Andhra Pradesh

Nellore

CC/66/2013

Rural Aid Service Organization, Rep its President - Complainant(s)

Versus

1.Baja Allianz General Insurance Company Ltd.Rep By its Manager - Opp.Party(s)

Md. Rahimkhan

14 Aug 2015

ORDER

Date of Filing     :07-06-2013

                                                                                                Date of Disposal:14-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Friday, this the 14^th day of  August, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

                                                                                                             

C.C.No.66/2013

 

Rural Aid Service Organisation,

Represented by it’s President,

Father Y.D. Hrudayaraj, Christian,

Aged about 52 years,

Presently residing at Anthony’s Church,

Fathekhanpet, Nellore.                                                                                      ..… Complainant       

 

                                                                           Vs.

 

1.	Bajaj Allianz General Insurance Company Limited, Represented by it’s Manager, GNR Complex, Opposite to Rajamatha Devi Towers, Santhapet, Trunk Road, Ongole, Prakasam District.
2.	Bajaj Allianz General Insurance Company Limited, Represented by it’s Manager, Opposite to Indira Bhavan, Near Vijaya Mahal Gate,Nellore.                                                  ..…Opposite parties

                                                              .  

            This complaint coming on 11-08-2015 before us for hearing in the presence of                Sri Md. Rahimkhan, advocate for the complainant and Sri P.V. Mallikarjuna Reddy,   advocate for the opposite parties  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

 

(ORDER BY  Sri.M. SUBBARAYUDU NAIDU, PRESIDENT(F.A.C.)

 

            This consumer case is filed by the complainant  against the opposite parties 1 and 2 to direct  them to pay insured value of Rs.3,59,506/-  with interest thereon   at 12% p.a. from the date of complaint till the date of realization; and  also to direct them to pay Rs.1,00,000/- towards damages for mental agony, distress, inconvenience and financial loss caused to the complainant due to deficiency in service and negligence  of the opposite parties and to grant  costs of this complaint and also to grant such other further reliefs and the Hon’ble Forum may be deemed it fit and proper in the interests of justice.

 

Factual matrix leading to filing of this Consumer Case is as stated  as hereunder:

 

1.	It is the  case of the complainant that he had insured  has Scorpio of Mahindra and Mahindra  make  SLX model car bearing registration  No.AP 27H 2079  with  opposite  parties  for insured value of Rs.3,59,506/- under cover note No.BZ 0803307656   and policy No.OG 10 1816 1801 00000292, WHICH IS  VALID FROM 28-02-2010 TO 27-02-2011.  The opposite parties had  also collected Rs.8,150/-  towards insurance premium for  said I.D. value ( Insured Declared Value) of the said vehicle i.e., Rs.3,59,506/-.
(b)	It is also further submitted  by the complainant at page -2 of his complaint that the  complainant while going to Chennai  on his official work in the said vehicle on                                     10-09-2010 at about 6.15 a.m. a buffalo suddenly jumped  cross the road from the road divider  and to  avoid hitting of the said buffalo, the complainant  had applied  breaks  of said vehicle  and hit the side of one unknown  lorry  and that said vehicle met with an accident at National Highway – 5 , G.N.T. Road, Near  Pethikuppam R.T.O. check post and said vehicles of  front side  was fully damaged due to the said  accident.  The same was immediately reported by phone to the opposite parties and also to the nearest police authorities and  Sub-Inspector of Police, F-2, Sipcot Police Station, Gummidipoondi, Tamilnadu, who registered the case on 11-09-2010.  Thereby the opposite parties  surveyor visited the spot and took photographs of the damaged vehicle and assessed the loss.  The said vehicle was brought to the Bajaj Agencies  and Industries, Nellore, who is the  Mahindra authorized service station which was assessing the costs and repairs of the said vehicle  and also towards damages, parts of the vehicle of Rs.4,98,400/-.
(c)	It is also further  submitted by the complainant at page No.2 of his complaint that he had submitted  the claim to the opposite parties alongwith all documents  required by them on                  15-09-2010.  He had also submitted all necessary papers on 15-09-2010 to one  Mr.Aravind, who is  an employee of the  opposite party No.2 office.  Since there is no information received from the opposite parties, again after two months, the complainant had contacted  said  Mr.Aravind, who  informed that he is not working there.  So, the complainant had again approached the opposite party several times but there is no response from them.  Thereafter, complainant had submitted a whole set of required papers to the  second oppose party through one Mr.Jaipaul, who was employed  by the second opposite party in place of Mr. Aravind.  So, the complainant had again sent  a letter dated 26-07-2011 to the opposite party with all copies of necessary papers and requested to pay the claim amount.  But so far, the opposite parties  did not choose to pay the claim amount and   have been postponed the same on some pretext or the other.   Vexed with their attitude (opposite parties), the complainant had got  issued legal notice dated 14-12-2011 to the opposite parties and their superiors.  Having received the said notices, the said opposite parties had kept quite  without issuing any reply and thus committed deficiency in service.  It is also submitted by the complainant at page No.3 of his complaint that it is a legal and bounden duty of the opposite parties to settle the claim and pay the insured amount immediately.  But so far inspite of several approaches and requests by the complainant to the opposite parties, they did not choose to settle the claim.  The said vehicle   was kept idle without  effecting repairs or for want of insurance amount with the said  authorized service station and so the said vehicle and its remaining parts   also got damaged.  The service centre   also demanding to pay demurrages at Rs.400/- per day for getting vehicle.  It is submitted that it is all due to deficiency in service of he opposite parties.  It is submitted that having collected the insurance premium and non- settling of the insurance claim inspite of several approaches to the opposite parties, it is clearly goes to show that their gross negligence and deficiency in service.  The complainant, who is the respective person,  Father and the President of the voluntarily organization had suffered a lot of mental agony, distress and financial loss  for which the opposite parties are not only liable to pay  the insurance  claim amount with interest but also liable to pay damages  for  mental agony caused to the complainant.
(d)	It is also further submitted by the complainant page No.3 of his complaint that the causes of action to file the complaint, which are narrated at page No.3.  The opposite parties are carrying their business at Nellore and they will  come within the  jurisdiction of this Hon’ble Forum.  Hence, the complaint.

 

II.        DEFENCE

 

            The complaint was resisted by the opposite parties 1 and 2 by denying it’s allegations and allege that those are created for the purpose of getting wrongful gain from them.   The complainant  is put to strict proof of the   allegations made by him.  The opposite parties  are specifically denied the allegations of the complaint in para-3 and 4 of their written version and further submitted that  complainant deliberately removed the vehicle from the accident spot without intimation to 1^st opposite party  and consult of the 2^nd opposite party and as a result of that complainant has deprived of the opportunity of 2^nd opposite party and right of information to ascertain the facts of the accident including  without intimation, cause or nature of loss, circumstances, damages  and quantum of loss and  they are all  special ingredients to decide the   admissibility of the claim in para -5 of  their written version. 

 

            (b)        It I also further submitted by the opposite parties in para-6 of their written version that complainant  has to inform about the accident to the  opposite party and he has to submit claim form to the 2^nd opposite party and thereafter the surveyor will be appointed   and he will  inspect the said car and he will be submitting the report after estimating the original wreck value will be deducted from the insured declared value and settling the claim.  In this case whether the said procedure was followed by this complainant  in para-7 of written version, it is stated by the 2^nd opposite party that complainant had not  showing interest  and not furnished vehicle for survey of 2^nd opposite party for loss assessment.  Therefore, claim of the complainant is closed by the 2^nd opposite party.

 

            (c)        It is also further submitted by the opposite parties in para-8  of their written version that the opposite party No.1 denies the allegations that  the  complainant approached the opposite parties and requested them to settle the matter but no purpose is served and they caused  very much inconvenience and loss to the complainant. It is a clear deficiency of service on part of the opposite parties towards the complainant or that the opposite parties are liable to pay amount and those allegations are invented only for the purpose of wrongful gain from opposite parties and the complainant is put to strict proof of the same.

 

            (d)       It is further submitted by the opposite parties  in para-9 to 12  of their written version that  complainant filed the present complaint with false allegations and all the documents   submitted by him are fabricated for the purpose of the above complaint only.  The 1^st opposite party most respectfully  stated that the complaint filed by the complainant is frivolous and vexatious one.  The insurance policy between the insurer and the insured represents  a contract between the parties.  Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms  of the agreement have to be strictly construed  to determine the extent of liability of the insurer.  The insured cannot claim anything more than what is covered as per the terms  and conditions of the insurance policy.  That being so, the insured has also to act strictly in accordance with the statutory limitations and terms of the policy expressly set out  therein.  This opposite party reserves the right to file additional counter as and when the new facts came to light.

 

            (e)        In the above said circumstances,  the opposite parties are not liable to pay an  amount of Rs.3,59,506/- with interest thereon at 12% p.a. from the  date of complaint till the date of realization towards insured declared value of vehicle and Rs.1,00,000/- towards  damages for mental agony, distress, inconvenience and financial loss caused due to deficiency in service and negligence of the opposite parties and costs of this complaint from the opposite parties. That 1^st opposite party has submitted that there is no proof filed by the complainant, the details mentioned in the above and there is no documentary evidence was filed before this Hon’ble Forum and the complaint is liable to pay exemplary costs of Rs.5,000/-  for filing a false and frivolous case against the opposite parties.

III        The complainant being President of Rural Aid Service Organisation filed  his affidavit on 25-06-2014 and also again filed his additional affidavit on 26-05-2015, and also filed  documents which are marked on his behalf as Exs.A1 to A11, whereas the opposite parties  also filed affidavit through one Mr.G. Chandra Sekhar  on 06-02-2015 and the documents which are marked as Exs.B1 to B3.  Both the counsels are filed their written arguments in support of their case.

            IV)      Basing on the material available on record, the following issues / points are framed for determination and they are as follows as:-

(a)	Is there any deficiency in service on the part of the opposite parties towards the complainant?
(b)	Whether the complainant is entitled the reliefs as prayed for, if it is so,  to what extent?
(c)	To what relief?

V.         POINT No.1 AND 2:  These two issued are inter-related with each other for determining the  case.  So, we have takenup them for discussion of the said issues one after another and for our consideration.

 The learned counsel for the complainant Sri.Md. Rahimkhan has vehemently argued that  it is true that complainant has purchased the said vehicle from Mahendra company and insured the said   vehicle  with the opposite parties.  The said vehicle was met with  an accident as per report, (Ex.A2) and  their letter (Ex.A4) addressed by the complainant to  opposite parties would clearly go to show that he had  informed about the said accident to the opposite parties  and also police authorities.  He is also further argued that Ex.A3 motor insurance claim form issued by the opposite parties to the complainant and it is clearly proved that the complainant had submitted his claim.  The further  contention of the said learned counsel, the complainant  has removed  said vehicle from the   accident spot intimation to the opposite parties  and all the facts are mentioned in Ex.A9 legal notice issued by him  to the opposite parties.  If really, the same is false, the opposite parties might have issued a suitable reply to the complainant but they kept quite and failed to issue reply.  The opposite parties are, in order to escape  from their liability,  are alleging false statements with regard to Exs.A5 and A6, which are addressed by the Baljai Agency and Industries, Nellore to the opposite parties by marking a copy to the complainant which clearly goes to show that said authorized service centre also informed estimation charges  and repairs to the said vehicle to the opposite parties.  Finally, the said learned counsel for the complainant contended that it is the legal and bounden duty of the opposite parties to pay the claim amount but inspite of several approaches   and requests, letters, legal notices by the complainant to the opposite parties, they  did not choose to  settle the claim so far                         and  thus committed  gross negligence and deficiency in service.  So, the Hon’ble Forum may please to allow the complaint as prayed for.

 

            (b)        On the other hand P.V. Mallikarjuna Reddy, the learned counsel for the opposite parties  has also vehemently argued that there is abnormal delay while informing about the said vehicle’s accident to the opposite parties and reiterated and the same was discussed  elaborately in their written version.  He has also further argued that Ex. B1 is the private car package policy schedule and policy details.  Ex.B2 is the registered letter addressed  to the complainant  by the  opposite parties to submit  estimation copy of charges towards damaged vehicle.  Apart from a letter in November, 2010 by the opposite parties to the complainant, the opposite parties also again issued another registered letter dated  13-12-2010 to the complainant by granting further time to  submit estimation copy charges within seven days from the date of letter or else it will be treated as not interested in persuading the claim and the claim will be closed as “No Claim”  Finally, the learned  counsel for the opposite parties  has further urged that  complainant has not brought to the notice of the Forum with clear facts and hence the complaint may be dismissed with costs.

Forum’s Findings and Observations

(c)        Heard, the learned counsel for the parties and perused record  very carefully.  Parties led their evidence by way of affidavits.

The  core point is that whether the complainant has proved his case beyond reasonable doubt, to claim the insurance amount from the opposite parties.  Apparently, the complainant has to prove  his case  for that  he has produced  documents Exs.A1 to A11 and they go to show that the said vehicle is  met with an accident and informed to the opposite parties thereby they had appointed surveyor as per  Ex.B2 document of the opposite parties. It is true that surveyor is appointed but not submitted his report to us for the reasons best known to the opposite parties.  An adverse inference can be drawn from the circumstances of the case. It is true that there is a lot of deficiency in service and negligence on the part of the  opposite parties  towards the complainant and it is evident from the record.  The opposite parties did not file suitable reply to the  complainant’s allegations by way of reply notice, gives us an impression that the opposite parties are not  fair in their  approach towards their customer /  complainant.

 

(d)RELEVANT CASE LAW:

 

            Each case has  to be judged on it’s own facts.  With regard to deficiency in service, the relevant aspect to be remembered that – To bring  home an allegation of deficiency in service, the element of willful action  (or as the case may be, in action) needs to be established and the onus of proof of such action / inaction lies on the complainant -  2010 (2) CPR 89 (NC).

 

2. Complainant must  prove it’s claim by reliable evidence – 2011 (3) CPR 449 (NC).

 

3.  One  who makes an allegation is required to prove it beyond doubt – 2011 (2) CPR 46

    (NC).

 

4.   Consumer For a can award  compensation as deemed proper, reasonable   and not as per

       asking of complainant – 2011 (2) CPR 282 (NC).

 

5.    Insurance Claim cannot be  rejected on mere surmises – 2011 (2) CPR 308 (NC).

 

6.    Complaint is based on deficiency in service  must establish the same by leading cogent

       evidence  - 2011 (2) CPR 68 (NC).

 

7.     Compensation or damages can be  awarded only, if complainant has suffered loss or

        damages due to negligence of manufacturer or service provider  - 2011 (2) CPR 101

       (NC).

 

8.     Repeated deficiency in service of the service provider amounts to gross deficiency

         in it’s service for which the consumer has to be adequately compensated by it reported in

        2010 C.T.J. (N.C.) 1159.

 

The Hon’ble Supreme Court’s decisions on the topic of compensation:-

 

1. More specifically, the Supreme court of India has dealt with the subject of award of compensation by Consumer Courts in the case of Ghaziabad Development Authority Vs. Balbir Singh, 2004 CTJ 605(SC)(CP) wherein it has been asserted that “ compensation is a compense for the loss or injury.  It, therefore, necessarily has to correlate with the amount of loss or injury.
2. The Hon’ble Supreme Court in State of Gujarath Vs. Shantilal Mangaladas, AIR 1969 SC 634  discussed about award of compensation.
3.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of Chansingh Vs. Healing Touch Hospital and others III(2000) CPJ 1(SC) and also stressed the need of balancing between the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider.

 

            These decisions (b) and (c) are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.Gannavaram Technical Training centre and another which is reported in 1(2015) CPJ 1 (AP)’ while awarding compensation to Appellant/complainant. 

 

        This consumer case is lingering on since two years for a decision for various reasons.  It is also well-settled  that every litigation for  has come to an end ultimately.  The  dealer / manufacturer is liable to replace any defective parts  of the vehicle within the warranty period.  In our view, it can be said that it is to be a case of arbitrariness on the part of the opposite parties towards the complainant which amounts to deficiency in service.

 

            The complainant what he alleged that has been proved by documentary evidence.  Job-cards or correspondence  with the complainant by the opposite parties have not submitted before us for our scrutiny for the reasons best known to the opposite parties.  We accept the averments  contained in the affidavits as true and  hold that complainant has proved  his case as against the opposite parties.  We are convinced with the arguments of the  said learned counsel for he complainant.  We have considered the rival submissions of the parties.  It is well-settled that compensation can be quantified only on a rationale  basis on consideration of documentary and / or oral evidence produced showing the extent  of loss suffered by the consumer / complainant for the negligence of the opposite parties.  Ultimately, it can be said that there is ample of deficiency in service and negligence on the part of the opposite parties towards the complainant.  So, these two points are held in favour of the complainant against opposite parties, accordingly.  

 

VI.       POINT No.3: In the result, the complaint is allowed in part, ordering the opposite parties  1 and 2 to pay the insured declared value of Rs.3,59,506/- (Rupees three lakhs fifty  nine thousand five  hundred  and six only) with interest @ 9% p.a. from the date of complaint till the date of realization to the complainant,  to pay Rs.25,000/- (Rupees twenty five thousand only) towards damages for mental agony, distress, inconvenience and financial loss to him for deficiency in service and negligence  of opposite parties 1 and 2   and also to pay costs of Rs.3,000/- (Rupees three thousand only) to him towards costs of the complaint within one month from the date of receipt of the order.

            Typed to the dictation to the Stenographer, corrected and pronounced by us in the open  Forum, this the  14^th  day of  August, 2015.

 

 

                    Sd/-                                                                                         Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -	25-06-2014	Father  D.Hrudayaraj, President, Rural Aid Service Organisation,  Nellore (Deposition  Affidavit filed).
P.W.2  -	26-05-2015	Father  D.Hrudayaraj, President, Rural Aid Service Organisation,  Nellore (Additional Deposition  Affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -

06-02-2015

Sri G. Chandra Sekhar, S/o.Rama Rao, Working as Executive Legal in 1st opposite party company, Vijayawada. (Proof Affidavit filed)

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	-	Photocopy of Motor Vehicle Cover Note in favour of complainant issued by opposite party.
Ex.A2  -	11-09-2010	Translated  Certificate  in favour of complainant issued by Tamilnadu Police Department and translated Certificate of Application of Complaint:0053659, name of the applicant  is shown as complainant.
Ex.A3  -	15-09-2010	Photocopy of Motor Insurance Claim Form in favour of complainant issued by the opposite party.
Ex.A4  -	26-07-2011	Photocopy of  letter from  complainant to the opposite party No.2.
Ex.A5  -	-	Photocopy of Estimation issued by Balaji Agencies & Industries, Nellore dated 17-08-2011 to the opposite party No.2.
Ex.A6  -	-	Photocopy of certificate of registration.
Ex.A7  -	-	Photocopy of Form 6, Indian Union Driving License  in favour of complainant issued by Additional Licensing Authority.
Ex.A8  -	04-10-2011	Photocopy of letter from  Balaji Agencies & Industries, Nellore-524 004 to the complainant.
Ex.A9  -	14-1-2011	Photocopy of legal notice from complainant’s advocate to the opposite parties  and also their  offices at  Pune and Chennai.
Ex.A10  -	17-01-2012	Photocopy of four registered post receipts addressed to the opposite parties  and their offices at Chennai and Pune alongwith photocopies of served postal acknowledgements from complainant’s advocate(Sri B. Srinivasan) to the opposite parties and their office at Chennai.
Ex.A11  -	-	Twelve Photos.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

Ex.B1  -	-	Private Car Pckage Policy Schedule  and  policy details terms and conditions book issued by the opposite party
Ex.B2  -	23-11-2010	Letter from  opposite party to the  complainant alongwith registered post receipt addressed to the complainant.
Ex.B3  -	13-12-2010	Letter from  opposite party to the  complainant alongwith registered post receipt addressed to the complainant.

 

 

                                                                                                              

                                                                                                                 Id/-

                                                                                                         PRESIDENT(F.A.C.)

 

Copies to:

 

1.	Sri Md. Rahimkhan, Advocate, Nellore.
2.	Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Military Colony, 1st line, Dargamitta, Nellore-524 004. (A.P.)

 

Date when free copy was issued: