Date of Filing:23/12/2020 Date of Order:04/03/2022 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION SHANTHINAGAR BANGALORE - 27. Dated:04th DAY OF MARCH 2022 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Retd. Prl. District & Sessions Judge And PRESIDENT SMT.SHARAVATHI S.M., B.A., LL.B., MEMBER COMPLAINT NO.1165/2020 COMPLAINANT: | | SRI. PRADEEP, S/o Narayana, Aged about 31 years, R/at : No.11, Eshwara Layout, RBI LYT Main Road, JP Nagar 7th Phase, Bengaluru 560 078. Ph: 9741755450. (Sri Sachin G, Adv. for Complainant) | |
Vs OPPOSITE PARTIES: | 1 | MANAGER BHARATI AXA GENERAL INSURANCE CO. LTD., Registered Office at First Floor, Hosto Centre, No.43, Millers Road, Vasanth Nagar, Bengaluru 560 005. | | | 2 | MANAGER BHARATI AXA GENERAL INSURANCE CO. LTD., Corporate Office at, 19th Floor, Parinee Crescenzo, G Block, Bandra Kurla Complex, Opposite MCA Club, Bandra(E), Mumbai -400 051. (Smt.Ratna, Adv. for OPs) |
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ORDER
SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed by the complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act, 2019 for the deficiency of service in not honouring the claim made in respect of reimbursement of the repair charges to the vehicle No. KA 04 MW 2959 which met with an accident though it was having insurance cover with the OP and for reimbursement of Rs.1,21,093/- and Rs.25,000/- as damages for causing mental agony, and Rs.25,000/- towards litigation expenses and other reliefs as the commission deems fit.
2. The brief facts of the complaint are: that the complainant is the owner of Maruti Suzuki Swift Car bearing Regn. No. KA-04 MW2959 insured with OP for the period 28.08.2020 to 27.08.2021 by paying premium of Rs.16,866/-.
3. It is contended that on 20.09.2020 when he was travelling near Kanakapura Town, at 7 pm due to the negligence of another vehicle, his vehicle met with an accident and the vehicle suffered heavy damages and was not in a possession to move. The vehicle the same was towed by Sri Sai 24 Hours Towing Service to Garuda Auto Craft Pvt Ltd., Hebbal, Bangalore the authorized service center of Maruti Suzuki Cars. At the time of accident, the said vehicle had insurance cover. The accident was brought to the notice of OP and also to the concerned police and the service center has estimated the damages and the amount required for repair as Rs.1,21,093/-. The invoice was raised in the name of OP for clearance. After the accident the insurance company got the vehicle inspected and took the photograph also. Though the vehicle was covered with insurance, and the claim was made properly, OP repudiated the claim on frivolous reasons. When a representation was also made, he was directed to approach OP-2 who declined to look to the grievance of the complainant. It is the duty of the OP to indemnify the damages in respect of the car as the insurance is valid. Hence he had to issue a legal notice which was served on the OPs. Inspite of it OPs neither replied the same nor complied with the demand. Hence there is deficiency in service on the part of OP in repudiating the bona fide claim. Hence the complaint.
4. Upon the service of notice, OPs appeared before this commission and filed version, contending that the complaint is not maintainable either in law or on fact and filed with a mala fide intention to enrich, and is himself liable to be dismissed. There is no deficiency on its part in rejecting the claim of the complainant for Rs.1,21,093/- being the repair charges and for damages. It is contended that after the claim it conducted the investigation and found that the place of accident has reported in the claim form do not tally with the place of accident. When the vehicle history was pursued on 19.02.2020 wherein the Odo meter reading was 21,402 kms. While pre inspection of the vehicle, the Odo meter reading was 7281 which is a clear inconsistency between the previous service and the pre-inspection. There is a clear mismatch between the accessories fitted in the car during the pre-inspection and accident. All the these indicates that, the vehicle was swapped during pre-inspection in order avail the insurance.
5. Therefore they are unable to clear the claim of the complainant and requested the complainant to substantiate the fact of accident by producing substantial documentary evidence. By denying all the allegations made in each and every para of the complaint and further contending that there is no deficiency on their part prayed the commission to dismiss the complaint.
6. In order to prove the case, both parties have filed affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-
- Whether the complainant has proved deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the relief prayed for in the complaint?
7 Our answers to the above points are:-
POINT NO. 1 & 2: In the Negative.
For the following.
REASONS
POINT NO 1:
8. On perusing the complaint, version, affidavit evidence and documents produced by the parties, it becomes clear, that the complainant is the owner of Maruti Suzuki Swift Car bearing Regn. No.KA-04 MW-2959 insured with OPs for the period 28.08.2020 to 27.08.2021 by paying premium of Rs.16,866/-.
9. According to the complainant another vehicle dashed to the complainant’s vehicle and thereby the accident took place and his car was not in a movable condition and the same was towed to Hebbal service station by obtaining the services of Sri Sai 24 Hours Towing service by paying Rs.3500/- the job card is also produced. There is no mention of accident in the job card.
10. Further OP has categorically intimated by writing a letter to the complainant that :
“Upon evaluation of the claim, spot photos 7 evidence collected by investigator it is confirmed that the accident was not occurred on 20/09/2020 as stated in the claim form. You are not provided any legal document evidence to confirm the accident. Further we have noticed discrepancies between the Pre-inspection report vs accident vehicle. In order to avail clarifications we have sent the show cause notice on 07/12/2020 and the same was ignored by your end.
In order to avail a false claim the date of loss is manipulated though there was no accident on the date mentioned in the claim for. Therefore, you have suppressed and misrepresented the facts with an intention of false claim. This is clear violation of the declaration signed in the claim form. The declaration is reproduced for your reference.”
11. When this is taken into consideration the very accident has been doubted and questioned by the insurance authorities. To substantiate the same and to show that the accident had taken place and in the said accident, the vehicle got damaged the same has not been proved by the complainant to establish the accident by making a complaint to the concerned police. No ordinary prudent man would keep quite for himself when his car met with an accident that too by a another vehicle. Naturally, he would file a complaint before the police and the police register a criminal case and takes up investigation by following the procedure. Copy of the FIR, charge sheet and even the spot mahazar is also not produced. At the same time, thought the OPs claims that the vehicle was swiped and some extra parts fitted without permission and that the surveyor has investigated and filed report, the same has not been produced before the commission by OPs also.
12. Under the circumstances , it is the cardinal principle of law that one who asserts the fact has to prove the same before Court/Commission. In this case, complainant has failed miserably to prove that the accident has taken place and the vehicle got damaged and hence OPs is liable to pay the insurance. In view of this, there is no material placed before the commission to arrive at a decision to hold that an accident has taken place and vehicle belonging to the complainant got damaged and that there is deficiency in service on the part of OPs in repudiating the claim. Hence we answer POINT NO.1 AND 2 IN THE NEGATIVE and hence we pass the following:-
ORDER
- The complaint is hereby dismissed. No order as to cost.
- Send a copy of this order to both parties free of cost.
Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 4th day of March 2022)
MEMBER PRESIDENT
ANNEXURES
- Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri Pradeep – Complainant |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Copy of the Insurance Policy.
Ex P2: Copy of the receipt in respect of paying the amount to two the vehicle.
Ex. P3: Copy of the Job card.
Ex P4: Copy of the Tax Invoice.
Ex P5: Copy of the notice.
Ex P6: Postal acknowledgement.
Ex P7: Whatsapp conversation.
Ex P8: Copy of the reply notice.
Ex P9: Receipt for having paid Rs.1,20,000/- and Rs.1,93 towards repair.
Ex P10: Copy of the DL.
Ex P11: RC
Ex P12: Affidavit under Section 65B of the Indian Evidence Act.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri Sandeep S R, Legal Manager of OPs.
Copies of Documents produced on behalf of Opposite Party/s
- Nil -
MEMBER PRESIDENT
RAK*
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