BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.144 OF 2011 AGAINST C.C.NO.40 OF 2009 DISTRICT FORUM-I CHITTOOR
Between:
1. The ICICI Lombard General Insurance Co.Ltd.,
Head Office Bombay, rep. by tis General Manager,
Holding its office at Zenith House, Kesavar Rao
Khade Marg, Mahalaxmi Mumbai-400 034
2. The ICICI Lombard General Insurance Co.Ltd.,
Tirupati Branch
3. The ICICI Lombard General Insurance Co.Ltd.,
Gandhi Road, Chittoor
Appellants/opposite parties
A N D
K.Purushotham Reddy S/o Sankar Reddy
aged about 35 years, R/o Upponka Village
Thodatara Post, Thavanampalle Mandal
Chittoor District
Respondent/complainant
Counsel for the Appellants Sri Katta Laxmi Prasad
Counsel for the Respondent Served
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY THE THIRTEENTH DAY OF JULY
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite parties are the appellants.
2. The respondent being the owner of Auto bearing No.AP-03X 2804 got insured it with the appellants under insurance certificate-cum-policy No.3003/5317343/00003 for the period commencing from 12.12.2007 to 11.12.2008. The insurance policy is a goods carrying package policy. The respondent purchased the auto with the financial assistance of Sriram Transport Finance Co., Ltd., Chittoor under hypothecation agreement. On 19.5.2008 the auto met with an accident near Panthrampalle on Chittoor-Aragonda while it was proceeding towards Chittoor from Aragonda as a bus bearing registration No.AP 03/U-1663 colluded against it. The auto was badly damaged. The respondent intimated the accident to the appellants and it had taken photographs of the damaged vehicle which was submitted by him along with the claim to the appellants. The respondent had submitted estimation from Sri Durga Motors Chittoor which assessed the damage to the vehicle at `51,050/-. He got issued notice on 28.9.2008 with a request to settle the matter and thereafter filed the complaint.
3. The appellant resisted the case contending that the respondent failed to inform the accident to them in order to enable them arrange spot surveyor through the surveyor. The respondent had not approached the appellants’ no.2 and 3 informing them about the accident and failed to submit claim form to them. Without receiving the claim form and necessary documents, the claim cannot be settled. As per the terms and conditions in Sec.4 of the Insurance Policy, the schedule of age wise depreciation is applicable for the purpose of assessment of total loss/constructive total loss claims. The respondent violated the terms and conditions of the insurance policy and there was no deficiency in service on the part of the appellants.
4. The respondent has filed his affidavit and the documents Exs.A1 to A8. On behalf of the appellants, E.Shanmugam, the counsel for the appellant no.3 filed his affidavit and the documents Exs.B1 to B3.
5. The District Forum allowed the complaint directing the appellants no.1 to 3 to pay a sum of Rs.38,287.50 with interest @ 0% per annum together with costs of Rs.1,500/-.
6. Aggrieved by the order of the District Forum, the opposite parties have filed appeal on the following grounds:
i) The respondent failed to intimate in time about the accident.
ii) The respondent failed to submit claim form;
iii) The respondent had not given opportunity to the appellants to depute surveyor to assess the loss.
iv) The respondent has not produced any bills to prove the payment made for repairs of the vehicle.
v) The driver of the vehicle has no driving licence to drive the class of the insured vehicle.
7. The points for consideration are:
i) Whether the respondent lodged claim with the appellants?
ii) Whether the respondent violated the terms of the insurance policy in the matter of giving intimation of the accident in time and the driver holding valid and effective driving licence at the time of the accident?
iii) Whether the appellants rendered deficient service?
iv) To what relief?
8. POINT NO.1: The consistent version of the appellants is that the respondent has not intimated them about the accident as also he had not lodged claim. One of the terms of the insurance policy is that the respondent has to give intimation of the accident to the appellants no.2 or 3 immediately after date of accident. The District Forum has come to the conclusion that the intimation was given to the appellants on the basis of the statement made by the respondent in his affidavit filed before it. The relevant paragraph of the order reads as under:
“Now the question is whether the complainant has intimated the fact of accident to the opposite parties and whether he has not submitted the claim forms. We have seen the material on record. The complainant has not filed any documentary proof to show that he intimated the accident to opposite parties and for submission of claim forms. The complainant filed his Affidavit PW.1 as evidence. Pw.1 – in his affidavit stated that immediately after the accident, he has intimated the same to the opposite parties through phone and as per suggestions given by opposite party, he has taken photographs of the damaged vehicle and submitted claim forms with relevant records to the opposite parties and also at request of opposite parties submitted estimation for the accident vehicle i.e. Ex.A4, but the opposite parties have not settled the claim. Ex.A8 is the legal notice issued by the counsel for complainant to the 2nd opposite party stating that he has intimated the fact of the accident through phone and submitted claim forms but the opposite parties have not chosen the settled claim and 3rd opposite party also admitted the issuance of Legal Notice Ex.A8 by the complainant.”.
9. The learned counsel for the appellants contends that the respondent has not produced any document to prove that claim intimation was given by him immediately after the occurrence of the accident. Whether the claim intimation was given or not and if given was the second appellant informed within the stipulated period and such other question would surface preparing platform for the parties to proceed in the back drop of the conditions of the insurance policy ruling the roost in determining the eligibility of claim as to be settled or repudiated.
10. Unfortunately, the respondent had not filed document to establish that he submitted the claim along with relevant documents. The inaction on the part of the appellants to give reply to the notice can hardly be made basis to conclude that the respondent lodged claim. Without there being any claim lodged, the respondent proceeding to claim the amount stated to have been incurred by him basing on the terms and conditions of the insurance policy would be nothing short of fighting in void. The primacy of the claim can be decided on the touchstone of the respondent’s eligibility as to satisfying the requirement of the terms and conditions of the insurance policy. Where there is no claim, it would be absurd to decide the rights of the parties to an insurance policy.
11. The National Commission in F.A.No.191 of 2009 between Road Safety Club Pvt Ltd., Vs Smt Kodi Lakshmi Narayanamma & Ors., decided on 3.11.2009 held that:
In the absence of any stipulate in the terms and conditions of the policy debarring such claim after a specific period, the delay in lodging the claim could not be form a just and sole ground for repudiation of the claim or denying other benefits to which the complainant was entitled under the said membership certificates and associated insurance policy.
12. Earlier the National Commission in a decision reported in 2000 NCJ (NC) 406 held that delay in submission of claim is not a just ground to repudiate it. The National Commission held that:
“Merely because the claim is not made within the stipulated period, it is not void”
13. This Commission in Golden Multi Services Club Limited and another Vs Smt Ranga Neelima and another in F.A.No.850 of 2007 decidded on 21.1.2010 held that lodging of the claim by the insured to claim the amount in terms of the insurance policy is the essential element in the process of deciding the rights of the insured and the insurer and the order deciding the rights of the parities without there being any claim is arbitrary and against law. Taking into consideration of the circumstances where the respondent proceeded to claim the amount stated to have expended by him for repair of the vehicle, we are inclined to provide opportunity to him to lodge claim and equally the appellants would be at liberty to settle or repudiate claim in terms of the conditions of the insurance policy.
14. PONTS NO.2 &3: In the light of discussion under point no.1 and giving opportunity to the respondent to lodge claim , it would be not necessary to discuss the matter under the points.
15. POINT NO4: In the result, the appeal is allowed setting aside the order of the District Forum. The respondent is given option to lodge claim with the appellant no.3 and the appellants can proceed with the claim in accordance with the terms and conditions of the insurance policy. There shall be no order as to costs.
MEMBER
MEMBER
Dt.13.07.2012
KMK*
