BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1075/2010 against C.C.No.22/2010, District Forum-II,Tirupati
Between
Konka Muni Babu, S/o.K.Munuswamy ,
Hindu , aged 60 years,
residing at Chilamathru Village,
Varadaiapalem Mandal ,
Chittoor Dist . …Appellant/
Complainant
And
1.The Manager,
Cholamandalam MS General Insurance Co.Ltd.,
D.No.6-3-698/3,1st Floor, Venkat Plaza-II,
Panjagutta, Hyderabad.
2. The Manager,
Mahindra Finance,
D.No.20-1-113, C & D , Korlagunta,
Tirumala Bypass Road, Tirupati-517 501,
Chittoor Dist. …Respondents/
Opp.parties
Counsel for the Appellant : Mr.M.Ramgopal Reddy
Counsel for the respondents : M/s. Kota Subba Rao-R1
M/s. V.Mohan Srinivas. –R2
QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER
WEDNESDAY, THE TWENTY EIGHTH DAY OF DECEMBER,
TWO THOUSAND ELEVEN.
(Typed to dictation of Smt.M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.C.No.22/2010 on the file of District Forum-II, Tirupati, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant is an agriculturist and to cultivate his lands he purchased a tractor Mahendra 295 NINS for Rs.4,50,000/ on 29.7.2008 and the said tractor was registered with R.T.A., Tirupati and temporary registration number is given i.e. AP.03/YY-TR-2719. The complainant insured the said tractor with the tieup insurance i.e. first opposite party under policy no.MSM-00024410-000-00. The complainant paid 25% of the cost of the tractor and for remaining 75% of cost of the tractor the second opposite party had provided finance. The complainant paid one instalment amount to the second opposite party. On 22.11.2008 at about 8.00 p.m. near Koduru Check Post, on Varadaiahpalem-TADA Main Road the complainant’s tractor met with an accident on collusion with an Indica Car and the tractor turtled on the road. The Engine turbo charger assembly, steering box of the tractor got damaged and the engine body was cracked and all parts of the tractor got damaged. The complainant informed the same to the S.I. of Police, Varadaiahpalem and the police registered the case as Crime No.53/2008 against the driver of the complainant. On the very next day the complainant informed about the accident to the opposite parties . On the advise of the second opposite party the damaged tractor was taken and kept in the Mahindra Show Room, Srikalahasti for repairs and the mechanic informed the complainant that the damaged tractor will not be useful for cultivation even after repairs. Mahendra authorized workshop, Jalal Trading Pvt. Ltd. estimated the repair charge at Rs.1,74,349/- and the estimation report was given to the complainant. The complainant submits that opposite party no.1 insurance company not paid single rupee to him towards damages under insurance claim though he submitted the required documents. The complainant got issued legal notice on 24.11.09 to the first opposite party which was received by them but they did not respond to the demands of the complainant. On the other hand the second opposite party officials are insisting for repayment of the entire loan amount. As per the terms and conditions of the policy, the first opposite party has to pay the insured amount to the complainant in case the said vehicle got damaged. The opposite party no.1 gave reply to the complainant with false allegations on 21.12.2009 and repudiated the claim of the complainant. The complainant paid policy premium amount towards damages if any occurred to his vehicle and the said accident happened within 1 year from the date of policy which is in force. The complainant engaged another tractor on hire to continue agricultural operations for which he spent Rs.1 lakh towards rent. The complainant submits that non payment of insurance amount by opposite party no.1 is deficiency in service. Hence the complaint seeking direction to opposite party no.1 to pay damage claim amount of Rs.1,74,349/- with interest @ 24% p.a. from the date of accident till realization as per the terms of the policy bearing no. MSM-00024410-000-00 for vehicle bearing No.AP.03/YY-TR-2719 , to direct the first opposite party to pay Rs.1 lakh to the complainant for the loss suffered due to non availability of the tractor for non payment of damages within reasonable time, to direct opp.parties to pay Rs.20,000/- to the complainant for mental agony and to pay costs.
Opp.party no.1 filed counter stating that the complainant insured his vehicle with them under Package-Commercial-Misc. & Special type of policy for a period of one year commencing from 29.7.2008 to 28.7.09. The opp.party further submits that they received intimation of claim on 11.5.09 for the alleged accident dt.23.11.2008 i.e. after a lapse of five months form the date of accident. Immediately after receiving the intimation the opp.party appointed a surveyor to inspect the vehicle to assess the damages occurred to the vehicle and the surveyor visited the workshop where the complainant shifted the vehicle for repairs and found that the vehicle involved in accident was totally dismantled and hence the surveyor was not in a position to assess the loss sustained to the vehicle. As per the policy conditions “notice shall be given in writing to the Company immediately upon occurrence of the accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require”. The complainant did not made any effort to send intimation in writing to the opposite party and this opposite party came to know about the alleged accident only after 5 months of alleged accident through opp.party no.2 only. Complainant’s vehicle alleged to be involved in an accident unattended for more than 15 days and the same amounts to clear violation of the policy terms and conditions and the opposite party is not liable to pay any damages. The opposite party further submits that as per the records the complainant did not register his vehicle with the Registration Department and more and over as on the date of accident, the alleged temporary registration also lapsed which amounts to clear violation of Motor Vehicle Act. As per the Motor Vehicle Act no vehicle should ply in the public place without registration. The opposite party submits that there is no deficiency in service on their behalf and prayed for dismissal of the complaint.
Opposite party no.2 filed written arguments before the Dist Forum stating that the complainant defaulted in payment of instalments since two years and he is liable to pay the amount to this opposite party and the complainant only to evade payment filed the complaint without making any allegations of deficiency of service against this opposite party. Opposite party no.2 prayed for dismissal of the complaint with costs.
The District Forum based on the evidence adduced i.e. Exs.A1 to A9 and B1 to B3 and pleadings put forward dismissed the complaint without costs.
Aggrieved by the said order, the complainant preferred this appeal.
Opposite parties 1 and 2 filed written arguments.
It is the appellant/complainant’s case that he purchased a Tractor and Trailor for Rs.4,50,000/- on 29.7.08 which is insured by the first opposite party and financed by the second opposite party. On 22.11.08 the tractor met with an accident and an F.I.R. was registered evidenced under Exs.A1 and A2 Charge Sheet. The damaged tractor was shifted to an authorized workshop for repairs and an estimate of Rs.1,74,349/- was given towards repair charges evidenced under Ex.A5. The complainant informed opposite party no.2 on 23.11.08 but they did not respond and so he got issued a legal notice vide Ex.A7 dt.24.11.09 for which opposite party no.1 replied vide Ex.A9 dt.21.12.09 . The learned counsel for opposite party no.1 Insurance Company contended that they received intimation of claim only on 11.5.09 from opposite party no..2 about the accident dt.23.11.08, therefore there is a lapse of 5 months from the date of the accident. A surveyor was appointed but the entire tractor was dismantled and he could not assess the loss or damage and the learned counsel contended that as per the terms and conditions in Ex.B2 policy, notice should be given in writing to the company immediately upon the occurrence of the accident but the complainant did not made any efforts to intimate the Insurance Company immediately after the accident , but preferred a claim only after 5 months. He also contended that the complainant did not register his vehicle with R.T.A. which is also violation of terms of the policy.
The learned counsel for the respondent/opposite party no.2 contended that the complainant did not pay the instalments for more than two years and has filed this complaint only to evade the instalments.
It is evidenced in the FIR. i.e. Ex.A1 that the Tractor and Trailor was unregistered but the Charge Sheet Ex.A2 evidences that there was a temporary registration no.AP 03 YY – TR 2719 and it is pertinent to note that the opposite party no.1 did not file any documentary evidence to substantiate their contention that even the temporary registration has lapsed. It is the complainant’s case that he informed about the accident on the very next date to the opposite parties but there was no response. It is the first opposite party’s case that the claim was made after 5 months after the date of the accident. But in their terms and conditions the exact time period before which the claim should be made has not been specified though it is stated that notice should be given in writing immediately after the accident.
We rely on the judgement reported 2000 NCJ (NC) 406 wherein it is stated that merely because there is a delay in making a claim it should not be a sole ground for the repudiation. The accident is not in dispute (Ex.A1 and A2) and surveyor has been appointed by the opp.party no.1 who inspected the vehicle but submits that the damage cannot be assessed as it is in a dismantled condition. From this it can be construed that there was a damage but the exact assessment could not be made by the surveyor because of the dismantled condition. However the complainant filed the estimate given by the authorized service centre evidenced under Ex.A5 wherein the estimate was given for Rs.1,74,349/-. The learned counsel for the Insurance Company contended that in case of replaced parts 1/3 rd of the value of the parts have to be deducted and relied on the judgement of Hon’ble High Court of A.P. reported in 1986 I ALT 105 . Keeping in view that the accident is evidenced under Exs.A1 and A2 and surveyor has inspected the damaged vehicle but could not assess the exact amount because of the dismantled condition, we are of the considered view to meet the ends of justice and keeping in view the balance of equities, 1/3rd of the estimated amount i.e. 1/3rd of Rs.1,74,349/- is to be paid by opposite party no.1 Insurance Company together with costs of Rs.3000/- within four weeks from the date of receipt of the order. We are not inclined to award any interest or compensation keeping in view that there is contributory negligence on behalf of the complainant also in not informing the opposite party in writing immediately after the accident. Case against opposite party no.2 finance company is dismissed since there was no deficiency of service on their behalf.
In the result this appeal is allowed in part and order of the Dist Forum is set aside . We allow the complaint in part directing opposite party no.1 Insurance Company to pay 1/3rd of Rs.1,74,349/- together with costs of Rs.3000/- within four weeks from the date of receipt of the order. Case against opposite party no.2 is dismissed without costs.
PRESIDENT
MEMBER
Pm* Dt.28.12.2011
