BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., Honble President
And
Smt.C.Preethi, M.A., L.L.B. Honble Lady Member
Wednesday the 24th day of January, 2007
C.C.No.102/2006
T.Siva Rama Linga Reddy,S/o. T. Linga Reddy,
Hindu, aged 42 years, business,Resident of D.No.28/768/10-L,Lalitha Nagar, NGO s Colony,Nandyal, Kurnool. …Complainant
-Vs-
- The Divisional Manager,
M/s. National Insurance Co., Ltd., Anantapur.
2. The Branch Manager,
Sriram Investments Ltd., Near Raj Theatre, Nandyal. …Opposite parties
This complaint coming on this day for orders in the presence of Sri. N.Siva Prasad Gupta Advocate, Kurnool for complainant, and opposite Party No.1 L.Hari Hara Natha Reddy, and Sri. P.Siva Sudarshan for opposite party No.2 and stood over for consideration till this day, the Forum made the following:-
ORDER
As per Sri. K.V.H. Prasad, Honble President
1. This case of the complainant is filed U/S 12 of consumer protection Act, seeking an award against the opposite party No.1 and 2 for payment to complainant Rs.5,27,500/- towards the loss of vehicle bearing No.RJ-32G 0800 with 18 percent per annum, Rs.50,000/- towards mental agony and costs of this case alleging deficiency on the part of the opposite parties in not settling the claim of insurance for extensive damage occurred on account of accident dt:01-04-2005 to the complainants vehicle which was insured with opposite party No.1 vide policy No.501602/31/046322044 dt:22-11-2004 for a period of one year, through opposite party No.2 (Financial of said vehicle), inspite of opposite parties surveyor assessing the loss to Rs.2,22,000/- and an estimation of loss at Rs.5,27,500/- was made by Bismilla Auto Guarage to bear the complainants accident vehicle was shifted.
2. In pursuance of notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the matter filling their written version denying any of the liability as the opposite party No.2 without any authority and in contravention of limits of claim up to Rs.1.5 lakhs and understandings between opposite parties No.1 and 2 appointed final surveyor who assessed the loss to Rs.1,71,807/- and while the insured value of the vehicle is Rs.4,00,000/-, the claim of the complainant for own damages of said vehicle is for Rs.5,89,300/-, and the insured vehicle being a commercial vehicle used for transport of goods on hire and thereby the case of complainant is not coming within the perview and jurisdiction of the consumer protection of act for its enquiry and the case of the complainant being requiring enormous enquiry warranting its trail by a Civil Court and when the opposite party No.2 as contravened the terms of understanding in assessing value of loss by appointing final surveyor, the powers of which in actuality lies with the regional office of opposite party No.1 alone, the claim of the complainant need not be the entertained by it and so seeks dismissal of the case with costs.
3. The written version of the opposite party No.2 also denies its liability to the complainants claim alleging it as mere financial who facilitated finances to the complainant with city corporation vide agreement dt:05-03-2003 for an amount of Rs.3,72,048/- for purchase of said vehicle and the role of opposite party No.2 as mediator to complainant with opposite party No.1 for remittance of insurance premium and with financier and so city finances is necessary party and for non joinder said necessary party the complainants case is to be dismissed. It further allege that it has no concern with complainants claim as nothing was as to the claim of the complainant was sent through it as the complainant himself was in direct contact with opposite party No.1 in said regard and so thereby any deficiency on its part in alleged non settlement of said accident insurance claim of the complainant by the opposite party No.1 and so the liability if any it will be of opposite party No.1 only and so request for dismissal of the complainants case with costs.
4. In substantiation of the contentions while the complainants side has taken reliance on Ex.A1 to A3 besides to the evidence of PW1- Y.Venkatesh Reddy surveyor and loss assessor Hyderabad and the sworn affidavit of the complainant and replies of the opposite parties to the interrogatories, the opposite party side has taken reliance on documentary record in Ex.B1 and B2 besides to its sworn affidavit and replies of complainants to its interrogatories.
5. Hence, point for the consideration is whether the complainant has made out alleging deficiency on the part of the opposite parties and thereby any of their liability to the complainants claim.
6. The Ex.A1 is receipt No.2895682 Dt:30-06-2005 issued by the opposite party No.2s Vijayawada office acknowledging there with receipt of Rs.1,05,000/- vide cheque No.396353 Dt:30-06-2005 from the complainant towards agreement SR C.P.A 69709/00 for vehicle bearing register No.RJ 32G 0800. In the Ex.A2 notice dt:13-06-2006 caused to the opposite parties the said amount was mentioned as the amount of balance the complainant was compelled to pay in the opposite party No.2 towards the said vehicle. There being neither any reply to said Ex.A2 denying the said facts averred in Ex.A2 nor any mention as to it either appear in written version of the opposite parties, even if the Ex.A1 is to be held as receipt for payment of residuary balance of due on the complainants vehicle purchase under finance, the grievance amounting into any deficiency on the part of the opposite party No.2 is as to its collection but not of paying any interest in seeing settlement of insurance claim by the opposite party No.1, the said Ex.A1 bears any relevancy for adjudication of alleged deficiency of the opposite party in nor settling the complainants claim.
7. The written version of the opposite party No.2 allege the complainants insurance claim was repudiated by the opposite party No.1 on 06-09-2005. The complainants alleges non settlement of its insurance claim by the opposite party No.1 and their written version of the opposite party No.1 say that it need not entertain the insurance claim of the complainant as the opposite party No.2 in contravention of the terms and understands with opposite party No.1 has got assessed the loss of said accident vehicle at Rs.1,71,807/- as the permissible limit of opposite party No.2 in assessing the loss is limited to Rs.1.5 lakhs only. While the written version opposite party No.2 deny any of its assessing the losses by appointing any final surveyor as alleged in written version of opposite party No.1 and limits its role as mediator in between the complainant and opposite party No.1 as the financier of the complainants vehicle in processing the insurance coverage to said vehicle and get in finance to purchase of said vehicle, and the complainant allege the opposite party No.1 appointed insurance surveyor by made Y.Venkatesh Reddy and said surveyor assessing the net liability to a sum of Rs.2,24,000/- while the opposite party No.1 deny flatly alleging the appointment of final surveyor by opposite party No.2 and the laters assessment as to loss at Rs.1,71,807/- is against the prescribed limits on the powers of said opposite party No.2. While such is so with the averments of complaint and written version of the opposite parties, the sworn affidavit of the complainant gives an ambigious of version as to appointment of said surveyor and the loss assessed by him, saying the opposite parties appointed said surveyor.
8. Any cogent material filed into record by either of the parties as to the said limitation on opposite party No.2 and so called understandings in between 1 and 2 as to appointment of final surveyor and of any such rules which absolves the settlement of insurance claim on contravention of any such rules, terms are condition by opposite partyNo.2 in appointing final surveyor in assessing the loss. Hence, the said pretext, under which the opposite party No.1 takes excuse for not settling the claim appears to be a mere pretext for pretext sake without any merit and force in said sand of opposite party No.1 as the dues any justification on the part of the opposite party No.1 in refraining itself from entertaining the claim of the complainant.
9.The evidence of Y.venkatesh reddy (PW1), who claims himself as panel surveyor of opposite parties 1 and 2 since 1997 and 1999 respectively. But he did not place any material record in substantiation of the same to show any of the bindingness of the surveyor report on either of them. The PW1 says that he has claimed his fees for said survey, with opposite parties submitting his said final survey report conducted at the instance of opposite party No.2 to opposite party no.1 to courier but no cogent material is filed in substantiation of the same
10.Merely because the Ex.B1 survey report of PW1 is not authorized by the opposite party No.1 it will not obsolve the opposite party No.1 from making its own assessment of the laws of the vehicle for which the claim of insurance of made by the complainant. On the pretext of the opposite party No.2 assessed the loss of said accident vehicle of complainant, the opposite party No.1 refraining itself from making any of its own assessment of the loss occurred to said complainants insured vehicle for settling insurance claim itself appears as deficiency on the part of the opposite party No.1 and hence for said deficiency the opposite party No.1 should hold its liability.
11.But as the opposite party No.1 was neither made any endeavour in making any of its assessment nor was successful enough in showing the assessment made by the PW1 in Ex.B1 is either exorbitant or inconsistent to the actual damage occurred to said accident vehicle of the complainant for which insurance claim is laid, there appears any cogent material to discredit the worth of Ex.B1 in the absence of any alternative for its consideration by this forum in the omitive conduct of the opposite party No.1, towards the settlement of the complainants insurance claim for said vehicle covered under insurance.
12.It is contended that as the complainant agreed for receiving Rs.1,72,000/- on cash loss basis vide his letter Dt:21-06-2005 (Ex.B2 the liability if at all of the opposite party No.1 towards said insurance claim of the complainant is limited to said amount of Rs.1,72,000/- only. But there appears no much merit and force in said contentions as that would have been good if the opposite party No.1 has responded and acted upon said Ex.B2 offer for making any such payment or if any thing is show to the effect that it could not be complied on account of any deficient part or non-cooperative conduct of the complainant alone.
13.As the said vehicle of the complainant is said to be six years three months old by the time, and the PW1- a qualified surveyor, the fact of which was not questioned by insurance company, values it taking into account the workable deprecations, at Rs.3.5 lakhs as per the then market value. As per the Ex.B1 report there being any total damage to the said vehicle of the complainant and as per the contentions of the Ex.B1 as the damage occurred said vehicle was estimated on repair basis at Rs.2,032,000/-or on cash loss basis at Rs.1,71,807/- . As the insured value of the said vehicle being stated as Rs.4,00,000/- and the value of said vehicle on the then existing market value was said to be at Rs.3.5 lakhs the said assessment made in Ex.B1 on repair basis or cash loss basis at Rs.2,032,000/- or Rs.1,71,807/- respectively the said valuation appears to be more viable and acceptable as proper assessment of loss for compensation to which the complainant is entitled for being paid by the opposite party No.1 under said insurance claim especially when the estimation of loss said to have been assessed by Bismilla Auto Guarage was not substantiated by examining the concerned.
14.Hence, in the circumstances discussed above as the deficient conduct of the opposite party No.1 is crystal clear in refraining from settling the insurance claim of the complainant, the complaint is allowed directing the opposite party No.1 to pay to the complainant Rs.2,032,000/- towards the loss occurred to said vehicle of the complainant in said accident and Rs.10,000/-as compensation for the mental agony suffered by the complainant at the deficient conduct of the opposite party No.1 in refraining from settling the claim on lame pretext and Rs.5,000/- as costs of this litigation as the complainant is driven by opposite party No.1 to the forum for adjudication of grievances by his deficient conduct.
15.In the circumstances discussed above as there appears any deficient conduct or deficiency of service on the part of the opposite party No.2 towards the complainant, the complaint is dismissed against the opposite party No.2.
16.Time granted to opposite party No.1 for compliance of supra award is one month from the notice/receipt of this order.
Dictated to the Stenographer transcribed by him, corrected and pronounced in the Open bench on this the 24th day of January, 2007
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the Complainant: For the Opposite Parties : Nil
PW1- Deposition of PW1
Dt:29-11-2006 (Y.Venkatesh ReddY)
Surveyor/Loss Assessor Hyderabad.
List of Exhibits marked for the complainant:-
Ex.A1 Receipt, Dt:30-06-2005 issued as to receipt of cheque No.396353,
Dt:30-06-2005, for Rs.1,05,000/-.
Ex.A2 Office copy of legal notice, Dt:13-06-2006 issued to opposite parties
along with postal receipts (Receipts Numbers 1116 & 1117).
Ex.A3 Xerox copy of Estimation issued by Bismilla Auto Guarage for vehicle
No.R.J.32G0800.
List of Exhibits marked for the opposite parties:
Ex.B1 Original Motor Final Survey Report, Dt:26-06-2005. (No.in 10 pages.).
Ex.B2 Original Consent letter, Dt:21-06-2005 given by the complainant.
MEMBER PRESIDENT
Copy to:
1. Sri. N. Siva Prasad Gupta, Advocate, Kurnool.
2. Sri. L. Hari Hara Natha Reddy, Advocate, Kurnool.
3. Sri. P. Siva Sudarshan, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties
