BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

F.A.  181/2008  against C.C.  181/2007,  Dist. Forum, Ongole  

Between:

The Branch Manager

The Oriental Insurance Company Ltd.

Divisional Office, Santhapet

Ongole.                                                       ***                           Appellant/

            O.P.  No. 1

And

Shaik Ismail, S/o. Hussain Sahib

Age: 34 years, Islampet, Ongole.                  ***                         Respondent/

Complainant

Counsel for the Appellant:                          M/s. Katta Laxmi Prasad

Counsel for the Respondent:                       M/s. V. Narayan Reddy

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

                                                                   &

                                           SMT.M.SHREESHA, LADY MEMBER.
                  

MONDAY, THIS THE TWENTY FIFTH DAY OF OCTOBER  THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1)                This is an appeal preferred by the opposite party insurance company against the order of the Dist. Forum directing it to pay Rs.  1,64,887/- together with interest, compensation and costs.

2)                The case of the complainant in brief is that he took an insurance policy on his lorry covering the period from 10.1.2007 to 9.1.2008.  While so on 12.2.2007 while his vehicle was going  the driver of a bus  drove it  in a rash and negligent manner dashed against the lorry due to which it was completely damaged.    On a report the police registered a case in Crime No. 45/2007.  When the fact was informed to the insurance company it had appointed a surveyor who visited the spot and assessed the damages at Rs. 2 lakhs and directed the complainant to get the vehicle repaired.  Accordingly he got it repaired by spending Rs. 1, 86,230/- besides Rs. 86,000/- towards repairs to engine etc.    Despite repeated requests the claim was not settled and therefore he claimed Rs. 2, 72,000/- besides Rs. 1 lakh towards rental charges, Rs. 50,000/- towards compensation and costs.

3)                The insurance company resisted the case.  While admitting issuance of policy  it alleged that it had appointed a surveyor on intimation of accident.    It had settled the claim for Rs. 49,500/- towards full and final settlement and the said amount was duly received by him.   However, he did not send the discharge voucher.    There was no deficiency in service on its part.    The report of the surveyor and the photos taken by him would show that there was no damage to the engine.    Damage to the engine was due to over revival, which was outside the purview of the policy.   The manufacturer was a necessary party.    They were willing to pay as per the surveyor’s report and therefore it prayed for dismissal of the complaint with costs. 

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A16 marked while the insurance company filed the affidavit evidence of its Branch Manager and got Exs. B1 to B4 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that  the complainant had incurred  Rs. 1,64,887/-  which he was entitled with interest  @ 9% p.a., from  22.3.2007 till the date of realization together with compensation of Rs. 2,000/- and costs of Rs. 1,000/-.

6)                Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    As per the terms of the agreement the matter ought to have been referred to arbitration and the Dist. Forum has no jurisdiction.  The report of the surveyor was not in dispute or his estimate.    The complainant having received an amount of Rs. 49,500/- towards full and final settlement is not entitled to any more amounts and therefore prayed that that the appeal be allowed consequently dismiss the complaint. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is not in dispute that the lorry of the complainant was covered by  policy  Ex. A1 covering the period from 10.1.2007 to  9.1.2008 for Rs. 12,50,000/-.    It is also not in dispute that the insurance company on receipt of information that the vehicle met with accident confirmed by certificate issued by S.I. of Police vide Ex. A2   appointed a surveyor Mr. L. Shiva Shanker.  He made a summary of estimate as follows :

Obviously  the insured disallowed the claim for the damage to the engine on the ground that  it was not external damage.    

9)                The complainant shifted the vehicle immediately after the accident to M/s.  Laxmi Venkateswara Mechanical Works, Autonagar, Vijayawada which has estimated the repairs at Rs. 1,86,230/-.    Later  N. Varaha Swamy. Loss Assessor & Surveyor  again went into the report of the first surveyor  opined that the narration given by the complainant  was not the criterion   for the damages claimed by the complainant.  According to him   Automotive Manufacturers Pvt. Ltd.  ought to have repaired or replaced  engine parts.  However, it replaced  the engine without prior approval of the insurance company.    

10)              The Automotive Manufacturers Pvt. Ltd. by its letter  dt. 9.10.2007  opined that “ In our investigation we found that the engine had failed due to possible over revival.   As this kind of failure is not due to any manufacturing related issues, to maintain cordial customer relation, we have accepted the subject engine and carried out the repairs on paid basis  and delivered the loose  engine on 14.3.2007 against receipt of full payment from the customer/representative  to his satisfaction.”    Later N. Varahaswamy  had confirmed that engine had failed  due to possible over revival.  When clarification was sought  they confirmed by their letter Dt.  30.10.2007.   “Engine RPM  (Revolutions per minute)  shooting beyond the designed limit and it may occur probably because  of the vehicle run to down road condition in unsustainable gear.”   

11)               The record discloses that there was  an accident  In fact the very surveyor while  quoting the letter of the repairer has categorically stated that   “We have opened the engine  in the presence of insurance company surveyor  and after his acceptance  carried out the necessary repairs and delivered the engine.”      The repairer  had given the estimate under Ex. A3 for an amount of Rs. 1,86,230/-.  The complainant had paid  various amounts evidenced under bills/vouchers  Exs. A4 to A13.     The photographs of the damaged vehicle are marked as Ex. B4.   M/s. Automotive Manufacturers Pvt. Ltd.  under Ex. A15 issued quotation for Rs. 1,29,238/-.    The insurance company solely on the ground that  engine could not have been damaged it being inside the vehicle  and the damage was not direct reduced the amount to Rs. 49,500/- as assessed by the surveyor which we have already reproduced.   The status of the engine was verified in the presence of their own surveyor  and after taking approval  only engine was repaired.    Simply because the repairer had stated that the engine was brought to it for getting it repaired.   It does not mean that the engine was not damaged in the accident.   The engine was  changed in the presence of the surveyor  and the same was sent to the repairer,   who in turn found  that there was damage.   The fact remains that  the complainant had incurred expenditure for repairs which includes  change of engine.    The repairer had categorically stated  that it was not a manufacturing defect.    It must be due to accident.   Though the complainant  had spent about Rs. 2 lakhs  and odd  what all he claimed was Rs. 1,64,887/- which he had spent for getting it repaired which  we feel reasonable  and modest.   The Dist. Forum  has rightly denied the loss of income during the said period.    It had awarded a nominal compensation of Rs. 2,000/-  which cannot be said to be  on higher side.     We do not see any mis-appreciation of fact or law by the Dist. Forum in  this regard.  We do not see any merits in the appeal. 

12)               In the result the appeal is dismissed with costs computed at Rs. 2,000/-.  Time for compliance four weeks.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  25.  10.   2010.

*pnr

“UP LOAD – O.K.”