Andhra Pradesh

Nellore

CC/8/2016

Shaik Riyaz, S/o Kalesha - Complainant(s)

Versus

1.The Branch Manager, United India Insurance Company Limited - Opp.Party(s)

M.Sreenivasulu

08 Nov 2017

ORDER

Date of Filing     :11-01-2016

                                                                             Date of Disposal:08-11-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Wednesday, this the  8^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.8/2016                                             

 

1.	Shaik Riyaz,  S/o.Kalesha,  Muslim, Aged about 45 years, Permanent resident of Door No.25-3-166, Lakshmi Narsimha Puram, Podalakur Road, Opposite to Mazeed Street, Nellore-524 004.
2.	Shaik Siraj, S/o.Abdul Khader, Muslim, Aged about 47 years, Residing at Door No.26-7-1027, 2nd street, Vedayapalem, Subhash Chandra  Bose Nagar, Nellore-524 004.                                                                  ..…Complainants

                                                             Vs.

 

1.	The Branch  Manager, United India Insurance Company Limited, Branch Office-II, Dargamitta, Nellore.
2.	The Managing   Director, United India Insurance Company Limited, Regional and Head Office, 24, Whites Road, Chennai-60 014. Tamilnadu State.
3.	The Branch Manger, Mahindra Finance, Mahindra and Mahindra Financial Services Limited, 16/1433, 1st floor, Sunshine Plaza, Ramalingapuram, Nellore-524 003 .
4.	The Managing Director, Mahindra Finance, Mahindra and Mahindra Financial Services Limited, 2nd floor, Sadhana House, Behind Mahindra towers, 570, P.B.Marg, Worli, Mumbai-4000 18, Maharashtra State.                                                            ..…Opposite parties

                                                          .   

          This complaint is coming before us for hearing in the presence of                Sri M. Sreenivasulu, advocate for the complainants,                                                     and   Sri P.V. Mallikarjuna Reddy, advocate for the  opposite parties 1 and 2 and Sri N. Sudheer Reddy, advocate for the opposite party No.3                                             and opposite party  No.4 called absent and having stood over for consideration till this day and this Forum passed the following:

ORDER

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

 

           The complainant filed this complaint against the opposite parties  1 to 4 under Section-12 of Consumer Protection Act, 1986 directing the opposite parties 1  and 2  to reimburse the insured’s  declared value of Rs.1,18,000/-  along with interest thereon at 24% p.a.  from 09-03-2014  to the date of filing of this complaint at Rs.1,41,678-66 paise along with subsequent interest on Rs.1,18,000/- from the date of order till the date of payment to the  complainant’s,  to direct the opposite parties 1 to 4  to pay a sum ofRs.50,000/- towards damages for causing mental agony and Rs.5,000/- towards the costs  of the complaint and submits to allow the complaint with costs.

          2.     The brief averments of the complaint are as follows that:- the 1^st complainant is the registered owner of Mahindra Alfa BS-III  auto rickshaw bearing No.A.P. 26 TB 7473 .  1^st complainant has paid down payment of Rs.52,500/- for the purchase  of the said auto to Mahindra Show Room.  1^st complainant as principal borrower  and  2^nd complainant as guarantor obtained hire purchase loan of Rs.1,35,000/-   on 05-02-2013   under loan account bearing No.2444403  from the  opposite parties   3 and 4 for the balance payment of consideration to the auto.  The  complainants have paid 11 instalments of Rs.6,180/-  p.m.  to  opposite parties 3 and 4 subsequently.

           The complainants submits that   1^st  complainant   has duly insured the said  Mahindra auto Riksha with opposite party Nos.1 and 2 by entering into contract of insurance on 01-02-2014 which will be enforce till 31-01-2015 under policy No.1512043113P10Y154838 with customer I.D.No.23006273222  and obtained certificate of insurance for package policy of the said auto rickshaw bearing A.P.26 TB 7473.  The name and addresses  of   opposite party No.3 and 4  being the financiers of the said auto were also   entered into the contract of insurance  along with the 1^st complainant as insurer.  Opposite parties 1 and 2 are the insured of the said auto rickshaw of 1^st complainant.

           The complainant submits that   as per the terms and conditions of the  contract  of insurance   entered in between 1^st complainant and opposite parties 1 and 2, in  case of damage or lost or theft of the said  auto rickshaw, opposite parties 1 and 2  have  to reimburse the sum assured to the 1^st complainant in respect of the said auto  rickshaw.

           The  complainant submits that   when 1^st complainant parked the said auto rickshaw on 08-03-2014 at about  10.00 p.m. as  usual in front of his rented house situated in ‘C’ Block, Vengalarao Nagar, Nellore.  The same was found missing at about 6.00 a.m. on 09-03-2014 when  1^st complainant wakeup and saw the place where the said  auto rikshah   was parked during  night of previous day. The 1^st complainant tried his level best to trace out the whereabouts of the said auto rikshaw by  searching for the same in and around Vengalarao Nagar, Nellore.  When all his efforts of tracing out the said auto rikshaw became futile, 1^st complainant immediately reported the theft of the  said auto rikshaw in 5^th town policy station, Nellore on 09-03-2014  by giving  report to that effect.  The SI of   Police, 5^th town P.S., in turn  registered the same as a case in crime No.86/2014  for an offence  under Section-379 of I.P.C.    on 09-03-2014.

              The complainants submits that   the S.I. of Police and his staff made their best efforts to trace the said auto rikshaw and also to trace out the offenders who actually committed the said theft.  Inspite of their best efforts, as the said auto rikshaw has not been detected, the same has been referred to SDPO, Nellore  for referring Crime No.86/2014  as undetected.  Accordingly, permission was granted in C.No.168/G1-SD/N(T) 2015, dated 24-02-2015.  Thereafter, a referred notice was issued to 1^st complainant on 05-03-2015  to the effect that the   said case has been referred as “undetectable”.

                The complainants submits that  meanwhile, on the next date of registration of  Crime No.86/2014 on 09-03-2014, complainant also simultaneously approached  1^st opposite party and informed  the theft of the said auto rikshaw being committed by some unknown offenders and requested the office staff and its manager to reimburse the insurance claim of the said auto rikshaw.  The office staff  of 1^st opposite party orally requested 1^st complainant to submit   non traced certificate from 5^th town police station apart from obtaining the signatures from 1^st complainant in all other relevant forms by obtaining  proofs for reimbursement of insurance claim.  1^st complainant has submitted true copies of report, FIR, non-traced certificate and also referred notice issued to 1^st complinant and other relevant records to 1^st opposite party.  Then 1^st  opposite party made the 1^st complainant to wander   around its office for about 13 to 14 months and ultimately deliberately refused to reimburse  the insurance   claim amount of  the said auto rickshaw due and payable to 1^st complainant under the said contract   of insurance.  Complainants have duly informed all these facts to  the opposite parties 3 and 4 as well by orally intimating the same and  also by producing all the papers  obtained from police station regarding theft of the  said auto rickshaw and also its subsequent non tracing beyond recover.

                  The complainants submits that   inspite of knowing the above  facts, opposite parties 3 and 4 cleverly issued demand notices on several occasions to complainants highhandedly  demanding them to repay the balance of the said debt amount.  According to the terms and conditions of hire purchase  agreement entered between complainants and opposite parties 3 and 4, 1^st complainant has to pay  the said auto rickshaw and to discharge the due of the said loan to opposite parties 3 and 4 regularly.  Since the said auto rickshaw was committed theft by some unknown offenders on  08-03-2014 and the same has not been detected and complainants are not at all fault on  any aspect and due to lost of the said auto rickshaw, 1^st complainant became helpless condition to pay the said instalment and also even he lost his  livelihood as well permanently.

               The complainant submits that   complainants 1 and 2 lawfully demanded to reimburse the insurance amount to 1^st complainant for the lost of his auto rikshaw bearing No.AP 26 TB 7473,  which is  due and payable under the said contract of insurance within 7 days after receipt of the legal notice                             dated 13-07-2015.  Under these circumstances, as 1^st complainant being the holder of the said policy / contract of insurance became customer and  opposite parties 1 and 2 became service providers in view of the said contract of insurance.  Non disbursing of the said insurance amount by opposite parties 1 and 2 to 1^st complainant amounts to “deficiency of service” on the part of opposite parties 1 and 2.  It was brought to the notice of  opposite parties to the effect that if opposite parties  1 and 2 fail to reimburse the said insurance amount due and payable under the said policy / contract of insurance within 7 days after receipt of the said legal notice dated 13-07-2015, it was brought   to their notice that the complainants have no other option except to lodge a complaint before the  Forum against the opposite parties  for redress.  It was also brought to the notice of the  opposite parties 1 to 4 to the effect that in such a situation, opposite parties 1 to 4 will be held jointly and severally liable for all the costs and consequences arising there  from  including the costs  of the said legal notice   is being  Rs.2,000/-.

            The complainant submits that  the cost of the new auto with similar features as on 25-03-2014 is costs about Rs.1,83,000/-.  Similarly, 1^st year used vehicle of the similar features as on 25-03-2014 costs about Rs.1,20,000/-.  Opposite parties 3 and 4 got issued notice dated 30-06-2015 as if they have appointed  one                         A. Srinivasan, Advocate, Chennai as the alleged arbitrator in respect of Ref.No.AP15-NPA-ARB-AS- No.11XG2762/2444403/2015  and  subsequently alleged to have initiated the impugned arbitration proceeding stated supra.  The complainants got issued a detailed reply dated 25-07-2015 to the learned alleged arbitrator and  opposite parties 3 and 4 challenging the alleged reference and appointment   of arbitrator.  The opposite parties received the said notices being sent by the complainants.  The counsel  of 1^st opposite party got issued a vague reply dated 23-07-2015 with all false.  Self serving and concocted allegations intending to avoid the reimbursement of the said insurance claim.  The  opposite parties 1  and 2 are liable to reimburse insured’s declared value of Rs.1,18,000/- along with interest thereon at 24% p.a. from 09-03-2014 and also all the opposite parties are jointly and severally liable to pay damages in a sum of Rs.50,000/- for the  ineffable mental agony caused by them against the complainants in view of their subsequent conduct and deliberate   acts of negligence apart  from deliberately avoiding sum assured and also attempting to launch arbitration proceedings without giving co-operation for reimbursement etc   and submit to allow  the complaint with costs.                                                         

           3.        Written  Version on behalf of the  opposite party No.1 not filed.

          4.        Written  Version on behalf of the opposite party No.2 not filed.

          5.        Written Version on behalf of the opposite party No.3 not filed.

          6.        Written Version on behalf of the opposite party No.4 not filed.

          7.        On behalf of the  complainant, the affidavit of P.W.1 filed and Exs.A1 to  A20 were marked.

          8.      On behalf of the opposite parties  1 and 2,  the affidavit of R.W.1  filed and Ex.B1 marked.

         9.     On behalf of the opposite party No.3, the affidavit of R.W.2 filed   and no documents  were marked.

        10.    On behalf  of opposite party No.4, no evidence was adduced  and no documents were marked.

        11.      Written arguments on behalf of complainant filed.

        12.       Written arguments on behalf of  opposite party  No.1 filed.

         13.      Written arguments  on behalf of opposite  parties  2 to 4 not filed.

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

         15.       Arguments on behalf of learned counsels  for both parties heard.

         16.       Now the points for consideration are :

          (1)       Whether the complaint filed by the  complainant under Section-12 of

                     Consumer Protection Act, 1986  alleging deficiency of service against

                    opposite parties 1 and 2 is  maintainable?

         (2)       Whether  the complainant  has proved its  case against the opposite

                     parties 3 and 4 under Section-12 of Consumer Protection Act alleging

                   deficiency of service is maintainable?

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

        17.       POINT No.1:   The learned counsel for the complainant submits by relying upon the evidence of P.W.1  and Exs.A1 to A20  that the 1^st complainant purchased an auto bearing No.AP 26 TB  7473  after borrowing  money from the  opposite party No.3 and the said auto committed theft in the night of 08-03-2014  at  about 10.00 p.m.  and after  search of the said auto  as the said auto was not found the 1^st complainant   gave report to  5^th Town Police Station   and the same is registered as crime No.86/2014 under Section-379 of ;I.P.C. on 09-03-2014 and after   deep enquiry on 05-03-2015, the Sub Inspector of Police, 5^th Town Police Station, Nellore filed Ex.A10  report  as undetectable and as the policy is inforce, opposite parties 1 and 2 are liable  to pay the costs of the auto  with interest and submits to allow the complaint with costs.

         On the other hand the learned counsel for the opposite parties 1 and 2 submits that the complainant failed to  inform about the theft of auto to opposite parties              1 and 2 immediately and the complainant gave complaint to the insurance company on 13-07-2015 and as the complainant gave   report to  police after lapse   of  18 months and as  the  complainant failed to inform about the theft immediately  or as soon as hence the claim of the complainant cannot be  accepted and submits for the dismissal of the complaint  with costs.

           In view of the arguments submitted by learned counsels for both parties and as seen from the records, it is an admitted fact that the 1^st complainant is the   owner of  the  auto bearing No.AP 26 TB 7473  and the said auto  was insured  with the opposite parties 1 and 2  under Ex.A4,  B1 and A6 policy and the said policy is inforce from 01-02-2014  to 31-01-2015 and the theft   of the auto  was  occurred  on 08-03-2014  and to that effect the  S.I. of Police, 5^th  Town Police Station registered a case in crime No.86/2014  under Section-379 of I.P.C.  at Nellore, 5^th Town Police Station.  Further  as seen from the records, the complainant No.1 gave Ex.A9 complaint to the   Sub-Inspector of Police, Nellore, 5^th town Police Station and the said complaint was registered  on 09-03-2014   at 20.00 hours and after investigation, investigation officer filed Ex.A10 final report on 05-03-2015 representing the  case as “undetectable” and   after filing of Ex.A10 final report by the  Sub-Inspector of  Police, 5^th Town Police Station, Nellore.  The complainant gave Ex.A11 notice on 13-07-2015   asking  the opposite parties for payment of the insured  amount and the opposite party No.1 gave reply  under Ex.A20  that the claim of the  complainant is not maintainable as the complainant failed to   inform  about the  theft  of auto  immediately and repudiated   the policy of the 1^st complainant.  It is true that  the 1^st complainant did not inform about the  theft of auto immediately to the opposite parties 1 and 2.   As seen from the contents  of Ex.A7  F.I.R. the said case was registered  on 09-03-2017  and the Sub Inspector  of Police referred the case as undetectable  on 05-03-2015   as the claim of the  1^st complainant is   genuine and the claim of the   1^st complainant was not referred as false mere non intimation  of the 1^st complainant to the opposite parties 1 and 2 about the   theft of auto  is not  a  ground to reject the claim of the 1^st complainant.  

In    General Insurance   and others Vs.  State of A.P. reported in   AIR 2007  SC 2696  =  2007 (5) ALD 36 (SC).

          Wherein the Hon’ble  Apex Court held that   “as soon as means within a reasonable  period.” 

         Following the above decision, we are of the opinion that the case of the complainant was referred on  05-03-2015 and after receiving  of the  referred notice, the complainant’s issued Ex.A11 notice  to the  opposite parties calling  them for the payment of the value of the auto.   But the opposite parties             1 and 2  repudiated   the claim as the complainants failed to intimate about the theft  of auto immediately and the policy of  1^st complainant  was repudiated a the complainant  did not intimate about the theft immediately.

            The opposite parties 1 and 2 are not  disputing  about the theft of  auto  and they are not stating  that the  claim of the  complainant No.1 is a false one.

In    Oriental Insurance Company Limited Vs. Sandeep Sharma reported in  I (2016) CPJ 13A (Har.) (CN)

              Wherein  the  Hon’ble   State Commission held   that “repudiation of genuine  claim on ground of delay in giving intimation to  insurance company was not justified, as per circular issued by IRDA insurer cannot take shelter   under condition and repudiate  genuine claim.”

            

In     Oriental  Insurance Company Limited Vs.  Kandha Nayak reported in IV  (2009)  CPJ 96 (Ori.)

Wherein  the  State Commission held that the claim should  not be  repudiated only  on  hypertechnical grounds and repudiation on technical ground unjust, arbitrary,   made to defeat spirit legislation.

                Following  the above decisions and by relying upon the contents of Exs.A7, A10 as the  S.I. of  Nellore V Town Police  Station referred the case  as undetectable and the said  auto was  committed theft by unknown  persons and as the claim of the 1^st complainant is genuine, we are of the opinion that the repudiation of opposite parties 1 and 2 on the ground  that the 1^st complainant inform   about the theft of auto  after  18 months  cannot be  accepted and the opposite parties  1 and 2 are liable  to pay  the  costs of the auto  at Rs.1,20,000/-    as mentioned in Ex.A8 estimation of auto.  Following the above decisions and  discussion made above, we are of the opinion that  as the complainant No.1 claimed a sum of Rs.1,18,000/-  only in the  complaint,  the 1^st complainant is  entitled  for Rs.1,18,000/- only towards the costs of the auto.  Following  the  decisions reported in

In     Oriental Insurance Company Limited Vs.  Rajendra Prasad  Bansal reported in  2008 (2)  CPJ 186 (NC)

the 1^st complainant is entitled for interest  @ 18% p.a. on Rs.1,18,000/-.     By relying upon the decisions and discussion made above, we answer this point in favour of the complainant  and against the opposite parties  1 and 2 only.

           18.  POINT No.2:The complainant filed  the complaint against the opposite parties 3 and 2 who are  the financiers and the complainant purchased the auto bearing No.AP 26 TB 7473  with  the loan amount  given by opposite party No.3.   As  the opposite parties 3 and 4 only the financiers and they have  nothing to do with the cause of action, we are of the opinion that the complaint filed by the complainant   against the opposite parties 3  and 4   who are the financiers is not maintainable and the same has to be dismissed against the opposite parties 3 and 4.

            In view of the above said fact, we answer this point against the complainant and  in favour of opposite parties  3 and 4.

            19.      POINT No.3:In view  of our answering on point No.1 in favour of  complainant  and against the  opposite parties 1 and 2,  the  complaint filed by the complainant No.1  has to be allowed with costs  and  in view of our answering on point No.2 against the complainant  and in favour of the  opposite parties 3 and 4,  the complaint filed by the complainant No.1 against the opposite parties 3 and 4 has to be dismissed.

             In the result, the complaint is allowed with costs and the opposite parties            1 and 2   are directed to pay a sum of Rs.1,18,000/- (Rupees one lakh eighteen thousand only) with interest  @  18% p.a. on Rs.1,18,000/- from the date of  Ex.A11 notice i.e., 13-07-2015 till the date of payment of the  1^st  complainant only.

            The opposite parties 1 and 2  are also directed to pay compensation of Rs.10,000/- (Rupees ten thousand only) to the 1^st  complainant.

             The opposite parties 1 and 2   are also directed to pay  a sum of Rs.5,000/- (Rupees five thousand only) towards the costs of the complaint.

            The  claim of the  1^st complainant against  opposite parties 3 and 4  is dismissed without costs.

             The claim of  second complainant is dismissed without costs.

               The opposite parties 1  and 2 are directed to comply the order within 30 days on communication of the order.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  8^th  day of  NOVEMBER, 2017.

 

    Sd/-                                                                                         Sd/-

     MEMBER                                                                          PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainants

 

P.W.1  -

08-03-2017

Sri Shaik Riyaz, S/o.Kalesha, Nellore-524 004 (chief affidavit filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -	25-09-2017	Sri D.V. Rathnamma, W/o.T.V. Balaji,  Residing  at Nellore Town and District, Andhra Pradesh (Proof affidavit filed).
R.W. 2  -	23-11-2016	Sri A.S. Venkatesh, S/o.A.S.N.Murthy, Manager Legal, Defense, Mahindra and Mahindra Financial Services Limited, Mumbai branch office at     Ramalingapuram, Nellore, authorized Signatory-GPA Holder.

 

                           EXHIBITS MARKED FOR THE COMPLAINANTS

Ex.A1  -	07-02-2013	Photostat copy of Certificate of Registration in respect of  registration No.AP26TB7473.
Ex.A2  -	08-02-2013	Photostat copy of  Certificate of Fitness relating to  vehicle No.AP26TB7473.
Ex.A3  -	31-01-2013	Photostat copy of  tax payment.
Ex.A4  -	-	Photostat copy of policy No.1512043113P107154838 in favour of  Shaik Riyaz issued by  opposite parties               1 and 2.
Ex.A5  -	31-01-2014	Photostat copy of receipt issued opposite parties                    1 and 2.
Ex.A6  -	-	Photostat copy of Motor Insurance-Passenger Carrying Commercial Package Policy Schedule in favour of Shaik Riyaz.
Ex.A7  -	09-03-2014	Photostat copy of First Information Report  in  Vth  Town Police Station, Nellore.
Ex.A8  -	25-03-2014	Estimation  given by Sree Bhagavan Venkaiah Swamy Auto Garage.
Ex.A9  -	09-03-2014	Photostat copy of  letter from 1st complainant   to the  S.I., 5th Town Police Station
Ex.A10  -	-	Photostat copies of  crime No.86/2014                            dated 05-03-2015 notice to the complainant and   letter  from  Sub-Inspector of Police, V Town P.S., Nellore to the  V Addl. Judl. Magistrate of First Class, Nellore.
Ex.A11  -	13-07-2015	Photostat copy of legal notice from  complainant’s advocate to the opposite parties alongwith four registered post receipts.
Ex.A12  -	08-05-2015	Photostat copy of  letter from 4th  opposite party advocate  Kennedy & Associates, to the  complainants alongwith  on postal service  card.
Ex.A13  -	05-09-2014	Photostat copy of  Demand notice ref.No.2444403   issued by opposite pay No.3.
Ex.A14  -	13-04-2015	Photostat copy of  letter from 4th  opposite party  to the complainants.
Ex.A15  -	07-02-2013	Photostat copy of  Driving Licence (701/FDL/1991) in favour of Riyaz Shaik.
Ex.A16  -	30-06-2015	Photostat copy of  letter from A. Srinivasan, Advocate, Sole Arbitrator.
Ex.A17  -	26-06-2015	Photostat copy of  Interim Application under                  Section-17 relating to AP15-NPA-ARB-AS-NO:11XG2762/2444403/2015  issued by                         Mr.A. Srinivasan, Arbitrator.
Ex.A18  -	-	Postal acknowledgement  received from opposite party No.2 sent by the  M. Sreenivasulu, Advocate, Nellore.
Ex.A19  -	25-07-2015	Photostat copy of Legal notice  from  complainant’s advocate alongwith  three registered postal receipts.
Ex.A20  -	23-07-2015	Reply  from opposite party No.1’s advocate                        N. Kodanda Rami Reddy  to the  complainant’s advocate alongwith postal acknowledgement.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -

-

Policy No.1512043113P107154838 in favour of  complainant relating to vehicle  No.AP-26-TB-7473.

 

 

                                                                                                          Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri M. Sreenivasulu, Advocate, Room No.8, 1st floor, G.V. Complex, Stonehousepet, Nellore-2.
2.	Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Militerey Colony, 1st line, Dargamitta, Nellore-524 004.
3.	Sri N. Sudheer Reddy, Advocate, Nellore.
4.	The Managing Director, Mahindra Finance, Mahindra and Mahindra Financial Services Limited, 2nd floor, Sadhana House, Behind Mahindra towers, 570, P.B.Marg, Worli, Mumbai-4000 18, Maharashtra State.

 

Date when free copy was issued: