BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:
HYDERABAD.
FA.NO.293 OF 2005 AGAINST C.D.NO.91 OF 2001 District Forum, SRIKAKULAM.
Between:
The New India Assurance Co. Ltd.,
Rep. by its Branch Manager
Br.Office, 1st floor, Padmalaya Building,
G.T.Road, Srikakulam Town & District. ..Appellant/
Opp.party
And
Smt.Bhogi Rajeswari, W/o.Bhogi
Anjaneyaswamy, owner of LMA
Maruthi 800 STD Car No.AP-30-
1600, Lakshminagar Street, Amadalavalasa
Town, Srikakulam Dist., Respondent/
Complainant
Counsel for the Appellants : Mr.Kota Subba Rao
Counsel for the Respondent:Mr.M.Surender Rao
FA.NO.975 OF 2007 AGAINST C.D.NO. 91 OF 2001 District Forum, SRIKAKULAM.
Between:
Smt.Bhogi Rajeswari, W/o.Bhogi
Anjaneyaswamy, aged about 60 years,
Indian, Owner of LME Maruthi 800 STD
Car bearing No.AP30/1600, Lakshminagar Street,
AmadalavalasaTown,
Srikakulam Dist., Appellant/
Complainant
And
The New India Assurance Co. Ltd.,
Rep. by its Branch Manager
Branch Office, 1st floor, Padmalaya Building,
G.T.Road, Srikakulam Town & District. ..Respondent/
Opp.party
Counsel for the Appellant : M/s.V.Gourisankara Rao
Counsel for the Respondent:Mr.Kota Subba Rao.
QUORUM:SMT.M.SHREESHA, LADY MEMBER
AND
SRI G.BHOOPATHI REDDY, MEMBER.
THURSDAY, THE EIGHTEENTH DAY OF SEPTEMBER,
TWO THOUSAND EIGHT.
Oral Order : (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.91/2001 on the file of District Forum, Srikakulam, opposite party preferred F.A.No.975/2007 and the complainant preferred F.A.No.975/2007. Since both the appeals arise out of a similar order, they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainant purchased a new car bearing No.AP30/A1600 in the year 1997 and insured it with opposite party for a period of one year from 12-4-2000 to 11-4-2001 vide policy bearing No.3162010303590 which covers all risks including fire. On12-4-2000 at about 9.00 pm. While the complainant along with her family was proceeding from Arinam Akkivalasa Via Srikakulam to Amadalavalasa in her car being driven by driver, Mr. K.Ramu, they stopped the vehicle at Amin Petrol Station in Kotta Raod Junction and got filled two litres of Petrol in the said car and when the driver started the engine to proceed to Amadalavalasa, suddenly smoke with fire came from the engine f the car and immediately the complainant, her husband and the driver got out of the car and the car was burnt totally in fire. On 13-4-2000 at 10.00 a.m. the son of the complainant gave a report to Rural Police, Srikakulam about the complete damage of the car and submitted the claim application to opposite party. Opposite party deputed their surveyor to inspect the said vehicle. The surveyor asked the husband of the complainant by way of letter to submit the driving license of the driver, who drove the vehicle on the date of accident , proper certificate from the policy based on their station dairy, if FIR has not been registered and proper certificates from the Fire Brigade certifying the date and time of their operation relating to the car. The complainant submitted documents and the opposite party sent a letter dated 12-1-2001 repudiating the claim made by the complainant alleging falsely that at the time of accident, the car was with LPG gas as fuel with alteration in the vehicle for the use of the said fuel. The complainant submitted that she never used LPG as fuel in her vehicle at any time and moreover since the date of purchase of the said vehicle, she has been running it with petrol only. Hence the complaint for a direction to the opposite party to payRs.2,10,000/- towards the cost of the car, together with compensation of Rs.20,000/- Rs.10,000/- towards travelling expenses and Rs.3,000/- towards litigation expenses.
Opposite party filed counter admitting the issuance of the policy and its validity as on the date of accident. They submitted that on receipt of the claim intimation regarding the fire accident, they appointed investigators to investigate the fire accident. The investigators investigated the alleged accident and found that the alleged accident occurred due to use of gas instead of petrol and the investigation reports along with xerox copies of the photographs clearly shows the breach of conditions of the policy and violation under the provisions of M.V.Act, 1988 and submitted that the complaint is not maintainable. Opposite party submitted that as per C-Book, the registration of the car in question would show that the car has been certified for use with petrol as fuel. This is based on the design specification of the manufacturers. The registration in law amounts to the Government authority grating permission to ply the vehicle and hence using of gas instead of petrol is misuse and the complainant has violated the registration itself and hence the complaint is not maintainable and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A8 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite party to pay Rs.20,000/- towards compensation, Rs.1,000/- towards itigation and dismissed the rest of te claim of the complaint.
Aggrieved by the said order, opposite party preferred f.A.No.295/2005 and the complainant preferred F.A.No.975/2007.
The learned counsel for the appellant/opposite party submitted that the complainant failed to establish the cause of fire accident. He submitted that there is no material to say that the alleged fire accident is by using LPG gas instead of petrol. He also submitted that the District Forum failed to consider the documents already field by the appellant and having observed that it is not clear about the accident ought not have granted any amount. He further submitted that the alleged loss is due to using of LPG cylinder unauthorizedly and prayed to allow the appeal.
The learned counsel for the appellant/complainant submitted that the opposite party repudiated the claim without any basis and therefore the District Forum ought to have allowed the complaint as prayed for. He also submitted that Ex.A7 will clinchingly establish that the value of the damage car was estimated as Rs.2,00,000/- by the Fire Officer, Srikakulam. He further submitted that the value of the car at the time of insurance was Rs.2,10,000/- and the entire car was burnt beyond repairs and as such the total amount must be paid by way of compensation.
The facts not in dispute are that the opposite party issued insurance policy to the complainant’s car which is valid from 12-4-2000 to 11-4-2001. It is the complainant’s case that on 12-4-2000 at about 9.00 p.m. while she, her son and her husband were proceeding to Amadalavalas. They stopped the vehicle at Amin Petrol Station and took two litres of petrol and when the driver started the engine suddenly there was lot of smoke and the car was totally burnt. On 13-4-2000 at abut 10.00 a.m. the complainant’s son gave a report to the Police and the insurance company also deputed a surveyor to inspect the vehicle. After the surveyor assessed the damage, the complainant submitted that the chief surveyor, Capt. Jacob Rao requested for driving license, F.I.R and the Fire Attendance Certificate which was also sent to him but the opposite party on 12-1-2001 repudiated the claim stating that the car was being run with L.P.G. gas as fuel with alterations in the said car for using that fuel. It is the case of the opposite party that as per the C-book, the car has been certified for use with petrol as fuel whereas from investigation report revealed that gas has been used instead of petrol, which is clear violation of the terms and conditions of the policy and therefore their repudiation is justified.
Ex.A1 is the policy issued by opposite party valid from 12-4-2000 to 11-4-2001. Ex.A5 is dated 13-4-2000 and is a certificate issued by S.I. of Srikakulam regarding the fire accident of the said car. Ex.A7 is the report of Fire Service Attendance Certificate given by Station Fire Officer estimating the damages at Rs.2,00,000/-. We have perused the survey report dated 17-4-2000 by Mr.O.Sambasiva Rao. He stated in his report that the front and rear wind shield glasses were shattered. Rubber beedings and channels were found melted. Electrical horns are found melted. Front head light assemblies, signal lights, parking lights and rear combination lights were found melted. Front and rear bumper assemblies, signal lights, parking lights and rear combination lights were found melted. Front and rear bumper assemblies are found melted. Dash board was found melted/burnt and all meters were found melted. Wiring loom was found burnt. All fuel and brake pipes wee found melted. Front plastic grill was found burnt. Body shell was badly melted, door accessories were melted steering wheel found melted, tape recorder, speakers, cables, steering box, carburetor assy. Brake cylinders, battery assembly, radiator assembly, hose pipes, water pump, fan were melted. Floor mats, steering system boots, top roof lining found burnt, door handles lock assemblies, clutch assembly, engine beds were all melted. Tyres were badly burnt, total paining was also burnt. These observations clearly show that the car was badly burnt beyond repair. We have perused the final survey report of Mr.M.Venkateswara Rao dated 23-5-2000 in which the surveyor in the description of damages stated that the entire vehicle was badly burnt out beyond the question of repairs. He listed out the entire items along with their price and altogether with the labour charges and the cost of repairs and salvage arrived at Rs.1,46,500 on total loss basis. After deducting the salvage of Rs.20,000/- he arrived at the net loss of Rs.1,26,500/-. In this final survey report, there is no whisper of gas being used as fuel instead of petrol. Thereafter after six months i.e. on 11-9-2000 there is a letter addressed by Capt. Jacob Rao, Chief Surveyor written to the insurance company to ascertain whether cooking gas was used to drive the Maruthi car. The investigator’s statement that the vehicle was fitted with gas and not petrol is not substantiated by any documentary evidence or affidavits of any competent authorities to establish their case. In the absence of any evidence to substantiate their contention that the vehicle ran with L.P.G. gas at the time of accident, we hold that there is deficiency of service on behalf of the opposite party in repudiating the claim without establishing their case that the vehicle was using L.P.G. gas as fuel at the time of accident.
We observe that the car admittedly caught fire on the same day of issuance of the policy. It is surprising as to how the insurance company has issued the policy without even verifying if the car was being run on L.P.G. gas or Petrol. The F.I.R. and the Fire Attendance Certificate do not whisper about the car being run on L.P.G. It is pertinent to note that the date of accident was 12-4-2000 and the first surveyor assessed the loss on 17-4-2000, second surveyor on 23-5-2000 and thereafter an investigator-cum-chief surveyor gave his report on 31-8-2000 i.e. four months after the date of accident. The act of the insurance company in appointing three surveyors without substantial reasons is deprecated as per the judgements of the National Commission in I (2004) CPJ 10 (NC) IN GAMMON INDIA LTD., v. NEW INDIA ASSURANCE CO. LTD. that
‘Report of first surveyor not accepted and second surveyor was appointed. Appointment of second surveyor is not explained-Deficiency in service is proved and report of first surveyor is upheld’.
It is also reported in LANDMARK JUDGEMENTS ON INSURANCE P-162 in O.P.No.135/2001 dated 19-1-2004 in SRI VENKATESWARA SYNDICATE v. ORIENTAL INSURANCE CO. Ltd. & another wherein it was held that
‘insurance company, cannot discard reports of various surveyors till getting a favourable report and allowed the complaint.
We find force in the contention of the complainant that the District Forum ought to have awarded the amount towards insurance instead of only awarding Rs.20,000/- towards compensation. Based on the insurance surveyor report i.e. of Mr.M.Venkateswara Rao dated 23-5-2000, we direct the opposite party to pay an amount of Rs.1,26,500/- which is the net loss assessed by their own surveyor to be paid to the complainant together with interest at 9% p.a. from the date of repudiation i.e. 12-1-2001 till the date of realization together with costs of Rs.3,000/-. The amount awarded by District Forum towards compensation is set aside while confirming the order with respect to costs. Time for compliance four weeks.
In the result, F.A.No.293/2006 preferred by the opposite party, insurance company fails and is accordingly dismissed and F.A.No.975/2007 preferred by complainant is allowed in part directing the opposite party, insurance company, to pay an amount of Rs.1,26,500/- which is the net loss assessed by their own surveyor to be paid to the complainant together with interest at 9% p.a. from the date of repudiation i.e. 12-1-2001 till the date of realization. The amount awarded by the District Forum towards compensation is set aside while confirming with respect to costs of Rs.1,000/-. Time for compliance four weeks.
LADY MEMBER. MALE MEMBER.
Dated 18-9-2008.
