BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14th of July 2011
PRESENT
SRI. RAVISHANKAR : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.131/2010
(Admitted on 24.04.2010)
Mr.Sebastian Pereira,
So Ligory Pereira,
Aged about 47 years,
Residing at Kana House,
Surathakal,
Mangalore. …….. COMPLAINANT
(Advocate for Complainant: Sri S.K.Ullal)
VERSUS
United India Insurance Co. Ltd.,
Shri Vittal, N.H. 17, Surathkal,
Mangalore, Represented by its
Branch Manager. ….. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.M.S.Jain)
***************
ORDER DELIVERED BY PRESIDENT SRI. RAVISHANKAR:
1. The Complainant filed this complaint under Section 12 of the Consumer Protection Act against the Opposite Party alleging deficiency of service in not settling the own damage claim. Hence prays for settlement of the own damage to the tune of Rs.3,00,000/- and Rs.50,000/- for deficiency of service.
The brief facts of the complaint are that, he is the registered owner of tanker bearing No.KA-19-4288 and insured with the Opposite Party Company. Such being the case, on 06.10.2002 at about 7.00 a.m. the vehicle met with an accident at Bollaru, Nekkilady Village of Puttur Taluk which was driven by his driver C.Lolaksha @ Ramesh, S/o. Subraya Gowda. As a result of the said accident the vehicle suffered extensive damage he left the vehicle for repair at Souza Auto Services, Kottara Chowki Mangalore. The repairer had estimated the cost of repair to the tune of Rs.2,95,832/- and the vehicle was under repair from 10.10.2002 to 17.01.2003. The Complainant spent nearly Rs.3,00,000/- towards the repair of the vehicle. During the repair time he was unable to run the vehicle and suffered a financial loss to the tune of Rs.15,000/-. Subsequently the Complainant filed a claim petition under MVC No.1478/2003 on the file of MACT Mangalore. The said petition was filed on the wrong advice given to the Complainant and he was not well versed in Court procedure and laws and in good faith he had filed the said claim petition which ultimately resulted in dismiss. In the meantime, the Complainant suffered mental depression and took psychological treatment he was admitted to Manasa Nursing Home Shimoga and after discharge from the hospital he was continuously under treatment till today. Recently, the Complainant recovered from the said depression and he contacted his advocate in the third week of September 2009 in order to know the position of his claim. He came to know that on a wrong advise given by earlier advocate he preferred the MVC case instead of filing the claim before this Forum and not filing this complaint on the earlier occasion is not deliberate and for bonafide mistake. Immediately he contacted Opposite Party Company to claim the own damage but the Opposite Party refused to pay the amount of compensation on the ground that the Complainant’s claim petition already dismissed hence they are not liable to pay any compensation. The reason for refusing the claim of the Complainant is illegal and tainted with malafide intention to deprive his legitimate claim. Therefore the repudiation made by the Opposite Party amounts to deficiency of service. Hence Opposite Party is liable to pay own damage claim of Rs.3,00,000/- along with Rs.50,000/- for inconvenience and compensation as prayed above.
Along with this complaint, Complainant filed application under Section 24(2)(A) of Consumer Protection Act to condone the delay and sworn affidavit that he came to know that the claim application made by him was wrongly filed before MACT Mangalore and he was not well versed in Court procedure and Law. Believing the advice of the advocate, he filed claim petition before MACT instead of filing before this Forum and in the meantime he suffered mental depression and admitted for psychological treatment at Shimoga and after discharge he came to know the claim petition was dismissed for default and he approached the present advocate for the claim wherein he suggested to file this complaint before this Forum. Hence the delay in filing this complaint is not intentional and for bonafide reasons and prays for condone the delay in filing the complaint.
2. After service of notice Opposite Party appeared through his counsel and filed version and contended that the vehicle of the Complainant was insured with the Company which is valid from 22.09.2002 to 21.09.2003. The liability of the Opposite Party Company to indemnify the insured is restricted to terms and conditions of the policy issued in favour of the Complainant. The complaint is not maintainable under Law, terms and conditions of the policy and also on facts of the case. The complaint is barred by limitation and is liable to be dismissed.
On 06.10.2002 while returning from Uppinangady towards Mangalore one Mr.Ramesh was driving the vehicle and the said fact was disclosed by one Mr.Suresh, who was cleaner of the said tanker lorry, further he disclosed during his hospitalization and he stated in his statement recorded by the police that Ramesh was driving the vehicle. Basing on the said statement, police have registered FIR against driver Ramesh for offence punishable under Section 279 and Section 337 Indian Penal Code. Thereafter the police in collusion with the Complainant had fraudulently substituted the name of the driver as P.Lolaksha @ Ramesh, S/o. Subraya Gowda but at the time of accident one Mr.Ramesh was driving the vehicle. After the accident the Complainant claimed for own damage on 16.10.2002 and has furnished the particulars of the driver as P.Lolaksha, aged about 32 years as shown in the police in Section 160 particulars. The Opposite Party on receipt of claim appointed an Investigator to investigate the accident and to report regarding the identity of driver. The Investigator after investigation and enquiry has submitted a report and stated that on the date of accident Ramesh, S/o. Chennayya Poojary, aged 27 years, resident of Banagundi Kadeshwallya, Bantwal was the driver of the insured vehicle and not P.Lolaksha as alleged by the Complainant. The said Ramesh who was driving the vehicle at the time of accident had not authorized to drive the particular class of vehicle (insured vehicle). Hence they have repudiated the claim preferred by the Complainant by letter dated 23.04.2003.
The Opposite Party on receipt of the claim form had appointed a loss assessor Sri.M.K.Vazhunnavar to assess the loss caused to the vehicle and the said Surveyor has submitted a report assessing the damage caused to the vehicle to the tune of Rs.94,257/-. Any how they have repudiated the claim preferred by the Complainant as the driver at the time of accident had no valid driving licence to drive the vehicle. Hence the repudiation made by them is not amounts to deficiency of service and they are not liable to pay any compensation as claimed, hence prays for dismissal of the complaint.
The Opposite Party also filed objection to the I.A. filed by the Complainant for condonation of delay and contended that the accident to the insured vehicle occurred on 06.10.2002. The claim preferred by the Complainant was processed by the Opposite Party and repudiated on 23.04.2003 itself by sending a registered post to the Complainant. After receipt of the said repudiation letter Complainant wrote a letter to return the entire documents on 25.04.2003 and as per the request the documents were returned to the Complainant on 25.04.2003 itself under his acknowledgement. Now the Complainant filed this complaint on 06.04.2010 alleging deficiency of service against the Opposite Party after lapse of 7 years 6 months and had filed this application under Section 24A of the Consumer Protection Act seeking for condonation of delay which is not maintainable. The Complainant has not convinced the reason with proof in not filing the complaint within two years from the date of cause of action as stipulated under provisions of C.P. Act. The claim of the Complainant was repudiated on 23.04.2003 itself and the ground set out by the Complainant that under the wrong advice of the Advocate he has filed claim before the Motor Accidents Claims Tribunal is not justifiable ground to condone the delay and the said claim also dismissed for default on 12.07.2005 itself. This Opposite Party has taken a specific contention in that motor vehicle claim regarding the jurisdiction of the tribunal to entertain the claim petition. Further with the ulterior motive the Complainant made averment that he lost memory power and he was continuous treatment for depression. While seeking condonation of delay the Complainant has to explain delay of each day with reason and he has to satisfy the Court that he has sufficient reason in not filing the complaint well within time. Hence the complaint is barred by time and prays for dismissal of the complaint on this ground.
3. In view of the above pleadings, the points now that arise for our consideration in this case are as under:
- Whether the Complainant is entitled for condonation of delay?
- Whether the Opposite Party is a deficiency of service in not settling the own damage claim?
- What order?
4. In support of the complaint, Sebastian Pereira (CW-1) filed affidavit and got marked Ex C1 to C6 as listed in the annexure in detail. One Sailesh.S.S., Branch Manager (RW-1), Mr.Seetharama K. Senior Manager (RW-2) and one Mr.M.K.Vazunnavar, Surveyor and Loss Assessor (RW-3) of the Opposite Party filed counter affidavits and produced notes of arguments. Ex R1 to R12 were marked for the Opposite Party as listed in the annexure in detail.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) & (ii): Negative.
Point No.(iii): As per the order.
REASONS
5. Points No. (i) to (iii):
Before we going to discuss the matter on merits it is appropriate to discuss regarding the application filed by the Complainant under Section 24A of the Consumer Protection Act for condonation of delay in filing the complaint. There is no dispute that the Complainant has filed this complaint after lapse of seven years and six months. The repudiation made by the Opposite Party on the ground that the driver who was driving the vehicle at the actual time of accident had no valid driving licence to drive the said vehicle which met with an accident. After receipt of the repudiation letter the Complainant had made a requisition before the Opposite Party for return of the entire bills produced for claim. The said letter marked as Ex R5 and the repudiation letter marked as Ex R3. On going through the Ex R5 it is observed that as soon as repudiation was made by the Opposite Party, he wrote a letter dated 25.04.2003 to return the documents. After receipt of the said documents the Complainant had choosen to file a Motor Vehicle Claim before MACT at Mangalore on the advice of some advocate and Complainant has sworn affidavit attached to this application that he had not well versed with Law and Procedure of the Court. The said averment cannot be accepted as because this Forum anticipates that every consumer should know his rights regarding the claim and the Consumer Protection Act is a common Law which is introduced for the purpose of awareness to be created to the consumers. If the Complainant sworn that he do not know the Law that cannot be excused and it is pertinent to state that if the Complainant had taken wrong advice from Advocate he would have choose some other advocate for better opinion but he has not done so and the ground given by the Complainant cannot be accepted at all. Apart from that ground Complainant had also taken a ground that he suffered some psychological disorder and during treatment he lost memory hence he was unable to file the complaint. On observation of these facts it is learnt that the Complainant has taken another false ground in order to file this complaint without explaining a genuine reason in not filing the complaint in time. It is also pertinent to note that the hospital records diagnosed that he suffered alcohol depression and he underwent a treatment from 30.09.2004. The Complainant had underwent a treatment for his own ailment i.e., consuming alcohol. When he underwent a treatment for alcohol that cannot be taken as valid ground for not filing the complaint well within a time. As such the application filed by the Complainant for condonation of delay is not maintainable. Under this ground the complaint is liable to be dismissed. Apart from this the complaint is also liable to be dismissed on merits. As because Opposite Party has repudiated the claim on the ground that the driver had no valid driving licence to drive the said vehicle at the time of accident. In support of that Opposite Party has produced complaint given to police by one Suresh, who was the cleaner and injured during the accident. He states in his complaint that one Mr.Ramesh was driving the vehicle and Opposite Party after noticing the said fact had investigated and produced the driving licence of one Mr.Ramesh Poojary which is marked as Ex R11 and the said driver had no valid driving licence to drive the said vehicle on the date of accident. Subsequently the Complainant filed a claim petition stating that one Mr.Lolaksha @ Ramesh was driving the vehicle and he had valid driving licence to drive the said vehicle and claims for own damage. Even on going through the driving licence of one Mr.P.Lolaksha produced by the Opposite Party i.e., Ex R8 we observed that he had only driving licence to drive the hazardous goods vehicle from 15.09.2000 to 14.09.2001 only but the Complainant had not established that Ramesh is none other than Lolaksha. The Complainant except in his complaint and charge sheet has not explained or produced any documents to show that Ramesh is none other than Lolaksha. It is also pertinent to note that in order to show that Mr.P.Lolaksha also called as Ramesh, the Complainant has not produced any documents or given evidence of the said Lolaksha before this Forum in support that he is also called as Ramesh. In the absence of any such documents merely on averments in the complaint and in the charge sheet we cannot believe that Lolaksha is none other than Ramesh. The learned advocate for Opposite Party had vehemently argued that they have thoroughly investigated in this regard to find out who is Ramesh and who is Lolaksha and they have succeeded to say that Ramesh and Lolaksha are different persons. In this regard Opposite Party also produced an investigation report which is marked as Ex R7. Of course we agree the arguments addressed by the learned advocate for Opposite Party and we are of the opinion that the Complainant is not entitled for own damage claim as because he has utterly violated the terms and conditions of the policy in engaging the driver to run his vehicle who had no valid driving licence to drive. As such on the merits also the Complainant is not entitled for any claim. The repudiation made by the Opposite Party not amounts to deficiency of service. As such complaint is liable to be dismissed and for the above reasons we answer point No.(i) and (ii) in the negative.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 12 dictated to the stenographer typed by her, revised and pronounced in the open court on this the 14th day of July 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sebastian Pereira – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – Certified copy of the F.I.R. along with Complaint in Cr.No.143/2002 of Uppinangady Police Station.
Ex C2 – Certified copy of the Charge sheet in Crime No.143/2002.
Ex C3 – Xerox copy of the notice under Section 160 M.V.Act.
Ex C4 – Petition copy filed under Section 166 of the Motor Vehicle Act 1988.
Ex C5 – Certified copy of the written Statement filed by the Driver.
Ex C6 – Personal Data issued by Manasa Nursing Home, Shimoga.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sailesh.S.S., Branch Manager.
RW2 – Mr.Seetharama K. Senior Manager.
RW3 – Mr. M.K. Vazunnavar, Surveyor and Loss Assessor.
Documents produced on behalf of the Opposite Party:
Ex R1 – Insurance policy issued in favour of Complainant by Opposite Party, covering the risk of vehicle KA-19 4288 for the period 22/09/2002 to 21/09/2003 with terms and conditions of policy.
Ex R2 – Claim Form dated 16.10/2002 forwarded by Complainant.
Ex R3 – Letter dated 23/04/2003, written by Opposite Party to Complainant repudiating the claim.
Ex R4 – Postal acknowledgement for service letter dated 23/04/2003 on Complainant.
Ex R5 – Letter written by Complainant dated 25/04/2003.
Ex R6 – Wound Certificate of Suresh issued by Highland Hospital.
Ex R7 – Investigation Report dated 13th March 2003, by Investigator Sri. S.S.Sailesh.
Ex R8 – True copy (Xerox) of driving licence of P.Lokesh.
Ex R9 – Estimate by Souza Auto Services dated 10/10/2002 with endorsements “Revision of Assessment accepted” with signature of proprietor dated 1.1.2003.
Ex R10 – Survey and Loss Assessment Report dated 1/1/2003 by Surveyor and Loss Assessor Sri.M.K.Vazhunnavar.
Ex R11 – Driving License of B.Ramesh Poojary son of Channappa Poojary, Banagundi, Kadeshwnly, Bantwal.
Ex R12 – Certificate issued by Hindustan Petroleum Corporation Ltd., (Xerox copy)
Dated: 14.07.2011 PRESIDENT
