FA   of 2012 against CC 177/2012 Dist. Forum-III, Hyderabad

Between

Sigma Freight Pvt. Ltd.,

R/o. Plot No.81, Phase-I,

Saket, ECIL Post,

Hyderabad-500 062.

Rep. by its Managing Director,

K.R.Nair, S/o. E.Kuttan Pillai,                    ***                        Appellant/           

                                                                                                Complainant

                                                                   And

1. The TATA AIG General Insurance

    Regional Office, 4^th floor,

    My Home Tycoon

    Greenland, Begumpet,

2. The TATA AIG General Insurance,

    Regd.Office: Peninsula Corporate Park

    Nicholas Piramal Marg,

    9^th floor, Ganpathrao Kadam Marg,

                   ***                         Respondents/

Counsel for the Appellant                    :  M/ Srinivasa Rao Pachwa

Counsel for the Respondents              :  M/ Ramachandra Reddy Gadi

CORAM:

                              SMT. M. SHREESHA, PRESIDING MEMBER

&

                                S. BHUJANGA RAO, MEMBER

THURSDAY, THE TWENTY EIGTH DAY OF MARCH TWO THOUSAND THIRTEEN

ORAL ORDER:  (Per Smt. M. Shreesha, Member)

***

1)                 Aggrieved by the order in C.C.No.177/2012 on the file of District Forum-III, Hyderabad, the complainant preferred this appeal.

2)                The brief facts as set out in the complaint are that the complainant, a Private Limited Company incorporated under the  Act, 1956 is engaged in freight of goods transport having  their own fleet of vehicles  and is the owner of a light commercial vehicle Tata Winger bearing registered No.AP-29V 2944 which was purchased on 30-9-2009 and insured with the opposite parties by paying an premium of Rs. 16,750/- vide policy No.150746592 dt.   While so the complainant’s vehicle met with an accident on 02-2-2010 at Borkhedi Village, NH-7 near Nagpur, Maharashtra State  en-route to Hyderabad.  The complainant submitted that the accident was immediately informed to the local police who registered an FIR on 2-2-2010 and thereafter the complainant informed the opposite parties about the occurrence of the accident and damages to the vehicle.  The complainant submitted that the surveyor of the opposite parties visited the site and conducted spot survey and immediately the vehicle was shifted to M/s Nangia  Motors, Nagpur which is the nearest authorised centre of  Tata Commerical vehicles as suggested by the surveyor of the opposite parties since he has no knowledge about the local service station.  The complainant submitted that the vehicle was re-inspected by the opposite party’s surveyor on 12-5-2010.  The complainant submitted that he incurred a total cost to an extent of Rs.2 

3)                The complainant submitted that in spite of repeated requests and lot of correspondence and clarifications, the opposite parties settled the claim of the complainant only to an extent of Rs.98,951/- and sent a discharge voucher but the complainant accepted the same under protest.  The opposite parties rejected the claim  the balance amount vide letter dated 18-11-2010 and therefore the complainant returned the cheque for an amount of Rs.98,951/-.  The complainant submitted that opposite parties through email dated 6-4-2011 considered only Rs.96,072/- out of Rs.1,34,401/- towards cost of spare parts and the complainant submitted that it is illegal as the vehicle was 6 months old.  The complainant further submitted that the opposite parties considered only Rs.35,000/- out of Rs.64,000/- towards labour charges and therefore they are liable to reimburse total amount and applied 50% depreciation on plastic and rubber parts  and also have not considered the value of the damaged tyre of Rs. 3,550/- and are trying to evade payment.  Therefore the complainant got issued a legal notice on 30-9-2011 and the opposite parties acknowledged the same and issued reply with baseless allegations.  Hence the complainant for a direction to the opposite parties to pay a sum of Rs.2,10.790/- towards cost of repairs with interest at 18% from the date of claim together with Rs.2,00,000/- towards mental agony and costs of Rs.10,000/-.

4)                Opposite parties 1 and 2 filed written version resisting the complaint.  They submitted that the complainant is not a ‘consumer’ and admitted that they issued a policy bearing No.0150746592  for the period from 30-9-2009 to 29-9-2010 and the complainant declared the value of the vehicle as Rs.5,22,138/- and paid net premium of Rs.16,283/- inclusive of service tax.  They submitted that the complainant informed that the vehicle met with a road accident on 02-2-2010 and the same was reported to their call centre as well as to the Police.  They submitted that they appointed an independent surveyor duly licensed by IRDA and he is not their employee and he visited the workshop on 05-2-2010 at M/s. Nangia Motors Limited for inspection and assessment of damages and after completion of repairs, the surveyor again re-inspected the vehicle and gave his final report.  Opposite parties contended  that the complainant submitted final bills for Rs.2,10,790/- which was scrutinized by the surveyor and the claim payable under the policy terms was assessed for Rs.98,951/- and after taking into account  all the damages, submitted the bill check report to opposite parties on 21-6-2010.  They submitted that there was inordinate delay on the part of the complainant in transmitting the discharge voucher and the complainant after repeated reminders sent the discharge voucher for Rs.98  dated 17-5-2011 and finally sent the cheque as per its stand and thereafter also by email dated 05-7-2011 provided the detailed calculations of the claim.  Opposite parties submitted that vide letter dated 8-12-2010 they forwarded a copy of the survey report to the complainant for perusal and satisfaction that the assessment is made according to terms and conditions and as a good gesture, the complainant was also provided an opportunity to discuss the issues at Hyderabad for clearing their dissatisfaction but the same was not opted by the complainant. 

5)                The Opposite parties further submitted that the workshop of M/s Nagina Motors is an authorised workshop of M/s Tata Motors Limited but they are not having a direct settlement arrangement and the complainant also did not make any request to them for direct settlement with the workshop and therefore they sent a cheque for Rs.98  They submitted that as per Section 1 of the terms and conditions of the policy: 

i)                    The company will indemnify against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced

ii)                   

1)   For all rubber/nylon/plastic parts, tyres        

                 and air bags                             50%

          2)  For fibre glass components                                        30%

          3)  For all parts made of glass                                        NIL

          ii) The complainant shall not be liable to make any payment in respect of

a)    Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakages nor for damaged caused by over loading or strain of the insured vehicle not for loss of or damage to the accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.

b)   Damage to tyres and tubes unless the vehicle insured is damaged at the same time in which case the liability of the company shall be limited to 50% of the cost of replacement.

iv) The schedule of depreciation for fixing IDV of the vehicle the age of the vehicle not exceeding six months 5% of depreciation for fixing IDV.

IMT 23: COVER FOR LAMPS, TYRES/TUBES MUDGUARDS, BONNET/SIDE PARTS, BUMPERS, HEAD LIGHTS AND PAINT WORK OF DAMAGED     PORTION ONLY.

In consideration to payment of an additional premium of Rs….. notwithstanding anything to the contrary contained in the policy, it is hereby understood and agreed that subject to conditions (a) (b) and (c) hereunder loss of or damage (excluding theft under any circumstances) to lamps, tyres/tubes, mudguards, bonnet/side parts, bumpers, head lights and paint work of damaged portion only is covered provided the vehicle is also damaged at the same time subject to:

a)     Depreciation as per schedule provided in Sec.1 of the policy.  It is

        in Sec.1 of the policy.

b)   In addition to any amount which the insured maybe required to bear under para (a) above the insured shall also bear 50% of the assessed loss in respect of each and every claim under this endorsement.

Opposite parties for the reasons aforementioned submitted that there is no deficiency in service and prayed for dismissal of the complaint.

6)                The District Forum by docket order dated 09-10-2002 dismissed the complaint for default.

7)                Aggrieved by the said order, the complainant preferred this appeal.

8)                Keeping in view the  facts and circumstances of the case and also that the complaint was dismissed for default, we are  of the considered view that  the appellant/complainant  for the reasons stated in the grounds of appeal that there was  heavy traffic jam on  9.10.2012  and by the time the learned counsel reached the Dist.  Forum a bit late by then it was dismissed and since the Dist. Forum having no power to restore its own order and this appeal is being preferred, the complainant sought for one more opportunity to pursue his remedy before the Dist. Forum.  

9)                Keeping in view the principles of natural justice and equity, we are of the considered view that the appellant/complainant may be given an opportunity, however due to latches on his part, on payment of costs of Rs. 500/- to be paid by the complainant to the Dist. Forum Bar Association.  

10)              In the result the appeal is allowed and the order of the Dist. Forum is set-aside and this matter is remanded to Dist. Forum to give opportunity to complainant after giving due notice to both sides and   this matter is pertaining to the year 2012, the Dist. Forum shall dispose of the matter within three months from the date of receipt of this order.  No costs. 

1)      _______________________________

PRESIDING MEMBER 

2)           ________________________________

MEMBER  

28/03/2013

*rjm/pnr

UP LOAD – O.K.