O R D E R
(By Sri V.V.L. Narasimha Rao, President [FAC] on behalf of the Bench)
1. The present complaint is filed U/s 12 of C.P. Act, 1986 on 09.07.2014 against the opposite party and requested the forum to direct the op (1) to pay an amount of Rs.3,13,094/- and damages (2) To award costs.
2. The brief averments are as follows:- The complainant submitted that he has purchased the Maruthi A Car from SB Motors Corporation , Rajahmundry in the year 2005 vide vehicle bearing No. AP-05 AK 5949. The said vehicle was insured with the opposite party’s branch office at Samalkot vide comprehensive policy No.620403/31/06/01/00001999 dated 07.02.07, which is in force from 07.02.07 to 06.02.08. While so, the vehicle was met with a Fire Accident on 13.06.07. The complainant immediately lodged a complaint in Sarpavarm , Kakinada and a complaint was registered as Cr No.120 of 2007.
3. The complainant informed the same to the opposite party and surveyor has been sent to look into the incident. The surveyor assessed the loss and took photographs of burnt car and its parts. After that the complainant submitted claim for Rs.2,06,492/- With the opposite party as car was completely burnt. The complainant got the repairs to the car with SB motor corporation by incurring an expenditure Rs.1,62,623/-. After repairs was done to car the opposite party sent a voucher the settling the claim for Rs. 26,952/-. When the complainant approached the opposite parties to reconsider the claim there is no response and finally on 15.05.09 he got issued a legal notice to the opposite party to settle the claim. The op sent a reply to the notice on 08.06.09 denying the facts mentioned by the complainant. Hence, as the opposite party has not settled the claim fairly the present complaint is filed by the complainant seeking reliefs.
4. On opposite party filed written version and stated as follows:- The complainant filed by the present complaint with false allegation against the opposite party. It is true that the complainant vehicle was ensured with the branch office at Samalkot under comprehensive policy bearing No. 620403/31/06/01/00001999 dated 07.02.07, which is valued from 07.02.07 to 06.02.08. It is not known to the opposite party that the complainant’s vehicle was met with fire accident on 13.06.07. the complainant falsely stated the vehicle was burnt completed and the estimate certificate given by the otor corporation at Kakinada. The car was burnt on the backside only, the front side portion is not burnt. Though the complainant got repaired the burnt car by incurring Rs.1,62,623/-, he cannot get the entire amount the depreciation for the vehicle has to be deducted.
5. As per the survey report dated 30.09.07 the opposite party’s surveyor estimated the value as Rs.92,067/- after deducting 50% depreciation. Again the opposite party Re-inspected the earlier report on 30.06.08 and gave Report. Though the complainant has insured his vehicle for Rs.1,70,000/- and incurred Rs.1,62,623/- towards repair charges, as the salvage parts are not produced by the complainant the complainant is entitled only for Rs.26,952/- only after deducting the depreciation.
6. The complainant gave notice to the opposite party on 15.05.09 and reply was given by the opposite party on 08.06.09. The complaint is barred by the limitation as the complainant has not filed the Delay Condonation Petition as per C.P.Act, for condoning the delay from 8.6.2009 to till date of filing the complaint in this forum on 9.7.2014.
7. Even after offering the actual survey assessment amount of Rs.26,952/- i.e., actual value for the expenditure after deducting the depreciation the complainant has not taken the amount and it was presently lying with the opposite party. Hence, as there is no fault on part of opposites party the present complaint is liable to be dismissed with costs.
8. On perusing the pleadings of both sides the forum the framed following point for consideration.
- Whether the complaint is within limitation period?
- Whether is deficiency of service on part of opposite parties?
- To what relief?
9. The complainant filed his evidence affidavit reiterating the facts mentioned in the complaint on his behalf Ex.A1 to A5 were marked. On behalf of the opposite party and Ex. B1 to B5 were marked. The complainant submitted his arguments and the opposite party filed written arguments along with oral arguments. The time of arguments the opposite party submitted 3 Case Laws in support of the version related to the limitation point. (1) 2012 (2) CPR 172 (2) 2012 (2) CPR 88 (3) 2012 (3) CPR 347(N.C.) and the Complainant filed Two Case Laws (1) R.P.No.3118 to 3144/2010 decided on 5.8.2011 (2) FA No.544/2011 decided on 1.2.2013.
10. Point No.1:- The present complaint is filed on 09.07.14 against the op claiming the insurance amount along with damages for Rs. 3,13,094/- The opposite party in the counter stated that though the complainant is incurred Rs.1,62,623/- for the repairs as car was completely burnt, after deducting the depreciation and the value of the salvage parts, basing upon the Re-inspection Report dated complainant is entitled for an amount Rs.26,952/- only. But even after intimating the same through the Reply dt.8.6.2009 also the complainant has not taken the amount. That too only the car was burnt on backside of the Car. The 5 Photos reveals the actual fact. Hence as the complainant has not filed the present complaint in stipulated time the complaint is barred by the limitation.
11. As per 1998 III CPR 4 SC (Gujarat) Patidar Timer Industries Vs. Thalod Nagrik Sahakari Bank Ltd., the Hon’ble Gujarat State Commission held that “the District Consumer Forum can interfere with regarding to the issues of the jurisdiction at any belated stage or length of the time consumed in the proceedings and the discretion of the Consumer District Redressal Forum can never be questioned by anybody”. On perusal of the Principle of the above case law, the looked into the issue of the Limitation Point.
12. Viewing the principle of the case law III CPR 4 SC (Gujarat), District Forum looked into the issue of the limitation point.
13. Regarding the Limitation Point : The complainant is stating that accident was occurred to the Maruthi car on 13.06.07. The actual cause of action starts from the date of accident i.e., from 13.06.07. In the case of III (2009) CPJ 29 SC, State Bank of India Vs B.S.Agricultural Industries, Hon’ble Supreme Court of India while deciding a Fire Accident Policy matter, it was held “The cause of action means the the cause of action which gives the occasion for and forms of the foundation of the suit. The context of the intimation with reference to a fire insurance policy, undoubtedly, the date of accrual cause of action has to be the date on which the fire breaks out”. So as fire accident was occurred to the complainant on 13.6.2007, U/s 24-A1 of the Act, the complaint has to file the complaint in Forum within 2 years from 13.6.2007. Within the 2 years stipulated period [vide Ex.A3] on 29.01.08 after receiving the claim Form from the complainant, the opposite party sent a registered notice to the complainant stating that, they have sent intimation for settlement of claim by way of voucher and the settlement of the matter is reminded to the complainant. The Letter of the ICICI Bank dt.23.3.2009 sent to Opposite Party, enclosed with Ex.A3 reveals that, the claim was settled for Rs.26,952/- and the same was intimated to the complainant. Thereupon on receiving the Ex.A3 intimation from ICICI Bank to opposite party, the complainant got issued legal notice to the opposite party on 15.05.09 demanding the opposite party to pay the amount of Rs.2,06,492/- as per Ex-A1 Service Estimation for the repairs to his Car. On receiving the Ex.A4 notice the opposite party give reply vide Ex.A5 on 8.6.2009, that the basing upon the Re-Estimation Survey Report Ex.B2 the Complainant is entitled for the amount of Rs.26,952/-, but the complainant is not coming forward to take the Voucher.
14. After receiving the Ex.A5 notice the complainant kept silent for 761 days from 09.06.09 to till date filing the complaint in the forum on 09.07.14. Though he demanded the opposite party vide Ex.A4. regarding the Insurance Claim he did not done any correspondence with the opposite party In between 09.06.09 to 09.07.14 till date of filing the complaint in this forum.
15. The complainant has not shown proper reason / sufficient reason, for the delay of 761 days, from 09.06.09 to till of filing complaint 09.07.14 and also he has not filed delay condonation petition before this forum U/s 24-A1 of Act. Hence, the objection raised by the opposite party is sustained.
16. On perusing he Two Case Laws filed by the complainant (1) R.P.No.3118 to 3144/2010, Lakshmi Bhai & Ors Vs ICICI Lombard Insurance, while deciding a Insurance Coverage mater related in the event of death under Vivekananda Insurance Scheme of Government of Madhya Pradesh discussing about the Sec.24-A of the Act, it was held “the cause of action will continue till the day Respondent / Insurance company pays or rejects the claim” (2) FA No.544/2011 Sumabhai w/o Haridas Vs Manager Relaince General, Hon’ble Maharastra State Commission held, “The cause of action will continue till the day the Respondent / Insurance Company pays or Rejects the claim”.
17. Here in this case on hand, observing the date of Fire Accident dt. 13.6.2007 occurred to the complainant’s Vehicle and the Correspondence between the complainant and the Opposite Party till 8.6.2009 [Dt..of A5], the Cause of Action is continuous as per the principles of the Two Case Laws filed by the complainant. But from 9.6.2009 to date of filing the complaint in forum i.e. 9.7.2014, neither the complainant done any correspondence with the opposite party regarding the Claim nor opposite party has not done any correspondence with the complainant. It is his bound duty to furnish the Petition U/s 24-A1 of Act to condone the delay of 761 days. Even he has not assigned any sufficient reasons or day-to-day explanation why there is an abnormal delay of 761 days in filing the complaint. The Opposite Party has taken the objection on the same grounds. So the complainant cannot rely upon the 2 Case Laws filed by him, for condoning the delay of 761Days of delay from 9.6.2009 to till date of filing the complaint in forum on 9.7.2014.
18. The observing the 3 case laws filed by the opposite party (1) 2012 (2) CPR 172. Munna Kumar Vs Amba Auto Deals And Another, with regarding to the delay of 6 months 8 days in filing the consumer complaint. (2) 2012 (2) CPR 88. Mayank Sharma Vs ShT.N.Sarup, Advocate, while deciding the issue related to the filing of the complaint within 2 years from the date of accrual cause of action (3) 2012 (3) CPR 347(N.C.) Vijay Bhansal Vs Haryana Urban Development Authority, while deciding the limitations period for filing the consumer complaint within 2 years stipulated time as per 24 A1 of the CP. Act, It was held that the complaint’s are barred by the limited as the complaint’s under consumer protection Act within 2 years stipulated period from the date accrual cause of action.
19. Here as sufficient / cogent / reasonable reasons are not furnished by the complainant for the delay of 761 days from 09.06.09 to 09.07.04 and at the same time as Petition U/s 24-A1 was not filed for condoning the Delay of 761 days., observing the Principles of 3 case laws mentioned in Para-18 supra we are of opinion that, the present complaint is barred by the limitation and liable to be dismissed.
Accordingly, Point 1 is answered.
20. Point No.2 & 3:- Though the forum came to conclusion vide Para No. 16 that the complaint is barred by limitation, as the opposite party has shown readiness to pay the claim amount Rs.26,952/-, to the complainant and viewing the admission of the complainant in legal notice vide Ex.A4, we are of opinion that the issue of deficiency of service has to be answered / decided, to meet the both ends of justice.
21. The documents of the both parties reveals the facts as follows.
22. Ex.A1 is the service estimate date 19.06.07 for Rs.2,06,492.61 ps for the repairs estimation of complainant’s burnt car. Ex.A2 is the receipt dated 30.06.08 for doing repairs to the complainant’s car Rs.1,62,623/- given by SB Motor Corporation.
Ex.A3 (4 Pages Document) is the registered letter given by the opposite party dated 21.01.08 with regarding to the settlement of the claim along with the letter given by ICICI Bank conforming the insurance claim amount as Rs.26,952/-. Ex.A4 is the Legal notice served to the opposite party to pay Rs.2,06,492/- which is more than the policy amount mentioned in Ex.B4. Ex.A5 is reply for the Ex.A4 given by the opposite party stating since the complainant is not cooperating to take the voucher for Rs. 26,952/-, the complainant is advised to take the same.
23. Ex.B1 is the Motor Final Survey Report dated 30.09.07 given by the opposites party Rs.92,067.32 ps after deducting the depreciation value of Maruthi Car as it was purchased in year 2005. Ex.B2 is the re-inspection report dated 30.06.08 given by the opposite party surveyor Sri G. Apparao, stating after perusing the Ex.B1 report the re-inspection report was given. EX.B3 is the claim disbursement voucher for Rs.26,952/- Ex.B4 is the Insurance Policy which is on the name of complainant which shows the complainant is entitled for the claim in case of any accident for the vehicle upto Rs.1,70,000/- only. The 5 Photos showing the status / picture of the complainant’s burnt car revealing that, only the backside portion of the car was burnt, were marked as Ex.B5.
24. Though the complainant has stated that he submitted the claim for Rs.2,06,492/- vide Ex.A1. On perusal of the Ex.A1 it is only a Service Estimate dated 19.06.07 given by SB Motor Corporation. Except the Ex.A1 to A5 the complainant has not furnished the copy of the Claim Form, submitted to the opposite party. Even observing the Ex.B4 Policy it reveals the Policy is restricted upto Rs.1,70,000/- only. The Ex.(5 Photos) shows that the Maruthi Car [belongs to Yr 2005] car was not damaged completely, but it was burnt partly at the back side only. So complainant cannot say that Ex.A1 is the claim for the entire repairs for the burnt car and even he cannot claim the amount Rs.1,62,623/- expenses for the repairs as per Ex.A2 as there will be depreciation for the Maruthi Car.
25. The on perusal of the Ex.A4 Notice, Ex.A3 [4 papers], Ex.B4, Ex.B1, Ex.B2, Ex.B5 (5 Photos] and the admission of the complainant that he has purchased Maruthi Car in the year, 2005, we are of opinion that, as the complainant has purchased Maruthi Car in the year 2005. Generally there will be depreciation to the vehicles for every year & month. Similarly as the complainant’s Maruthi Car of Year 2005 met with an accident, it will have some depreciation for the vehicle.
26. Hence, observing the Ex.A3, Ex.A4, Ex.B5 [5 Photos], Ex.B3 Voucher along with Ex.B2 re-inspection report we hold that, the complainant is entitled only for Rs.26,952/- from the opposite party towards insurance claim for his partly burnt Maruthi Car. As there is abnormal delay of 761 days from the side of the complainant from 09.06.09 to till date of filing complaint on 09.07.14, and also as he has not filed Delay Condoning Petition U/s 24-A1 of Act for condoning delay of 761 days. However as the opposite party has admitted at the time of arguments, for paying the Rs.26,952/- as per Ex.B2 Re-Investigation Report / A3 Receipt dt.23.3.2009, applying the Principles of Natural Justice, the opposite party is directed to pay an amount Rs.26,952/- to the complainant along with interest @ 12% p.a. from date of this order till realization. viewing the entire facts and delay of 761 days on part of the complainant, we are of conclusive opinion that the complainant is not at all entitled for any compensation and costs, as there is no fault from the side of the opposite party.
Accordingly, Point 2 and 3 are answered.
27. In the result, the complaint is allowed in part. The opposite party is directed to pay an amount Rs.26,952/- [Rupees Twenty six thousand nine hundred and fifty two only] along with interest @ 12% p.a. from date of this order till realization. No order as to costs. Time for compliance is 30 days from the date of receipt of this order.
Typed to dictation given to the Stenographer, corrected and pronounced by us, in open Forum, this the 14th day of July, 2015.
Sd/xxxxxx Sd/xxxxxx
MEMBER PRESIDENT [FAC]
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant : None For opposite party : None
DOCUMENTS MARKED
For complainant:-
Ex.A1 Dt.19.06.07 Xerox copy of the service estimate given by SB Motor Corporation, Kakinada.
Ex.A2 Dt. 30.06.08 Receipt for Rs.1,62,623/- given by SB Motor Corporation, kakinada to the complainant.
Ex.A3 Dt. 29.01.08 Letter addressed by the opposite party to the complainant along with enclosures thereto i.e., advanced stamped receipt and no objection for claim settlement issued by ICICI Bank Ltd, Rajahmundry.
Ex.A4 Dt. 15.05.09 Office copy of the Registered Notice got issued by the complainant to the opposite party.
Ex.A5 Dt.08.06.09 Reply got issued by the opposite party.
For Opposite party :
Ex.B1 Dt.30.09.07 The surveyor report
Ex.B2 Dt.30.06.08 Re-Inspection report of the surveyor.
Ex.B3 Dt.16.12.08 Claim settlement voucher
Ex.B4 Policy copy given by Opposite party
Ex.B5 5 Photos of the Burnt Car
Sd/xxxxxx Sd/xxxxxx
MEMBER PRESIDENT [FAC]
