Complaint filed on: 15-03-2019

                                                      Disposed on: 11-02-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

CC.No.62/2019

DATED THIS THE 11^th DAY OF FEBRUARY, 2022

PRESENT

SRI.KUMARA.N, B.Sc., LLB., PRESIDENT (I/c)

SMT.NIVEDITA RAVISH, B.A., LLB., LADY MEMBER

Complainant: -

Shivanna.K.N,

S/o Neelakntappa,

Aged about 40 years,

R/o Narayana Rao

Building sound system,

Ayrappa old building,

Bommasandra Industrial Estate,

Kittaganahalli,

Bengaluru-560 099

(By Sri.H.R.Ramesh Babu, Advocate)

V/s

Opposite party:-       

Branch Manager,

Bajaj Alliance General Insurance Company Ltd, Golden Heights,

4^th floor, No.1/2, 59^th C Cross,

4^th M Block, Rajajinagar,

Bengaluru-560010 

(By Sri.N.V.Naveen Kumar, Advocate)

ORDER

SRI.KUMARA.N, MEMBER

This complaint has filed under Section 12 of the Consumer Protection Act, 1986 to direct the OP-Bajaj Alliance General Insurance Company Limited to make payment of Rs.3,33,506-00 with interest @18% p.a. from the date of accident till the date of realization and grant cost and such other relief.

2. It is the case of complainant that, he is the owner of Shift Dzire LDI Tour Car Reg.No.KA-03-AD-2990, which was insured with the OP insurance company and policy was valid from 5-5-2018 to 4-5-2019, the said car having valid permit road permit in Karnataka State which was hypothecated with Sri Ram Transport Finance Company Ltd, Bengaluru and loan on the said vehicle is pending till today. On 25-11-2018 the car was moving from Hosadurga to Bengaluru, the car driver Sri.Basappa.M S/o Malappa is having valid driving licence (DL). When the said vehicle was reached near Yalanadu village, a snake came in front of the middle of car, to avoid that, the driver has taken immediate turn and the said vehicle was not able to control by the driver and felt down and the entire car portion was cursed and driver luckily not grievously injured. The accident was informed to Huliyar police station and C.Mis 110/2018 was registered and mahazar was conducted by the Huliyar police. The said accident was intimated to the OP insurance company on 27-11-2018 and the OP told the complainant to make an estimate, the complainant sent the car to the show room Pratham Motors Pvt. Ltd, Bengaluru. The estimate cost of repair of the said car Rs.3,33,506-00. The complainant has submitted all the relevant documents to the OP insurance company but the OP has sent a letter dated 21-1-2019 narrating baseless objection to avoid the payments towards liability. On 31-1-2019 the complainant has sent a legal notice through his advocate but even in spite of legal notice, the OP has sent another letter dated 19-2-2019 falsely stating that the insurance policy was not transfer to the transferee. Hence, there is a deficiency in service on the part of OP and the complainant has come up with this complaint.        

          3. After the service of notice, the OP has appeared through its learned counsel and filed objection contending that there is no deficiency of service or unfair trade practice on the part of OP. The case at hand involves intricate questions of facts and law which require voluminous evidence, oral as well as documentary to be lead for proper adjudication of the matter. Insurance policy is a contract and both the parties are under obligation to obey/fulfill all the terms and conditions of the policy. It is well settled law that when the voluminous evidence and complicated questions are involved in the consumer complaint, the better course is to direct the complainant to approach the civil court to get the grievance resolved by leading cogent oral and documentary evidence. Without prejudice, the OP respectfully submitted that the complainant’s vehicle is insured with this OP vide bearing policy no.OG-19-1701-1803-00003086 valid from 5-5-2018 to 4-5-2019 is subject to the terms and conditions, exceptions and limitations thereof and the confirmations of compliance of section 64VB of the Insurance Act, 1938.  From the outset of the complaint in C.Mis 110/2018 it is very clear that the insured vehicle purchased by one Basappa M and the insured and other vehicle documents i.e. RC was not transferred to his name or the policy was transferred to the name of Basappa. It is clear violation of the policy terms and conditions. After receipt of the claim from the complainant, the OP has appointed one Nquire Associates, Bengaluru, the investigations and loss mitigation, Bengaluru to investigate the case and one IRDA approved surveyor by name Nagaraja Naik was also appointed to assess the loss caused to the insured vehicle. The investigator and surveyor has submitted report dated 21-2-2019 and as per the survey report, the loss was assessed for Rs.2,35,765-00 only subject to terms and conditions of the policy. Further the investigator has submitted his investigation report dated 31-12-2018 the investigator has stated that the insured vehicle was sold the one Basappa and he was using the said vehicle as its owner by paying installments to Shirram Transport Finance and he was purchased the said vehicle under sale agreement dated 29-10-2016. It is a clear case of fraud played by the complainant and now he is saying that he is a owner of the insured vehicle as per the records, in fact, the insured vehicle was sold to one Basappa on 29-10-2016 itself and he was driver cum owner of the insured vehicle as on the date of loss he filed a complaint before the jurisdictional police. Hence as on the date of loss caused to the insured vehicle, the complainant is not the owner. By considering all these documents and report the OP has rightly repudiated the claim of the complainant vide letter dated 19-2-2018. The complainant has acted in gross violation of relevant provisions of Indian Motor Tariff which provide that the change in ownership has to be applied for within fourteen days of transfer of ownership. Hence, it is a clear case of breach of policy terms and conditions and the OP has not committed any deficiency of service as alleged in the complaint and prays to dismiss the complaint against this OP.

4. The complainant has filed his affidavit in lieu of evidence and documents marked as Ex.C1 to C12. On behalf of OP Sri.A V N Vamsi Krishna has filed affidavit in lieu of evidence and documents marked as Exs.R1 to R9 and one Ravi Kumar, Investigator for GIC’s has filed examination in chief byway of affidavit as RW-1. One Nagaraj Naik, IRDA approved surveyor has filed examination in chief by way of affidavit RW-1.

5. We have heard the oral arguments of OP and we have perused the documents submitted by the learned counsels for the both sides in addition to written brief submitted by the complainant and OP, the points that would arise for determination are as under:

1. Whether the complainant proves the deficiency in service on the part of OPs?
2. Is the complainant entitled to the relief sought for?
3. What order?

6. Our findings on the aforesaid points are as follows:

          Point No.1 In the negative

          Point No.2: In the negative

          Point No.3: As per final order for the bellow  

REASONS

7. Point Nos.1 and 2: These points are taken up together for discussion to avoid repetition of facts. The learned counsel for the complainant submitted that he is the owner of Shift Dzire LDI Tour Car bearing Reg.No.KA-03-AD-2990 that means it is a Taxi for the commercial purpose and the documents Exs.C1 to C12 proves that the complainant is the owner of Shift Dzire LDI Tour Car bearing No.KA-03-AD-2990 and he is using for commercial purpose and had insurance policy as per Exp C2 bearing No.OG-19-1701-1803-00003086 as per Ex-C2 which is commercial vehicle from the OP insurance company for the period from 6^th May, 2018 to 4^th May, 2019 and the said vehicle capsized on 25-11-2018 and driver Mr.Basappa.M S/o Malappa who holds valid driving licence and the said vehicle was hypothecated with Shree Ram Transport Finance Company Ltd, Bengaluru as per Ex.C4. The complainant has also not stated in his complaint that he is using the alleged vehicle exclusively for the survivor of earning his livelihood by meaning of self employment.

8. Consumer Protection Act, 1986 defines under Section (1) (d):

“consumer” means any person who,— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) 8 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 8 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 2 [but does not include a person who avails of such services for any commercial purpose].

[Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

Nowhere in the complaint declared nor submitted that he is using the said commercial vehicle services for his livelihood.

9. The OP counsel argued that the complainant has lodged the complaint at Huliyar Police Station by one Mr.Basappa.M S/o Malappa, Varasiddivinayaka layout, Bommanahalli, Bengaluru-68 dated 13-12-2018 stating that the insured vehicle was purchased by him about one and half year back from the date of complaint on 25-11-2018 while he was coming from Hosadurga to Bengaluru at about 3.37 p.m. the insured vehicle was capsized due to snake came to middle of the road as a result of which the said vehicle damaged and in this regard jurisdictional police have registered a C.Mis case in no.110/20.  Further, the OP insurer submits that the complaint is bad for non-joinder of necessary parties as the complainant has not made the financer i.e. Sri Ram Transport Finance Company Ltd, Bengaluru as a party to this proceeding though the said financer is the necessary party to this proceeding and the document produced by the complainant Ex.C4 proves that Sri Ram Transport Finance Company Ltd, Bengaluru is the financer of the said vehicle.

10. Further the OP counsel argued that the complainant not provided us to physical inspection of the said vehicle at the capsized spot and further not proceeded with prior permission to shift the damaged vehicle to the service center nor not taken permission from the jurisdictional police station and further submitted that   after receipt of the claim application, investigator and surveyor was appointed and basing on the reports and also available documents the OP has rightly repudiated the claim hence, the OP insurer has not committed any deficiency of service as alleged in the complaint. Hence, under these circumstances as discussed above the complaint filed by the complainant is not maintainable and the complainant is not entitled for any relief.

11. The complainant has not made the financer Sri Ram Transport Finance Company Ltd, Bengaluru as a party to proceedings though the financer is a party to this proceeding. Hence the complaint is not maintainable. Accordingly we answer point nos.1 and 2 in the negative.

12. Point No.3: In view of our findings on Point Nos.1 & 2 and the discussion made thereon, we proceed to pass the following:-

ORDER

The complaint filed by complainant is dismissed. No costs.

Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 11^th day of February, 2022).

LADY MEMBER                                  PRESIDENT (I/c)