BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 24th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.147/2010
(Admitted on 07.05.2010)
Mr. B. Praful Chandra,
So Ramachandra. B.
Aged 47 years,
Rat Door No.5 16 854 1,
Ganesh Krpa Shivbagh,
Kadri Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri. Vijay Kumar)
VERSUS
Ms National Insurance Company Ltd.,
Office DO VIII 2 Floor,
Mamanji Centre S7 thiru,
VI KA Industrial Estate,
Guindy, Chennai,
Tamil Nadu 600 032 ……. OPPOSITE PARTY
(Advocate for the Opposite Party : Sri. A.L. Shenai)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The complainant is the registered owner of the Lorry bearing Registration No.KA-19-7341. The above said vehicle insured with the Opposite Party as per Comprehensive Insurance Policy bearing No.501602/31/03/6308875 valid from 26.01.2004 to 25.01.2005.
It is stated that, on 31.05.2004 the above said vehicle met with an accident, due to the above said accident, the vehicle sustained damage. Immediately the vehicle was shifted to garage and cost of the repair to the above said vehicle estimated at Rs.2,75,000/- and subsequently the complainant got repaired the said vehicle by spending the above said amount.
It is stated that, immediately after the accident the same was reported to the Opposite Party and submitted the claim form along with required documents. It is stated that, despite of complainant’s repeated requests, the Opposite Party has not settled the claims. Feeling aggrieved by the above, the Complainant issued a legal notice dtd.09.02.2009 to the Opposite Party calling upon them to pay the amount. But the Opposite Party inspite of receiving the notice, failed to respond to the complainant.
It is further stated that, the complainant has borrowed a loan from finance company to purchase the aforesaid lorry and due to non-settlement of the complainant’s claim by the Opposite Party unable to pay the loan installment, the finance company has initiated loan recovery proceedings as against the complainant. It is stated that, non-settlement of the claim amounts to deficiency. Hence, the above complaint filed under Section 12 of the C.P. Act seeking direction from this Forum to pay the claim amount of Rs.2,75,000/- along with interest from 31.05.2004 to 09.12.2009 along with compensation and cost of the proceedings.
2. The Opposite Party appeared through their counsel filed version, wherein they admitted the policy and the coverage of the policy issued to the subject vehicle.
It is submitted that, the complainant was not the owner of the vehicle as on the date of the accident. The vehicle was hypothecated to Shri Ram Transport Finance Corporation. On the basis of the report of the surveyor, the hirer, Shri Ram Transport Finance Corporation put in a claim for repair of damage to the above said vehicle along with original bill / invoices and the claim was settled by paying Rs.17,200/- on 12.11.2004 to the legal owner i.e., the Shri Ram Transport Finance Corporation. It is stated that, the Shri Ram Transport Finance Corporation is also a necessary party to the proceedings and the complaint is bad for non-joinder of the necessary party.
It is further stated that, the complainant was aware of the above position and kept silent for over 5 years and now sent a notice after lapse of 5 years does not give raise to any cause of action and the complaint is barred by limitation. The allegation that the repair to the vehicle required Rs.2,75,000/- is denied by the Opposite Party and stated that the claim of the complainant was settled and there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is barred by limitation?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
-
- What order?
4. In support of the complaint, Sri B. Praful Chandra (CW1) has filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. The Complainant produced 9 documents as listed in the annexure. One Sri M. Subramanya Kini, Assistant Divisional Manager (RW1) of the Opposite Party Insurance Company filed counter affidavit and answered the interrogatories served on him. Ex R1 to R8 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv): In the instant case, it is admitted that the complainant was the R.C. Owner of the Lorry bearing Registration No.KA-19-7341, which was hypothecated to Shri Ram Transport Finance Corporation, Chennai. It is also admitted that the vehicle was insured with the Opposite Party i.e., National Insurance Company Ltd., Chennai under the Comprehensive Insurance, the said policy was valid from 26.01.2004 to 25.01.2005 as per the Ex.R8. Further it is admitted that, the above subject vehicle met with an accident on 31.05.2004 and submitted claim form as per Ex.R2.
The complainant came up with a complaint stating that, his vehicle i.e., Lorry bearing Registration No.KA-19-7341 met with an accident on 31.05.2004, after the accident the complainant submitted the claim form along with required documents to the Opposite Party, but the Opposite Party has not settled the claim till this date and further contended that, to repair the above said vehicle he has spent Rs.2,75,000/-, the above said amount is entitled by the complainant, hence this complaint.
The Opposite Party on the other hand stated that, the vehicle has been insured with the Opposite Party and the above said vehicle met with an accident on the date mentioned herein above. After receiving the information with regard to the accident, the surveyor was appointed, on the basis of the report of the surveyor, on 12.11.2004 the claim was settled by paying Rs.17,200/- to the financier i.e., Shri Ram Transport Finance Corporation and contended that there is no deficiency.
The complainant has filed oral evidence by way of affidavit and produced 9 documents. Opposite Party has also filed oral evidence by way of affidavit and produced Exs.R1 to R8.
On scrutiny of the oral as well as the documentary evidence available on record, the first point that arise for our consideration is that, whether the complaint is maintainable in view of the Section 24(a) of the C.P. Act. Admittedly the accident was taken place on 31.05.2004 and the vehicle has been hypothecated to Shri Ram Transport Corporation, Chennai. According to the complainant, he has informed about the accident and submitted the claim form to the Opposite Party after the accident. The documents i.e., Ex.R1 undated Claim Intimation Form sent by the complainant and Ex.R2 i.e., the Motor Claim Form sent by the complainant and Ex.R3 i.e., the final bill of the accident vehicle issued by the Universal Automobiles, Jeppinamogaru, Mangalore dtd.18.09.2004 provided by the complainant reveals that, the complainant was submitted the claim intimation form as well as the motor claim form and the original final bill issued by the Universal Automobiles in the way back 2004. That means, the subject dispute arose in the year 2004 more particularly on the date of accident and subsequently on the date of the claim was submitted to the Opposite Party. The present complaint came to be filed before this FORA on 05.05.2010. We also noticed that, the legal notice was sent on 09.12.2009 that means after the lapse of more than 5 years. We are very surprise to note that why the complainant was silent all over the years till this date. Apart from that, we also observed that, the complainant submitted original final bill of Rs.19,000/- on 18.09.2004. The surveyor one Mr. Chittaranjan S. submitted his report and assessed the damage including the labour charge at Rs.17,200/- less salvage value Rs.500/-. Ex.R7 is the disbursement voucher for Rs.17,200/- reveals that, the same has been disbursed to Shri Ram Transport Finance Company Ltd., i.e., the financier of the above said vehicle. The same is not denied by the complainant. The only contention is that the Opposite Party has not honoured the claim till this date, which is not acceptable in this case. Because admittedly the vehicle has been hypothecated to Shri Ram Transport Finance Company Ltd., and the amount of Rs.17,200/- has been settled by issuing a disbursement voucher to Shri Ram Transport Finance Company Ltd., who is the financier to the above said vehicle in other words with whom the vehicle was under hypothecation. The complainant despite of knowing the above said facts came up with this complaint at this stage, we could say after lapse of more than 5 years is not maintainable as this complaint is barred by limitation. Apart from that, a bare looking at the surveyor’s report and other documents, which includes the final bill issued by the Universal Automobiles shows that the Opposite Party while accepting the claim considered all these factual aspects into consideration and settled the claim in the way back 2004. By no stretch of imagination, the complaint cannot be maintained. It can be said that the insurance company settled the claim after receipt of the claim form by deputing a surveyor and there is no legal infirmity either in survey report or in any other documents. Despite of receiving the above said amount, the complainant preferred this claim after lapse of more than 5 years from the date of accident is not acceptable and there is no valid reason to consider this complaint. Hence even on merits as well as on limitation the complaint filed by the complainant has no merits and deserves to be dismissed, no order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 24th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. B. Praful Chandra – Complainant.
Documents produced on behalf of the Complainant:
Doc. No.1 – Copy of the Insurance Policy for the period from
26.01.2004 to 25.01.2005
Doc. No.2 – Copy of the Registration Certificate pertaining to
the vehicle No.KA-19-7341
Doc. No.3 – 09-12-2009 – Copy of the Legal Notice issued by the
complainant to the Opposite Party.
Doc. No.4 – 18-05-2007 – Arbitration Notice.
Doc. No.5 – Copy of the ‘B’ Extract.
Doc. No.6 – Copy of the Spot Mahazar.
Doc. No.7 – Acknowledgement
Doc. No.8 - 31-05-2004 – Copy of the Police Complaint.
Doc. No.9 – 31-05-2004 - First Information Report.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr. M. Subramanya Kini, Asst. Divisional Manager –
Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – Claim Intimation Form sent by the complainant.
Ex R2 – Motor Claim Form sent by the complainant.
Ex R3 – 18-09-2004 – Final Bill from Universal Automobiles.
Ex R4 – 25-10-2004 – Final Survey Report.
Ex R5 – 25-10-2004 – Report given by Naveen Kumar P.V.T.
Ex R6 – Calculation Sheet / Surveyor Assessment
Ex R7 – 12-11-2004 - Disbursement Voucher
Ex R8 – Insurance Policy for the period from 26.01.2004 to
25.01.2004 of Vehicle No.KA-19-7341.
Dated:24/03/2011 PRESIDENT
