Andhra Pradesh

Nellore

CC/107/2016

Pasupuleti Ramakrishnaiah, S/o. Lakshmaiah - Complainant(s)

Versus

1. The bajaj Allianz general insurance company limited, rep by its Manager - Opp.Party(s)

M.Krishnudu,N.mohan das

07 Nov 2017

ORDER

Date of Filing     :27-07-2016

                                                                             Date of Disposal:07-11-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Tuesday, this the  7^th  day of   NOVEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.107/2016

 

Pasupuleti Ramakrishnaiah,

S/o.Lakshmaiah,

Hindu, Aged 58 years,

Resident of 21-R-7(2),

21^st ward, Kandukur,

Prakasam District-523 105.                                                             ..… Complainant 

                                                             Vs.

 

1.	The  Bajaj Allianz General Insurance    Company Limited, Represented by it’s Manager, 1st Floor, Indira Bhavan Road, Opposite to Hotel Chinni Road, Nellore.
2.	Kun Hyundai, Represented by  Authorised Agent, Kun Auto Company Private Limited, PlotNo.209, Phase II, Auto Nagar, Petrol Bunk Side, Nellore-524 004. Tel (0861) 2366135, 2366068.                                             ..…Opposite parties

                                                             .

          This complaint is coming before us for hearing in the presence of                Sri M. Krishnudu and Sri N. Mohan Das, advocate for the complainant and                                                       Sri  P.V. Mallikarjuna Reddy,  advocate for the opposite party No.1  and  opposite party No.2 present  and having stood over for consideration till this day and this Forum passed the following:

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

            Originally the complainant filed the complaint before the Hon’ble District  Forum, Prakasam  District at Ongole and the same is numbered as C.C.No.9/2015 and the same was returned on 25-06-2016 by the District Forum, Prakasam District at Ongole on the  point of jurisdiction and after receiving of the  said   complaint  the same is numbered as  C.C.No.107/2016 on the file of Hon’ble District Forum, Nellore.

             2.         The complainant filed this complaint against the  opposite parties under Section-12 of Consumer Protection Act, 1986 to pass an award  directing the 1^st opposite party to  pay Rs.1,58,030/- towards   reimbursement  of the expenses   spent by the complainant and direct the 1^st opposite party to pay a sum of Rs.1,00,000/- towards damages.

             3.        The brief averments of the complaint are as follows that :- the complainant submits that    on 21-03-2013  at 10.30 p.m. the    complainant vehicle met with an accident near Chandrasekhara Puram, Prakasam,  and vehicle got extensively damaged.    Immediately the  complainant intimated his claim to the  1^st opposite party, and 1^st opposite party in its turn deputed a Surveyor for on spot survey and the vehicle    was photographed by surveyor and the vehicle  was then sent to Hyundai  work shop, Nellore authorized   work shop of the 1^st opposite party.

             The complainant submits that aware that, there is a memo of understanding   between the 1^st opposite party and Hyundai company  for providing  spare parts at the company value but not at the market value.  The trust and confidence reposed by the complainant in the 1^st  opposite party, put to troubles by the Hyundai work shop, Nellore 2^nd opposite party.  

 

             The complainant submits that  when the complainant approached, some time back the Hyundai company,  Nellore, the 2^nd opposite party demanded the complainant  stating that Rs.1,39,769/-  has to be paid by the complainant on seeking clarification, the complainant is informed that 1^st opposite party  approved, or agreed to pay only Rs.2,03,710/- as against  total bill of Rs.3,43,479/-  towards total invoice.

            The complainant submits that infact, as per the policy, issued to the complainant, the complainant  paid  Rs.12,076/- towards own damages premium and the total sum of Assured amount for damages is Rs. 5,79,028/-.  There was never a clause in the policy that, the complainant should reimburse or pay any  part amount.

             The complainant submits that as per the  conditions of the policy “the above total OD premium is inclusive of all applicable loading / discounter viz.  (Automobile Assessment Membership Voluntary Excess, Anti-Theft Handicap person driver Tution Fibre Glass, Cng/Lpg Unit, Geographical Extn, Imported vehicle etc., wherever applicable.”. 

             The complainant submits that in these circumstances, the Hyundai workshop, Nellore is refused to return the complainant vehicle  to him  unless the complainant  pay  Rs.1,39,769/-.  Already sufficient time has  been taken  by the Hyundai company, to conduct repairs and now they are not in a position to  hear the complainant.

              Later the complainant issued e-mail notice to the 1^st opposite party informing  the  predicament created by the Hyundai Company to handover the vehicle to the complainant to his e-mail, legal notice dated 26-06-2013.  The 1^st opposite party replied to e-mail, in the e-mail dated 29-06-2013, that the legal notice is sent to me concerned for negotiations.  The complainant has surrounded his vehicle to Hyundai company, Nellore on 22-02-2013. The legal notice was sent on 26-06-2013.  Reply was given on 29-06-2013.

            The complainant submits that   neither the agent   of the opposite party or the opposite party, took any interest in the matter on the other hand, the complainant kept the vehicle in shed of Hyundai showroom for repair nearly 3 ½ months without  utilizing service of his car.  There is deficiencies in the services on the part  of the 1^st opposite party  in not rendering service in accordance with the policy conditions.  The total coverage of the policy is for Rs.5,79,028/- .   The total expenditure  as per invoice is Rs.3,43,479/- .  Further the inbuilt    auto cop reversible camera  also got damaged which is an inbuilt mechanized system where the vehicle  was reversing the automatic reversing camera would give the picture  of back side on the screen.  This was also purchased by the complainant at Radio Ware  House, Chennai and it is worth Rs.11,700/- and it is also under coverage of policy.

          The complainant submits that having no other go, as the 1^st opposite party is putting deaf ear to the requirement   as per the policy the complainant has to first  of all take back his vehicle and on 03-07-2013, the  complainant paid Rs.1,46,300/-  at Hyundai showroom at Nellore and took the delivery of the  vehicle.

          The complainant submits that  the 1^st opposite party thus, committed an act of deficiency of service by causing loss  to the complainant to a tune of Rs.1,46,330/-  and Rs.11,700/-  towards cost of auto cop reverse camera, total amount of Rs.1,58,030/-. Further, the 1^st opposite  party for their  negligence did not deliver the car through the 2^nd opposite party for a period of 3 ½  months and liable to pay Rs.1,00,000/- towards damages and submits to allow the complaint with costs.

         4.      The opposite party No.1 filed  counter / written version  with following averments that:- the   opposite party respectfully  submits that the complaint is not a consumer as defined under Section-2(d) of Consumer Protection Act and the complaint filed by the complainant does not comes under the purview of Consumer Dispute envisaged in section 2 (e)  of Consumer Protection Act, Hence this Forum has no jurisdiction to entertain the complaint and the contract of insurance does not comes under the purview of Sale of goods as defined under Section-2(i).  Hence the complaint ought to have been liable for dismissal  apart from the specific defenses  mentioned below:

          The opposite party No.1 submits that  the 1^st opposite party issued policy bearing No.OG-13-1515-1801-00002284, validity period 04-03-2013  to                      03-03-2014  and the said policy was issued in favour of the complainant under certain terms, conditions, exceptions and limitations thereof.

The opposite party No.1 submits that  it is always an  expert duly licensed surveyors and loss assessors who are authorized under Section-64 UM of the Insurance Act to make the assessment of losses  as per terms and conditions of the policy after taking into consideration all the aspects with regard to class, model, market value of vehicle, depreciation of parts, cost of repairs and salvage value of the parts etc., thus relying entirely upon the estimate of repair / repair invoices  is neither  tenable nor  proper and surveyors report is always an important piece of evidence and cannot be discarded or brushed aside and same view has been taken by Hon’ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited and others and Hon’ble  National Commission in III (2008) CPJ 158 (NC), IV (2006) CPJ 84 (NC).  The  opposite party respectfully submits that the complainant intimated the opposite party that his vehicle was damaged in an accident.  Subsequent to claim intimation the opposite party appointed an independent surveyor cum loss assessor approved by I.R.D.A. (Insurance Regulatory and Development Authority) to assess the quantum of loss.  The said surveyor has gone into   every details of the complainant’s claim and gave an exhaustive report and basing on the sais report, the claim was processed and payment voucher was raised and the complainant also signed the said voucher without any undue pressure or influence.  The independent surveyor assessed the loss of the complainant to a tune of Rs.2,34,313/- after deduction of policy excess in accordance with the terms  and conditions of the policy. The said terms  and conditions categorically states that all the rubber and plastic parts will be assessed @ 50%  only along with depreciation and salvage which are to be considered.  The amount was deposited in the complainant bank through NEFT  payment ofRs.2,34,313/-.  The same was  encashed by the complainant.

The opposite party No.1 submits that  the  amount  assessed by the Surveyor was received by the complainant / insured in full settlement and issued discharge voucher  and now he is estoppels  from raising the issue again.   Hence the opposite party No.1 not liable to pay compensation to the complainant to be  dismiss the claim against the opposite party No.1.

The opposite party No.1 submits that  the claim was processed as per the surveyor’s report  and in accordance with the terms and conditions of the policy  and complainant also signed the full and final settlement voucher  without any protest for the reason that he  was explained as to how the amount was arrived at.

The opposite party No.1 submits that    without prejudice to the above contentions, the opposite party respectfully submits that “ The deficiency in service cannot be alleged without attributing   fault, imperfection,  short coming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of  a contract or otherwise in relation to any service.  The burden of proving   the deficiency in service is upon the person who alleges it”.  So in the above matter there is no deficiency of service  by  the opposite party and the   opposite party processed the claim of the complainant as per the independent surveyor report in accordance  with the terms and conditions of the policy.

 The opposite party No.1 submits that  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 or terms of the policy expressly set out therein.  The opposite party No.1 submits that  it followed a fair, equitable and judicious decision making process  and applied its  mind thoroughly on the material on record being the terms, conditions and exclusions of the policy.  In the above circumstances, the opposite party is not at all liable to pay an amount of  Rs.1,58,030/- as claimed towards repairs of vehicle and towards damages of Rs.1,00,000/-  and in total Rs.2,58,030/- and to grant costs of the complaint is liable to pay exemplary costs for filing  a false and frivolous case against the opposite party and submits for the dismissal of the complaint with costs.

5.      The opposite party No.2  failed to appear before  the Forum and  no  written version  was  filed on behalf of the opposite party No.2.

 6.       On behalf of the complainant, the affidavit of P.W.1 filed and Exs.A1 to A8 marked.

7.        On behalf of the opposite party No.1, the affidavit of R.W.1 filed and Exs.B1 to B3 marked and on behalf of the opposite party No.2 no affidavit was filed and no documents were marked.

8.         Written arguments on behalf of the complainant and opposite party No.1 filed.

9.         No written arguments were filed on behalf of opposite party No.2.

10.         Arguments on behalf of the learned counsels for both parties heard.

11.         Perused   the written arguments  filed on behalf of the complainant and opposite party No.1

12.        Now the points for consideration are:

(1)         Whether the complaint filed by the complainant against the opposite

              parties 1 and 2  under Section-12  of Consumer Protection Act,

              1986 alleging deficiency of service against the  opposite parties  is

             maintainable?

(2)         To what relief, the complainant is entitled?

 

13.         POINT No.1:The learned counsel for the complainant submits that by relying upon a  decision reported in New India Assurance Company Limited Vs. Kamal Nayan reported in IV (2006) CPJ 84 (NC)  and he  further submits  by  relying upon  evidence of P.W.1 and Exs.A1 to A8 that  the vehicle of the complainant was insured with  opposite party  No.1 and the  said  vehicle was  met with an accident  and the said vehicle was given for the  repair  with the opposite party No.2  and the opposite party No.1 agreed to pay the entire  repairs amount which was incurred  towards repair to the car  to the opposite party No.2 but the opposite party No.1 failed to pay the  amount of Rs.1,58,030/-  to the opposite party No.2  and the complainant paid the said amount and taken back the vehicle from the garriage and as the policy is  comprehensive policy, the opposite party No.1 has to pay the entire  repair amount  as per Ex.B1 policy, the opposite party No.1 failed to pay the  entire amount and hence the complainant  filed the complaint against the opposite parties  1 and 2 for the repair amount of Rs.1,58,030/-  and submits to allow the complaint with costs.

On the other hand the learned counsel  for the opposite party No.2 submits by relying upon evidence of R.W.1  and R.W.2 assessed the damages  at Rs.2,34,313/- under Ex.B2 surveyor’s report and the opposite party No.1  transferred the said amount through NEFT and hence the complaint filed by the  complainant against the opposite parties is not maintainable  and submits for dismissal of the complaint  with costs.

By relying upon the  arguments submitted by the learned counsels  for both parties and as seen from the case of the complainant, the complainant filed Exs.A2, A3, A4 and A4 to A8  about the  expenditure incurred for the vehicle  which was  met with an accident but the evidence of R.W.2 surveyor  report  and Ex.B2 shows that the R.W.2  surveyor assessed  a sum of Rs.2,34,313/-  and the said amount  was transferred to the account of the complainant through  NEFT by the opposite  party No.1.  To rebut the evidence of R.W.2   and contents of Ex.B2,  the complainant did not  adduce any evidence.

In     Mashaal  Irrigation Private Limited Vs. National Insurance Company Limited reported in 2016 (2) CPJ  74 (NC)

Wherein the Hon’ble  National Commission held as follows:   “On surveyor’s   report is to be generally accepted unless it is shown to be arbitrary, unreasonable and wholly untenable.”

In Bhuwal Ram Vs. National Insurance Company Limited reported in 2015 (1) CPJ 754 and

In Shankarlal Virji Thakkar Vs. United India Insurance Company Limited reported in 2015 (1) CPJ 730 (NC)

 

Wherein  the Hon’ble National Commission held that  surveyor’s   report if  reliable has to be accepted.

 

In Reddy Kumar Sharma Vs. National Insurance Company Limited reported in 2009 CTJ 170 (NC).

 

Wherein the Hon’ble National Commission held that “the surveyor’s  report was an important  document   and it could not be brushed aside without any compelling evidence to the  contrary.”

 

 

In New India Assurance Company Limited Vs. Kamal Nayan reported in IV (2006) CPJ 84 (NC)  delivered by Hon’ble National  Consumer Disputes Redressal Commission on 27-01-2006.

 

the Hon’ble National Commission held that “report of surveyor  is an important piece of  document and  evidence is cannot be brushed aside without sufficient reasoning.”

         By relying upon the above decisions, we are of the opinion that as the complainant failed to adduce any evidence to disprove the evidence of R.W.2   and to the  contents of  Ex.B2  and as the opposite party No.1 transferred an amount of Rs.2,34,313/-  into the account of the complainant, we are of  the opinion that the evidence of R.W.2  and the contents of Ex.B2 surveyor report has to be accepted and the opposite party No.1 after accepting  Ex.B2 report transferred  a sum of Rs.2,34,313/-  into the bank  account of the complainant and as the opposite party No1  has paid  the entire amount to the complainant by way of  transferring  the said amount through NEFT  into the  bank account of the complainant,  we opined that there is no  deficiency of service by the opposite party No.1 against the complainant  and hence   the complaint filed by the complainant against the opposite party Nos.1 and 2 is not maintainable.

          By relying upon the  above decisions and discussion made above, we answer this point against the complainant and  infavour  of the opposite parties 1 and 2.

           14.    POINT No.2: In view  of our answering on point No.1 against the  complainant and in favour of the opposite parties 1 and 2, the complaint filed by the complainant  has to be dismissed.

             In the  result, the complaint is dismissed but in the circumstances no costs.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  7^th  day of  NOVEMBER, 2017.

 

         Sd/-                                                                                             Sd/-

      MEMBER                                                                            PRESIDENT

                                       APPENDIX OF EVIDENCE

Witnesses Examined for the complainant

 

P.W.1  -

16-12-2015

Sri Pasupuleti Ramakrishnaiah,S/o.Lakshmiaah, Kandukur, Prakasam District (chief  affidavit filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -	18-03-2016	Sri G. Chandrasekhar, S/o.Late Rama Rao, Working as Executive (Legal) in Bajaj Allianz General Insurance Cmpany Limited, Vijayawada. Present camp at Ongole (affidavit filed).
R.W.2 -	19-05-2016	Sri AVSC Bose, Independent Surveyor cum Loss Assessor,  S/o.Ramakrishna,  Krishna District. (Independent Surveyor’s affidavit filed).

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	-	Eight receipts given by opposite party No.2.
Ex.A2  -	-	Two receipts issued by opposite party No.2 and  one payment receipt.
Ex.A3  -	-	Parts Details  issued by the opposite party No.1.
Ex.A4  -	-	Pre Invoices four pages and   Repair Estimates four pages.
Ex.A5  -	29-06-2013	Photostat copy of letter from   opposite party No.1.
Ex.A6  -	-	Photostat copy of  policy  issued by  opposite party No.1.
Ex.A7  -	-	Copy of letter from complainant’s advocate.
Ex.A8  -	06-07-2013	Estimation given by Radio Ware House,                      Chennai-600 040.

 

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	`-	Private Car Package Policy Schedule issued opposite party No.1 infavour of complainant.
Ex.B2  -	-	Survey Bill dated 06-08-2013 and Final Survey Report
Ex.B3  -	15-10-2015	Receipt  issued by opposite party No.2.

 

 

                                                                                                               Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri M. Krishnudu and Sri N. Mohan Das, Advocates, Nellore.
2.	Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Militeray Colony,                        1st line, Dargamitta, Nellore-524 004.
3.	M/s.Kun Hyundai, Represented by  Authorised Agent, Kun Auto Company Private Limited, PlotNo.209, Phase II, Auto Nagar, Petrol Bunk Side, Nellore-524 004.

 

Date when free copy was issued: