Complaint Case No. CC/10/317
1. Mahalingashetty & Company Ltd
Represented by its Managing Director, Sri Raju S/O Gurupadappa Mahalingashetty R/O Vishweshnagar,Hubli
Dharwad
Karnataka
………..Complainant(s)
Versus
1. The Divisional Manager,Oriental Insurance Co .Ltd
Enkay Complex,Keshwapur, Hubli
Dharwad
Karnataka
…………Opp.Party(s)
BEFORE:
HONORABLE Shekhargouda Patil PRESIDENT
HON’ABLE MRS. Vijayalakshmii M Member
HON’ABLE MR. S.L.Matti Member
PRESENT:
ORDER
BEFORE THE DIST.CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 28th March 2011
PRESENT:
1) Shri Shekhargouda Patil: President
2) Smt. Vijayalaxmi.M : Member
3) Shri.S.L.Matti : Member
Complaint No.: 317/2010
COMPLAINANT/s :
Mahalingashetty & Company Ltd.
R/by its Managing Director,
Sri Raju s/o.Gurupadappa,
Mahalingashetty,
Age: 50 years, Occ: Engineer,
R/o.64, Vishweshwar Nagar, Hubli.
(By Sri.V.S.Mamledeshpande, Adv.)
-Vs-
RESPONDENT/s :
The Divisional Manager,
Oriental Insurance Co. Ltd.,
Enkay Complex, Keshwapur,
Hubli.
(By Sri.C.S.Benni, Adv.)
O R D E R
By: Shri. Shekhargouda Patil: President.
Complaint filed u/s.12 of CP Act in brief is thus:
1) Complainant is the owner of a vehicle Skoda car bearing No.KA 28 B 786 which was insured with the respondent which policy was valid upto 25/10/05 that vehicle met with an accident on 21/4/05 while returning from Bangalore after its first accidental repair near Talageri coming under Yallapur police jurisdiction. It was informed to respondent through a letter on 2/6/05. Spot panchanama has been prepared by the police. Complainant got that vehicle repaired after respondent surveyor permitted to do so. Final survey has been carried out by respondent company. Complainant has spent a total sum of Rs.81,455/- towards its repair. Complainant wrote many letters and requested to settle the claim but not done, even after issuing legal notice. It amounts to deficiency in service. The complaint is within the period of limitation, so complainant is entitled to a sum of Rs.81,455/- with 18% interest p.a apart from Rs.10000/- towards mental agony and Rs.2500/- towards cost of the litigation.
2) In the written version it is contended that, the respondent has insured car No. KA 27 B 786 for a period from 2/10/04 to 1/10/05 as a private car but not car No.KA 28 B 786. The car which is involved in the accident is KA 28 B 786, as such this respondent denies insurance coverage of that car on the date of accident. After receipt of the claim the respondent got spot survey through surveyor who submitted report on 23/7/05. After spot survey the insured shifted that vehicle to Bangalore for its repairs. On 8/7/05 respondent issued a claim form to the Manager of complainant company informing him to submit the completed claim form along with estimate in order to make final survey. The complainant submitted claim form and xerox copy of estimate. Respondent wrote a letter to complainant to submit original estimate and documents of the vehicle for verification. The respondent had not appointed surveyor for final survey and no surveyor was authorized to permit the repair of the vehicle. Since necessary documents were not produced, respondent was not in a position to assess loss in the absence of survey and photographs, as such it was forced to close the file as “no claim”. The own damage claim can be settled only on the basis of final survey of damaged vehicle and re-inspection report but till today neither final survey was conducted nor re-inspection of the vehicle was done, so claim could not be settled. The complaint is barred by time. Lastly prays for dismissal of complaint with compensatory costs.
3) On the said pleadings the following points have arisen for consideration:
1. Whether the complaint is barred by limitation ?
2. Whether complainant has proved that there was deficiency in service on the part of respondent ?
3. Whether complainant is entitled to the relief as claimed ?
4. To what relief the complainant is entitled ?
Sworn to affidavit of complainant and respondent are filed apart from documents. Argument was advanced for both the parties.
Finding on points is as under:
1. Accordingly
2. In Negative
3. In Negative
4. As per order
R E A S O N S
Points 1 to 3
4) Throughout the complaint and most of the documents produced by the complainant are in respect of vehicle No.KA 28 B 786. Complainant has produced proposal form & insurance cover, wherein the vehicle number mentioned is KA 27 B 786. In the affidavit of complainant it is stated that by oversight the number of the vehicle is wrongly mentioned as KA 28 B 786 instead KA 27 B 786. Though that fact is stated in the affidavit of complainant but not got amended the complaint, as such a fact not pleaded in the complaint but stated in the affidavit does not amount to proof of a fact. In other words it can be said that there is inconsistency in complaint and affidavit of the complainant regarding number of the vehicle.
5) Complainant has only produced spot mahazar of the concerned police but complainant has not produced FIR and complaint lodged to the concerned police in respect of that vehicle.
6) If any survey was made by the respondent is in respect of KA 28 B 786. As per that survey report the date of accident is 2/6/05 at 5 am but as per the complainant that accident is said to have taken place on 21/4/05. In para.3 of the complaint it is stated that, that vehicle met with accident on 21/4/05 while returning from Bangalore after its first accidental repair. If so on what date and which place first accident had taken place, has not been clearly stated by the complainant. In a letter of complainant addressed to the respondent dtd.21/4/2005 the number of the vehicle mentioned are different. At one place it is mentioned as KA 28 B 786 in the same letter the vehicle number mentioned is KA 22 B 786 and date of accident as 20/4/05. Again it is not clear whether complainant is the owner of vehicle bearing No. KA 28 B 786 or KA 27 B 786 or KA 22 B 786. Even there is inconsistency regarding date of accident. In the complaint date of accident mentioned is 21/4/05 but in a letter of the complainant dtd.21/4/05 the date of accident mentioned is 20/4/05. As per the complainant he informed the respondent about the accident through a letter dtd.2/6/05 if so why there was so much delay in informing the respondent, acceptable reasons are not stated. Even on what date complaint was lodged before concerned police, as already stated FIR is not produced.
7) Complainant himself has produced certain documents. Some of those documents state payment of Rs.74000/- by the respondent insurance company to the complainant towards full and final settlement of accident of vehicle No.KA 27 B 786. Even xerox copy of the cheque is produced by the complainant for that amount. In another letter of the insurance company the date of accident mentioned is 20/4/05 and vehicle No.KA 27 B 786, so in view of those documents whether respondent has paid the insurance amount of that vehicle of the accident occurred on 20/4/05 or whether that payment was in respect of earlier accident is not clear. In the absence of acceptable materials inconsistent pleading and evidence of complainant cannot be accepted.
8) complainant has produced certain tax invoices to state spending of amount for repair but necessary bills are not produced even affidavit of repairer is not filed.
9) The respondent has specifically stated that since complainant did not produce original documents, as such final survey was not done. That fact is not specifically denied by the complainant. On the other, it is stated by the complainant that, final survey report has been made. If it was done whether respondent has suppressed it from production, nothing is stated by the complainant.
10) The respondent claims to have closed the claim stating there was “no claim” for non production of necessary documents. However repudiation is said to be not made by the respondent, even if it is held that respondent has not repudiated claim of complainant, so the complaint is within the period of limitation even then whether the complaint is maintainable on merits, is different matter for consideration.
11) The insurance policy is being in respect of KA 27 B 786 and complaint of the complainant being in respect of KA 28 B 786, his case cannot be simply accepted that vehicle number was wrongly mentioned in his complaint and number of his letters.
12) Moreover, as already stated accident was not informed to the respondent at the earliest as required under the provisions of MV Act. As already stated FIR and complaint lodged with the police are not produced. The complainant has not produced atleast xerox copy of RC, DL, spot photographs taken, FIR etc. even from the letter of the repairer it is clear that if any repair of the vehicle was made was in respect of KA 28 B 786, but no document is produced by complainant to show that he is the actual owner of that vehicle. Complainant claims to be owner of KA 27 B 786, even RC and other documents are not produced to prove his ownership of that vehicle.
13) Along with the complaint an application is filed for condonation of delay. As already stated even if it is held that since there was no repudiation of the claim the complaint is within the time but it is not maintainable since no deficiency in service is proved by the complainant.
14) It is the complainant who has approached the Forum initial burden is on him to prove his case. Only thereafterwards burden shifts on respondent to prove its defense.
15) Claim form is in respect of KA 27 B 786 but letters of the complainant refer to KA 28 B 786. In view of such inconsistent documents of complainant it is held that complainant has not been able to establish his case. On the other, it is held that no deficiency in service is found on the part of respondent. Hence, the point.1 is answered in accordingly points 2 and 3 in negative.
16) Point:4: In view of the finding on points 1 to 3 proceeded to pass the following
O R D E R
The complaint is dismissed. However, the parties are left with their own costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 28th day of March 2011)
(Shri.S.L.Matti) (Smt.Vijayalakshmi.M) (Shri.Shekhargouda Patil)
Member, Member, President,
Dist.Consumer Forum, Dist.Consumer Forum, Dist.Consumer Forum,
Dharwad. Dharwad. Dharwad.
MSR
[HONORABLE Shekhargouda Patil]
PRESIDENT
[HON'ABLE MRS. Vijayalakshmii M]
Member
[HON'ABLE MR. S.L.Matti]
Member