State Consumer Disputes Redressal Commission
National Insurance Co. Ltd vs Sunita W/O Pratap Deshmukh on 25 June, 2015
1 F.A.No. :347/2013
Date of filing:25.11.2013
Date of order:25.06.2015
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 347 OF 2013
IN COMPLAINT CASE NO. : 199 OF 2011
DISTRICT FORUM : LATUR.
National Insurance Co.Ltd. ,
Through its Divisional Office,
Divisional Manager, Hajari Chambers,
Station Road, Aurangabad. ...APPELLANT
VERSUS
Sunita Pratap Deshmukh,
R/o Mazge Nagar,
Tq. & Dist.Latur 413512. ...RESPONDENT.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Mr.S.V.Kulkarni for appellant, Adv.Gite for respondent O R A L JUDGMENT ( Delivered on 25th June 2015 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 25.09.2013 passed by Dist.Consumer Forum, Latur allowing complainant's claim in consumer complaint No.199/2011 directing appellant/opponent insurance company to pay to the complainant amount Rs.3,25,000/- towards IDV of insured car with interest @ 10% p.a. and further compensation of Rs.5000/- towards mental agony.
2 F.A.No. :347/2013(For the sake of brevity appellant is hereinafter referred as opponent insurance company and respondent as Smt.Deshmukh as complainant)
2. Brief facts giving rise to this appeal are that:-
Complainant Smt.Sunita is the owner of Tata Indica car bearing registration No.MH-24V-1110. It was insured with opponent insurance company for the period from 15.2.2010 to 14.2.2011. During the subsistence of insurance policy, on 1.6.2010 insured car met with an accident while saving a motor-cyclist who was coming from opposite direction and completely damaged in the accident. On the basis of complaint of motor-cyclist Shri.Sudhir Badale, an offence as Cr.No.87/2010 was registered against the car driver.
3. After the accident intimation was given to the insurance company and insurance company through its surveyor got assessed the damages showing damages at Rs.2,14,604/-. However, when the insured car was carried to the garage for repairs its repairing charges were shown at Rs.4,01,970/- though IDV value of the car as per insurance policy is at Rs.3,68,104/-. Therefore complainant avoided to get the car insured repaired and submitted insurance claim along with requisite documents. However, opponent insurance company repudiated her claim on the grounds that complainant has committed fundamental breach of terms and conditions of the policy by allowing to drive the car by person under influence of liquor. Therefore alleging deficiency on the part of opponent insurance company, complainant has filed consumer complaint claiming compensation at Rs.3,68,104/- i.e. IDV and further compensation Rs.10,000/- towards mental agony and Rs.5000/- more towards cost of the proceedings.
3 F.A.No. :347/20134. Opponent insurance company by its written version resisted the complaint contending inter alia that it has rightly repudiated the claim as complainant has violated fundamental condition of the policy by allowing person to drive the car under influence of liquor. According to him at the time of accident Shri.Pratap Deshmukh who is husband of complainant was driving the car under influence of liquor etc. It is submitted that after the accident motor-cyclist Shri.Sudhir Badale initially in his complaint before police informed that Shri.Pratap Deshmukh was driving the car and he had consumed liquor. However, subsequently said Shri.Sudhir changed his version and in his supplementary statement before police submitted that on enquiry he came to know that Shri Belpan Kasade was driving the car at the time of accident etc. According to the opponent insurance company, said Shri.Sudhir Kasade has changed his version on the say of Shri.Pratap Deshmukh who is husband of complainant etc. It has denied all other adverse averments made by complainant and submitted to dismiss the complaint.
5. On hearing both side and considering evidence on record Dist.Consumer Forum has held that opponent insurance company has committed deficiency in service by repudiating his claim. It is further held that as per supplementary statement of Shri.Sudhir Badale, at the time of accident Shri.Pratap Deshmukh was not driving car but one Shri.Belpan Kasade was driving it. But opponent insurance company has falsely repudiated complainant's claim on the ground that Shri.Pratap Deshmukh was driving car under influence of liquor etc.
6. Feeling aggrieved by that judgment and order, opponent insurance company came to this Commission in appeal.
7. We heard learned counsel for both side and perused the written notes of argument submitted by them. We have also perused the copy of 4 F.A.No. :347/2013 impugned judgment and order, copies of complaint, written version, FIR, supplementary statement of Shri.Sudhir Bedale, panchanama, insurance policy, survey report and other documents.
8. Almost all the facts except the contention of opponent insurance company that at the time of accident Shri.Pratap Deshmukh was driving the car under influence of liquor are not disputed. Therefore the crux in this matter is as to whether complainant has committed fundamental breach of terms and conditions of the policy by allowing person to drive the car under influence of liquor or not?
9. Mr.S.V.Kulkarni learned counsel appearing for the opponent insurance company pointing from the copy of FIR submitted that immediately after the accident insured motor-cyclist Shri.Sudhir Badale informed to the police that Shri.Pratap Deshmukh was driving car and he had consumed the liquor. But subsequently after 4 days said Shri.Sudhir Badale changed his version and stated before police in his supplementary statement that Shri.Pratap Deshmukh was not driving car but one Shri.Belpan Kasade was driving the car. But he has not disclosed as with whom he made enquiry and came to know the name of Shri.Kasade. Therefore his supplementary statement cannot be relied on but District Consumer Forum without considering this fact wrongly held that at the time of accident Shri.Pratap Deshmukh was not driving car but car driver Shri.Kasade was driving etc. But we find little force in this submission of Mr.S.V.Kulkarni learned counsel appearing for the opponent insurance company because though Shri.Sudhir Badale has not disclosed in the supplementary statement as to from whom he came to know car driver Shri.Belpan Kasade, he has also not disclosed in his initial statement i.e. FIR as to how he came to know the name of car driver Shri.Pratap Deshmukh when he was not acquainted with said Pratap Deshmukh prior to the accident. Therefore when the police made 5 F.A.No. :347/2013 investigation and found that Shri.Pratap Deshmukh was not driving the car and Shri.Belpan Kasade was driving it, supplementary statement of informant Shri.Sudhir Badale cannot be disbelieved. Accordingly District Consumer Forum rightly held. Moreover though it is averred by opponent insurance company that complainant has committed fundamental breach of terms and conditions of the policy by allowing the person to drive the car under influence of liquor, there is no evidence to substantiate the same. Therefore the ground in repudiation of claim is being unfounded, cannot be sustained. Therefore we have no hesitation to accept the argument advanced by learned counsel for the complainant that opponent insurance company has committed deficiency in service by falsely repudiating her claim.
10. Mr.S.V.Kulkarni learned counsel for the appellant/opponent insurance company relying on the decision dated 23.6.2014 of this Commission in appeal No.283/09 in case of Shivaji Madhav Kothimbire - Vs- National Insurance Company Ltd. Submitted that after thought supplementary statement of informant Shri.Sudhir Badale cannot be relied on. But with due respect the decision of this Commission in case of Shivaji Kothimbire cannot be applicable to the present case. Because in the case of Shri.Shivaji Kothimbire the facts are being different, same decision cannot be applicable to the present case. In case of Shivaji Kothmbite there was dispute about holding valid license by car driver. According to opponent though car driver was holding learning license no other person who was having driving license was sitting with him. No 'L' sign was shown on the front and rear side of the vehicle and therefore this Commission held that the complainant has committed fundamental breach of terms and conditions of the policy.
11. Moreover, Learned counsel for the complainant in support of his contention relied on the following decisions.
6 F.A.No. :347/2013i) Vinit Poonia -Vs- New India Assurance Co.Ltd., II(2012) CPJ (NC),
ii) Vishnu Singh -Vs- Iffco Tokio General Insurance Co., III(2014) CPJ 546(NC), in which it is held that if the insured vehicle is totally damaged, owner of vehicle is entitled for compensation to the tune of IDV. It is further held that report of mechanic is also not necessary.
12. As far as survey report is concerned, though undisputedly for insured car having IDV value at Rs.3,68,104/- surveyor assessed the damages at Rs.2,14,604/- only showing 20% salvage. It is submitted by learned counsel for the complainant that when the car was totally damaged and is not repairable, there could be no reason to consider the deduction of salvage value etc. when undisputedly IDV is Rs.3,68,104/-. According to him, when the insured car is totally damaged complainant is entitled to claim IDV without any deduction towards salvage. However, since some parts of damaged vehicle are stolen away from the spot, complainant vide her letter dated 17.7.2010 had shown her willingness to accept the amount of Rs.3,25,000/-. Therefore considering all these facts District Consumer Forum has rightly awarded Rs.3,25,000/- .
13. Thus we have given our anxious thoughts to the arguments advanced by learned counsel for both side, facts of the case and evidence on record and we find that District Consumer Forum has rightly allowed the complainant's claim of Rs.3,25,000/-. We find no glaring error or infirmity in the impugned judgment and order. Hence no interference is warranted.
7 F.A.No. :347/201314. In the result, appeal is being devoid of any merit liable to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost. 3. Copies of the order be sent to both the parties. Sd/- Sd/- K.B.Gawali S.M.Shembole, Member Presiding Judicial Member Mane