditions of the policy Ex.P.2 allowed 7 persons in a lorry including driver and cleaner, so again asking the number persons traveled in a lorry as on the date and time of accident does not arise because as per the police investigation report 6 persons were in the lorry including owner cum driver and cleaner.  The OP company has also produced the complainant injury certificate which is also not warranted to the subject matter of the case.  So the document Ex.R.2 and Ex.R.5 are having no such bearing over the case on hand. Hence, these letter by the OP company cannot be accepted as genuine to the case on hand against to the evidence on record. 

14.       Soon after the accident Ex.P.5 and Ex.P.6 come in to play so, there is no chance of any manipulating the contents of document before the police and there is no evidence to dis-believe these documents by the OP side.  Hence, the question of misrepresentation regarding the driver details does not arise. In view of this above discussion the claim repudiation letter issued by OP company as per Ex.P.1 =Ex.R.6 cannot be accepted by this commission. 

15.       The complainant has produced Ex.P.10 regarding the damage and estimation of his insured vehicle issued by KGN Motor Garage and evaluated the total damage to the extent of Rs.6,13,430/- and the details of the material costs of the vehicle has been mentioned in Ex.P.10, the OP company has also assessed the loss of damage to the complainant vehicle to the extent of Rs.3,50,000/-, but the OP company has not produced any evidence affidavit of the surveyor who conducted the survey regarding loss and damage to the vehicle in question. Moreover, the surveyor of the OP did not disclose as to why there is huge gap between the claim amount claimed by complainant and the amount fixed by surveyor in his survey report. In view of this non examination surveyor by the OP company in this case there is no other go by this commission except to accept the damage estimate report as per Ex.P.10, given by KGN Motors for which the complainant is entitled for damages to the extent of Rs.6,13,430/- against the IDV value of insured vehicle for Rs.15,00,000/-.   The Hon’ble Supreme Court also held in number of judgments that, the surveyor report itself is not the final ward or sacrosanct report, which is not binding on parties or the courts.  Hence, under the said circumstances, this commission is of the considered opinion that, the complainant is entitled for his claim amount as there is no cogent rebuttal evidence by OPs in accordance with law. 

16.       In view of the detail discussion by this commission we are of the considered opinion that, the complainant has proved his case against OPs  and the point No.1 and 3 answered in the affirmative in favor of complainant and answered point No.2 in the negative as against OPs and proceed to pass the following order.

::ORDER::

        The complaint u/s 12 of CP Act 1986, filed by the complainant against OPs is hereby allowed in part.

       The Ops are hereby directed to pay damages to the complainant for Rs.6,13,430/- (Rupees six lakhs thirteen thousand four hundred thirty only) with interest at the rate of 6% from the date of Ex.P.1=Ex.R.6 dated 26.12.2016.

The OPs is hereby directed to pay compensation amount of Rs.10,000/- and litigation charges as Rs.5,000/- to the complainant.                        

            Intimate the parties accordingly.                         

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this   09^th day of March-2023).

Documents produced by the complainant.

1. Ex.P.1-The copy of letter issued by OP company to the complainant 
              dt:26.12.2016.
2. Ex.P.2-Copy of Policy certificate issued by OP company in the name of complainant.
3. Ex.P.3-Copy of registration certificate pertaining to the complainants vehicle bearing registration No.KA 39/9585.
4. Ex.P.4-Copy of DL pertaining to complainant.
5. Ex.P.5-Copy of Crime Details Form in crime No.29/2016 by Indupur P.S.
6. Ex.P.6-Copy of complaint given by complainant of this case to Indupur P.S. in crime No.29/2016.
7. Ex.P.7-Copy of statement of M.S. Nimbalkar the Asst.Police Inspector of Indupur P.S.
8. Ex.P.8-Copy of final report submitted by indupur P.S. to the judicial Magistrate Class-I Indupur Court.
9. Ex.P.9-Certified copy of the complaint filed by the complainant before IV Addl.DCDRC Bangalore urban in CC No.365/2017.
10. Ex.P.10-Copy of estimate of labour charges issued by KGN Motor Garage.
11. Ex.P.11-Copy of legal notice issued by the complainant Advocate to the OPs dt:22.05.2019.
12. Ex.P.12-Postal receipts and acknowledgements for having issued and received the legal notice to the OPs by the complainant.

Document produced by the Opponent.

            1. Ex.R.1-The copy investigation report of OP company
                 conducted by Mr.Dilip D. Garule dt:13.12.2016.

            2.  Ex.R.2-copy of letter issued by OP company to the complainant
                 reminder II letter dt:01.11.2016.

            3. Ex.R.3-Copy of RPD receipt for having issued letter to the
                 complainant by the OPs.

            4. Ex.R.4- Copy of letter of reminder 1 issued by OP to the
                 complainant dt:24.10.2016.

            5. Ex.R.5-Copy of RPD receipt for having issued letter to the
                 complainant by the OPs.

6.  Ex.R.6-Copy of letter issued by OP company to the complainant
      dtp26.12.2016.

            7.  Ex.R.7-Copy of letter issued by OP company to the complainant
                 dt:23.12.2016.

Witness examined.

Complainant.

P.W.1- Sri Srimanth S/o Arjun,     (complainant)

Opponent.

R.W.-1 Sri Purushotam Singhal legal officer of OP company.