Date of Filing :16-02-2015
Date of Order :03 -7-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 3rd day of July, 2019
C.C.No.243 /2015
Between
M/s. D.R.S.Dilip Road lines Pvt. Ltd,
A Company registered company
Under Companies Act and having
Registered office at 220 Kabra
Complex 61 M.G Road Secunderabad
And rep. by its director
Mr.Anjani Kumar Agarwal
S/o. Mr.Dayandand Agrawal
Age: 44 years ……Complainant
And
Bajaj Allianz General Insurance Company
DLF Industrial Plot 2 floor Moti nagar
New Delhi – 110015, represented by its Director
And authorized officer Mr.Jay Prakash Shukla ….Opposite Party
.
Counsel for the complainant : M/s. Ranganathan & Associates
Counsel for the opposite Party : Mr. S.Promod Kumar
.
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 alleging that repudiation of the claim submitted to the opposite party amounts to deficiency of service hence direction to pay a sum of Rs.2,35,368 with interest at 24% P.A and to award cost of this complaint.
- Brief averments of the complaint are that the complainant is a registered company under the Companies Act and is in the business of transport of goods entrusted to it through trucks to various destinations. Most of the vehicles carrying the goods are owned by the complainant but drivers who run the vehicles are not under the employment of the company and they are hired under contract service which fact is known to all its customers.
On 24-3-2011 complainant company purchased a new truck bearing No.HR 55 N 661, Engine No.107142 and Chasis No.MBICTD YC 4BPYA 9008 and same was insured with the opposite party for a comprehensive policy bearing No. OG-11-1831-1803-000-00456 on 24-3-2011 and paid the requisite insurance premium. The truck was engaged on 26/6/2011 for carrying consignment of JK tyres from the JK factory at Mysore to Ludhiana. It was being driven by driver by name Ramsingh. On 2-7-2011 when the truck reached with consignment Balwas village in Hissar District the driver parked it near the village bus stand and he and cleaner went to village to meet their family members. When they returned back noticed the vehicle was missing at this spot where it was parked. Visiting of their family members leaving the truck unattended does not form part of their job. Since the driver and cleaner are not under the employment of complainant company any act or actions carried out by them in the discharge of their duties are outside their assigned duties do not bind the complainant company. The driver and cleaner of the truck could not trace out the vehicle in spite of searches carried out. The driver reported to have lodged a complaint with Choki in charge Meghali, Hissar Sardar Police Station that the truck was missing along with the consignment and its whereabouts are not known. The driver also reported to have informed that he left the ignition keys inside the vehicle and locked the door while going to the village. He also reported to have stated that window lock of the door was defective. The said report by the driver was not at complainant’s behest and cannot possibly be true. Soon after receipt of said information a representative of the complainant’s company went to spot to find out as to exactly what had happened. It appears that the driver gave false complaint to the police that the window lock of the vehicle door was defective.
The complainant’s company lodged a claim with opposite party on 4-07-2011 and in turn opposite party gave a reply on 15-02-2012 repudiating the claim stating that the driver committed violation of the policy condition No.4 which says that “ insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in an efficiently. The said defense cannot be attributed to the complainant because driver is not the complainant’s employee and it has no control over his movements. The driver is not expected to keep the ignition keys in the vehicle and leave the place as same was not part of his assignment. When the vehicle is absolutely new the question of its window lock being defective does not arise. That apart if the driver knew that the window lock of the vehicle was defective he has no business to leave it on road the keeping ignition keys in side. The opposite party is trying to take shelter under the false claim made by driver and thereby wants to avoid payment under the policy.
The complainant has been in touch with the opposite party through several letters and emails to convenience about its liability. When the efforts of the company to convenience of opposite party were ended in futile the company got issued a legal notice to it on 29-06-2012 and having acknowledged it opposite party failed to reply. Two years after the incident of loss the truck was seized by Rajasthan police near Jodhpur while transporting the illicit liquor and was impounded later was shifted to Hissar where a case of stolen vehicle was registered. Complainant got released the vehicle through the orders of Judicial Magistrate, Hisssar District of Haryana State in FIR No.5117/3-7-2011. After release of the vehicle it was brought to the complainant’s office at New Delhi then letter was addressed to the opposite party informing about the seizure of the vehicle at Jodhpur by Rajasthan police and it’s release by complainant with a request to send representative or licensed surveyor to inspect the vehicle and to give an estimate of repairs required and to make the vehicle roadworthy.
In response to the said intimation of the complainant opposite party sent a surveyor for inspection of the vehicle and to bring it to the Hyderabad. An email was sent to opposite party on 1-2-2014 informing that the vehicle was on its way to Hyderabad and it shall be reaching in the next three or four days.
After vehicle was brought to Hyderabad it was communicated to the opposite party whose representative reached the vehicle at workshop in Medchal and gave a green signal to the complainant to go ahead with the necessary repairs to make the vehicle roadworthy. In view of the approval given by surveyor appointed by opposite party the complainant got repaired the vehicle and reconditioned it at DRS Body building Work shop situate at Medchal extensive repairs were carried out the vehicle by the complainant and spent an amount of Rs.1,99,465/-. The copies of the bills and statement of account was sent to opposite party and asked to settle the claim at the earliest . The opposite party sent reply repudiating the claim basing on its earlier stand set out in its letter dated 15/02/2012 which was related to theft of the vehicle. The present claim relates to repairs effected to the vehicle after approval from the opposite party and claim No.OC-12-1103-1803-0000029 was relates to theft of the vehicle covered under the same policy as such both the claims to cover different liabilities. Hence opposite party cannot be permitted to reject the claim on the same grounds mentioned in the earlier claim. Opposite party having agreed to attend the repairs at the workshop and having sent an independent surveyor cannot be permitted to wriggle out its contractual obligations under the lame excuses.
Opposite party sent letter of intimation dated 21/8/2014 repudiating the claim on the basis of same defense taken in its earlier letter dated 15-02-2012. The complainant got issued a legal notice on 26-09-2014 asking the opposite party to settle the claim for Rs.1,99,465/- within a week from the date of receipt of notice. Opposite party having received the notice neither gave a reply nor complied the demand. Hence the present complaint for the above stated reliefs.
Opposite party while admitting issuance of the policy to the complainant’s vehicle and repudiation of both the claims submitted denied the other allegations in the written version filed.
The defense set out by the opposite party is that according to the complainant himself its registered office is situate at Secunderabad and carrying business of transport which is commercial in nature with a profit moto. Hence the present complaint is not maintainable. The issue involved and raised is a complicated question of facts and law. It should be settled after an elaborate scrutiny of facts by a competent Civil Court in a Civil suit. Hence on these grounds the same consumer complaint is not maintainable.
Complainant was addressed letter dated 6-7-2011 asking to furnish documents like original FIR photographs of the spot etc and after considering the same carefully repudiated the claim and intimated to the complainant by a letter dated 15-02-2012. The reasons are clearly explained to the complainant for repudiating the claim. As per the material available the driver of the vehicle namely Mr. Ran Singh has left all the keys of the vehicle inside the insured vehicle and left the vehicle unattended in spite of the fact that the window lock of the vehicle was damaged which also has contributed to the theft of the vehicle and it amounts to violation of terms and conditions of the policy. As per the policy condition the owner shall insure and take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition.
The window lock of the vehicle was damaged, still the complainant did not arrange the repair /replacement of the same which has contributed in the theft of the insured vehicle as such the complainant has not taken proper steps to safeguard the vehicle and was grossly negligent. In view of the gross negligence and violation of policy terms and conditions the theft claim of the insured vehicle was repudiated.
The opposite party never gave a green signal to the complainant to go-head with necessary repairs to make the vehicle road worthy and also never gave a commitment for payment of damages. Complainant with a malafied intention of having huge compensation filed the present false claim contrary to policy terms and conditions. The opposite party after receiving the claim from the complainant examined it carefully on every aspect including the document submitted by the complainant and then repudiated the claim with reasons in the letter dated 21-08-2014. The complainant was informed that the claim was repudiated on the ground of failure to take reasonable care as laid down in condition No.5 of contract policy. The complainant was further informed that subsequent to the theft incident and repudiation of theft claim by letter dt.15-2-2012, after time span of two years and expiry of insurance coverage extended under policy No.OG-11-1831-1803-00000456 received the intimation in respect of the recovery of theft vehicle. On the request of the complainant an independent IRDA licensed surveyor was appointed as per the guidelines laid down by the Insurance Regulatory and Development Authority to inspect the vehicle. Mere appointment of surveyor for inspection of the vehicle does not tantamount to admissibility of any liability on the part of the insurer. Surveyor in his report made a specific mention that predominately repair work has been carried out to reshape the chassis, cabin and body of the vehicle which are not covered under the coverage opted by the complainant. The complainant even after explaining the reasons for repudiation of the claim filed the present complaint with a malafied intention to get huge compensation. The opposite party responded to complainant queries and sought documents in order to settle the claim and there was no deficiency of service or unfair trade practice in the matter. As such the complainant is not entitled for any claim and complaint is liable to be dismissed.
In the enquiry for the complainant the evidence affidavit of Sri A.K.Agarwal stated to be one of the Director of the company is got filed and through him 14 documents are exhibited. For the Opposite Party evidence affidavit’s of its Sr. Executive of legal and that of independent surveyor got filed and got exhibited 17 documents. The evidence affidavit filed for both sides are in line with the respective contentions in the complaint and written version. Both sides have filed written arguments and made oral submissions.
On a consideration of material available on record the following points have emerged for consideration .
1. Whether the complainant is a consumer within the meaning of Section 2
(1)(d) of C.P.Act and can maintain the present complaint ?
- Whether the repudiation of the claim by the opposite party amounts to deficiency of service or unfair trade practice?
- Whether the complainant is entitled for the amount claimed in the complaint?
- To what relief?
Point No.1: Even according to the contents of the complaint the complainant is a transport company having got incorporated under the Companies Act with its registered office at Secunderabad and is carrying on business of transport of the goods to various destinations. It is also the complainant’s stand that the most of the vehicles involved in carrying of goods owned by it but the persons whom the vehicles entrusted to drive are not under its employment and they are being hired under the contract service. By this pleading the complainant is trying to impress upon this Forum that for any negligent act on the part of the driver cannot be attributed to the company. This defence of the complainant holds no water because the persons engaged by the complainant company to drive its transport vehicles were hired by the company on its own. They were not deputed to the complainant’s company by a 3rd party agency. Admittedly the hire charges for the so called drivers are being paid by the complaint company. As such the complainant cannot plead that driver employed by it are not under its control. If the drivers are not under the control of the company then under whose control they are being worked is not stated by the complainant anywhere.
The contents of the complaint averments itself shows the complainant is engaging in the business of transport of goods from one destination to other through transport vehicles. So it is carrying on the business of transport of goods for profit and gain. Insurance policies were taken to vehicles owned by it to protect any likely damages to the vehicles during the course of transporting the goods. In the light of it the complainant company cannot contend that it a consumer within the meaning of Section 2 (1) (d) of C.P.Act. The main moto of the complainant company is to have profit in its business being carried out through the transport vehicles owned by it. In the light of it the complainant in the instant case will not come under the provisions of 2 (1) (d) of C.P.Act. Hence he cannot maintain the present complaint before this Forum. Accordingly point is answered.
Point No.2: It is not in dispute that the complainant company purchased insurance policy to the subject vehicle from the opposite party the policy in Ex.A3 (B1) which contains terms, conditions and exclusions under condition No.4 of subject policy the complainant as insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition. The averments of the complaint as well as evidence affidavit of the complainant are that the subject vehicle was started with consignment in full load from J.K Factory at Mysore to Ludhiana in the State of Haryana. On 26-6-2011 when the said vehicle reached village Balwas in the Hissor District of Haryana State the truck driver parked the vehicle near village bus stand and he along with the cleaner went to their house to meet the family members and by that time they returned, vehicle was not seen and was missing from the place where it was parked. As per the information furnished by the driver to the police he left the ignition key inside the vehicle and door lock of the vehicle was defective. Leaving of the ignition key inside the vehicle though door lock was defective amounts to negligence on the part of driver and for this negligence the complainant as the employer of the driver is liable vicariously . One of the reasons mentioned by the opposite party for repudiating the claim is the complainant failed to attend repairs to the door and if door lock was not defective the driver would have locked the door and there would not be any access to ignition key for a 3rd party. Parking of the vehicle unattended also amounts negligence as such under condition No.4 of subject policy the insured has failed to take reasonable steps to safeguard the vehicle from loss or damage and failed to maintain it in efficient condition.
The first claim submitted by the complainant for the theft of the vehicle was repudiated for the above stated grounds by opposite party. Two years after the recovery of the vehicle the complainant submitted a claim for attending damages and admittedly opposite party deputed a licensed surveyor for assess the damage and ultimately claim has been rejected on the same grounds which were mentioned in the earlier repudiation intimation also. It is not the case of the complainant that as on the date of tracing of the vehicle which was two years after the theft of it there was subsisting policy so as to claim damages for the damage caused to the vehicle . It is not known whether the damage to the vehicle was caused when the policy in Ex.B1 was subsisting. Since the vehicle was recovered two years after the theft it cannot be said that during the policy subsistence damages were caused so as to claim the amounts spent for attending damages. So on this grounds also the complainant cannot maintain the claim submitted for payment of amounts for attending damages that apart.
The evidence affidavit of surveyor got appointed by opposite party shows during the survey of the vehicle by him after its recovery he observed predominantly repair work has been carried out to restore and maintain the vehicle in efficient condition which includes chassis, cabin and body of the vehicle and the repairs were carried out for any accidental impact or damage sustained to the vehicle and repairs attended are not covered under the Ex.B1 policy. No objection has been filed for this affidavit of independent surveyor Sri Y.Venkatesh Reddy. Not only that the complainant did not ask for the cross examination of this Venkatesh Reddy and it amounts to admission of the facts stated by him in his affidavit. In the light of the evidence of PW2 the repair attended by the complainant subject vehicle are not covered under the subject policy Ex.B1 also hence the complainant is not entitled for the claim. So repudiation of the claim by the opposite party in the instant case does not amount to deficiency of service. Accordingly point is answered.
Point No.3: In the light of the findings of this Forum to the above points it is to follow that the complainant is not entitled for the amounts claimed in the complaint.
Point No.4: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 3rd day of July , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- certification of incorporation
Ex.A2 -authorization letter dt.13-11-2014 (Board resolution)
Ex.A3 -insurance policy dt.31-03-2011
Ex.A4 -lawyers notice dt.29-06-2012
Ex.A5 -postal receipts with acknowledgment
Ex.A6 -copy of the order passed by J.F.M Hisser
Ex.A7 -copy of Email by complainant
Ex.A8 -copy of email by opposite party dt.01-7-2014
Ex.A9 -reply to the email by complainant
Ex.A10- statement of account
Ex.A11-copy of email sent by complainant
Ex.A12 -copy of letter dt.21st August 2014
Ex.A13 -copy of legal notice dt.26-09-2014
Ex.A14-postal receipts and acknowledgement
Exs. filed on behalf of the Opposite party
Ex.B1- policy terms and conditions
Ex.B2 -claim form submitted by complainant
Ex.B3 to B8- letters communication in between complainant and opposite party in various dates
Ex.B9- investigation report dt.30-10-2011
Ex.B10- complaint
Ex.B11 -memorandum of association
Ex. B12 - Indian Income Tax return verification form
Ex.B13 -letter dt.11-08-2011
Ex.B14 - First Information Report
Ex.B15- Driving license
Ex.B16-photographs
Ex.B17- Letter dt.26-6-2014 surveyor /loss Assessor/ engineer
MEMBER PRESIDENT
