BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 1^st June 2017

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : HON’BLE MEMBER

ORDER IN

C.C.No.199/2014

(Admitted on 10.6.2014)

Mrs. Navya P. Sheka,

W/o Prakash Sheka,

Residing at Jyothi Prakash Nilaya,

Kulshekar, Mangalore 575005.

                                                         ….. COMPLAINANT

(Advocate for the Complainant: Sri AKU)

VERSUS

Oriental Insurance Company Ltd,

Beauty Plaza, Balmata Road,

Hampankatta

Mangalore 575001

Represented by its Senior Divisional Manager.

                                                                ….OPPOSITE PARTY

 (Advocate for the Opposite Party by Sri. AKK)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.   1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to pay a sum of Rs.15,37,998/ and pay interest at the rate 14.6.2013 till actual settlement of the dues, to pay a sum of Rs.400/ per day from 14.6.2013 being the amount paid by the complainant,  to pay a sum of the Rs.25,000/ towards compensation for the mental agony , damage, nuisance, loss and hardship suffered by the complainant, to pay a sum of Rs.30,000/ towards the cost of this complaint and other reliefs.

2. In support of the above complaint Mrs. Navya P. Sheka, filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C37 as detailed in the annexure here below. Miss. Sandhya, (CW2) filed affidavit evidence and answered the interrogatories served on her.   On behalf of the opposite parties Raghu Naik, (RW1) Assistant Manager, Mr. D.Raghotham,(RW2) General insurance surveyor and loss Assessor, also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.  .  

       The brief facts of the case are as under:

          We have perused the complaint and the version. This dispute is pertaining to rejection of insurance by the opposite party on the vehicle met with an accident and set on fire. The complainant alleges that, her Bus bearing register No. KA.19 D 5889(herein after called the vehicle) while plying on contract carriage basis met with an accident and later it was set on fire by the miscreants. On filing the claim form the opposite party rejected illegally the claim on the ground of the violation of the policy conditions hence alleges deficiency in service. However the opposite party contested that the complainant has used the vehicle as stage carrier but as per permit it issued for the contract carriage, hence there is breach of the policy conditions and the repudiation is proper. These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

          On study of the documents produced and considering the evidence on record, the admitted facts are, the issue of the policy by the opposite party, the vehicle met with an accident and later set on fire. The submission of the claim form with required documents, and the survey conducted by the opposite party and loss assessed. The complainant not admitted there is breach of policy condition with regard to permit issued, and the claim is not allowable. The opposite party denies the illegality in the repudiation and deficiency in service on their part. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether opposite party proves the repudiation is proper and justifiable?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

On considering the documents on records and the evidence lead by the parties, we considered the notes of arguments filed and heard the submissions of the party counsel. We answered the above points on adjudication as under:

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

REASON

POINT NO.1: The complainant had produced the insurance policy copy as EX C 16 which established the insuring of the complainant vehicle with the opposite party and the policy is in subsistence. The opposite party not disputed that the complainant as consumer hence we answered the point No. 1 in the affirmative.

POINT NO 2: The complainant submitted the claim papers with required documents which is not disputed. There is no dispute with regard to accident and the repair of the vehicle as well as payment for the repair. The opposite party also conducted the survey of the vehicle and assessed the loss. The only dispute is with regard to the breach of policy condition. The opposite party also admitted the survey report by inference on stating that if at all there is claim the opposite party is ready to the extent of the survey report. Now the question is whether the opposite party proves the breach of the permit condition and thereby the policy condition. Hence it is the burden of the opposite party to prove the breach of permit condition and the breach of policy condition to establish the repudiation is justified.

2.   The opposite party repudiated through the letter (EX C 27) finally on 29.03.2014, referring to the pre repudiation letter dated 14.03.2014 by stating that, the competent authority does not find merit to consider your claim based on your reply dated 25.03.2014. Therefore, the competent authority has repudiated the claim and closed the file.        

3.   The above referred letters dated 14.03.2014 and 25.03.2014 by the opposite party draws an importance on which base the claim is repudiated. We laid out hand on the letter dated 14.03.2014 (EX C 25) stated to be pre-repudiation letter. The contents of which stated that the complainant has violated the permit issued by the Karnataka State Transport Authority KSTA) Bangalore, and thereby the breach of the policy condition and hence the claim is to be repudiated. The letter also stated that an opportunity is given for the complainant to substantiate the claim in view of the grounds mentioned for repudiation.       

4.   We also observed the reply given by the complainant through letter (EX C 26) dated 25.03.2014. The complainant had denied the ground and stated in Para 1of the said letter that, the condition serial no 27 is not violated as alleged by the opposite party. If at all any violation the KSTA would have taken action against him but there is no any action taken or any fine imposed on the complainant. This shows there is no violation.        

5.   The logic posed by the complainant impressed us and prompted us to know what is the base for the opposite party for stating there is breach of the condition 27 of the permit. The condition no 27 states,  the permit holder shall not operate the contract carriage as stage carriage. So the contention so the opposite party is the complainant has used the vehicle for stage carriage. The opposite party stated in his version Para 7 that, on internal investigation as to validity of the vehicular documents pertaining to the complainants above stated vehicle  this opposite party learnt that the complainant was in the habit of plying the said vehicle as stage carriage contrary to the permit issued by the RTO/STA for contact carriage and in the date of alleged los also the said vehicle was plying as stage carriage by displaying the route board, which is clear violation of the permission condition The opposite party came to conclusion about the violation of condition No 27 on the base of above investigation. There are two facts. First, the investigators learnt through his investigation about the complainants habit of using the contract carriage as stage carriage. Second, the display of route board stated to be Mangalore to Puttur. The complainant since the beginning contending that they have taken permit for plying a marriage party and at the time of accident she was vehicle was plying by carrying a marriage party. The complainant had produced the marriage invitation card(EX C 13) also where the marriage is fixed on 23.05.2013. The complainant’s contention is also that while returning from the marriage the accident occurred at 4 pm.          

6.  The first fact, which the investigators learnt from the investigation cannot be accented to as the opposite party produced the investigation report as EX R 1. In the report no where it is mentioned that the vehicle was used for the stage carriage purpose at the time of accident. It is not the question of habit of the owner of the vehicle of using as stage carriage of the vehicle. What is important is at the time of accident whether it is used for contract carriage or stage carriage. The Mahesh Motors may have fleet of busses and few may be used for stage carriage purpose or even the bus in question might have been used as stage carriage purpose in some other time which will not prompt us draw inference that the bus must have used for stage carriage purpose. The second fact that, there was a route board stating Mangalore to Puttur and hence the vehicle used as stage carrier is ridiculous when other documents prove that the marriage party was travelling in the bus. Also the complainant drawn our attention towards the condition No 17 of the permit. It states that there shall be exhibited on the vehicle adequate particulars indicating to the public the place to which and the route by which the vehicle is proceeding  It is crystal clear in wordings that the route board must be fixed. The opposite party ground that the route board was there on the vehicle as Mangalore to Puttur and hence used for stage carrier is gross negligence in reading and understanding the provision of law.  The reasoning in coming to conclusion that the complainant had used the bus for stage carriage purpose is grave mistake committed by the opposite party.         

7.   The complainant had examined CW 2 as witness got filed her affidavit. She also deposed and answered the interrogatories served by the opposite party. Even according to this witness the complainant vehicle was engaged as contract carriage for the conveying the marriage parties. In our considered opinion these much discussion is enough to hold that the vehicle was used for contract carriage purpose to carry a marriage party at the time of accident and there is neither the violation of the permit nor breach of policy condition and the repudiation is not proper and just. Hence we answered the point no 2 in the negative.

POINT NO 3: As per above detailed discussion we hold the repudiation of the claim is not legal and just and thereby liable for deficiency in service, the complainant is entitled for the relief. The complainant prayed for an amount of Rs.15,37,998/ as vehicle repair expenses. The opposite party conducted the survey and assessed the loss as Rs. 9,51,595.80 and deducted a compulsory deduction of  Rs.6,000/ and an amount of Rs. 40,000/ as salvage value. In our considered opinion the survey was conducted in the year 2013 and now it is 2017. The salvage value cannot be considered just at this juncture and as such we considered fit case for disallowing the deduction towards salvage value. With regard to compulsory excess as per policy it is only Rs. 3,000/. It seems the opposite party considering it as two instances of accident one is road and the other is fire. In our opinion the claim is only one and hence the opposite party can deduct only one time excess of  Rs.3,000/ only. Except above findings .the survey is otherwise acceptable. The complainant is entitled to get an amount of Rs. 9,48,595.80 with an interest of 10% per annum from the date of repudiation till the date of payment. As we observed there is grave negligence on the part of the opposite party in jumping into conclusion without appreciating the facts and the provision related to permit, repudiated the claim unjustly and hence liable to pay compensation of Rs.25,000/ and litigation expenses of  Rs. 10,000/. The complainant claimed an amount of  Rs. 400/ per day as demurrage but not produced any documents of payment or credit bills. Also the complainant stated that as on 24.09.2013 the vehicle was made roadworthy after repair. Hence not considered claim of demurrage.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

          The complaint is allowed. The opposite party shall pay the complainant an amount of  Rs. 9,48,595.8 with an interest of 10% per annum from the date of repudiation till the date of payment and an amount of  Rs. 25,000/ towards compensation and Rs. 10,000/ towards within 30 days from the date of copy of this order received.       

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 01^st June 2017)

            MEMBER                                              PRESIDENT

        (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                D.K. District Consumer Forum

Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mrs. Navya P. Sheka

CW2: Miss. Sandhya

Documents marked on behalf of the Complainant:

Ex-C1 to C13: Photographs.

Ex.C14: 23.5.2013: original wedding invitation card.

Ex.C15: 27.5.2013: Original of the bill.

Ex.C16: Original policy bearing No.42291/31/2013/9855.

Ex.C17: 25.5.2012: copy of permit issued by Karnataka State Transport Authority.

Ex.C18: 23.5.2013: original FIR No.104/2013.

Ex.C19: 24.5.2013: FIR No.105/2013

Ex.C20: 14.6.2013; Copy of claim form,

Ex.C21: 4.6.2013: Estimation given by Sri Sakthi Coach at Karur.

Ex.C22: 25.6.2013: Quotation given by M/s Durga Motors.

Ex.C23: 29.10.2013: Letter issued by Opposite Party.

Ex.C24: Explanation given by complainant.

Ex.C25: 14.3.2014: letter issued by Opposite Party.

Ex.C26: 25.3.2014: Explanation given by complainant.

Ex.C27: 29.3.2014: Repudiation letter issued by Opposite Party.

Ex.C28:15.4.2014: legal notice issued by complainant.

Ex.C29: Acknowledgement card.

Ex.C30: 8.5.2014: Reply issued by Opposite Party.

Ex.C31: I.A. Notice issued to the complainant in MVC  No.402/2015

Ex.C32: Copy of the petition filed in MVC No.402/2015.

Ex.C33: Copy of the ledger extract.

Ex.C34: 24.9.2013: original receipt for Rs.3,55,000/

Ex.C35: 24.9.2013: original receipt for Rs.2,00,000/

Ex.C36: 24.9.2013: original receipt for Rs.1,25,000/.

Ex.C37: original tax invoice issued by Durga motors company.

Witnesses examined on behalf of the Opposite Party:

RW1: Raghu Naik, Assistant Manager

RW2: Mr. D.Raghotham, General insurance surveyor and loss Assessor

Documents marked on behalf of the Opposite Party:

Ex.R1: Spot survey report of Mr. Harsha Dsouza.

Ex.R2: Final survey report of Mr. D. Raghotaham.

Ex.R3: Motor Insurance policy issued to vehicle bearing Reg.No. KA.19.D5889.               

Dated:  01.06.2017                             MEMBER