BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Tuesday the 1^st day of May, 2012

C.C.No.144/2011

Between:

S.R.Ravi Sankar Reddy,S/o S.R.Venkata Siva Reddy,

Business, R/o D.No.51-15A-28-2A, Baba Brindavan Nagar,Kurnool District - 518 002.                       

   …Complainant

                                              -Vs-   

National Insurance Company Limited,Represented by its Divisional Manager,       

D.No.40-343/A, Gandhi Nagar, Kurnool City,Kurnool - 518 001.                                                                  

…OPPOSITE PARTy  

This complaint is coming on this day for orders in the presence of Sri M.L.Srinivasa Reddy, Advocate for complainant and Sri D.A.Anees Ahamed, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.                                

                                               ORDER

    (As per Smt. S.Nazeerunnisa, Lady Member)

C.C. No. 144/2011

1.     This complaint is filed under section 12 of C. P. Act, 1986 praying:-

1.   To direct the opposite party to pay Rs.1,00,000/- towards the damages caused to the Lorry bearing No.AP21 X 7755 of complainant with interest at 12% per annum from the date of damages caused in accident;

1.   To award compensation of Rs.10,000/- for causing mental agony and inconvenience suffered by the complainant at the deficient conduct of the opposite party;
2.   To award costs of Rs.5,000/-;

        And

1.  To pass such other reliefs as the Honourable Forum may deem fit and proper in the circumstance of the case.

2.    The case of the complainant in brief is as under:- The complainant is the owner of the lorry bearing No. AP 21X 7755 and the same was insured with opposite party covering own damage of the vehicle.  On 09-03-2011 when the vehicle was carrying Granite Stone, the driver of the said vehicle had seen that the opposite vehicle coming in rash and negligent manner on its wrong side, to avoid head on collision with the opposite coming vehicle, the drive took his vehicle towards left side of the road and so that the lorry passed over the big ditch, due to that, there was a big Jerk, due to that accidental impact, the left side portion of the lorry got damaged completely.  The Complaint informed the same to opposite party.  The opposite party appointed a spot surveyor, who assessed the loss and submitted his report.  The opposite party repudiated the claim of the complainant on the ground that the damage to the vehicle as caused due to internal means but not due to external means.  So the claim was not payable under the policy.  There is a deficiency of service on the part of the opposite party.  Hence the complaint.

3.     Opposite party filed written version stating that the complaint is not maintainable. It is admitted that the complainant insured his vehicle bearing No.AP21 X 7755 with opposite party.  Admittedly after intimation the opposite party appointed spot surveyor to assess the loss.   The said surveyor inspected the damaged vehicle and submitted his report.  It is mentioned in the said report that the proximate cause for damages to insured vehicle is not by any external means.  It is only due to internal load movement impact in the lorry.  As it does not cover under the policy, the opposite party repudiated the claim of the complainant under letter dated 28-09-2011.  The repudiation is quite reasonable. There is no deficiency of service on the part of opposite party.  The complaint is liable to be dismissed.

4.     On behalf of the complainant Ex.A1 to A5 are marked and sworn affidavit of the complainant and third party affidavit of Sri.A.Thirupalanna are filed. On behalf of the opposite party Ex.B1 to B5 are marked and sworn affidavit of the opposite party and third party affidavit of Sri.S.Ramesh Babu are filed.

5.     Both sides filed written arguments.

6.     Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of Opposite Party?

1. Whether the complainant is entitled for the reliefs as prayed for?

1. To what relief?

1. POINTS :- Admittedly the complainant insured his vehicle bearing No.AP21 X 7755 with opposite party under Ex.A1 = Ex.B1.  It was in force from 23-02-2011 to 22-02-2012.  Admittedly after intimation the opposite party appointed a surveyor by name                 Sri.S.Ramesh Babu.  The said surveyor inspected the damaged vehicle and submitted his report along with copy of photos of scene of occurrence which is marked as Ex.B5.  The complainant filed photo copy of cash bill for Rs.1,00,312/- issued by Andhra Body Builders marked as Ex.A2.  It is the case of the complainant that the driver of the insured vehicle in the process of avoiding collision with an opposite coming vehicle, passed over a ditch that there was a big Jerk, that due to that accidental impact.  The left side portion of the lorry got damaged completely. It is further case of complainant that the repudiation of the claim by opposite party under Ex.A5 = Ex.B4 on the ground that the damage was caused to the vehicle due to internal means is not justified.  It is the contention of the complainant that the stone being carried in the vehicle is an external instrument and the damage was caused due to that external instrument and further stated that pass over of the lorry on big ditch has got nexus with the damage caused to the vehicle.  The external means clause in the policy is an ambiguous.  To support his contention the learned counsel appearing for the complainant cited decisions reported in 2004 (2) CPR 62 (SC) and 2004 (2) CPR 4 (NC) where in it is held that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with purpose for which policy is taken.  The facts of the above cases are not applicable to the present case on hand. 

8.     It is the case of the opposite party that the surveyor inspected the damaged insured vehicle and submitted his report Ex.B5.  In the said report the surveyor clearly mentioned that the proximate cause for damage to the vehicle is only due to internal impact of load movement in the vehicle and not due to any external force.  The surveyor report does not disclose existence of ditch on the road.  The policy issued to the complainant covers loss or damage to the vehicle insured caused accidentally by external means.  So the repudiation of the claim under Ex.A5= Ex.B4 dated 28-09-2011 is reasonable.  It is for the complainant to show that the damage was caused due to external force.  The opposite party filed affidavit of surveyor in support of its version.  The spot surveyor inspected the damaged insured vehicle and assessed the loss.  His report clearly discloses that the damage to the vehicle was only due to internal means but not due to external means.  The report of the surveyor must be given due weight.  No ambiguity is found in report of the surveyor.  In the absence of clear evidence that the insured vehicle was damaged due to external means, opposite party who is the insurer cannot be held responsible.  There is no force in the contention of the complainant.  The opposite party rightly repudiated the claim.  No deficiency of service on the part of opposite party is found.  Therefore the complaint is not entitled to the reliefs as prayed for. 

9.     In the result, the complaint is dismissed without costs.

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 1^st day of May, 2012.

          Sd/-                                               Sd/-                                 Sd/-

MALE MEMBER                      PRESIDENT              LADY MEMBER

      APPENDIX OF EVIDENCE

                                    Witnesses Examined

For the complainant : Nil                 For the opposite party : Nill

List of exhibits marked for the complainant:-

Ex.A1                Photo copy of Policy of the vehicle bearing

No.AP21 X 7755.

Ex.A2                Photo copy of Cash Bill for Rs.1,00,312/- issued by

                Andhra Body Builders to opposite party.

Ex.A3                Photo copy of Letter by opposite party to complainant

                dated 22-08-2011.

Ex.A4                Photo copy of Reply Letter dated 10-09-2011.

Ex.A5                Repudiation Letter dated 28-09-2011.

List of exhibits marked for the opposite party:-

Ex.B1                Photo copy of Policy of the vehicle bearing

No.AP21 X 7755 along with conditions.

Ex.B2        Photo copy of Letter by opposite party to complainant

dated 22-08-2011.

Ex.B3        Photo copy of Reply Letter dated 10-09-2011.

Ex.B4        Photo copy of Repudiation Letter dated 28-09-2011.

Ex.B5        Photo copy of Private and Confidential Motor Survey

                Report (Final) dated 25-05-2011.

          Sd/-                                               Sd/-                                 Sd/-

MALE MEMBER                      PRESIDENT              LADY MEMBER

    // 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               :