O R D E R
(By Sri A. Radha Krishna, President on behalf of the Bench)
1 The complainant seeks insurance claim amount of Rs. 9,49,904/- and also compensation of Rs. 2,00,000/- and costs of Rs. 25,000/- from the opposite parties on the ground of deficiency of service. The allegations in the complaint in brief are that the complainant purchased vehicle Verna 1.6 CRDI SX – PBSIV HUNDAI Car 2013 model from M/s. Sri Jaya Lakshmi Automotives Pvt. Ltd., Rajahmundry on 13.06.2013 for Rs. 9,99,899/-. She also paid life tax and the vehicle was insured with opposite party one branch and she paid premium of Rs. 32,842/-. The vehicle was delivered to the complainant at the show room of 3rd opposite party along with cover note copy.
2 The complainant also engaged services of a driver by name Penkey Naga Babu on daily payment basis. On 17.06.2013 in the evening at about 6.30 P.M. her husband and son along with driver were proceeding from her house to beach road in Kakinada. While they were proceeding near Silparamam one unknown truck came from the opposite side without lights with a high speed in a rash and negligent manner and came upon their vehicle, and when the driver tried to avoid collision, the tyres fell into a pit as a result the vehicle was turned turtle and it was extensively damaged. Her husband and son sustained only abrasions and not treated any where as there were no injuries. The workshop people informed that it must be construed as constructive total loss.
3 Immediately the husband of the complainant lodged a police report and also intimated the same to the branch office of the opposite party one, Kakinada. As per their advise, the complainant got photographed the damaged vehicle at the spot and 3rd opposite party shifted the vehicle from the accident spot to workshop. She paid Rs. 4,000/- to M/s. SSR Cranes & Recovery Service, Rajahmundry for shifting the vehicle to workshop. The statement of the driver was also recorded by Sarpavaram Police, and driver was fined Rs. 300/- under Section 9 of M.V. Act.
4 On 20.06.2013 surveyor appointed by opposite parties one and two came to assess the loss. She submitted all the necessary documents. Further the opposite parties appointed one Srinivas, Hyderabad as an investigator.
5 While the matter stood thus on 05.10.2013 2nd opposite party addressed a letter to her to produce the driver of the vehicle and other documents. As she was not furnished the policy, she is not aware of the terms and conditions of the same. On 17.10.2013 investigator and also one officer from opposite party one came to Kakinada summoned driver to some private office, threatened him and recorded his statement to suit their need.
6 On 13.11.2013, she issued notice to the opposite party two for settlement of the claim. On 19.11.2013 opposite party informed the complainant their inability to entertain the claim on the ground of mis-representation of fact and repudiated her claim. Opposite parties have not choosen to disclose alleged mis-representation made by her. She was not furnished with the copies of surveyor and investigator reports. They have not assigned any specific reasons for repudiating the claim. Thus she sought above said compensation.
7 Opposite party one remained exparte, opposite party two filed written version denying the material allegations in the complaint and further according to them, on the date of accident, the driver was not on the wheels and it is the family members of the complainant who had driven the vehicle and as there is variation between the statement of the complainant and the driver they repudiated the claim on the ground of mis-representation of facts. Further according to them the complainant is not entitled for any consequential losses and thus her claim for consequential losses is unsustainable. It is also their case both parties one and two are not within the jurisdiction of this Forum and as such this Forum has no jurisdiction to entertain the complaint. Thus according to them the complainant is not entitled for any compensation.
8 The third opposite party filed its written version contending theirs only sister concern of M/s. Sri Jayalakshmi Automotives Private Limited, Rajahmundry. They admitted the purchase of the vehicle by the complainant and it is being insured with the opposite party one. According to them on 08.06.2013 the complainant informed them over phone about the damage caused to vehicle. Immediately emergency road service team of their company attended the scene and shifted the vehicle to their workshop. On external observation they assessed the losses and they had also given an estimation letter to opposite party one. Till date they have not received any work order from opposite party one. According to them they are not necessary party to the proceedings. Thus they sought dismissal of the complaint.
9 Now the points for determination are:
1. Whether this Forum has jurisdiction to entertain the complaint?
2. Whether there is deficiency of service on the part of the opposite party?
3. If so, whether the complainant is entitled for the amounts sought by her in the complaint?
4. To what relief?
10 Point No.1: According to opposite party two this Forum has no jurisdiction to entertain the complaint. Their claim is based on the ground that opposite parties 1 and 2 are not within the jurisdiction of this Forum. As such no cause of action arose within the jurisdiction of this Forum. It is to be seen from the allegations in the complaint they took delivery of vehicle from 3rd opposite party who claims to be the sister concern of M/s. Sri Jayalakshmi Automotives Private Limited, Rajahmundry. The 3rd opposite party has not specifically denied their delivery of the vehicle at Kakinada. For that matter they have not filed any evidence affidavit or any other material disputing the version of the complaint. Thus when the vehicle was delivered in Kakinada it can be safely conclude part of cause of action arose within the jurisdiction of this Forum. Hence this point is answered accordingly.
11 Point No.2: In support of her contention the complainant filed her proof affidavit and got marked exhibits A1 to A13. Ex.A1 is sale certificate, Ex. A2 is forwarding letter of sale price through S.B.H., Kakinada to M/s. Sri Jaya Lakshmi Automotives Pvt. Ltd., Rajahmundry, Ex. A3 is cover note issued by opposite parties, Ex. A4 is copy of driving license; Ex.A5 is receipt given for lodging police complaint; Ex. A6 is receipt issued by M/s. Laxmi Safe hands, Kakinada who is opposite party three here, Ex. A7 is claim form submitted to opposite parties, Ex.A8 is the statement of the driver recorded by Sarpavaram Police, Ex.A9 is letter written by the opposite party one to the complainant, Ex. A10 is office copy of notice issued by complainant to opposite parties. Ex. A11 is regretting letter issued by opposite parties, Ex.A12 repudiation letter of the opposite party, Ex.A13 is estimation of the spare parts for the damaged vehicle. As against this evidence one G. Vinay Prakash who is Assistant Manager of legal, opposite parties one and two filed its proof affidavit and got marked exhibits B1 to B9 which are copy of policy, copy of cover note, copy surveyor report, copy of claim form, report of Southern Claims Bureau, copy of the statement of the complainant given to the opposite party for damaged vehicle, addendum report of Southern Claims Bureau, copy of the statement driver recorded by the opposite party and letter addressed to the complainant expressing the inability of opposite parties to entertain the claim on the ground of mis-representation of fact with regard the accident details.
12 As seen from the complaint and written version, as also the evidence it is not disputed, the complainant purchased vehicle from one Sri Jayalakshmi Automotives Pvt. Ltd., Rajahmundry and vehicle was delivered by the 3rd opposite party and the vehicle was insured with opposite parties one and two. It is also not in dispute the vehicle sustained total damage in the accident on 17.06.2013. Here the version of opposite party two is that the complainant suppressed material facts with regard to the nature of accident and thus there is mis-representation and they repudiated the claim. Their reasoning is that there is variation between the statement of the driver and the complainant. As seen from statement of the complainant her husband and son who were travelling in the said car along with driver sustained only minor injuries abrasions. As such they did not got to the accident but opposite parties claim the driver was not on the wheel not it is the family members of complainant who was the driving the vehicle. Though they based their version on the strength of the report of the surveyor they have not examined either the surveyor or investigator who were appointed by them for assessing the damage of the vehicle and also the facts with regards to the accident. As seen from the documents filed by the complainant in fact the driver was fined by the police under provisions of MV Act. Hence on the face of if the opposite parties could not produce any material to substantiate their contention. Hence under these circumstances their contention that the complainant misrepresented the facts, as such they repudiated the claim has no force. Hence this point is answered in favour of the complainant and against the opposite parties.
13 Point No.3: In this regard the 2nd opposite party claims the complainant is not entitled for any loss which is consequential to the accident and maximum payable amount as assessed by the statutory surveyor is Rs. 7,26,726/- only. The statutory report given under Section 64UM of the Insurance Act by Insurance Regulatory and Development Authority by licensed surveyor is binding on the complainant. Thus the claim of the complainant for loss is unsustainable as the terms and conditions of the policy excluded such a loss as contended by opposite party two. As seen from the surveyor report he assessed the loss at 7,26,726/- and thus the complainant is entitled for this amount without any consequential loss which is specifically excluded as per clause 4[i] of the policy. Hence the complainant is entitled for this amount. This point is answered accordingly.
14 In the result, sum of Rs. 7,26,726/- [rupees Seven lakhs twenty six thousand seven hundred and twenty six only] is awarded to the complainant and opposite parties are directed to pay the amount within one month from the date of this order, otherwise the said amount shall carry interest @9% from the date of this order till realization.
Dictation taken by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 12th day of January, 2015
Sd/- xxxxx Sd/- xxxxxxxx
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant : None For opposite parties : None
DOCUMENTS MARKED
For complainant:-
Ex.A1 Sale certificate
Ex.A2 Forwarding letter of sale price through S.B.H., Kakinada to M/s. Sri Jaya Lakshmi Automotives Pvt. Ltd.,
Rajahmundry
Ex. A3 Cover note issued by opposite parties
Ex. A4 Copy of driving license
Ex. A5 Receipt given for lodging police complaint
Ex. A6 Receipt issued by M/s. Laxmi Safe hands, Kakinada
Ex. A7 Claim form submitted to opposite parties
Ex.A8 Statement of the driver recorded by Sarpavaram Police
Ex.A9 Letter written by the opposite party one to the complainant
Ex. A10 Office copy of notice issued by complainant to opposite parties Ex. A11 Regretting letter issued by opposite parties
Ex.A12 Repudiation letter of the opposite party
Ex.A13 Estimation of the spare parts for the damaged vehicle
For opposite parties:
Ex.B1 Copy of policy
Ex.B2 Copy of cover note,
Ex.B3 Copy surveyor report
Ex.B4 Copy of claim form
Ex.B5 Report of Southern Claims Bureau
Ex.B6 Copy of the statement of the complainant given to the opposite party for damaged vehicle
Ex.B7 Addendum report of Southern Claims Bureau
Ex.B8 Copy of the statement driver recorded by the opposite party
Ex.B9 Letter addressed to the complainant expressing the inability of opposite parties to entertain the claim on the ground of
misrepresentation of fact with regard the accident details.
Sd/- xxxxx Sd/- xxxxxxxx
MEMBER PRESIDENT
