Complaint filed on: 28-10-2020

                                                      Disposed on: 25-07-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

#201, 202, 1^st Floor, Indian Red Cross Building Complex,

Ashoka Road, Tumakuru-572 101. 

CC.No.66/2020

DATED THIS THE 25^th 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., LLB. (Spl)., LADY MEMBER

Complainant: -   

Sri. Ravish B.S.

S/o Late Siddalingappa

A/a 33 years, R/at Byadagere

Village, Kasaba Hobli,

Gubbi Taluk, Tumakuru Dist.

(By Sri. S.K.Mallikarjuna, Advocate)

V/s

Opposite parties:-        

                             The Manager,

                             Bajaj Allianz General Insurance Co., Ltd.,

                             Golden Heights, 4^th Floor,

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

                             4^th M Block, Rajajinagar,

                             Bangalore-560 010.

 (By Sri. N.V.Naveenkumar, Advocate)

:ORDER:

SMT.G.T.VIJAYALAKSHMI, PRESIDENT

The complainant has filed this complaint alleging deficiency in service on the part of OP in settling the own damage claim and prays to direct the OP to pay the claim amount of Rs.4,35,657/- with interest @ 18% p.a. along with Rs.10,00,000/- towards mental agony together with interest @ 18% p.a. 

2.       The brief facts of the complaint are as under:

The complainant is the absolute R.C. owner of the vehicle Maruthi Swift Car bearing Reg.No.KA-05-MH-8244, Chassis No. MA3FKEBIS00574376FA, and Engine No.D13A1430733.  The said car was insured with OP vide policy No.OG-19-9906-1801-00143906 and the same is valid from 18.03.2019 to 17.03.2020. The complainant further contended that his fried by name Manjunatha took his car for his necessity and while proceeding on Tumakuru-Devarayanadurga road, the car met with an accident and sustained damage completely.  Thereafter the complainant filed a complaint before Kyathasandra Police, Tumakuru and the same was registered in Crime No.169/2019 for an offence punishable U/s 279, 337 of IPC against the driver Manjunatha and after enquiry the policy filed charge sheet and the said driver Manjunatha was flee guilty before the court.

2(a)   The complainant further submitted that he has moved claim by producing all the necessary particulars and also sought for appoint surveyor to conduct survey and accordingly the surveyor visited the spot and verified the vehicle and come to the conclusion that the vehicle was completely in scrap conditions and thereafter as per the direction, the complainant shifted the vehicle to Perfect Auto Care, where they gave estimation of Rs.4,35,657/- for repair of the vehicle.  Thereafter the complainant approached the OP seeking for said amount, but the OP issued a letter dated:17.01.2020 seeking for necessary documents and accordingly, the complainant has submitted all the documents which are demanded by the OP. 

2(b)   The complainant further submitted that in spite of repeated requests and demands, the OP did not turn up to settle the claim and subsequently on 10.06.2020 the OP sent letter through e-mail stating that the said Manjunatha was not a driver at the time of accident and OP is intending to repudiate the claim the complainant had suppressed the material facts. 

2(c)    The complainant further submitted that after receipt of the e-mail, he has issued legal notice to the OP stating that as per the recitals of the FIR and flee guilty of the said driver Manjunatha before the court, it is clear that Manjunatha was the driver at the time of accident and he did not suppress any material facts.  But even on service of the legal notice, the OP neither replied to the legal notice nor settled the claim.  Hence, the complaint.  

3.       After service of notice, the OP appeared and filed the version contending that the complaint is not maintainable either in law or on facts.  The OP admitted that the vehicle of the complainant was insured with them vide policy bearing No.OG-19-9906-1801-00140906, valid from 18.03.2019 to 17.03.2020 subject to the terms and conditions, exceptions and limitations thereof and the confirmations of compliance of section 64VB of the Insurance Act, 1938.

3(a)   The OP further contended that the accident was took place on 08.09.2019 at about 5.30 but the complaint was lodged on 16.09.2019 at about 3.00 PM and there was a delay of 8 days in lodging the complaint, the delay was not properly explained.  The complainant has knowing fully and willfully committed the breach of policy terms and conditions. The complainant informed the accident after 8 days from the date of accident and thereby violated the policy condition No.1. 

3(b)   The OP further contended that after receipt of claim, they appointed one Chandrashekar to investigate the said claim and also appointed one IRDA approved surveyor namely Subramanya Kote Bagilu to assess the of the vehicle in question and after investigation, the investigator has given a clear report stating that it is a case of driver implant, as on the date of accident, one Veeresh Bhunna was driving the insured vehicle and not by Manjunatha and further contended that the complainant in collusion with the jurisdictional police, have implicated Manjunahta as driver of the insured vehicle as because Veeresh Bhunna was not holding a driving license at the time of accident.   

3(c)    The OP further contended that the surveyor appointed has assessed the loss at Rs.2,29,834/-, but the complainant in collusion with the perfect Auto care has falsely got estimated the damage to an extent of Rs.4,35,657/-.  Hence, the damage caused to insured vehicle is only to an extent of Rs.2,29,834/- only.  By considering all these documents and report, the OP has rightly repudiated the claim of the complainant. On these among other grounds, the OP prays to dismiss the complaint as there is no deficiency of service on their part. 

4.       Both parties have filed their affidavit evidence. Complainant marked the documents at Ex.P1 to P9.  OP marked the documents at Ex.R1 to R14.

5. We have heard the arguments of OP. Both parties have filed their written arguments.  

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:

Point Nos.1 and 2:

8. The admitted facts between the parties are:

The complainant is the absolute R.C. Owner of the vehicle Maruthi Swift Car bearing Reg.No.KA-05-MH-8244, Chassis No. MA3FKEBIS00574376FA, and Engine No.D13A1430733.The said car was insured with OP vide policy No.OG-19-9906-1801-00143906 and the same is valid from 18.03.2019 to 17.03.2020.

9.        The vehicle was driven by one Manjunath and met with an accident, in this regard, a case was registered in crime No.169/2019 on 16.09.2019 with the Kyathasandra Police and after enquiry, the police filed charge-sheet and the driver has pleaded guilty before the Court and paid the fine.
10.      The complainant has moved claim by producing all the necessary particulars before the OP.  After receiving the claim form from the complainant, the OP appointed surveyor to conduct survey to assess the loss caused to the insured vehicle and OP also appointed investigator to investigate the claim.  The surveyor assessed the losses at Rs.2,29,834/-.  On the basis of Investigator report, the OP repudiated the complainant's claim on 10.06.2020 on the ground of driver implant. 
11.      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 driver implant and suppression of facts is not proper.

12.      The OP has taken plea in the version with regard to settlement of the claim is that, the accident took place on 08.09.2019 at 5.30 p.m., but the complaint was lodged on 16.09.2019 at 3.00 PM and there was delay of 8 days in intimating the accident to the Insurance Company and the delay is not properly explained.  Further, the OP contended that as on the date of accident, one Veeresh Bhunna was driving the insured vehicle and not by Manjunath and the complainant in collusion with the Jurisdictional police, hence, implicated Manjunatha as driver of the insured vehicle, because Veeresh Bhunna was not holding a driving license at the time of accident. 
13.      To support the above contention, the OP submitted the Ex.R7 i.e. medical record, discharge summary of Veeresh Bhunna issued by the Ramaiah Hospital.  On perusal of the Ex.R7 the statement given by the Veeresh Bhunna is recorded as "Alleged H/O RTA @ 5.00 PM on 08.09.2019 near Tumakur while driving car, hit against the Tree and sustained multiple injuries". 
14.      From the above statement i.e. Ex.R7 it is clear that at the time of accident, the car was driven by Veeresh Bhunna, not by Manjunath.  Thus, the Investigator report is acceptable and complainant is suppressed the material fact, thereby violated the policy conditions.  For violation of conditions of the policy, the Insurance Company has to settle the claim on non-standard basis instead of repudiation of claim.  In the judgment between IFFCO Tokio General Insurance Co., Ltd., V/s Anil, reported in 2022(2), the Hon'ble National Consumer Disputes Redressal Commission, New Delhi has held that " For violation of conditions of the policy, the Insurance Company has to settle the claim on non-standard basis instead of repudiation of claim".  Therefore, the OP is directed to settle the claim on non standard basis. 
15.      The Surveyor assessed the loss at Rs.2,29,834/-.  The 70% of Rs.2,29,834/- is Rs.1,60,883/-.  Hence, OP is liable to pay Rs.1,60,883/- to the complainant with interest @ 9% P.A.  Further, due to the repudiation made by the OP, the complainant approached this Commission for redressal of his grievance.  For that he is entitled to 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 allowed in part.

The OP is directed to pay Rs.1,60,883/- with interest @ 9% PA from the date of complaint till realization.

          Further, OP is directed to pay Rs.10,000/- as compensation and Rs.10,000/- as litigation expenses.

          The OP is directed to comply the above order within 30 days from the date of receipt/knowledge of the order.

Furnish copy of the order to both parties with free of costs immediately.