Date of filing:  21.05.2019                                           Date of Disposal: 25.05.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 25^th DAY OF MAY, 2023

CONSUMER COMPLAINT NO. 832/2019

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Sri. R.V.Vinay Kundur,

S/o. Vidyaranya R.K,

Aged About 55 Years,

No.730, 9^th Main Road,

(Rep. by Sri. Viswanath Sabarad, Advocate)

- V/s -

The Manager,

ICICI Lombard General Insurance

Company Limited,

SVR Complex, Hosur Main Road,

Also at No.121, The estate building,

(Rep. by Sri. Janardhan Reddy, Advocate)

//JUDGEMENT//

BY SRI. RAJU K.S, MEMBER

01.    The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for an award for Rs.19,23,254/- with interest from the date of claim and cost.

02.    The case of the complainant is that, he is the owner of Toyoto Fortuner vehicle bearing registration No.KA-02-MM-5292.  For this vehicle the complainant availed a comprehensive insurance policy bearing No. TIL/10462742 for the period from 27.05.2018 to 26.05.2019 by paying Rs.66,667/- to the opposite party.  The declared of the value of the vehicle in the insurance policy was Rs.25,23,672/-. 

03.    On 23.12.2018 around 02.30 AM near Puttenehalli kere, on Doddaballapura Road, the said vehicle met with accident while it was driven by one Yashas Kundur who is the son of complainant.  In the incident the subject vehicle was completely damaged and the in-mates of the vehicle were suffered simple injuries.  In this regard a complaint was registered in Yelahanka Traffic Police Station on 23.12.2018.  The complainant intimated this incident to the opposite party on the same day with claim form.  The said vehicle was shifted to Ravindu Motors Private Limited who is an authorized distributor and sales and service persons for Toyoto company vehicles.  In the service centre the technician estimated the damages caused to the vehicle and estimated cost of repair.   The complainant has also got inspected by a qualified surveyor with regard to the damages caused to the vehicle with estimation of repair and total loss to the vehicle. 

04.    The surveyor estimated the repair and reported that, it has total loss.  The opposite party also got estimated total cost of repair and loss occurred to the subject vehicle with the authorized surveyor.  However, the opposite party not settled the claim lodged by the complainant for one or the other reasons.  The opposite party simply dragged the matter in one or other instances without honouring the claim of the complainant.  All the efforts of the complainant with regard to his claim has become futile and made the complainant to run from pillar to post.  Finally the complainant got issued legal notice dated: 23.02.2019 requesting the opposite party to honour his claim. After lapse of some times the opposite party rejected the claim of the complainant vide his letter dated: 31.03.2019 by saying the driver details are misrepresented in the intimation/claim form.  The act of the opposite party in rejecting the claim of the complainant unnecessarily, without valid reason and it has attracts deficiency of service.  Since the complainant has no vehicle of his own made him to use hired vehicle with high expenditure.

05.    Further the complainant could not get repaired the subject vehicle and he was forced to sold the damaged vehicle as salvage for Rs.9,50,000/-.  The opposite party is liable to pay Rs.15,73,672/- with 18% interest to the complainant.  Hence this complaint.

06.    On the other hand, the opposite party has resisted the claim of the complainant by filing his version.  The opposite party specifically contended that, the complainant suppressed the material facts while claim was made.  Further the opposite party admitted the accident occurred on 23.12.2018, but denied that, on that day complainant’s son one Yashas Kundur was driving the vehicle.  As per opposite party version one Siddaratha was driving the vehicle at the time of accident and he has no valid driving license at the time of accident occurred.  Further the complainant has inserted his son’s name Yashas Kundur in the place of Siddartha who was driving the vehicle at the time of incident.  As per the medical records of Nava Chetana Hospital and 108 Ambulance report only Siddartha and Kumar Dakshnna were sustained injuries at the time of alleged accident.  These facts were hide by the complainant.  The complainant has misrepresented his submission by making false claim.  There is no delay in repudiation of the claim and there is no deficiency of service on the part of the opposite party.  Hence, it is sought for dismissal of the complaint.

07.    To prove the case of the complainant, the complainant (PW-1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.17 documents. 

08.    Counsel for opposite party files affidavit of legal Manager of opposite party.  Both parties filed their respective written arguments.

09.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite party in repudiation of claim of complainant?

  (2) Whether the complainant is entitle for the 

      relief sought ?

      (3) What order ?

10.    Our findings on the aforesaid points are as follows:-

POINT NO.1:-  In affirmative

POINT NO.2:-  Partly affirmative

POINT NO.3:-  As per the final order

 for the following:

REASONS

11.    POINT NO.1:-  In this complaint there is no dispute with regard to the accident occurred on 23.12.2018 to the subject vehicle i.e., Toyota Fortuner bearing No. KA-02-MM-5292.  Further there is no dispute with regard to the complainant availed comprehensive insurance policy bearing No.TIL/10462742 for the period from 27.05.2018 to 26.05.2019.  In the insurance policy the declared sum of the vehicle (IDV) was Rs.25,23,672/-. 

12.    The complainant has produced EX.P.3 the Xerox copy of the complaint dated: 23.12.2018 filed before Yelahanka Traffic Police Station.  From the recitals of EX.P.3 we came to know that, on 23.12.2018 the subject vehicle met with an accident near Puttenahalli Kere on Doddaballapura Road, while it was moving towards Yelahanka.  To avoid accident with a vehicle which comes suddenly from opposite side, the said Yashas Kundur was taken the subject vehicle towards left and he lost the control dashed to a tree. 

13.    The said complaint was duly acknowledged by the Yelahanka Traffic Police under EX.P.4.  EX.P.5 is the driving license in the name of Yashas Kundur and it has validity till 24.05.2036.  EX.P.6 is the repair estimation by the Rabindu Motors Private Limited dated: 24.12.2018.  EX.P.7 is the survey report given by the one Srinivas N who is the surveyor, valuer and loss assessor.  EX.P.8 is the loss assessment.  Ex.P.9 is the photos alleged to be damages happened to the subject vehicle.  Ex.P.10 is the claim made to opposite party.  EX.P.11 is the legal notice issued with EX.P.12 to EX.P.15 postal receipts and postal acknowledgment. 

14.    As per EX.P.16 the repudiation letter issued by the opposite party reveals that, claim has not settled due to misrepresentation of facts (driver details are misrepresented at intimation for claim form from actual and try to hide the material facts).  As per standard terms and conditions specified in the version at para-13:

“Incontestability and Duty of Disclosure

The policy shall be null and void and no benefit shall be payable in the event of untrue or in correct statements, misrepresentation, mis-description or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured or any one acting on his behalf to obtain any benefit under this policy.”

The opposite party not filed any cogent evidence which tends to show that, at the time of alleged accident the subject vehicle was driven by Sri Siddartha and not by Mr. Yashas Kundur.  The complainant’s son Yashas Kundur has immediately reported the accident to the Yelahanka Traffic Police Station as per EX.P.3 and same was duly acknowledged by the concerned police station.  To discard this evidence the opposite party not filed any evidence to show that, Mr. Siddartha has driving the vehicle at the time of accident.  In our view, the opposite party company has simply repudiated the claim of the complainant without any valid reason.  Thereby the opposite party company was liable to the complainant under deficiency of service and we answered point No.1 in affirmative.

15.    POINT NO.2:-     The complainant claimed Rs.15,73,672/- with interest of Rs.1,18,254/- at 18% per annum with Rs.2,00,000/- towards damages for mental agony.  The complainant has claimed total IDV value of the vehicle of Rs.25,23,672/-.  As per EX.P.2 the IDV value of the vehicle was Rs.25,23,672/-.  Since as per EX.P.6, EX.P.7 & EX.P.8 the net assessed loss was Rs.32,89,387/- and assessed for Rs.26,26,873/-.  In view of the EX.P.8 it is not feasible to repair the vehicle and complainant rightly decided to sold the vehicle on salvage basis.  As per complainant’s averment the subject was sold for Rs.9,50,000/- as salvage basis.  The complainant not filed any documents which tends to show that, he has sold the vehicle for Rs.9,50,000/-.  However same is not denied by the opposite party in their version or in the affidavit.  Hence we considered the total loss accrued to the vehicle is Rs.15,73,672/- (Rs.25,23,672.00 – Rs.9,50,000.00).  Further the complainant is entitle to interest at the rate of 9% per annum from the date of repudiation of the claim i.e., 31.03.2019 vide EX.P.16.  The complainant is entitle Rs.20,000/- compensation for mental agony and inconvenience.  The complainant is also entitle Rs.10,000/- litigation cost.   Accordingly we answer point No.2 party in affirmative.

13.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party is directed to pay Rs.15,73,672/- with interest at the rate of 9% per annum from the date of repudiation of the claim i.e., 31.03.2019 to till realization.

The opposite party is directed to pay a sum of Rs.20,000/- compensation towards mental agony and inconvenience caused. 

Further the opposite party is hereby directed to pay Rs.10,000/- as litigation cost to the complainant. 

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 25^th Day of MAY 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    

            MEMBER               MEMBER              PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Sri. R.V. Vinay Kundur, the complainant (PW-1) has filed affidavit in the form of his evidence in chief. 

Documents got marked for complainant side:

1. True copy of RC of Toyota Fortuner – EX.P.1.
2. True copy of insurance policy bearing TIL 10462742 – EX.P.2.
3. Copy of police complaint with acknowledgment dt.23.12.2008 – EX.P.3 & P.4.
4. True copy of driving license of complainant’s son Yashas Kundur – EX.P.5.
5. Original estimation of Toyota show room estimate No.BPE-18-13662 – EX.P.6.
6. Original estimation of private and confidential motor (final) survey report dt.18.05.2019 – EX.P.7.
7. Original Survey report in respect of vehicle bearing No.KA-02-MM-5292, accident dt.23.12.2018 – EX.P.8.
8. 8 photos – EX.P.9.
9. Copy of letter dt.20.01.2019 – EX.P.10.
10. Legal notice dt.23.02.2019 – EX.P.11.
11. Two postal receipts – EX.P.12 & P.13.
12. Two postal acknowledgement – EX.P.14 & P.15.
13. Rejection letter dt:31.03.2019 – EX.P.16.
14. Copy of deed of sale dt.18.03.2019 – EX.P.17.

Witness examined for the opposite party side: 

Miss Vasuda Rao, Legal Manager in opposite party (RW-1) has filed affidavit in the form of her evidence in chief. 

Documents marked for the Opposite Party side:

• NIL -

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•