Date of Filing:13.06.2008<br /> Date of Order:02.09.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 2ND DAY OF SEPTEMBER 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO. : 1243/2005<br /> <br /> 1. The Secretary,<br /> St. Mary’s English School,<br /> SVK Layout, Basaveshwarnagar,<br /> Bangalore 560 079.<br /> <br /> 2. The President,<br /> St. Mary’s English School,<br /> SVK Layout, Basaweshwaranagar,<br /> Bangalore 560 079. Complainants<br /> <br /> v/s<br /> <br /> 1. The Oriental Insurance Co. Ltd.,<br /> (Regional Office) Leo Complex,<br /> Residency Road,<br /> Bangalore 560 001.<br /> <br /> 2. The Oriental Insurance Co. Ltd.,<br /> Bailahongal Branch,<br /> Bailahongal 591 102. Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> This is a complaint under section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that, the complainant No. 1 purchased Matiz Car bearing Reg. No. KA-24 M-9559 on 16.10.2002 from Dr. Jagannath Hanumanthgaud. At that time insurance policy was standing in the name of Dr. J. Hanumanthgaud and the same was valid for the period from 19.06.2002 to 18.06.2003. The policy was issued by the second opposite party. First opposite party is a regional office. Seller as well as purchaser had intimated about the sale / purchase of the car to the second opposite party and further requested for transfer of insurance policy in the name of the purchaser as per letter dated 16.10.2002. The ownership of the vehicle was transferred in the name of the first complainant on 17.10.2002. The above stated car was damaged due to skidding and falling in a drain. Second complainant lodged complaint with Kamakshipalya Police Station on the same day i.e. 13.03.2003. First complainant kept the car at Manipal Motors by paying Rs. 5,000/-. Manipal Motors had issued estimate for Rs. 1,55,742/- for the required repairs. Complainant furnished the estimate to the first opposite party. Though the opposite parties initially agreed to settle the claim for the repairs of the car they have been dodging the matter. Complainant No. 1 got issued legal notice dated 25.10.2004 calling upon the opposite parties to get the vehicle repaired and claimed damages at Rs. 100/- per day to be paid to the warehouse and Rs. 300/- per day for daily traveling by hired vehicle. Second opposite party sent untenable reply. There was no fault either on the complainant side or on the seller side as both of them intimated to the second opposite party on 16.10.2002. If the second opposite party takes their own time to transfer the policy, the complainants cannot be made to undergo loss or undergo hardship due to the lapses on the opposite parties in not transferring the insurance policy in time in favour of the complainant No. 1. The complainants have sought for direction to the opposite parties to repair the car and claimed Rs. 5,000/- paid by the complainants to Manipal Motors and Rs. 100/- per day towards warehouse charges and Rs. 300/- per day towards using of hired vehicle by the complainants till the delivery of car.<br /> <br /> 2. Notice was issued to opposite parties. Notice was served on opposite parties. Opposite parties filed the version stating that Dr. J.V. Hanumanthgaud was the registered owner of the car KA-24 M-9559 and it was insured for the period from 19.06.2002 to 18.06.2003. The intimation about the vehicle having met with the accident was reported to the opposite parties on 5.6.2003 wherein accident occurred on 13.03.2003. Immediately after the receipt of the intimation about the accident the opposite parties arranged spot survey and Surveyor submitted report on 6.10.2004. Complainants were called upon to furnish vehicle document for verification. After verification of the document and in view of IMT 3 and as per Indian Motor Tariff in particular GR 17 regarding transfers the opposite parties had no other option but to repudiate the claim of the complainants who had no insurable interest under the policy which was issued in respect of Dr. J.V. Hanumanthgaud. The vehicle had met with an accident on 13.03.2003 and as on that date policy was not transferred in the name of the complainants. The complainants have sought for transfer of the policy within 14 days from the date of transfer of the vehicle.<br /> <br /> 3. After hearing the matter the complaint was dismissed by my predecessor in office by the order dated 10th March-2006 on the merits. Being aggrieved by the order of dismissal, the complainants went in appeal before the Hon’ble State Commission. The Hon’ble State Commission allowed the appeal and impugned order was set aside and the matter was remitted back to District Forum for afresh disposal. After remand the matter was again heard. The Advocate for complainant filed a memo for production of documents. Advocate for the opposite party filed a memo stating that, the policy was issued by Bailahongal Branch, coming under the control office Belgaum, had in fact informed that the inward and outward register for the period from 1/10/2002 to 19/11/2004 has been misplaced while shifting the branch office premises during December-2007. Arguments of both the learned counsel for the parties are heard. <br /> <br /> 4. The point for consideration is:<br /> “Whether the repudiation of the claim of the insurance claimed by the opposite parties is justified?”<br /> <br /> REASONS<br /> 5. The complaint was dismissed by my predecessor by order dated 10/03/2006 only on the ground that the request for transfer of insurance policy in the name of the purchaser as per letter, the Ex.R-5 which was given to the opposite parties on 16/10/2002 and there was no records to show that the letter was delivered to the opposite party No.2 on 16/10/2002 and thus it was held that there was no privity of contract between the complainant and the opposite parties as on the date of accident. Therefore, it was held in the earlier order that opposite parties are justified in repudiating the claim. Being aggrieved by the order of dismissal of my predecessor in office the complainants preferred an appeal before the Hon’ble State Commission in Appeal No.1523/2006. The Hon’ble State Commission in its order has observed as under:-<br /> “According to the insurance company the application for transfer was made on 17/03/2003. The Insurance Company has produced the copy of the application filed by the party seeking for transfer of the policy which is marked as Ex.R-5. On the said Ex.R-5 there is no mention about the date of receipt of the said letter. The fact that the concerned party has made an application for transfer of the policy is not disputed. <br /> The only question to be considered is on what date this Ex.R-5n was received. In order to show that Ex.R-5 was received on 17/03/2003 the Insurance Company ought to have produced the To and Fro Register before the District Forum to show that it was not received prior to the accident. But the said register has not been produced before the DF. Therefore, in our view the matter requires re-consideration affording opportunity to the parties to adduce additional evidence. Hence we pas the following:<br /> ORDER<br /> Appeal is dismissed.<br /> Impugned order is set aside.<br /> The matter is remitted to the DF to dispose of the matter afresh by affording opportunity to the parties to produce additional evidence if any after due notice to the parties.”<br /> <br /> Now the Hon’ble State Commission has made the matter very clear. The entire point of dispute revolves on Ex.R-5. After remand of the matter the complainant made an application U/O XII Rule XIV CPC requesting to issue direction to the opposite parties to produce To and Fro Register and the interim application of the complainant was allowed. Opposite party was directed to produce documents. On 29/05/2008 the opposite party filed a memo stating that production of the inward register as sought by the petitioner does not arise for consideration and it is submitted in the memo that same is misplaced/lost at the time of shifting of the office. Memo was recorded and the arguments on main case was heard. It is the case of the complainant that he has purchased the vehicle from Dr. Jagannath Hanumanthgaud on 16/10/2002 and the previous owner admittedly had taken insurance policy and the policy was valid for the period from 19/06/2002 to 18/06/2003. The previous owner Dr. J.V. Hanumanthgaud had intimated the sale of vehicle to the opposite parties. The letter of transfer of insurance Ex.R-5 is produced. The previous owner requested for transfer of insurance policy in the name of purchaser as per letter Ex.R-5. It is the case of the complainant that the said letter was given to the opposite party on 16/10/2002. The owner ship of the vehicle was transfer in the name of the first complainant on 17/10/2002. The insurance policy which was stood in the name of Dr. J.V. Hanumanthgaud was transferred to the name of the first complainant on 17/03/2003. But it is the case of the complainant that the letter to transfer the policy was given on 16/10/2002 itself as per Ex.R-5. The car was met with an accident on 13/03/2003. The policy was valid for the period from 19/06/2002 to 18/06/2003. The car was met with an accident within the subsistence of policy period. The insurance company itself had produced the application filed by the previous owner seeking for transfer of policy which is marked as Ex.R-5. But unfortunately the Ex.R-5 does not bear date and the receipt of the said letter by the opposite parties. The fact that previous owner had made an application for transfer of policy is not in dispute. The Hon’ble State Commission has observed that the only question to be considered is on what date this Ex.R-5 was received by the opposite parties office. It has been observed that the insurance company ought to have produced To and Fro Register before the District Forum to establish that the same was not received prior to the accident. Therefore, in order to give an opportunity to the opposite parties the Hon’ble State Commission remanded the matter to the District Forum for consideration giving opportunity to the parties to adduce additional evidence. Sufficient opportunity was afforded to the opposite parties to produce inward and outward Register to establish their defense. Even the complainant had made an application and requested that opposite parties may be directed to produce concerned register. The Forum had directed the opposite parties to produce the register in support of their defense. But unfortunately the opposite parties have failed to produce the To and Fro Register to substantiate their defense. The non production of To and Fro Register before the Forum goes against the case put up by the opposite parties. The opposite parties have taken a very flimsy and untenable defense that the To and Fro Register has been lost or misplaced during shifting of the office. This kind of defense cannot be accepted at all by any Judicial Authority. An adverse inference can be drawn against the opposite parties for having not produced To and Fro Register as directed by the Hon’ble State Commission. The non production of the said register goes to show that the previous owner had sent Ex.R-5 much earlier to the date of accident. The case put up by the complainant that Ex.R-5 was given to the Insurance Company on 16/10/2002 shall have to be accepted as true and correct. When this is the case, admittedly the car met with an accident on 13/03/2003 and policy covered period from 19/06/2002 to 18/06/2003. Therefore, it is the liability, obligation and commitment of the opposite parties to accept the claim and pay the amount. The opposite party had appointed Surveyor for assessment of damages. The Surveyor appointed by the opposite parties has submitted his report. As per his survey report he has made Rs.33,022/- towards spare parts and he has estimated labour charges of Rs.25,205/- and total loss assessed by the Surveyor is Rs.58,227/-. The Survey Report is marked as Ex.R-17. The complainants have produced Manipal Motors Pvt. Limited estimate of repairs at Rs.1,53,742/-. The estimate of repairs submitted by the Manipal Motors cannot be accepted as an authenticated document. The estimate of Manipal Motors having not been proved by legal and acceptable evidence. Therefore, the loss estimated by the authorised surveyor shall have to be accepted. The opposite parties shall have to pay the claim to the complainant as per the loss estimated by the Surveyor. Therefore, taking into consideration of all the facts and circumstances of the case, we are of the opinion that the repudiation of the claim by the opposite parties is not justified in this case. In this way there was a deficiency in service on the part of the opposite parties. In the result, I proceed to pass the following:<br /> ORDER<br /> <br /> 6. The complaint is partly allowed. The opposite parties are jointly and severely directed to pay Rs.58,227/- to the complainants. The opposite parties are also directed to pay interest on the amount at 12% p.a from 20/06/2003(date of submission of survey report) till payment/realisation. <br /> <br /> 7. The complainant is also entitled to Rs.3,000/- towards costs of the present proceedings from the opposite parties. <br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 9. Pronounced in the Open Forum on this 2ND DAY OF SEPTEMBER-2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> Rhr<br />