O R D E R
(By Sri S. Bhaskararao, Member on behalf of the Bench)
1. The complainant sought refund of value of spare parts and labour charges of Rs. 41,973-71 ps together with interest @24% for Rs. 3,080/-, Rs. 5,000/- towards compensation for mental agony and deficiency of service and also costs of Rs.3,000/- from the opposite parties.
2 The case of the complainant in brief is that he has the owner of the vehicle Maruthi Alto K10B VXI/ALTO K10 VXI. The said vehicle has been insured with the 1st opposite party which is validity from 28.04.201 to the mid night of 27.04.2012 under the policy bearing No. MB1100005041. While the complainant is travelling from Samalkota to Pedapudi, the car fell into a pit and then complainant get the car on road by travelling in 1st gear and thereafter by travelling in the said car, complainant went to Pedapudi and spent nearly one hour on his business work. Thereafter the complainant started and after travelling nearly 5 yards, the car has been stopped.
3. The complainant, has informed to opposite parties 2 and 3. The opposite parties to make arrangements and shift the car to the 3rd opposite party and the surveyor will come and inspect the same take photographs and estimated that a sum of Rs. 41,973-71 ps will be charges towards the value of the spare parts and labour charges. The complainant addressed a letter to the 2nd opposite party and gave a reply on 22.12.2011 falsely alleging that the car has been run in damaged condition. .
4 It is also his case he issued a lawyer’s notice to opposite parties, 4th opposite party has issued reply on 24.03.2012 with false allegations neither they replied nor complied with his demands. Thus he approached this Forum for recovering the above said amounts.
5 The 1st opposite party filed his written version denying the material allegations and further according to them the complainant is the owner of the Maruthi Alto K10 insured with the 1st opposite party commencing from 28.04.2011 to the midnight of 27.04.2012 but the policy is issued subject certain terms and conditions mentioned in the policy. The complainant is travelling from Samalkot to Pedapudi drove the car in a damaged condition, causing further damage to the car which comes under consequential loss for which this opposite party. Immediately on receipt of the claim intimation the opposite party appointed a surveyor to assess the loss. The surveyor inspected the vehicle and stating that the vehicle was keep running in a damaged condition even after it fell into the pit without choosing to intimated to the opposite party and there is no cause of action, the complaint is liable to be dismissed.
6 Now the points for determination are:
1. Whether there is any deficiency of service on the part of opposite parties?
2. If so, whether the complainant is entitled for the amounts sought by him in the complaint?
7 Point No.1: The complainant furnished his Evidence Affidavit and exhibited Ex.A1 invoice & sale certificate dated 29.04.2011, Ex.A2 insurance policy No. B1100005041 dated 28.04.2011, Ex.A3 service estimation, Ex.A4 letter addressed to complainant dated 21.12.2011, Ex.A5 letter addressed by complainant dated 26.12.2011, Ex.A6 office copy of lawyer’s notice along with postal receipts and Ex.A7 reply notice given by opposite parties.
8 Sri Somanchi Vasudeva Rao, Executive Legal for Bazaz Allianz Insurance Co. Ltd., for opposite parties 1,2 and 4 and Sri V. Srinivasarao, Insurance Surveyor cum Loss Assessor of 2nd opposite party furnished their Chief Affidavits reiterating the stand taken in their written version. They exhibited B1 & B2 which are policy bearing No. No. B1100005041 along with terms and conditions and surveyor report .
9 The contention of the complainant is that the complainant is the owner of the vehicle Maruthi Alto K 10B VXI/ALTO K0VXI and the said vehicle has been insured with the 1st opposite party which is validity from 28.04.2011 to the mid night of 27.04.2012 under the policy bearing No. MB1100005041 and the insurance is covered for the own damage of the vehicle also. The vehicle has been hypothecated to State Bank of India, Samalkot Branch. The complainant is travelling from Samalkota to Pedapudi, after crossed the Vetlapalem, the car fell into a pit and then the complainant get the car on road by travelling in 1st gear and thereafter by travelling in the said car, the complainant went to Pedapudi and spent nearly one hour on his work. Thereafter the complainant started and travelling nearly 5 yards, the car has been stopped. Immediately the complainant informed to opposite parties 2 and 3. The 2nd opposite party asked the complainant to make arrangements to shift the car to the 3rd opposite party and their surveyor will come and inspect the same. Then, the staff of the 3rd opposite party has shifted the car on auto. The 3rd opposite party also informed to the 2nd opposite party and surveyor visited the car, took photographs. Thereafter 3rd opposite party estimated that a sum of Rs. 41,973-71 ps will be the charges towards the value of the spares and labour charges.
10 The complainant addressed a letter to the 2nd opposite party and 2nd opposite part gave a reply on 22.12.2011 with false allegations that the car has been run in damaged condition. The complainant stated that the car ran for only 5 yards and then the car has been stopped. The complainant also informed the damage immediately to the opposite parties 2 and 3 and after that the car has been shifted to 3rd opposite party by taking all precautions.
11 As per the policy Terms and Conditions in 2[a] the company shall not be liable to make any payment in respect of “consequential loss depreciation wear and tear mechanical or electrical breakdown failures or breakages”. 4[a] any accidental loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising there from or any consequential loss. Condition 4 The insured shall take all reasonable steps to safeguard the vehicle from loss or damage.
12 At the time of arguments the complainant filed 3 decisions related to validity of survey report given by the Surveyor. [1] FA 81& 201 /1999, New India Assurance Co. Ltd., vs. Kamal Nayan [2] R.P. No. 2031/2012 dated 16.01.2013 [NC] A. Surana Vs. United India Insurane Co. Ltd. and 2 others [3] FA 493/2006 dated 18.09.2012 [NC] National Insurance Co. Ltd., Vs. M/s. Jyothi Tobacco Traders. The Hon’ble National Commission in 3 cases held “the report of Surveyor is an important and substantial piece of evidence, unless it is controverted by cogent and convincing reason challenging its findings in this case. Hence the opposite parties have not filed any other documentary evidence which is contradictable to the survey report. Hence the opposite parties have to stand on the survey report given by the Surveyor.
13. Point No.2: In view of the finding rendered under point No.1, the complainant is entitled for Rs. 41,973-71 paisa towards value of the spare parts. The opposite parties 1 to 4 are jointly and severally liable to pay Rs. 41,973-71 paisa to the complainant within 45 days from date of receipt of this order. Failing which, it comes an interest of 9% p.a. from date of receipt of this order till realization. In the circumstances the complainant is not entitled for any compensation and costs. Hence this point is answered accordingly.
14. In the result, the complaint is allowed in part. The opposite parties 1 to 4 are jointly and severally directed to pay Rs. 41,973-71 paisa [Rupees forty one thousand nine hundred seventy three and seventy one paisa only] to the complainant. If the said amount is not paid within 45 days from date of receipt of this order, the complainant is entitled for interest @9% p.a. from date of this order till realization. No order as to costs. The above order shall be complied within 45 days from the date of this order.
Dictation given to the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 10th day of July, 2015.
SD/-XXXX SD/-XXXXXX
MEMBER PRESIDENT[FAC]
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:
PW1: Sri Kancherla Madhu
For opposite parties:
DW1: Sri Somanchi Vasudeva Rao, Executive –[Legal]
DW2: Sri V. Srinivasa Rao, Insurance Surveyor cum Loss Assessor
DOCUMENTS MARKED
For complainant:-
Ex.A1 29.04.2011 Invoice & sale certificate
Ex.A2 28.04.2011 Insurance policy No. B1100005041
Ex.A3 Service estimation
Ex.A4 21.12.2011 Letter addressed to complainant
Ex.A5 26.12.2011 Letter addressed by complainant
Ex.A6 Office copy of lawyer’s notice along with postal receipts
Ex.A7 Reply notice given by opposite parties.
For opposite parties:-
Ex.B1 Policy bearing No. No. B1100005041 along with terms and conditions
Ex.B2 Surveyo report .
SD/-XXXXX SD/-XXXXX
MEMBER PRESIDENT[FAC]
