Complaint filed on: 11.04.2016
Complaint Disposed on:02.08.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.49/2016
DATED THIS THE 2nd DAY OF AUGUST 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
Shashi Kumar A.G.,
S/o Late A.M.Gopala,
Aged about 44 years,
Agriculturist,
R/o Asagodu Village,
Hosakoppa Post,
Koppa Taluk,
Chikmagalur District.
(By Sri/Smt. B.M.Laxmana Gowda, Advocate)
V/s
OPPONENT/S:
1. Universal Sompo General Insurance
Co. Ltd., 3rd Floor, KVV samrat, 217/A,
3rd main, Outer Ring Road, Kasturi
Nagar, Bangalore-560043.
2. The Branch Manager,
Karnataka Bank Ltd.,
Hariharapura Branch,
Koppa Taluk.
(Op 1 & 2 By Sri.T.R.Harish, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op 1 alleging deficiency in service in not settling the entire claim towards own damage. Hence, prays for direction against Op 1 to pay balance amount of Rs.1,34,016/- with interest @ 18% P.A. along with compensation of Rs.50,000/- for deficiency in service.
2. The brief facts of the complaint is that:
The complainant is the owner of the Maruti Swift Dzire VDI M car bearing registration No.KA-18/P-1621 and the said car was insured with Op 1 company vide policy No.2311/53220907/02/00, dated 18.05.2015, the said policy is valid from 18.05.2015 to 17.05.2016. The policy issued by Op company was a package policy and complainant has declared the value of the vehicle of Rs.5,84,016/- and Op 1 had collected the premium amount of Rs.9,816/- for issue of the said policy.
The Op 2 is a formal party, who had provided the loan for purchase of the said car and at the time of obtaining the loan the Op 2 had suggested to take the policy from Op 1. Accordingly, the policy was taken by complainant from Op 1. Such being the case, on 07.06.2015 he was proceeding towards N.R Pura along with his family the vehicle met with an accident by collusion with passenger bus which came from the opposite direction, as a result of an accident, the inmates of the car were sustained simple and grievous injuries and vehicle was completely damaged and criminal complaint was lodged against the driver of the bus. Thereafter the complainant intimated the Op 1 company and filed claim form with Op 1 along with required documents by claiming insured declared value of Rs.5,84,016/-. In the meantime on 12.08.2015 the complainant received a letter from Op 1 stating that at the time of accident the vehicle was occupied by 6 passengers and as per the registered smart card the seating capacity is only 4+1. Hence, stated that the complainant had violated the terms and conditions of the policy and denied to settle the claim of the complainant.
In fact, the complainant along with his family were travelling as per the seating capacity and one child named Anika, 8 years old baby was also in the car. Hence, this is not amounts to over loading and there is no any violation of the terms and conditions of the policy. Later Op 1 offered to settle the claim to an extent of Rs.2,00,000/- only as a full and final settlement of the claim. But complainant at the first instance has not agreed to settle the claim, due to pressure from Op 1 and 2 the complainant accepted the said sum of Rs.2,00,000/- in order to clear all the loan obtained from Op 2. Thus, by the pressure of the Op 1 the complainant has given a consent letter dated 24.09.2015 and received Rs.2,00,000/-. The Op 1 by paying the said meager amount by pressure have escaped the liability of payment insured declared value of Rs.5,84,016/- which liable to be payable by Op1. Hence, complainant suffered loss to the tune of Rs.1,34,016. The act of the Op1, who compelled to receive Rs.2,00,000/- towards settlement of the claim amounts to deficiency in service.
Complainant further alleges that, the accident caused due to rash and negligence driving of the opposite vehicle i.e., passenger bus and complainant also lodged complaint against the said bus driver. The complainant has not violated any terms and conditions of the policy, in fact they are travelling as per the seating capacity only. Inspite of no violation the Op 1 had settled the own damage claim to the tune of Rs.2,00,000/- only. Hence, complainant issued a legal notice on 08.03.2016 and called upon them to pay the balance of Rs.1,34,016/-. But even inspite of receipt of the legal notice Op 1 and 2 have not settled the claim and also not replied till today. Hence, complainant filed this complaint and prays for direction against Op 1 to settle the claim by paying balance amount of Rs.1,34,016/- along with compensation for deficiency in service as prayed above.
3. After service of notice Op 1 and 2 appeared through their counsel and filed version.
4. Op 1 in his version has contended that, as on the date of accident the vehicle of the complainant was covered with the insurance policy which was issued by them, the liability of this Op if any is covered by terms, conditions, exceptions and limitations of the said policy.
The complainant had reported to this Op that on 07.06.2015 due to collusion with two vehicles, the vehicle of the complainant met with an accident and on 17.06.2015 the complainant submitted the claim form. After receipt of the claim form this Op has appointed one Shiva Kumar S.K., Surveyor to quantify the damages caused to the vehicle, the said surveyor after inspection and having discussion with the complainant quantified the loss caused to the vehicle at Rs.4,25,470.94 after deducting depreciation as detailed in the report. The complainant also submitted the police documents and vehicle documents for settlement of the claim.
On perusal of the documents of the vehicle this Op noticed that the vehicle has a seating capacity of 4+1 only, whereas at the material time of accident the vehicle was carrying 6 passengers as per the FIR and due to over loading the vehicle met with an accident. The over loading is the main cause for accident. After considering the criminal records, vehicle documents this Op company came to the conclusion that the complainant is not entitled to get any claim. Hence, on 12.08.2015 they have repudiated the claim of the complainant through their letter. There afterwards the Op 2, financier of the complainant has requested this Op to re-consider the repudiation. After considering the request this Op had settled the claim for Rs.2,00,000/- only as here under:
Summary of Salvage Loss Settlement:
a) IDV of the vehicle Rs.5,84,016/-
b) Agreed IDV of the vehicle Rs.4,51,000/-
c) Less: Expected wreck value Rs.2,50,000/-
Rs.2,01,000/-
d) Less: Excess as per policy Rs. 1,000/-
Net amount payable Rs.2,00,000/-
The said facts were also explained to the complainant and complainant had agreed to settle the claim by receiving a sum of Rs.2,00,000/- in full and final settlement. Even though there is a breach of terms and conditions of the policy the claim of the complainant was settled on a non-standard basis and this Op had paid Rs.2,00,000/- towards full and final settlement. The complainant also given a consent for settling the claim for Rs.2,00,000/-. Hence, there is no any deficiency in service on the part of this op in settling the claim of the complainant and they are not liable to pay any additional amount claimed by complainant. Hence, prays for dismissal of the complaint.
5. Op 2 also filed version and contended that, this Op is only facilitator for issue of insurance policy to the complainant from Op1 at the time of availing a loan, accordingly, the Op 1 had issued a policy covering the risk towards own damage and third party liabilities. This Op came to know that claim had been repudiated by Op 1 and it is also learned that subsequently, Op 1 had settled the claim for Rs.2,00,000/- and complainant also received Rs.2,00,000/- from Op 1 on full satisfaction of the claim. Hence, it is clear that if any dispute arose is only in between the complainant and Op 1 and this Op is not liable to pay any claim of the complainant as this Op is only a facilitator for issuance of the policy and there is no any specific allegations against this Op by complainant and there is no any deficiency in service on the part of this Op. Hence, prays for dismissal of the complaint.
6. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.16. Op 1 also filed affidavit and marked documents as Ex.R.1 to Ex.R.9.
7. Heard the arguments.
8. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a Deficiency in service on the part of Op?
- Whether complainant entitled for any relief & what Order?
9. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
10. There is no dispute that, complainant had obtained vehicle package policy from Op 1 through Op 2 vide policy No.2311/53220907/02/00 which is valid from 18.05.2015 to 17.05.2016. There is also no dispute that at the time of obtaining the policy the complainant was declared the value of the vehicle to the tune of Rs.5,84,016/-.
There is also no dispute that, on 07.06.2015 the vehicle met with an accident, due to which the vehicle was completely damaged and suffered total loss that means unable to repair. For which, one Shiva Kumar, surveyor was appointed by Op 1, who valued an amount payable to the complainant to the tune of Rs.4,25,470.94, after the said report the Op 1 by considering the over load in the car initially repudiated the claim, subsequently, Op1 had settled the claim to the tune of Rs.2,00,000/- towards own damage claim and closed the matter. The complainant not satisfying with the settlement of the claim had approached this Forum alleging deficiency in service in not settling the full claim and filed a affidavit and sworn that he had not violated any terms and conditions of the policy, he was carrying only 4+1 plus one child called Anika, age 8 years, but there is no rash and negligence on the part of complainant, the accident took place due to rash driving of opposite passenger bus and also sworn that Op 1 had pressurized him to receive Rs.2,00,000/- against the insured declared value. Hence, alleges deficiency in service and prays for payment of the balance amount of Rs.1,34,016/-.
11. On going through the pleading, affidavit of the Op 1 we noticed that the Op 1 had settled the claim on non-standard basis. We are of the opinion that as usual if insurance company agrees to pay claim on non-standard basis usually they arrived for 75% of the insured declared value. Anyhow, here in this complaint one Shiva Kumar, Independent IRDA approved surveyor has assessed the loss to the tune of Rs.4,25,470.94. The Op 1 is supposed to pay 75% of the amount assessed by surveyor. But the Op 1 had not made such a calculation and had blindly paid Rs.2,00,000/- without any valid reasons. In his affidavit the Op 1 has sworn that how they have arrived for Rs.2,00,000/- which reads as follows:
Summary of Salvage Loss Settlement:
a) IDV of the vehicle Rs.5,84,016/-
b) Agreed IDV of the vehicle Rs.4,51,000/-
c) Less: Expected wreck value Rs.2,50,000/-
Rs.2,01,000/-
d) Less: Excess as per policy Rs. 1,000/-
Net amount payable Rs.2,00,000/-
Here we noticed that the Op 1 has mentioned Rs.2,50,000/- towards Expected wreck value, the said wreck value is Exorbitant one. The said amount deducting under the said head is baseless. In fact the Op 1 has to calculate 75% of the agreed IDV of the vehicle of Rs.4,51,000/- which comes around Rs.3,38,250/-(75%) the said amount is actually payable by Op 1. Instead of that Op 1 had paid only Rs.2,00,000/- by obtaining consent letter from the complainant, obtaining a consent letter itself amounts to unfair trade practice and we are of the opinion that it is an exploitation of the consumer. Hence, Op1 had definitely rendered deficiency in service in not paying 75% of the agreed insured declared value to the tune of Rs.3,38,250/-. Hence, Op1 is liable to pay balance amount of Rs.1,38,250/- to the complainant. The Op 1 is also liable to pay compensation of Rs.10,000/- for deficiency in service in not settling the claim as per the survey report and as per the non-standard basis along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op 1 is directed to pay Rs.1,38,250/- balance of own damage claim as per the survey report along with compensation of Rs.10,000/- (Ten Thousand Rupees only) for deficiency in service and litigation expenses Rs.1,000/- (One thousand Rupees only) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- The complaint against Op 2 is dismissed.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 5th day of August 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Copy of the policy.
Ex.P.2 - Copy of the FIR.
Ex.P.3 - Copy of the police complaint.
Ex.P.4 - Charge sheet.
Ex.P.5 - Repudiation letter.
Ex.P.6 - Copy of the Cheque..
Ex.P.7 - Copy of RC.
Ex.P.8 - Copy of D.L.
Ex.P.9 - Letter dtd:29.09.2016.
Ex.P.10 - Consent letter of complainant.
Ex.P.11 - Copy of the discharge voucher.
Ex.P.12 - Copy of the e-mail.
Ex.P.13 - Account extract of complainant.
Ex.P.14 - Office copy of the legal notice.
Ex.P.15 & 16 - 2 postal acknowledgment dues.
Documents produced on behalf of the OP/S:
Ex.R.1 - Survey Report.
Ex.R.2 - Copy of R.C.
Ex.R.3 - Computer generated copy of repudiation letter.
Ex.R.4 - Consent letter.
Ex.R.5 - Computer generated insurance policy.
Ex.R.6 - Copy of the letter dtd:07.10.2015.
Ex.R.7 - Claim settlement on non-standard basis.
Ex.R.8 - Authorization letter.
Ex.R.9 - Copy of claim settlement note.
Dated:02.08.2017 President
District Consumer Forum,
Chikmagalur.
RMA
