Date of filing : 04-11-2013
Date of Disposal : 29-01-2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
:: NELLORE ::
Thursday, this the 29th day of JANUARY, 2015.
PRESENT: Sri P.V.Krishna Murthy, B.A., B.L., President
Sri M.Subbarayudu Naidu, Member
C.C.No.111/2013
N.Srinivasulu (Nagarajupalli Srinivasulu)
S/o.Seetharamaiah, Hindu, aged 40 years,
R/o. Dr.No.1-388, M.V.Nagar,
DVR Palli,Gudur,
SPSR Nellore Dist. … Complainant
Vs.
M/s.Bajaj Allianz General Insurance Company Ltd.,
Rep. by its General Manager,
Opp.Chinni International Hotel,
Indira Bhavan road,
Nellore City. … Opposite parties
This matter coming on 18-12-2014 before us for final hearing in the presence of Sri A.V.Raghava Reddy, Advocate for the complainant and Sri P.V.Mallikarjuna Reddy, Advocate for the opposite party and having stood over for consideration till this day, this Forum passed the following:
ORDER (BY SRI M.SUBBARAYUDU NAIDU, MEMBER ON BEHALF OF THE BENCH)
This consumer case is filed against the opposite party by the complainant to direct the opposite party to pay a sum of Rs.9,75,000/- with a subsequent interest at 18% p.a., from the date of complaint till the date of realization, to grant costs of the complaint and also to grant such other reliefs as are deemed fit and proper in the circumstances of the case.
The factual matrix leading to filing of this consumer case is set out hereunder and it is as follows as:-
I (a) It is the case of the complainant that he had purchased Ashok Leyland bearing No.A.P.No.28-1-6043 from M/s.Allianz infotech Pvt.LTd., Ranga Reddy District and the same was transferred in the name of the complainant herein. The complainant had paid an amount of Rs.3,300/- for changing the existence of Insurance policy in his name by the opposite party executive by name Mr.K.Venkateswarlu and it was paid to his bank account. After paying the said policy, the complainant was flying the said vehicle on the rental basis and thereby he is getting Rs.1,60,000/- per month.
(b) It is also further submitted by the complainant in para 4 of his complaint that on 10-08-2013 the said vehicle was met with an accident at Nidigallu of Balayapalli mandal. Thereafter, immediately after receiving information, the complainant was informed the same to the above said Venkateswarlu as well as to claim manager by name Mr.Jayapal. Then, the opposite party authorities had sent the surveyor by name Mr.Ramu. The said Surveyor came to the accident spot and estimated the damage of the said vehicle after completion of formalities, and the complainant shifted the said vehicle from accident spot to M/s.Narayana TATA Leyland lift mechanical spot, Auto nagar, Nellore. The opposite party and another surveyor by name Mr.Sridhar reddy came there and estimated the damage of the said vehicle along with mechanic and they were found the damage of the said vehicle’s cost of Rs.4,92,000/- and then the said persons had informed to the complainant. The opposite party had came to the office along with all necessary documents as usual the complainant also came to opposite party’s authorities and found that the existence insurance policy was not transferred to the complainant’s name even though opposite party received the amount from complainant. So, immediately, opposite party’s authorities was issued and transferred the existence policy in the name of the complainant on 13-08-2013.
( c ) It is also further submitted by the complainant in para 5 of his complaint that after verifying the documents by opposite party’s authorities, was postponing on some pretext or the other, not sanctioning the amount for repairs of the said vehicle. The complainant had repeatedly wondering opposite party’s office and requested the opposite party to sanction the same but opposite party’s authorities are postponing the same without any reason or cause and due to the inaction of opposite party, the complainant had sustained loss of earning of Rs.5,400/- per day and kept his vehicle idle for not doing repairs to the said vehicle.
(d) It is also further submitted by the complainant that in para 6 of his complaint that the said insurance policy was in force and it is a valid one and the opposite party insurance policy had illegally repudiated his claim. The allegations of suppression of material facts and due to that, the complainant had suffered mental agony, stress and strain compiled with economic loss because of deficiency in service and negligence on the part of opposite party towards him. Then, the complainant had issued a legal notice dt.23-09-2013 to the opposite party and the same was received by opposite party and did not comply the same. Then, the complainant had spent an amount for the said vehicle’s repairs and thereafter flying the same. The opposite party had harassed the complainant without paying the amount and the complainant had suffered physically and mentally and the attitude of opposite party will come under deficiency in service and the opposite party at Nellore branch is within the jurisdiction of the Hon’ble Forum.
(e) There are causes of action to file the complaint which are narrated and described in para-8 of the complaint of complainant.
(f) It is also further submitted by the complainant in para-9 of his complaint that for the purposes of jurisdiction and complaint’s valuation is as follows:-
(i) Vehicle repair amount Rs.4,92,200/-
(ii) Loss of earning Rs.5400/- per day
For keeping the vehicle idle from Rs.4,32,000/-
13-08-2013 to 03-11-2013 (80 days)
(iii) The damages claimed by the complainant Rs. 50,000/-
For deficiency in service and
(iv) Legal notices charges Rs. 1000/-
Total : Rs. Rs.9,75,200/-
Hence, this complaint.
DEFENCE:
II (1) The opposite party was resisted the complaint by denying the allegations of the complainant which are made in the complaint and moreover, the said Insurance policy which was in existence at the time of an alleged accident, was not issued in favour of the complainant on that date itself.
(b) It is further submitted by the opposite party in its written version of para-2 that denied the allegations of the complainant and he is put to strict proof of the same. The opposite party was not aware of the said vehicle was met with an accident and opposite party’s authorities was issued and transferred existence of the said policy infavour of complainant’s name on 12-08-2013 is denied.
(c) It is also further submitted by the opposite party that in para 7 of its written version that the usual procedure is that the complainant has to inform about the accident to the opposite party and he has to inform about the accident to the opposite party and he has to submit the claim form to this opposite party and then the one surveyor will be appointed and he will inspect the said lorry and he will be submitting the report after estimating the original wreck value will be deducted from the insured declared value and settling the claim. After receipt of information from the complainant, the OP had appointed IRDA approved person and he assessed damage of the said vehicle Rs.68,400/-.
(d) It is also further submitted by opposite party that in para 8 of its written version that the complainant had filed this complaint with false allegations without any intimation to his claim to the opposite party. Those allegations in the complaint are fabricated for the purpose of the complaint filed by the complainant.
(e) It is also stated by the opposite party that in paras 12 and 13 of written version that the insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered as per the terms and conditions of the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations and terms of the policy expressly set out therein”. Basing the available documents reveals that the alleged accident was occurred on 10-08-2013, the insurance policy was transferred on 12-08-2013 on behalf of the complainant, it is clearly reveals that there is no contract of insurance and there is no insurable interest between the complainant and opposite party as on date of accident.
Further more, it is submitted by opposite party in para 13 that at the time of alleged accident on 10-08-2013 complainant was not the insured of opponent company. Hence, the opponents have acted in good faith as per the terms and conditions of policy and also as per the provisions of Indian Motor Vehicle Act repudiated the own damage claim of complainant “As per all India motor Tariff under GR 17 there should be existence of insurance contract at the time of taking policy as well as at the time of loss” i.e. at the time of alleged accident the opponent company do not have any insurance contract with complainant etc.”
(f) In view of the facts and circumstances of the case, it is further narrated by opposite party in para 15 of written version that the opposite party is not liable to pay Rs.9,75,000/- and other facts and there is no deficiency in service on the part of opposite party towards the complainant. It is also prayed that by opposite party that the complaint is liable to be dismissed with exemplary costs of Rs.5,000/- for filing a false and frivolous case against opposite party in the interests of justice.
III In view of the pleadings and documentary evidence filed, the following issues/points that arise for our determination are namely:-
(a) Is there any deficiency in service on the part of the opposite party bank towards the complainant?
(b) Whether the complainant is entitle the reliefs as prayed for, if it is so, to what extent?
( c ) To what relief?
IV. Points 1 and 2:
In view of the inter-dependence of these two points for discussion and in order to arrive an appropriate and suitable decision in accordance with law, we have taken up them together for our determination.
The learned counsel for the complainant Sri A.V.Raghava Reddy has vehemently argued that the contents of the complaint, affidavit evidence and also documents of the complainant may be read as part and parcel of his oral arguments. He has reiterated once again the facts of the case and its circumstances in detail. Here, repetition of them is, hereby avoided.
The main point of argument of the said learned counsel for the complainant that since on 25-06-2013 (Ex.A8) the date on which the complainant had paid requisite fee of Rs.3,300/- to the opposite party’s executive K.Venkateswarlu for issuance of insurance in the name of the complainant and the complainant was covered under the said policy, even though the opposite party had issued insurance to him as alleged by opposite party in Ex.B1 on 13th August, 2013. To transfer in the name of the complainant from existing policy, the complainant was paid Rs.3,300/- to one Mr.K.Venkateswarlu, executive of opposite party. He has also further argued that the insurance policy period valid from 28-9-2012 to 24-09-2013. The accident of the said vehicle was on 10-08-2013. It is well within the policy period coverage. Instead of issuing a transfer of policy in the name of the complainant after 15-06-2013, (Ex.A4) after the accident of the vehicle to evade the payment and in order to set up a defence for the convenience of opposite party for the reasons best known to the said insurance company.
The said learned counsel for the complainant has further contended that the complainant shifted the said accident vehicle to Narayana TATA Leyland Lift Mechanical spot Autonagar, Nellore and damages assessed of Rs.4,92,000/- (Ex.A5) he has also stressed that the complainant had issued a legal notice dt.23-09-2013 to the opposite party by mentioning all the details but the opposite party did not comply the same. The complainant had incurred all the expenses for repair of the said vehicle and flying the same. He had lost earnings per day of Rs.5,400/- for keeping the said vehicle idle for not doing the repairs of the said vehicle. The opposite party is not at all come to rescue to the complainant and there is a lot of deficiency in service and negligence on the part of opposite party towards the complainant. Hence, the said learned counsel for the complainant has prayed the Hon’ble Forum to allow the complaint as prayed for.
On the other hand Sri P.V.Mallikarjuna Reddy, the counsel for the opposite party, has also vehemently argued that the said policy was not issued in favour of the complainant as on the date of alleged accident of the said vehicle. Ex.B1 is in the name of the complainant dt.13-08-2013 issued by the opposite party; Ex.B2 dt.10-12-2013 issued to the complainant with regard to claim and opposite aprty had not at all issued any insurance contract with him and so the claim was repudiated. The surveyor by name Mr.M.Sreedhar had submitted a report dt.5-12-13 and valued Rs.68,490/-. Finally, the said learned counsel for opposite party had concluded his arguments by saying that in the circumstances and facts of the case, the opposite party is not liable to pay an amount of Rs.9,75,000/- to the complainant. There is no deficiency in service and negligence on the part of opposite party towards the complainant. Hence, he has prayed that the complaint may be dismissed with exemplary costs of Rs.5,000/- for filing a false and frivolous complaint against the opposite party.
Forum’s findings and observations
We have heard the arguments of the said learned counsel for the parties and perused the record carefully. Parties led their evidence by way of affidavits. Each case has to be judged on its own facts.
The concept of insurance and its object:
Contract of insurance is a contract where under the insurer undertakes to indemnity the insured on the happening of the event insured. The very purpose of taking insurance cover is that if unfortunately the risk against which cover is obtained actually occurs and loss is caused to the insured or his property, he should be compensated promptly. This objective of indemnification gets defeated if the insurance companies sit over the insurance claims and go on delaying their settlement for years together for one reason or the other.
The insurance companies instead of hauling up such surveyors plead their inability to settle the claims in the absence of the survey reports. Yet another unpalatable practice followed by the insurance companies has been to go on appointing surveyors, one after the other, till someone makes a report in their favour. This practice too has been deprecated by the courts in several cases. Viewed in the light of the case law on the subject, it is high time that the insurance companies must give up the practice of appointing surveyors one after the other. It has assertively been held that law does not permit this ritual and if it is till resorted to, the courts are not going to take it lightly.
Relevant and appropriate case – law:
Complaint based on deficiency in service must establish the same by leading cogent evidence - 2011(2)CPR68NC complainant must prove its claim by reliable evidence- 2011(3) CPR 81 (NC). One who makes an allegation is required to prove it beyond doubt, 2011(2) CPR 46 (NC) Insurance claim can not be rejected on mere surmises – 2011(2) CPR (NC) 308.
It is to state that the Consumer Protection Act, 1986 is a benevolent, social welfare legislation. The procedure for dispensation of justice prescribed under the Act by the Consumer For a is simple and is informal and are not adversary, but are inquisitorial.
Deficiency in service: To bring home an allegation of deficiency in service, the element of willful action (or as the case may be, inaction) needs to be established and the onus of proof of such action/inaction lies on the complainant 2010(2) CPR 89 (NC). The nature of the liability under Consumer Protection Act, 1986, is not strict liability but fault liability.
It is settled law that it is for the insured to establish its claim for indemnification of the insured loss. The Hon’ble Supreme of Inida in United Insurance Co.Ltd. Vs. M.K.J.Corporation (1996)6 SCC 428 has held that it is a fundamental principle of Insurance law that utmost faith must be observed by the contracting parties.
The Consumer Protection Act, 1986 was enacted for the expeditious settling of consumer disputes inter-alia with respect to defective goods and deficiency in service. Provision of section 3 of said C.P.Act, 1986 was and is an important provision for the benefit of Consumers since it has provided additional remedy as held by National Commission in Dist. Manager, Telephone Patna and another Vs. Dr.Taran Bharathnar and another 1991 (1) CPR 171 (NC). Consumer For a have proved to be a pace – setter in the consumer Protection field, where even civil courts have failed to provide timely justice. Judiciary has provided guide lines to the executive for better protecting the consumers.
In State of Karnataka Vs. Viswa Bharathi house-building co-op Society and others 2003 CTJ 85(SC) (CP), the Supreme Court held that when quantifying damages, they (Forums) are required to make an attempt to serve the ends of justice aiming not only at re-compensating the individual but also to bring about a qualitative change in the attitude of service-provider. The principle that insurance is a contract founded on good faith is of vintage value. Good faith either party from non-disclosing the facts which the parties knew – 2010 CTJ 1109(SC). Consumer Forums can grant compensation for mental agony/harassment wehre they find misfeasance in public office. Such compensation is a recompense for the loss or injury and it necessarily has to co-relate with the amount of loss or injury – 2005 CTJ(SC)(CP) page No.130. A quasi-judicial authority (District Consumer Forum) must record reasons in support of its conclusions – 2011CTJ(SC)(CP) P.135. Even if Substantive Law causes injustice while dealing the matter, consumer For a entitled to mould the relief appropriately where statute is silent and judicial intervention is required, the courts strive to redress grievances according to what it perceived to be principles of justice, equity and good conscience. Let us develop an equitable consumer jurisprudence de-hors of all technicalities affecting the basic Consumer rights.
The crucial aspect of this consumer case is that (Ex.A8) the document i.e., slip (SB1-Nellore) dt.25-06-2013 shows that an amount of Rs.3,300/- was credited in the name of Mr.K.Venkateswarlu (opposite party’s executive), for the purpose of issuing a fresh insurance in the name of complainant. But opposite party had neglected it and issued insurance policy in favour of the complainant dt.13-08-2013 in the name of complainant. The insurance company (opposite party) is supposed to have issued a fresh policy after 25-06-2013 in the name of complainant but not on 13-08-2013. It should be retrospective effect with regard to the policy. The said policy was issued after the accident of the said vehicle for the reasons best known to the opposite party. We have taken an adverse inference for delaying and issuing a policy after the accident. It is clearly creates a doubt and for which purpose opposite party had issued policy at a later date and there is no answer for delay from the opposite party. After payment of Rs.3,300/- to Mr.K.Venkateswarlu, Executive of opposite party by the complainant on 25-06-2013 and that suffice for the purpose of issuance of a fresh insurance policy in the name of the complainant arises on 25-06-2013 by the opposite party but the defence set up by the opposite party is not tenable in law after a long period. We are convinced with the arguments of the complainant. There is lot of deficiency in service and negligence on the part of the of the opposite party towards the complainant. Realization of justice is the ultimate function of law. Law assesses those who are vigilant. Justice is rendered in accordance with law. Mental agony of the complainant cannot be measured in terms of money. It is clearly appears that there is ample justification and reasons in allowing the complaint. These two points are held in favour of complainant and against the opposite party, accordingly.
Point No.3: In the result, the complaint is allowed ordering the opposite party to pay the complainant Rs.9,75,200/- (Rupees nine lakhs seventy five thousand and two hundred only) with interest at 9% p.a., from the date of the complaint i.e., on 04-11-2013 till the date of realization along with costs of Rs.5,000/- (Rupees five thousand only).
Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 29th day of JANAURY, 2015.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR COMPLAINANT:
PW1 | 23-06-2014 | : | N.Srinivasulu, S/o.Seetharamaiah, Hindu, aged about 40 years, residing at D.No.1-388, M.V.Nagar, DVR Palli, Gudur, SPSR Nellore District. | |
WITNESSES EXAMINED FOR OPPOSITE PARTIES:
RW1 | 20-08-2014 | : | Chandrasekhar, S/o.Rama Rao, Hindu, aged about 36 years, working as Executive Legal in 1st opposite party company, Branch office, Vijayawada. |
EXHIBITS MARKED FOR COMPLAINANT:
Ex.A1 | 03-04-2012 | : | Photocopy of driving license, e-seva receipt for Rs.5750/-, goods carriage permit lorry vehicle No.AP 28Y6043 in favour of the complainant. |
Ex.A2 | 23-09-2013 | : | Office copy of legal notice along with regd.post receipt issued by the postal department. |
Ex.A3 | 28-09-2012 | : | The original Certificate-cum-policy schedule infavour of the of the complainant. |
Ex.A4 | 13-08-2013 | : | The attested certificate cum policy schedule in favour of the complainant. |
Ex.A5 Ex.A6 Ex.A7 Ex.A8 | - - 25-09-2013 25-06-2013 | : : : : | The estimation of the accident lorry No.AP 28Y6043 (part-II) issued by the Narayana TATA Leyland lift Mechanical works at Autonagar, Nellore. The estimation of the accident lorry No.AP 28Y6043(Part-I) vehicle materials and labour charges. Acknowledgement Legal notice served to opposite party. Counter file of the deposit amount in state bank of India in the account of company authorities. |
| | | |
EXHIBITS MARKED FOR OPPOSITE PARTY:
Ex.B1 | - | : | Attested copy of certificate cum policy schedule (duplicate copy), with terms and conditions. |
Ex.B2 Ex.B3 Ex.B4 | 10-12-2013 05-12-2013 05-12-2013 | : : : | Repudiation letters addressed by the opposite party to the complainant and along with 2 post acknowledgements and one regd.post receipt. Survey fees bill issued by M.Sreedhar, Insruacne Surveyor cum loss Assessor. Photostat copy of preliminary survey report, Extract of GR 17 India Motor Tariff, annexure and index. |
Id/-
PRESIDENT
Copies to:
1) Sri A.V.Raghava Reddy, Advocate, Gudur Town, SPSR Nellore District.
2) Sri P.V.Mallikarjuna Reddy, Advocate, Nellore.
Date when order copies are issued:
