BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE         

Dated this the 5^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HONBLE MEMBER

ORDER IN

C.C.No.291/2013

(Admitted on 11.11.2013)

Mr. K. Ramachandra Naik,

S/o K. Kittappa Naik,

Aged 56 years,

R/at Kolnad guthu,

Haleyangadi,

Mangalore, D.K. District.

                                                      ….. COMPLAINANT

(Advocate for the Complainant: Sri MRK)

VERSUS

1. The Manager,

    The Oriental Insurance company ltd.,

    City Branch Office,

     Krishna Prasad Building,

     3^rd Floor, Lalbaugh,

     Mangalore

2. The D.G.M.

    The Oriental Insurance Company Ltd.,

     44/45, Leo Shopping Complex,

     Residency Cross Road,

     Bangalore  25.

                                                       ......OPPOSITE PARTIES

 (Advocate for the Opposite Parties No.1 & No.2: Sri. AKK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The admitted facts are the complainant a transporter of petrol, diesel and petroleum products all over Karnataka insured his 10 wheeler Tanker bearing No.KA.19C.0231 with opposite party.  On 21.1.2013 it met with an accident within the limits of Bhadravathi Paper Town.  Soon after H.M. Somshekar conducted the surveyor and the loss is assess at Rs.4,73,904/. The complainant claim is instead of deducting Rs.15,000/ opposite party deducted Rs.75,000/ calculating at 5% terms and conditions of the policy.  The complainant also alleges he sustain financial loss as his income from the vehicle was seriously affected atleast 10 months.  He was also compelled to sign with various documents produced.  The opposite party paid only Rs.3,98,000/ and failed to pay Rs.60,000/ as illegally deducted.  Despite request and letters.  Hence seeks relief for the complaint. 

II.     The opposite party further contends in the case of claim for loss of consignment as per terms and policy conditions deducted of 5% or Rs.15,000/ whichever is higher of claim.  The assessment of loss is strictly with reference to the policy condition with the complainant is produced.

     2.     In support of the above complainant Mr. K Ramachandra Naik filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C5 detailed in the annexure here below.  On behalf of the opposite party Mr. Gopikrishna Rao M (RW1) Administrative Officer also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii): Affirmative

              Point No.(iii): As per the final order.                  

REASONS

IV.   POINTS No. (i): The Complainants claim of loss of goods in the accident.  The complainant being purchaser of policy from opposite party the service provider and that there is according to complainant unjust deductions indicated a dispute between the parties view giving jurisdiction to this Forum to decide under the C P Act.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):  In this case the opponent had made certain admitted payment which was received by the complainant.  The claim of opposite party is the policy excess of 5% of the goods lost or Rs.15,000/ whichever is higher as per the case of opposite party.  But according to complainant it is towards excess of Rs.15,000/ not beyond Rs.15,000/.  The intimation given to the complainant mentioned deduction an excess of 15% or 5% if sum is insured that Rs.75,000/.  But the surveyors report through H.M. Someshekar Engineer Surveyor and Loss Accessor in this report dated 19.4.2013 mentions deduction towards policy excess at Rs.15,000/ only.

2.    In this case opposite party produced duplicate copy of the insurance policy with a hand written mention of compulsory/impose exceed 5% of sum assured or Rs.15,000/ whichever is higher.  But Ex.C1 the copy of the Carrier Legal Liability of policy schedule issued to and produced by complainant does not make mention of this aspect.  That Ex.C1 is the copy of the Insurance policy schedule is not disputed by opposite party.  Hence the argument of learned counsel for complainant that the hand written version is a subsequent instruction is liable to be accepted.  Hence the complainant succeeded in proving that opposite party as illegally deducted an excess of Rs.60,000/ while making payment to the complainant on 28.8.2013.   Hence opposite parties shall be directed to payment of Rs.60,000/ with  interest at 9% per annum from 28.8.2013 till the date of payment.  Considering that opposite parties by including in the policy copy certain clause not found in the policy copy issued to complainant.  We are of the view awarding compensation of Rs.60,000/ is just and proper.  Another sum of Rs.5,000/ towards cost.  Hence we answer point No.2 in the affirmative.

POINTS No. (iii): Wherefore the following order

                                                                                                                                    ORDER

     The complaint is allowed.  Opposite parties are directed to payment of Rs.60,000/ (Rupees Sixty thousand only) with interest at 9%  per annum from 28.8.2013 till the date of payment.  Opposite parties shall also pay an amount of 60,000/- (Rupees Sixty thousand only) towards sufferance and his loss, a sum of Rs.5,000 / (Rupees Five thousand only) towards cost.  Payment shall pay within 30 days from the date of receipt of copy of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 5 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 5^th December 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. K. Ramachandra Naik

Documents marked on behalf of the Complainant:

Ex.C1:  Policy Copy         

Ex.C2:  Xerox copy of FIR in crime No.7/2013 of Badravathi  Rural Circle

Ex.C3:  Letter dated 01.08.2013 written by complaint to the Divisional Manager

Ex.C4: E.mail Letter to the respondent

Ex.C5: The discharge voucher sent by the respondent in favour  the complainant

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Gopikrishna Rao.M, Administrative Officer,

Documents marked on behalf of the Opposite Parties:

  Nil 

Dated:  05.12.2016                                         PRESIDENT