BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st July 2009
COMPLAINT NO.39/2009
(Admitted on 20.02.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
- Sri. K. Ramachandra, Member
BETWEEN:
Mr.Joel Michael Rebello,
So. Joachim Rebello,
Aged 20 years,
RA. Laveen Cottage,
Nehru Nagar, Puttur,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.K. Ganesh Shenoy)
VERSUS
1. The Reliance General Insurance Co. Ltd.,
Maximus Commercial Complex,
4th Floor, Light House Hill Road,
Hampankatta,
Mangalore 575 001.
(Advocate for the Opposite Party No.1: Sri.B.Gangadhar)
2. The Frontline Automobiles,
N.H. 17, Kulur,
Mangalore – 575 013. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.Surajlal Shetty).
***************
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant had purchased a brand new vehicle i.e., Chevrolet bearing No.KA 21 M 5961 from the 2nd Opposite Party and he had insured the said vehicle with the 1st Opposite Party as per policy No.14041823110033669. The said policy is valid from 26.4.2008 to 25.4.2009.
It is submitted that on 22.10.2008 while the Complainant was driving the vehicle met with an accident and the vehicle was over turned as a result of which the vehicle was damaged and the case was registered, the police have prepared the mahazar and thereafter it has been intimated to the Opposite Party. The Opposite Party appointed a surveyor and assessed the loss to the tune of Rs.2,79,695/-. In the above said amount the damage is assessed to the body of the car Rs.1,32,069/- and to the engine of the car Rs.1,47,626/-.
It is submitted that the 1st Opposite Party initially agreed to pay the entire claim but thereafter the 1st Opposite Party informed the Complainant that they would pay only the amount in respect of the damage caused to the body of the car and declined to pay amount towards the damage caused to the engine due to the accident. It is contended that the above offer given by the Opposite Party is not just which amounts to deficiency in service. However, the Complainant issued a legal notice dated 24.12.2008 to the 1st Opposite Party to honour the claim. The 1st Opposite Party in reply to the said letter dated 18.11.2008 gave a evasive reply stating that the company is not liable to make any payment. Hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party No.1 to honour the full claim of the Complainant which includes the damages of the body of the car and engine of the car and further Rs.50,000/- claimed as compensation.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 submitted that as per the claim documents the cause of accident is skid and slip off and denies the damages to the engine and submitted that as per the policy condition 2(a) “the company shall not be liable to make any payment in respect of consequential losses, depreciation, wear and tear, mechanical or electrical break down, failures or breakage”. The claim is not liable to be paid by the Opposite Party in accordance with the conditions laid under the policy and contended that this FORA has no jurisdiction to entertain the complaint and prayed for dismissal of the complaint.
Opposite Party No.2 submitted that any dispute regarding the processing and disbursement of the insurance claim is not connected to Opposite Party No.2 and Opposite Party No.2 is not dealing with the papers of the insurance claim and there is no role to play as far as this Opposite Party is concerned and contended that there is no deficiency and prayed for dismissal of the claim.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Joel Michael Rebello (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C14 were marked for the Complainant as listed in the annexure. Ex R1 was marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments along with citation.
We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
It is a case, wherein the Complainant claimed damages caused to his vehicle in the road accident. It is admitted that the Complainant had purchased a brand new vehicle i.e., Chevrolet bearing No.KA 21 M 5961 from the 2nd Opposite Party and the said vehicle was insured with the 1st Opposite Party i.e., Reliance General Insurance as per policy No.14041823110033669. The said policy is valid from 26.4.2008 to 25.4.2009 and the accident took place on 22/10/2008 which is well within the duration of the policy.
In the present case, there is no dispute with regarding the accident. However, to prove the accident the Complainant has produced Ex C2 and C3 i.e., the endorsement issued by the jurisdictional police and the mahazar drawn by the jurisdictional police. The only point in dispute is with regard to the damages caused to the vehicle. The Opposite Party No.1 admitted to pay the repair charges towards the body of the car i.e., Rs.1,10,405/- but it is denied to pay the repair cost of the engine incurred by the Complainant i.e., Rs.87,811/- stated that the company shall not be liable to make any payment in respect of the consequential losses, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakage.
It is significant to note that when the company repudiates to pay the claim under exclusion clause of the policy the entire burden lies upon the Opposite Party Company to prove the same. However, on careful scrutiny of the version filed by the Opposite Parties it reveals that though the Opposite Party Company disputed to pay the cost of the repair of the engine part of the car but not submitted any substantial piece of evidence in order to show that there was no damages caused to the engine in the above accident. No survey report has been produced, no relevant papers are produced rather no evidence of the Opposite Party No.2 was contradicted by the Opposite Party No.1 Company. Except the oral assertion no relevant/ material evidence placed before the FORA in order to prove their contention taken by them. The reply notice dated 18.11.2008 posted on 23.12.2008 (i.e., Ex C10) as could be seen from the postal cover produced along with the complaint reveal/admitted that the claim papers/documents were furnished by the Complainant and survey report was drawn in this case. When the claim was referred to the Opposite Party Insurance Company it is the bounden duty of the General Insurance Company to refer the matter to an expert i.e., an independent surveyor to assess the damages to the vehicle. But in the present case, the reply notice given by the Opposite Party No.1 reveals that the report was drawn but no such report was produced before the FORA shows that the Opposite Party Company wants to conceal the survey report to deprive the Complainant’s lawful claim which is fatal to the case of the Opposite Party Company.
However, the another contention taken by the Opposite Party No.1 in their version is that the claim falls within the exclusion clause of the policy condition 2(a) as stated herein above. We have perused the clause 2(a) of the policy condition the said clause abundantly clear that the said clauses not applicable to the case on hand. We have culled out the clause 2(a) which reads thus:-
“The company shall not liable to make any payment in respect of consequential losses, depreciation, wear and tear, mechanical or electrical break down, failures or breakage”. The consequential loss means, the loss is not the direct cause of the accident, but it is a result of the negligence of the insured after accident in handling the vehicle. But in the present case, it is not the case of the Opposite Party No.1 that there is any negligence on the part of the Complainant after the accident. When such being the case, the Opposite Party Company cannot take shelter under this clause. And other i.e., depreciation, wear and tear, mechanical or electrical breakdown, failures or breakage not applicable to the case on hand and it is evident that the said clause 2(a) cannot be made applicable to the case of the Complainant.
The Section 1 of the policy is applicable to the facts of the case and it clearly stipulates that the Company will indemnify the insured against loss or damage to the vehicle insured hereunder and or its accessories whilst thereon.
- By accidental external means.
- Whilst in transit by road rail inland – water way, lift elevator or air.
The plain reading of the policy signifies that the damage to the vehicle is to be read as a whole and therefore the Opposite Party cannot bifurcate it to the damage to the body or engine of the vehicle to suit their convenience. The documents available on record i.e., Ex C1 to C14 proved beyond doubt that the damage to the body and the engine of the vehicle is caused due to the accident by accidental external means and the Opposite Party No.1 is liable to pay the damages caused to the vehicle in this case.
It is pertinent to note that the Opposite Party No.1 not given any evidence and submitted that there is no oral evidence, the documents relied by the Opposite Party No.1 i.e., the policy condition is not applicable to the case on hand, the repudiation made by the Opposite Party Company is not justifiable in the eye of law. The service rendered by the Opposite Party is without application of mind which amounts to deficiency.
As far as the compensation is concerned, the Opposite Party Company deliberately not produced the survey report before the FORA in order to conclude/discuss the total loss assessed by the surveyor. In the absence of the same there is no other alternative except to believe the bills produced by the repairer i.e., the 2nd Opposite Party. The 2nd Opposite Party who is the repairer of the vehicle issued a job estimate i.e., Ex C5 and C6 and also raised two invoices i.e., for Rs.87,811/- and Rs.1,10,405/- it comes Rs.1,98,216/-. By considering the above, we direct the Opposite Party i.e., Reliance General Insurance Company Limited to pay Rs.1,98,216/- (Rupees one lakh ninety eight thousand two hundred and sixteen only) to the Complainant. And also we direct the Opposite Party Company to pay Rs.15,000/- as compensation for the inconvenience and the harassment caused to the Complainant without honourig the genuine claim. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no deficiency on the part of the Opposite Party No.2 hence the Complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., Reliance General Insurance Company Limited is hereby directed to pay Rs.1,98,216/- (Rupees one lakh ninety eight thousand two hundred and sixteen only) to the Complainant. And further Rs.15,000/- as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.2 is hereby dismissed.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of July 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Joel Michael Rebello.
Documents marked on behalf of the Complainant:
Ex C1 – 26.04.2008: Insurance policy issued by the 1st Opposite Party.
Ex C2 – 22.10.2008: Endorsement issued by the Jurisdictional Police.
Ex C3 – 23.10.2008: Mahazar drawn by the Jurisdictional Police.
Ex C4 – 23.10.2008: Endorsement issued by the Jurisdictional Police.
Ex C5 – 07.11.2008: Job estimate issued by the 2nd Opposite Party regarding damage to the engine.
Ex C6 – 24.10.2008: Job estimate issued by the 2nd Opposite Party regarding damage to the engine.
Ex C7 – 24.12.2008: Legal notice issued on behalf of the Complainant.
Ex C8 – 26.12.2008: Postal acknowledgement.
Ex C9 – 18.11.2008: Letter issued by the 1st Opposite Party.
Ex C10 – 24.12.2008: Postal cover in respect of the aforesaid letter.
Ex C11 – 24.12.2008: Delivery information in respect of the aforesaid letter.
Ex C12 – : Registration certificate of the vehicle.
Ex C13 – 09.03.2009: Invoice issued by the 2nd Opposite Party regarding damage to the engine.
Ex C14 – 09.03.2009: Invoice issued by the 2nd Opposite Party regarding damage to the engine.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents marked on behalf of the Opposite Parties:
Ex R1 – : Copy of the policy with terms and conditions pertaining to Reliance Private Car Package Policy.
Dated:31.07.2009 PRESIDENT
