BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Saturday the 4th day of October, 2008
C.C.No. 60/08
Between:
G.V. Santheswara Reddy, S/o. Yella Reddy ,
H.No.69/466, Joharapuram, Kurnool. .
… Complainant
Versus
1. M/s. ICICI Lombard General Insurance Company Limited,Represented by its Assistant Manager,
Ground Floor, Soma Complex, Opp. Remedy Hospital, Liberty Road,
Himayat Nagar, Hyderabad.
2. M/s. ICICI Lombard General Insurance Company Limited,
Represented by its Manager,
23 and 24, 2nd Floor, U Con Plaza, Park Road, Kurnool.
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri. M. Sivaji Rao, Advocate, for the complainant, and Sri. P. Ramanjaneyulu, Advocate, for the opposite parties and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.60/08
1. This case of the complainant is filed U/S 11 and 12 of C.P. Act seeking direction on the opposite parties to pay him Rs.37,798/- towards the estimated cost of repairs by M/s. Sreeniva Auto Services mentioned in surveyors report , Rs.10,000/- as compensation for mental agony and hardship and cost of the case alleging his car bearing No. AP 29 5073 was insured with the opposite parties vide policy No. PE 4148321 for the period 4-2-2007 to 3-2-2008 and during its subsistence , on 23-3-2007 at about 3-00 p.m on account of accidental fall of bricks and roof cement bricks of the balcony on the roof of the said car damaged in said car and the surveyor found the damage to (1) panel side body outer on left side above the rear roof panel and rear door the panel bent pressed , (2) roof of panel sheet metal sheared at rer left side near the run channel , (3) wind shield glass broken and trim wind shield cracked , (4) frame of inner on wind sheet panel bent / pressed , (5) roof panel inner left hand side roof side above rear left hand door bent / pressed , (6) front wind shield panel pressed and the repair cost was estimated at Rs.37,798/- and the loss assessor estimated it to Rs. 22,000/- only working out depreciations at 35% and 50% but the opposite parties wrongly repudiated the claim alleging the said damage as pre-existing and rejected the claim and not even responded to the legal notice dated 30-7-2007 and so not only caused mental agony but also driven the complainant to this case to the forum for redressal .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the case filling their written version denying of any of their liability to the complainants claim and seeking its dismissal .
3. The written version of the opposite party No.2 adopted by opposite party No.1 denies any of its privy with the complainant under said policy cover note as the said was issued subject to realization of cheque issued by complainant and the said cheque was ultimately dishonored and there on the said cover note which is with a limited validity of two months thereafter it was cancelled under intimation to complainant and so any policy existing covering the complainants vehicle on the date of occurrence. The surveyor MR. Sreenivasan of Kurnool assessed the loss to the vehicle of the complainant at Rs.22,000/- vide its final motor survey report dated 16-4-2007 . The claim of the complainant was repudiated on 25-4-2007 alleging its as pre-existing damage in the absence of any policy covering the risk to the complainants vehicle there was any deficiency of service in said repudiation and the entitleness of the complainant limits to an amount of Rs.22,000/- as assessed by the surveyor subject to the complainant establishing the liability of the opposite parties and not of Rs.37,798/- as claimed . Hence seek dismissal of the case with exemplary cost of Rs.10,000/- for want of proper cause of action for the complainants case.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A3 and its sworn affidavit of the complainant in support of its contentions the opposite party side has taken reliance on documentary record in Ex.B1 and the sworn affidavit of the opposite party No.2 in support of its defence.
5. Hence, the point for consideration is whether the complainant has made out the alleged deficiency of the opposite parties in repudiation of the claim and there by the liability of the opposite parties for complainants claim .
6. The Ex. A2 is the Xerox of customer copy of motor insurance cover note to the private car of the complainant for the period 4-2-2007 to 3-2-2008 issued on 2-2-2007 . From the N. B noted therein as “ this cover is not valid to consideration being received in cash ” it remains implied that the said Ex.A2 was issued not on payment of cash but by cheque as it envisages an amount of Rs.8,022/- was paid through cheque No.621774 dated 2-2-2007 of Rayalaseema Grameena Bank ( RGB) Kurnool . When the premium amount of insurance was paid through cheque only the cover note in form of Ex.A2 will be issued. The said cover note under neat the said NB mentions “ in case of dishonor of cheque the insurance cover provided under this document automatically stands canceled from the inception irrespective of whether a separate communication is sent or not”. Except alleging as such that the said cheque issued by complainant towards insurance premium was dishonored the opposite parties did not place any such cogent material which makes believe the truth in said contention . Nor it does take any such mention of cancellation of the policy on account of dishonor of the cheque issued , in its repudiation of claim convey to complainant vide Ex.A1 . If there is any truth in said cancellation of policy cover note in Ex.A2 by the opposite parties on account of any dishonor of the cheque issued by the complainant for insurance premium , the opposite parties would have taken the opportunity of replying the complainant notice in Ex.A3 incorporating the said fact therein . As there is any such endeavour on the one part and on the other hand entertaining the claim of the complainant – as if the said claim is covered under a valid insurance policy by appointing surveyor and getting assessment of loss of damage , ensures any amount of doubt on the bonafides of the said contentions of the opposite party as to the non existence of the policy covering the risk to the complainants vehicle and there by any justification in repudiation of the claim as pre-existing damage .
7. It is submitted by the opposite parties in their written version the validity of cover note of the policy is for two months only and thereafter it is not of any avail . But it did not place any such rule in support of it . In the absence of placing any such rule by the opposite parties as to the alleged in validity of cover note after two months, there appears any merit and force in the said contentions of the opposite party and thereby the said Ex.A2 by the implied conduct of the opposite parties in entertaining the claim by getting the damage surveyed by the surveyor , it remains as a valid one creating liability of the opposite parties for the damage occurred to the vehicle of the complainant covered under said policy and in the light of existence of policy even prior to the occurrence which caused damage to the car there appears any justification in the opposite parties conduct of holding the said damage as pre-existing and thereby in its repudiation .
8. The complainant values the damage to the car under insurance in Ex.A2 – to a tune of Rs.37,798/- alleging the damage to (1) panel side body outer on left side above the rear roof panel and rear door the panel bent pressed , (2) roof of panel sheet metal sheared at rer left side near the run channel , (3) wind shield glass broken and trim wind shield cracked , (4) frame of inner on wind sheet panel bent / pressed , (5) roof panel inner left hand side roof side above rear left hand door bent / pressed , (6) front wind shield panel pressed and they were pointed out by the surveyor too . The perusal of Ex.B1 – surveyor report finds the same as damages to the vehicle . But the complainant did not place any such cogent material which would justify the claimed figure of Rs.37,798/- as damages. As per the particulars mentioned in Ex.A2 the year of manufacture of said car was 2003 . Hence by the time of said occurrence resulting to the claim the said car appears to be four years old. The perusal of Ex.B1 motor survey report ( final) indicates the assessment of the loss of damage to the said vehicle of the complainant was worked out taking into consideration all relevant factors. It values the said damage occurred to the complainants vehicle , at Rs.22,000/-. In the absence of any justifying material substantiating the amount of Rs.37,798/- claimed by the complainant the value assessed under Ex.B1 taking relevant factors into consideration takes preference for ordering over the unsubstantiated claim of the complainant, especially when the opposite parties also abides to the said value if their liability is to be held. .
9. As the opposite parties instead of paying said assessed value of Rs.22,000/- to the complainant repudiated the claim without any reasonable circumstances they are remaining liable for compensation to the mental agony suffered by the complainant at the deficient conduct of the opposite parties in repudiating the claim . The said deficient conduct of the opposite parties besides ensuing mental agony to the complainant as driven the complainant to the forum for redressal of the grievances, the opposite parties are remaining liable to the cost of the litigation also to the complainant .
10. consequently, the case of the complainant is allowed directing the opposite parties jointly and severally to pay to the complainant Rs.22,000/- as damages occurred to the insured vehicle of the complainant , Rs.5,000/- as compensation for mental agony suffered and Rs.3,000/- as cost of this case within one month of the receipt of this order. In default the opposite parties jointly and severally shall pay the supra stated award amount with 12% interest p.a from the date of default till realization.
Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 4th day of October, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Repudiation letter dated 25-4-2005.
Ex.A2. Xerox copy of Motor Insurance Cover note.
Ex.A3. Legal notice dated 28-7-2007 along with courier,
Postal receipt , and acknowledgment.
List of exhibits marked for the opposite parties:
Ex.B1. Xerox copy of survey report.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
