IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 146-2010 DATED 14.07.2010<br /> ORDER<br /> <br /> Complainant Somashekar.S.N.,<br /> S/o Late S.Nirvannappa,<br /> MIG 71, 3rd Stage,<br /> Kuvempu Nagar,<br /> Mysore-23.<br /> <br /> (By Sri. M.S.B., Advocate)<br /> <br /> Vs. <br /> Opposite Party The New India Assurance Co.Ltd., Branch Office, No.73, 1st Mahdevesha Complex, Malai Mahdeshwara Road, Nazarbad Mohalla, Mysore.<br /> <br /> (By Sri. G.L., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 16.04.2010<br /> Date of appearance of O.P. : 03.05.2010<br /> Date of order : 14.07.2010<br /> Duration of Proceeding : 2 MONTHS 11 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under section 12 of the C.P.Act, alleging deficiency in insurance service on the part of the opposite party in repudiating the claim in respect of the damage caused to his vehicle in the accident. The complainant has sought direction to the opposite party to pay damages of Rs.99,536/- as per the survey report, compensation of Rs.50,000/- + Rs.25,000/- and cost of the proceedings amounting to Rs.10,000/-.<br /> <br /> 2. The opposite party in the version has contended that, accident has not occurred as claimed by the complainant and son of the complainant in fact was driving the vehicle at the time of the accident, who had no valid and effective driving license. In view of the violation of the conditions of the policy and suppression of material facts, the claim has been repudiated.<br /> <br /> 3. In support of the claim made in the complaint, the complainant has filed his affidavit and another affidavit of one Prasanth, is filed. Certain documents are also produced. For the opposite party, Divisional Manager has filed his affidavit and produced certain documents. We have heard the arguments of both the learned advocates for the complainant and opposite party and perused the records.<br /> <br /> 4. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs?<br /> 2. What order?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> REASONS<br /> <br /> 6. Point no. 1:- The case put forth by the complainant is that, he has Maruthi Omni bearing No.KA-09-1702 was insured with the opposite party under bearing No.671001/31/07/01/00001135, which was valid from 27.04.2007 to 26.04.2008. On 21.08.2007, it was being driven by Sri Prasanth. He had parked the vehicle ont Bangalore-Mysore road in front of St.Philomina College. After few minutes, he returned to the spot and noticed that, a vehicle had hit and run causing extensive damage to the parked vehicle of the complainant. A complaint was lodged with police. On 09.10.2007, complainant sent required documents to the opposite party for settlement of the claim amounting to Rs.23,36,701/-. The vehicle was left with Mandavi Motors and the estimation done was Rs.1,25,119/-. Opposite party had appointed surveyor, who assessed the damage at Rs.99,536/-. By the letter dated 24.12.2008, opposite party repudiated the claim on the ground that, at the time of the accident, son of the complainant by name Shashidhar was driving the vehicle who had no valid and effective driving license. It is further claimed by the complainant that, the opposite party has concocted and created certain records and even officers of the opposite party demanded 25% of the claim amount for settlement. Opposite party has denied the claim put forth by the complainant.<br /> <br /> 7. On the basis of the material on record, learned advocate for the opposite party pointed out the in-consistency or contradictory statements of the claim made by the complainant in respect of the time, place and date of accident as well as the person who was driving the vehicle at the time of the accident. Hence, let us analyze these aspects.<br /> <br /> 8. As alleged in the complaint, accident occurred on 21st August. Copy of the complaint is on record at pages 36 and 45 of the records. In the copy of the complaint lodged by one Mr.Prasanth with the PSI, N.R.Mohalla Traffic Police, the date was left blank while typing the complaint and the date is written by hand as 21. The complaint was lodged on 22nd. In the complaint, date of lodging of the complaint is not mentioned. So also, the time. As regards the place of accident, it is mentioned that, the vehicle was parked on Mysore-Bangalore road in front of St.Philomena College. The claim intimation letter was submitted by the complainant to the opposite party, which is at page 46 of the records. In this claim petition, date of the accident is mentioned as 22.08.2007. The time is mentioned as 10.40 AM. The place is mentioned as N.R.Mohalla, (Near Meenakshi Choultry). The motor claim form submitted by the complainant is at page 48 of the records. In this also, the date of the accident is mentioned as 22.08.2007. But, the time of intimation is mentioned as 5.30 PM. ON 3rd page, time of accident is mentioned as 10.40 AM. On page 56 of the records, a letter by the complainant to the opposite party dated 25.10.2007 is produced, wherein it is stated that, correct cause of accident is that, when the driver was driving the vehicle to avoid hitting an Auto, van lost control, went to the left side, ran over footpath and hit to electric pole. All these documents are submitted by the complainant himself. Hence, from these documents, we find inconsistency in respect of time and place of the accident as well as cause.<br /> <br /> 9. Now, coming to considering the main reason assigned by the opposite party for repudiation of the claim, according to the complainant, one Mr.Prasanth had taken vehicle, had parked it and some un known vehicle hit the parked van of the complainant and ran away. According to the opposite party, son of the complainant by name Shashidhar was driving the vehicle at the time of the accident. If the case put forth by the complainant that when vehicle was parked and some other vehicle hit and run away, then question as to who had taken the vehicle on that day is not much relevant and important. Because, as claimed by the complainant vehicle was parked and hence, there is no question of driving the vehicle and consequently, whether the said person had valid and effective driving license or otherwise. But, in the case on hand, according to the opposite party, in fact son of the complainant was driving the van and to avoid hitting of an auto, he lost control and went to the left side and ran over footpath and ultimately, it hit the electric pole. To substantiate this contention, opposite party has placed on record, the letter of the complainant himself at page 56 of the records. In view of this letter of the complainant himself, the contention of the opposite party cannot be brushed aside. <br /> <br /> 10. As regards, the person who was driving the vehicle on the said date, the complainant has contended that, during the course of investigation of the claim, officer of the opposite party recorded the statement of Prasanth and put treasure and threatened him that the matter will be referred to CBI for investigation and concocted false record. Thus, the complainant contended that, the statement of said Prasanth, copy of which is on page 55 of the records, cannot be believed. In this statement, as claimed by the opposite party, Prasanth has given statement to the effect that, he was not driving the vehicle in question on the said date and time of the accident and his friend had taken his DL and he is innocent person. Said Prasanth has filed his affidavit before this Forum. He has stated that, on 21.08.2007, he drove the vehicle in question and had parked it near St.Philomena Collect and on return noticed the damage. Also, it is stated that, officers of the opposite party threatened him to support them and under pressured. At the outset, as noted here before, if really, the vehicle was parked, question as to who was driving the vehicle and whether, he had valid and effective driving license or not, is not relevant and important. Moreover, for the opposite party, two CDs are produced. In one of the CD, conversation has been recorded. But, as noted above, at the cost of repetition, as claimed by the complainant, the vehicle was parked and hence, we do not wish to give much importance as to whether Prasanth had taken the vehicle and had parked it in front of the college or otherwise.<br /> <br /> 11. But, as noted earlier, the complainant himself has addressed letter to the opposite party, which is at page 50 of the records, wherein it is mentioned that, the person who was driving the vehicle lost control to avoid hitting an auto and hit electric pole. In view of this necessity arises, to consider as to who was driving the vehicle when it hit against the electric pole.<br /> <br /> 12. According to the complainant himself, Mr.Prasanth had taken the van and had parked it in front of St.Philomena College. That is the statement of Mr.Prasanth also. It is not at all the statement of Mr.Prasanth that, he was driving the van when it hit against electric pole. When it is not at all the case of the complainant or statement of Mr.Prasanth that he was driving the van when it hit against the electric pole, the question would be, who was the driver at that point of time. In the letter dated 25.10.2007 noted above, the complainant has mentioned that, the van hit against the electric pole, but name of the driver is not mentioned. It is the definite case of the opposite party that, during the course of investigation, it was found that, son of the complainant Shashidhar was driving the vehicle. When there is no evidence on record to hold that, Mr.Prasanth was driving the vehicle when it hit against the electric pole, the contention of the opposite party that, sone of the complainant Shashidhar was driving the vehicle, cannot be brushed aside. It is not the case of the complainant that, his son Shashidhar has got valid and effective driving license to drive the van, which is the subject matter of the case. For that reasons, opposite party has repudiated the claim. Hence, under the circumstances, we are of the opinion that, the complainant has failed to prove that the repudiation is unjust or illegal.<br /> <br /> 13. Considering the facts and the material on record, in our opinion, the complainant ahs failed to prove the deficiency in service on the part of the opposite party and accordingly, we answer the point in negative.<br /> <br /> 14. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. There is no order as to costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 14th July 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />