Complaint filed on: 09-07-2020
Disposed on: 25-07-2022
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
#201, 202, 1st Floor, Indian Red Cross Building Complex,
Ashoka Road, Tumakuru-572 101.
DATED THIS THE 25th DAY OF July, 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A. L.L.B, LADY MEMBER
CC.No.31/2020
Mahesh Babu S/o Mahalingappa
A/a 30 years, Cheluru Village,
Gubbi Taluk, (Pro KA-03-AD-1022
Toyata etios car),Tumkur District.
Reptd. by GPA Holder
Venugopal S/o Late Virabadregowda,
A/a 30 years, Byrapura Village,
Baguru Hobli, Chennarayapattana
Taluk and Hassan District.
(By Sri. Siddamallegowda, Advocate)
V/s
The Manager, Magma HDI
General Insurance Co., Ltd.,
2nd Floor, HMJC Road,
36 J.C.Road, Near Minarva Circle,
Bangalore-02.
(By Sri. N.V.Naveenkumar, Advocate)
:ORDER:
SMT.G.T.VIJAYALAKSHMI, PRESIDENT
The complainant has filed this complaint U/s 35 of the C.P.Act alleging deficiency in service on the part of OP and requested to direct the OP to pay Rs.7,85,878/-, and Rs.7,174/- towards towing charges and Rs.1,00,000/- towards mental agony, in all Rs.8,93,052/- along with interest and such other reliefs.
2. The brief facts of the complaint are as under:
The complainant is the owner of the Toyota Etios car bearing No.KA-03-AD-1022 and he has obtained package policy from the OP which was valid between 04.12.2017 and 09.04.2018. It is further contended that on 29/01/2018 while proceeding towards Bangalore from Yedeyur, near Gudemaranahalli, the driver of the car suddenly applied the break to avoid hitting car to a street dog which was come from left side of the road and due to which, the car in question was turtle to the left of the road after crossing the divider and as a result, the car was fully damaged. The complainant further submitted that a case was registered by the Kuduru Police Station in crime No.23/2018 against the driver of the car and charge sheet was submitted before the Civil Judge (Jr.Dn) & JMFC, Magadi. Thereafter, the SHO of Kudur Police Station inspected the car through RTO, Ramanagara and the said RTO, Ramanagara has given report stating that there was total damage to the car. Thereafter owner of the car get released the car from the Police Station and left the car at Toyota Arvid Motors Private Limited for repairs, where they have given estimation for repairs at Rs.7,85,878/-. Thereafter the complainant claimed the said amount with the OP by submitting all the relevant documents. But the OP did not settle the claim. Hence, this complaint.
3. After service of notice, the OP appeared and filed the version contending that the complaint filed by the complainant is not maintainable either in law or on facts. It is further contended that GPA holder Venugopal has no locus-standi to file the complaint since the contract of insurance is between the complainant/insured Mahesh Babu.
3(a) The OP further contended that complainant’s Toyota Etios Car bearing No.KA-03-AD-1022 was insured with them vide policy No.P0018300022/4103/100011 valid from 10.04.2017 to 09.04.2018 for the IDV of Rs.6,54,000/- is subject to the terms and conditions, exceptions and limitations thereof and the confirmations of compliance of section 64VB of the Insurance Act, 1938.
3(b) The OP further contended that after receipt of the claim form from the complainant on 08.02.2018 registered the claim as claim No.C/18/300022/4103/1/05018001 and appointed Garikina Mahesh and IRDA licensed surveyor to assess the loss caused to the insured vehicle and the appointed surveyor has submitted that the report and as per the survey report, the loss was assessed for Rs.5,56,722/- only as per the report. Further, this OP has also appointed one investigator namely INVEE intelligence Pvt Ltd., to investigate the above case and submit the report, accordingly the investigator has submitted his report on 11.06.2018, wherein he has stated that it is a clear case of suppression of material facts.
3(c) The OP further contended that they came to know that the alleged accident was occurred at about 3.30 AM on 29/30/01/2018, the injured persons were shifted to Nelamangala Government Hospital, Nelamangala in Ambulance at about 4.40 AM on the same day, Vaheda, Manjunatha and Praany polley has taken treatment vide register Nos.201, 202 and 203 respectively as per the MLC extract, issued by the said hospital clearly shows that “H/O RTA on 29.01.2018 at about 3.15 AM near Gudemaranahalli hand post, while travelling in car hit by unknown vehicle (TT/Lorry) and car fell into the 15 feet drain”. This clearly shows that there was an accident between the two vehicle i.e. insured vehicle and one un-known TT/Lorry and this fact was suppressed by the complainant and created a false story, just to gain wrongfully. Further, as could be seen from the MLC extract that the said three persons namely Whaeed, Manjunath and Pranay pleey under the influence of alcohol. Further, the OP contended that, GPA holder Venugopal and Tejpal have avoided to take treatment at Nelamangala government hospital as they were sustained minor injuries and also due to intoxication. As per the investigation report, venugopal and Tejpal were also under the influence of alcohol at the time of accidence and hence on the ground of breach of policy terms and conditions, the complaint is liable to be dismissed.
3(d) The OP further contended that they shall not liable to make payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, damages to tyres and tubes and any accidental loss or damage occurred while the drive under the influence of intoxicating liquor or drugs. It is further contended that the jurisdictional police have not filed the charge sheet for an offences U/s 337 or 338 of IPC and hence colluded with complainant and GPA holder successfully filed the charge sheet on 07.02.2008 within a week from the date of accident. In view of the above it is a clear case of breach of policy terms and conditions and thereby this OP has not committed any deficiency in service.
3(e) The OP further contended that the after receipt of the claim, investigator and surveyor was appointed and basing on the report and also on available documents they have rightly repudiated the claim. The complainant has filed this complaint after lapse of two years. On these among other grounds, it is prayed to dismiss the complaint.
4. The GPA holder of the complainant filed the affidavit evidence and marked the documents at Ex.P1 to P10. Nagesh K.C., Assistant Manager, Legal Dept. filed affidavit evidence on the behalf of OP and marked the documents at Ex.R1 to R5.
5. We have heard the arguments of both side counsels.
6. The points that would arise for determination are as under:
1) Whether the complainant proves that there is
deficiency in service on the part of OP?
2) Is complainant entitled to the reliefs sought for?
7. Our findings aforesaid points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order
:R E A S O N S:
8. The admitted facts between the parties are:
The complainant is the owner of the Toyota Etios car bearing No.KA:03:AD:1022. The said car was insured with OP and the same is valid from 10.04.2017 to 09/04/2018 (IDV for Rs.6,64,000/-). The alleged accident was occurred at 3.30 AM on 29/01/2018, the injured persons were shifted to Nelamangala Government Hospital in Ambulance at 4.40 AM on the same day. After receipt of the claim form from the complainant on 08/12/2018, registered the claim as claim No. C/18/300022/4103/1/05018001 and appointed Mr.Garikina Mahesh, IRDA licensed surveyor to assess the loss caused to the insured vehicle. The surveyor has submitted the report and as per the survey report, the loss was assessed for Rs.5,56,722/-.
9. The OP also appointed one investigator namely INVEE intelligence Pvt. Ltd., to investigate the case. On the basis of investigator report, the OP repudiated the complainant's claim on the ground of suppression of material facts.
10. The dispute of the complainant is that, the OP has repudiated the claim even after submitting all required documents and repudiation of the claim on the ground of suppression of material facts and breach of policy terms and conditions.
11. The OP has taken plea in the version with regard to settlement of the claim is that the accident was took place on 29/11/2018 at 3.30 AM, the injured persons were shifted to Nelamangala Government Hospital at about 4.40 AM on the same day, Vaheda, Manjunatha and Praany Polley has taken treatment vide register Nos. 201, 202 & 203 respectively. As per the MLC extracts, the said 03 persons under the influence of alcohol.
12. The OP further contended that as per the investigation report, GPA holder Venugopal and Tejpal have avoided to take treatment at Nelamangala Government Hospital as they were sustained minor injuries and also under the influence of alcohol at the time of accident.
13. To support the above contentions, the OP submitted Investigation report/Ex.R2, Medical record/MLC extract of Nelamangala Hospital/Ex.R3 and MLC extract of Kudur PHC, Kudur/Ex.R4.
14. On perusal of the Investigation report/R2, wherein the conclusion arrived by the Investigator, reads as follows:-
"we confirm that insured vehicle bearing reg. No.KA-03-AD-1022 had met with an accident on 29.01.2018 between 3.30 AM to 4.00 AM near Gudemaranahalli madadi Taluk, Ramanagar resulting damages to IV which is beyond repair and driver Mr.B.N.Venugopala is not the actual driver of IV at the time of accident and with clear intention insured had implanted venugopal as his car driver and eliminated Manjunatha as one of the individual travelling in his car at the time of accident. Also, it can be look as there were 6 people travelling in car No.KA-03-AD-1022 at the time of accident and all were under the influence of alcohol and hence Venugopal and Tejpal had visited Kudur govt hospital, after 10 hours of accident to avoid material test for intoxication.
15. On perusal of the Ex.R3, only Hemanth and Whaeed Pasha took treatment in Nelamangala Hospital. The OP has not submitted the MLC extract of Manjunatha i.e. MLC Register No.202. The OP submitted only register Nos. 201 & 203 relating to Hemanth and Whaeed Pasha. The Ex.R3 i.e. MLC extract in Page No.201 and 203, it is clearly mentioned that the persons under the influence of Alcohol. But not mentioned the percentage of the alcohol taken by Hemanth and Whaeed Pasha. Ex.R4 clearly shows that Tejpal and Venugopal taken treatment in Kudur Government Hospital for injuries in self accident and mentioned that MLC not registered and referred to Major Hospital.
16. Just mere mentioning alcohol in the medical records/MLC, will not be given much weightage due to lack of supportive evidence. The OP failed to produce any evidence to prove that at the time of accident, the driver under the influence of alcohol and there were 06 people traveling in the car. Therefore, the Investigator report is not acceptable. The complainant has not violated the policy conditions and the repudiation of the claim by the OP amounts to deficiency in service.
17. The complainant claimed Rs.7,85,878/- as repair cost and submitted only estimation for repairs and he has not produced any actual repair bills. Hence, it is just and proper to direct the OP to settle the claim on the basis of surveyor report. The surveyor assessed the loss at Rs.5,56,772/-. Therefore, OP is liable to pay Rs.5,56,772/- to the complainant with interest at 8% PA. Further, due to the repudiation made by the OP, the complainant approached this Commission. For that, he is entitled claim compensation of Rs.10,000/- and litigation expenses of Rs.10,000/-. Accordingly, we proceed to pass the following:-
:O R D E R:
The complaint is allowed in part.
The OP is directed to pay Rs.5,56,772/- with interest @ 8% p.a. from the date of complaint to till realization.
The OP is further directed to pay Rs.10,000/- as compensation and Rs.10,000/- as litigation expenses.
The OP is further directed to comply the above order within 30 days from the date of receipt/knowledge of this order.
Further, the OP is directed to comply the above order within 30 days from the date of receipt/knowledge of the order.
