BEFORE THE DISTRICT CONSUMER FORUM : MEDAK AT SANGAREDDY

PRESENT: Sri Patil Vithal Rao, B.Sc., LL.B.,President

Smt. Meena Ramanathan, B.Com., Lady Member

Tuesday, the 26^th day of March, 2013

CC. No. 11 of 2012

Between:

R. Dilip Kumar S/o R. Venkateshwarlu,

Aged: 27 years, Occ: Private Service,

R/o H.No. 3-2-151,  Netaji Nagar,

Sangareddy town, District Medak.                                 ……Complainant                      

                   And

1. Reliance General Insurance Company Ltd.,

H.No. 6-4-8, 1^st Floor, Vijetha Sanjeevani Apartments,

Opp: Gandhi Hospital, Musheerabad,

2. Reliance General Insurance Company Ltd.,

Sagar Plaza, 4^th Floor, 4-1-327 to 337,

Abids Road, Hyderabad.

                ……Opposite parties

This case came up for final hearing before us on 12.03.2013 in the presence of Sri D. Damodhara Reddy, Advocate for complainant and Sri J. Ram Reddy, Advocate for Opposite parties and heard the arguments of both sides, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per Se Sri Patil Vithal Rao, President)

                   Briefly stated, the facts of the case which has been filed under Section 12 of the Consumer Protection Act, 1986 are that the complainant’s Indica car, AP 23 S 3889 met with an accident on 17.02.2010 due to a dash given to it by an auto rickshaw resulting in damage to its body. The further case of the complainant is that at that time his father was traveling in the said car and that he went on pilgrimage and on his returning back to Sangareddy, he lodged complaint on 24.02.2010 at P.S. Sangareddy Rural but the police did not investigate in to the matter. It is also alleged that the complainant’s father informed about the incident to the Head office of the opposite parties through toll free telephone number on which one Sukumar Kalab, Official Surveyor of the department inspected the vehicle and instructed one Mahender Reddy to carry out repairs. As per the complainant he incurred an expenditure of Rs. 30,900/- in getting the vehicle repaired at the authorized work shop but the said amount was not reimbursed by the opposite parties. Therefore the complainant’s father has filed a case in CC.No. 32/2010 on the file of this Forum but the same was dismissed and said order was confirmed in the appeal also on technical ground with regard to locus standi of the complainant’s father in filing the case. Therefore, as per the complainant, he filed the present case and prayed to award an amount of Rs. 30,900/- with interest at 18% p.a. towards expenses of the vehicle repairs and Rs. 25,000/- towards compensation.

2.           The opposite parties Nos. 1 & 2 filed their written version and opposed the claim of the grounds, interalia, that the present complaint is not maintainable, in view of the earlier dismissal orders passed in CC.No. 32/2010, for the same cause of action. The opposite parties have further contended that soon after the alleged accident neither any complaint was lodged with the Police nor the matter was reported to the opposite parties and that as such there is a clear violation of terms and conditions of the policy. The opposite parties have also contended that the complainant did not file any record to establish the alleged accident and damage to his car and that he failed to prove any deficiency of service against them. For these reasons they prayed to dismiss the complaint with costs.

3.             During the course of enquiry the complainant has filed affidavits of himself and his father apart from the documents under Exs.A1 to A11 to substantiate his claim. The opposite parties have filed affidavit of Assistant Manager (Legal) of opposite party No. 2 and relied on Exs. B1 & B2,  in defence.

                   Perused the written arguments and heard the oral arguments of both the parties.

4.              Now the point for consideration is that whether the complainant has established deficiency of service on the part of the opposite parties to sustain his claim as prayed for?

Point:

5.              At the outset it is to be noted that the complainant’s father, Mr. R. Venkateshwarlu had filed CC.No. 32/2010 on the file of this Forum for the same relief as prayed for by the complainant in the present case but the same was dismissed on 20.12.2010 on the premise that he had no locus standi to file the same and that it was not maintainable. Ex.B2 is a copy of said order. Subsequently the appeal against it was also dismissed by the Hon’ble State Commission. Thus the said matter was decided only on the point of law but not on merits about the facts. Further, the parties to the said case are different from the parties to the present . Therefore we hold that the Principle of Res judicata has no application and as such the present case is certainly maintainable though for the same cause of action.

6.           The complainant is owner of the Indica Car AP 23 S 3889 as seen from a copy of certificate of registration, Ex. A3. It was duly insured with the insurance company of the opposite parties for the period from 26.05.2009 to 25.05.2010 under the policy schedule, Ex.A1. Both the complainant and his father possess valid driving licences to drive a four wheeler vehicle. Ex.A2 and A4 are copies of their respective driving licences.

7.            The complainant has alleged that on 17.02.2010 at about 5:00 p.m., while his father was traveling in the above said car, one auto rickshaw hit it resulting in extensive damage to the car and that immediately the complainant’s father informed about it to the head office of opposite parties located in Mumbai through toll free telephone number on which the damage was  assessed by a surveyor of the department and it was repaired at the authorized work shop of the company on the instructions of the insurance company. But the complainant has failed to establish the same by adducing any clinching and satisfactory evidence, when the opposite parties challenged and denied it.

                   Further, though the complainant has alleged that after return from pilgrimage, his father lodged a complaint with the Station House Officer, PS Sangareddy Rural on 24.02.2010, but to this effect also virtually there is no any piece of evidence.

8.             The opposite parties have filed a copy of insurance policy, Ex. B1 of the vehicle in question along with its terms and conditions. The relevant portion of the condition No. 1, of it, for beneficial use is extracted below:-

                1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.  .xxx           xxx           xxx.

                To further clarify the legal implication in this regard, the learned counsel for the opposite parties has cited and relied on an un reported decision dated 09.12.2009 passed by the Hon’ble National Commission in F.A. No. 321/2005 between “New India Assurance Company Limited AND Trilochan Jane”. This is a case wherein the complainant failed to report alleged theft of his vehicle to the insurance company immediately in violation of mandatory condition of the insurance policy. In the said decision the Hon’ble National Commission held as under:-

                   “In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle…………………..The Policy provides that in the case of theft, the matter should be reported ‘immediately’. In the context of a theft of the car, word ‘immediately’ has to be construed strictly to make the insurance company liable to pay the compensation”.

                  A reference to Mitra’s legal and commercial dictionary, Fifth Edition, was also made to for the definition of word ‘immediately’. As per the said dictionary, “immediately” is to be construed as meaning with all reasonable speed, considering the circumstances of the case.

                 In the present case on hand the complainant did not place on record any piece of evidence to establish that immediately after the alleged accident, it was informed to the insurance company to process the matter. Thus there is clear violation of one of the mandatory terms and conditions of the policy to repudiate the claim validly by the insurance company. Further, with regard to the alleged Police complaint dated 24.02.2010, there is no any evidence. Even other wise there is a delay of one week in lodging the complaint with the Police. Because the alleged accident took place on 17.02.2010 and the complaint was lodged on 24.02.2010. This delay is also remained un-explained, more so when the PS is only half kilometer away from the scene of accident and as such the same is certainly fatal to the complainant’s case.  In these circumstances the above cited decision, in our opinion, is aptly applicable to the present case.

9.                A copy of the letter dated 19.05.2010, Ex. A10 shows that only logo of the car on the front side of the bannet was slightly damaged due to a hit but as per copies of receipts, gate pass and invoice under Exs. A5 to A7, the complainant had incurred a total expenditure of Rs. 30,900/- towards the repairs. It is not clear as to how the complainant could incurr such a huge expenditure for a simple damage of logo. It is further significant to notice that as per the job card, Ex. A6 the vehicle was taken for repairs on 25.02.2010 though the alleged accident was occured on 17.02.2010. That means, the vehicle must have been used till 24.02.2010 even after the so called accident. There is also no surveyor’s report placed on record with regard to actual extent of damage to the car. It also creates a doubt about the story setup by the complainant to suit his claim. The particulars of the damaged items have been shown specifically in the Invoice, Ex. A7. The complainant did not explain whether all the said items were covered by the insurance policy in preferring a claim for them. Further, when the opposite parties received representation, Ex. A10 from the complainant, they sought certain information to process and settle his claim. Ex. A8 & A9 are the copies of said notice and reminder letter respectively where as Ex. A11 is a Xerox copy of courier receipts for the complainant’s representations. But the complainant seems to have submitted only some of the required documents to the opposite parties along with his letter, Ex. A10 noted above in response to Ex. A8 & A9, This could be a reason for not settling the claim of the complainant by the opposite parties.

10.              In view of the afore said discussion, we are of the opinion that there is no deficiency of service on the part of the opposite parties and that the complainant has miserably failed to make out any case for the claim as setup by him.  Therefore the complaint is liable to be dismissed.

10.              In the result, the complaint is dismissed but having regard to the facts and in the circumstances the parties shall bear their own costs.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

                   Dictated to Stenographer, after correction the order was pronounced by us in the open court on this the 26^th day of March, 2013.

    Sd/-                                      Sd/-                                   Sd/-

      MALE MEMBER     LADY MEMBER                    PRESIDENT

APPENDIX OF EVIDENCE

                                 WITNESS EXAMINED

For the complainant:                                            For the opposite parties:-

DOCUMENTS MARKED

For the complainant:                                                   For the opposite parties:-

               Sd/-                                        Sd/-                                    Sd/-

      MALE MEMBER                     LADY MEMBER                   PRESIDENT

Copy to

1)   The Complainant

2)   The Opp.parties

3)   Spare copy