| ORDER | Per Sri M.V.L.Radha Krishna Murthy, Member:
This complaint is filed u/s 12 of Consumer Protection Act, praying to direct the opposite parties to pay an amount of Rs.11,99,696/- under the policy dated 28-05-09, to pay interest from the date of accident i.e. on 14-02-10 and subsequent interest till realization as per IRDA rules @ 24% p.a. i.e. Rs.5,20,667/-; to pay an amount of Rs.2,00,000/- towards mental agony ; and to pay an amount of Rs.20,000/- towards legal expenses.
2. The averments of the complaint in brief are as follows:
Complainants are manufacturers of Pre-stressed concrete pipes and class – 1 contractors, having their office at Etukuru road, Guntur. Complainant purchased TATA Hitachi, Model-110, BACKHOL excavator of the year 2006 for Rs.29,95,821.60 ps by obtaining loan from Canara Bank, Guntur, for the purpose of contract works. Complainant obtained policy on 28-05-09 for the period from 01-06-09 to 31-05-10 for the risk assured amount of Rs.17,97,487/- from opposite party company and paid yearly premium upto 2010 to 1st opposite party.
The proclainer (excavator) was met with major fire accident on 14-02-10 at Shapur village outschirts, Nandipet, Nizamabad, due to fall of thunderbolt on the proclainer. The said accident was informed to 1st opposite party and complainant submitted cash bills regarding the repairs and spare parts of proclainer and claimed the insurance amount. Inspite of submitting claim form to 1st opposite party, 1st opposite party has not settled the claim of the complainant inspite of personal approach by the complainant. Having vexed with the attitude of the opposite parties complainant got issued notice to both opposite parties on 30-09-11 and the same was received by the opposite parties on 06-10-11. Opposite parties gave a reply dated 13-10-11 with false averments that the bills submitted by the complainant are duplicate for which the complainant gave reply notice on 28-10-11 and the same was received by the opposite parties and they are kept quite without settling the claim of the complainant. Hence the complaint.
3. The opposite party company filed its version which is in brief as follows :
The complainant is not maintainable at Law and on facts of the case. The allegations of the complaint are denied and the complainant is put to strict proof of the same. The claim machine TATA Hitachi 2006 model has been insured with opposite party for the period from 01-06-09 to 31-05-10. On intimation of the alleged damage to the excavator by thunderbolt, and on request of the complainant for appointment of sport Surveyor one Ch.Venkateswararao was deputed. The complainant brought the machine to Guntur and submitted an estimate for Rs.7,60,890/- from M/s. Universal Technical Services, Guntur. Opposite party company H.R.O appointed A.Rama Rao, to survey the loss. Again the complainant submitted supplementary estimate for Rs.8,04,329/- on 29-03-2010. Added to the original estimate, the total estimate (Rs.15,65,219/- ) exceeded the financial authority of Regional Office, the matter was referred to H.O. for ratification. When the reason for such high supplementary estimate was sought for, the complainant gave reply dated 18-06-2010 stating that the 1st estimation was given without sufficient knowledge of prices of spare parts. After a series of correspondence and clarifications, the Head Office of opposite party company ratified the appointment of Surveyor and approved the supplementary estimate vide their e-mail dated 22-11-10. Instead of repairing the machine as per the estimate the complainant submitted letter on 10-01-11 requesting settlement of claim on cash loss basis for the reason that they bought another excavator of L&T make due to their work exigency and wanted to sell their damaged machine without repair. Meanwhile, the Surveyor released his report assessing the loss at Rs.8,03,304/-. As such the machine was left un-repaired for more than 10 months. The technical department of opposite party company H.R.O. raised some issues vide their letter dated 11-02-11 and required that 1.The cause of loss should be supported by additional documents, 2. The dealer prices of parts be verified by the final surveyor and 3. The garage inspection report be submitted. While the process was going on the complainant vide his letter dated 19-04-11 informed that they repaired the machine due to the urgency of their contract work and requested for reinspection. Then the opposite party company deputed Ch.Abshaloam, Surveyor to conduct reinspection. The said Surveyor reported that 41 items are replaced of which 30 items salvage parts were shown to him. Re-inspection had been submitted by the complainant to the final Surveyor on 19-04-11 and the final Surveyor reported back in his letter dated 03-10-11 that the bills submitted by complainant pertain to the repairs/overhauling of parts where as the complainant allowed replacement of parts in his report and they brought on only one part i.e. control valve and during the course of interaction with Surveyor, the complainant issued legal notice dated 30-09-11 and the opposite party issued reply to the said notice. Hence there is no deficiency of service on the part of the opposite party company. The bill Nos.20 to 24, 26, 28 and 29 of M/s.Universal Technical Services, Autonagar, Guntur and Bill No.2 of M/s.Surya Engineers, Guntur pertaining to repair/fabrication work carried out on complainant’s L & T excavator and the complainant did not give the 1st estimation without the knowledge of dealer’s prices as the Surveyor obtained a copy of estimate from the United Power Service, Vijayawada (Dealers) addressed to M/s.Jaya Hume Pipes Ltd., dated 27-02-2010 and the complainant without the knowledge of Surveyor and company obtained some fabricated bills in order to claim more compensation from the opposite party company. The complainant submitted some fabricated bills pertaining to his another L&T excavator to the opposite party as if the bills relates to the damaged excavator in order to gain wrongfully. The complainant requested opposite party company to settle his claim on “Cash Loss” basis and got repaired his vehicle without the knowledge of the opposite party and without obtaining approval from opposite party and submitted fabricated bills. Hence the complaint may be dismissed with costs.
4. Complainant and opposite party company filed their respective affidavits in support of their versions, reiterating the same.
5. On behalf of complainant Exs.A-1 to A-36 are marked. On behalf of opposite party company Exs.B-1 to B-20 are marked. Complainant filed a memo with some interrogatories to be answered by the witness. The Surveyor A.Rama Rao filed answers to the questionnaire.
6. Now the points that arise for consideration are
1. Whether there is any deficiency of service on the part of opposite party company?
2. To what relief the complainant is entitled to?
7. POINT NOs. 1&2:
The case of the complainant is that he purchased a TATA Hitachi model 110 BACkHOL excavator of 2006 model for Rs.29,95,821-60p.s. by obtained a loan from Canara Bank, Guntur for the purpose of their contract works and insured the same with opposite party company for the period from 01-06-2009 to 31-05-2010 for Rs.17,97,487/-, that on 14-02-2010 the said excavator met with major fire accident at Shapoor, Nandipet, Nizambad, by fall of a thunderbolt on the proclainer and the said damage was informed to the opposite party company and submitted the bills, but the opposite party company failed to settle the claim inspite of personal approach by the complainant to 1st opposite party and that there is deficiency of service on the part of opposite party company.
8. The case of opposite party is that the complainant reported the alleged damage of his proclainer and submitted estimate at the first instance for Rs.7,60,890/- and again submitted supplementary estimate for Rs.8,04,329/- stating that the 1st estimate was given without sufficient knowledge of spare parts and requested the opposite party to settle the claim on “Cash Loss” basis as they intend to sell away the damaged excavator and that they have purchased another excavator of L&T Make due to their work exigency, but in the meanwhile the Surveyor appointed by the opposite party company submitted his report assessing the loss at Rs.8,03,304/-, but the complainant got repaired the damaged proclainer without knowledge of the opposite party and requested for re-inspection of the damaged proclainer on 19-04-2011, but the complainant submitted some fabricated bills pertaining to another L&T excavator as if the said bills relates to the damaged excavator in order to gain more compensation and that there is no deficiency of service on the part of opposite party company.
9. It is not in dispute that the complainant has insured his TATA Hitachi excavator of 2006 model with the opposite party company and fire accident occurred to the said excavator on 14-02-2010 and the said proclainer (excavator) sustained some damages in the said accident. Complainant made his claim under Ex.A-36 on 15-02-10 for estimated costs of Rs.7,60,890/- and the same was received by opposite party on 15-02-10 and complainant also submitted Ex.B-1 dated 23-02-10 estimation for repairs to a tune of Rs.7,60,890/- and the same was received by the opposite party on 09-03-10. Later complainant submitted 2nd estimation dated 29-03-10 to the opposite party in addition to Ex.B-1 estimation for Rs.8,04,329/- under Ex.B-2 and the same was received by the opposite party on 26-05-10. Thus the complainant submitted Ex.B-1 & B-2 estimates to a total amount of Rs.15,65,219/-. The United Power Service, Authorised customer support center has given estimation dated 27-02-10 (Ex.B-3) for repairing the damaged excavator to the complainant to a tune of Rs.7,83,557-85 before dismantling the damaged excavator. The Surveyor at the first instance estimated the loss of the insured excavator before getting it repaired and gave report dated 19-08-10 to a tune of Rs.7,83,608/- and the net loss of engine @ Rs.23,896/- under Ex.B-9. Subsequently the complainant addressed a letter dated 10-01-11 under Ex.B-4 to the opposite party stating that they have purchased a new proclainer of L&T for Rs.44,98,996/- in view of the exigency of the work and that they are intend to sell away the damaged insured proclainer without getting it repaired and requested the opposite party to settle the claim on cash loss basis. Later complainant addressed another letter dated 19-04-11 under Ex.B-5 to opposite party stating that in view of the pressure of work they got repaired the damaged insured proclainer and requested the opposite party to depute the Surveyor for re-inspection of the damaged proclainer. The complainant got issued a notice dated 30-09-11 under Ex.A-2 requesting the opposite party to settle the claim. In reply to the said notice the opposite party addressed a letter to the counsel of the complainant dated 13-10-11 under Ex.A-4 in detail regarding the claim of the complainant and stated that there is no deficiency of service on their part for the reasons mentioned in Ex.A-4 letter and requested the complainant to let them know within 15 days of receipt of Ex.A-4 letter as to why complainant has not submitted correct bills to the opposite party company and stated that the delay in settlement of the claim is only due to the inconsistent stand taken by the complainant. In the meanwhile the Surveyor addressed a letter dated 03-10-11 under Ex.B-7 to the opposite party referring his report dated 07-12-10 (Ex.B-8) and stated that the insured claim works out to Rs.8,03,304/- on repair basis after deducting the relevant depreciation on spare parts etc. Thus the Surveyor gave report that the insured may be paid an amount of Rs.8,03,304/- towards the loss for the damaged insured excavator. Subsequently after getting repaired the damaged excavator at the request of complainant under Ex.B-5 dated 19-04-11 final Surveyor reinspected the damaged excavator and gave report dated 18-05-11 under Ex.B-10 wherein he has shown that out of 42 spares 41 spares are shown replaced and salvage produced for 30 spares only. Further the Surveyor in his report dated 24-01-12 (Ex.B-6) stated that Exs.B-11 to B-18 and B-20 bills relates to L & T excavator but not relate to damaged excavator as confirmed by the repairer and further he stated in Ex.B-6 that the dealer’s price of control value is Rs.3,95,000/- only. But the complainant produced bill Ex.B-19 wherein cost of control value is shown as Rs.7,89,759/-. For question No.4 of interrogatories the Surveyor replied in his answers that he allowed the value of control valve to the extent of Rs.3,95,000/- in his report dated 07-12-10 (Ex.B-8) as per the estimate given by M/s.Universal Technical Services, Autonagar, Guntur, who are the competent persons selected by the complainant. Complainant made his total claim for Rs.15,65,219/- to the opposite party company. But he has filed complaint for Rs.11,99,696/- only towards policy amount for the reasons best known to him. Therefore the bonafides of some part of claim of complainant are doubtful. Thus as already stated above the complainant submitted first estimation under Ex.B-1 and second additional estimation under Ex.B-2 and addressed letters under Exs.B-4 and finally under Ex.B-5 dated 19-04-11 and after giving reply notice by opposite party under Ex.A-4 dated 13-10-11 the complainant again issued another notice under Ex.A-3 dated 28-10-11 and filed a complaint before this Forum on 05-12-11 pending the process of the case. Therefore in view of the above inconsistent attitude of the complainant, it cannot be concluded that the opposite party is responsible for the delay in settlement of the claim of the complainant.
As per the report of the Surveyor under Ex.B-8 the net loss for the insured damaged proclainer is arrived to Rs.8,03,304/- As the delay in settlement of the claim is due to inconsistent stand taken by the complainant the opposite party is not liable for any compensation. As the statutory report of the Surveyor has to be given due importance in arriving at the conclusion about the net loss suffered by the insured unless there is substantial evidence to the contrary, the report of the Surveyor Ex.B-8 dated 07-12-10 has to be accepted. In view of the foregoing discussion and in view of the facts and circumstances of the case, we are of the opinion that if the opposite party is directed to pay net loss of Rs.8,03,304/- together with interest @9% p.a. from the date of complaint till realization would meet the ends of justice.
10. In the result, the complaint is allowed in part as indicated below:
The opposite parties 1&2 are hereby directed to pay an amount of Rs.8,03,304/- to the complainant together with interest thereon @ 9%p.a from the date of complaint i.e. 05-12-11 till realization.
In view of the circumstances of the case each party shall bear their own costs.
The above order shall be complied within a period of six weeks from the date of receipt of the order.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 31st day of October, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant :
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS |
A 1 |
01-06-09 to 31-05-10 |
Copy of insurance policy bearing No.550504/31/09/6300000360 |
A 2 |
30-09-11 |
Office copy of Registered legal notice got issued by the complainant along with postal acknowledgment (one) |
A 3 |
28-10-11 |
Office copy of Registered legal notice got issued by the complainant along with postal acknowledgment (one) |
A 4 |
13-10-11 |
Reply notice got issued by the 1st opposite party |
A 5 |
08-04-10 |
Copy of the bill issued by Sri Venkata Ramana Diesel Service, Guntur for Rs.12,339/- |
A 6 |
08-04-10 |
Copy of the bill No.4425 issued by Sri Venkata Ramana Diesel Service, Guntur for Rs.775/- |
A 7 |
12-04-10 |
Copy of the bill No.CR-5 issued by Guntur Auto Services Pvt.Ltd., Guntur for Rs.45,730/- |
A 8 |
12-04-10 |
Copy of the bill No.CR-5 issued by Guntur Auto Services Pvt.Ltd., Guntur for Rs.27,560/- |
A 9 |
23-06-10 |
Copy of the bill No.20 issued by Universal Technical Services, Guntur for Rs.840/- |
A 10 |
23-06-10 |
Copy of the bill No.21 issued by Universal Technical Services, Guntur for Rs.35,000/- |
A 11 |
24-06-10 |
Copy of the bill No.22 issued by Universal Technical Services, Guntur for Rs.16,000/- |
A 12 |
26-06-10 |
Copy of the bill No.23 issued by Universal Technical Services, Guntur for Rs.19,000/- |
A 13 |
29-06-10 |
Copy of the bill No.24 issued by Universal Technical Services, Guntur for Rs.15,000/- |
A 14 |
09-07-10 |
Copy of the bill No.29 issued by Universal Technical Services, Guntur for Rs.13,000/- |
A 15 |
09-07-10 |
Copy of the bill No.28 issued by Universal Technical Services, Guntur for Rs.10,000/- |
A 16 |
23-02-11 |
Copy of the bill No.16 issued by Intur Auto Services (P) Ltd., Guntur for Rs.1,876/- |
A 17 |
09-03-11 |
Copy of the bill No.94 issued by Universal Technical Services, Guntur for Rs.25,000/- |
A 18 |
09-03-11 |
Copy of the bill No.93 issued by Universal Technical Services, Guntur for Rs.30,000/- |
A 19 |
09-03-11 |
Copy of the bill No.91 issued by Universal Technical Services, Guntur for Rs.17,520/- |
A 20 |
09-03-11 |
Copy of the bill No.85 issued by Universal Technical Services, Guntur for Rs.27,480/- |
A 21 |
31-03-11 |
Copy of the bill issued by CL Engineering Equipment (India) Pvt.Ltd., for Rs.7,80,759/- |
A 22 |
06-04-11 |
Copy of the bill for Rs.6,033/- |
A 23 |
12-04-10 |
Copy of the Tata Motors Guntur Auto Services Pvt.Ltd., for Rs.11,200/- |
A 24 |
12-04-10 |
Copy of the bill for Rs.4,584/- |
A 25 |
14-04-11 |
Copy of the bill No.1 issued by Universal Technical Services, Guntur for Rs.9,000/- |
A 26 |
15-04-11 |
Copy of the bill No.2 issued by Universal Technical Services, Guntur for Rs.8,500/- |
A 27 |
15-04-11 |
Copy of the bill No.3 issued by Universal Technical Services, Guntur for Rs.9,389/- |
A 28 |
15-04-11 |
Copy of the bill No.3 issued by Universal Technical Services, Guntur for Rs.12,000/- |
A 29 |
16-04-11 |
Copy of the bill No.4 issued by Universal Technical Services, Guntur for Rs.9,847/- |
A 30 |
16-04-11 |
Copy of the bill No.5 issued by Universal Technical Services, Guntur for Rs.8,587/- |
A 31 |
16-04-11 |
Copy of the bill No.5 issued by Universal Technical Services, Guntur for Rs.9,000/- |
A 32 |
18-04-11 |
Copy of the bill No.6 issued by Universal Technical Services, Guntur for Rs.9,964-50. |
A 33 |
18-04-11 |
Copy of the bill No.7 issued by Universal Technical Services, Guntur for Rs.9,500/- |
A 34 |
18-04-11 |
Copy of the bill No.8 issued by Universal Technical Services, Guntur for Rs.8,500/- |
A 35 |
19-04-11 |
Copy of the bill No.9 issued by Universal Technical Services, Guntur for Rs.5,716/- |
A 36 |
|
Copy of motor claim form. |
For Opposite Parties :
Ex. No |
DATE |
DESCRIPTION OF DOCUMENTS |
B 1 |
23-02-10 |
Quotation issued by Universal Technical Services for Rs.7,60,890/- |
B 2 |
29-03-10 |
Estimation issued by Universal Technical Services for Rs.8,04,329/- |
B 3 |
27-02-10 |
Estimation issued by United Power Services for Rs.7,83,557-85 |
B 4 |
10-01-11 |
Letter addressed to the opposite party for purchase of New excavator. |
B 5 |
19-04-11 |
Letter addressed to the opposite party for re-inspection. |
B 6 |
24-01-12 |
Surveyor report of A.Rama Rao. |
B 7 |
03-10-11 |
Surveyor report of A.Rama Rao. |
B 8 |
07-12-10 |
Surveyor report of A.Rama Rao. |
B 9 |
19-08-10 |
Surveyor report of A.Rama Rao. |
B 10 |
18-05-11 |
Surveyor report of Ch.Abshaloam |
B 11 |
23-06-10 |
Bill No. 20 issued by Universal Technical Services for Rs.840/- |
B 12 |
23-06-10 |
Bill No. 21 issued by Universal Technical Services for Rs.35,000/- |
B 13 |
24-06-10 |
Bill No. 22 issued by Universal Technical Services for Rs.16,000/- |
B 14 |
26-06-10 |
Bill No. 23 issued by Universal Technical Services for Rs.19,000/- |
B 15 |
29-06-10 |
Bill No. 24 issued by Universal Technical Services for Rs.15,000/- |
B 16 |
26-06-10 |
Bill No. 26 issued by Universal Technical Services for Rs.9,160/- |
B 17 |
09-07-10 |
Bill No. 28 issued by Universal Technical Services for Rs.10,000/- |
B 18 |
09-07-10 |
Bill No. 29 issued by Universal Technical Services for Rs.13,000/- |
B 19 |
31-03-11 |
Bill for Rs.7,80,759/- issued by M.L. Engineering Equipment (India) Pvt.,Ltd., |
B 20 |
06-04-11 |
Bill for Rs.6,033/- issued by Surya Enterprises. |
PRESIDENT | |
