Karnataka

Bidar

CC/64/2014

BALAJI HASGUNDA S/O MALSHETTY - Complainant(s)

Versus

SRI RAM GENERAL INSURENCE CO. LTD , JAIPUR, RAJASTHAN 302022 - Opp.Party(s)

D.M SWAMY

28 Feb 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                      C.C.No.  64/2014

 

                                                                                      Date of filing : 26/07/2014

 

                                                                                 Date of disposal : 28/02/2017

 

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                    President.

    

                                      (2) Shri. Shankrappa,(Halilpurgi)

                                                                          B.A.LL.B.,

                                                                                     Member.

 

 

COMPLAINANT:          Balaji Hasgunda, S/o Malshetty,

                                         Age: Major, R/o H.No.19-3-371/1,

                                      Pratap Nagar, Bidar.

                                                                

 

 

                                     (By Shri. D.M.Swamy, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-             1     Sri Ram General Insurance Company Ltd.

                                                E-8-RIICO Industrial Area Sitapur-Jaipur,

                                                 Rajasthan-302022.

 

                                        2.      The Manager,

                                                Sri Ram Gen. Insurance Co.Ltd,

                                                Biradar Complex, 2^nd Floor,

                                             Near Holkunde Hospital, main road,     

                                             Basavakalyan,Dist.Bidar.

 

 

 

                       

                                      (O.P.No.1 by Shri.Prakash.V.M., Advocate)

                                      ( O.P.No.2- Exparte )

 

 

 

 

 

 

 

::   J UD G M E N T  : :

 

 

By Shri. Jagannath Prasad Udgata, President.

 

The complainant is before  us U/s. 12 of the C.P.Act., 1986, filed against the O.Ps claiming reimbursement  of a sum of Rs.3,53,775/- for damage to his vehicle.

 

2.             The gist of the case is as here under:

                           The complainant is the owner and possessor of TATA 407 Goods Carrying vehicle bearing Reg.no.AP10U3235 and said vehicle was being used for carrying the goods from one place to another place.  On 2/04/2013 the complainant’s vehicle was loaded with 475 cottons ( should be cartoons) and the said vehicle proceeding from Bidar to Bhalki.  At about 2.30 p.m. the said vehicle came near   Lalbag on Bidar  Bhalki road.  Due to ditches and   pits on the road the  vehicle’s backside left tyre was burst and turned turtle on the side of the road due to which complainant’s vehicle was fully damaged.  The loaded goods, Coca Cola and mineral bottles  belonged s to Suresh, s/o Appanna Metre Prop.  Om sai agency Bhalki and above said goods i.e. mineral water and Coca Cola bottles were also damaged.  The complainant intimated the accident to the O.Ps.  As per intimation given by the complainant, the office bearer has registered the claim no.10000/31/c/004110.  Thereafter the O.Ps have appointed the surveyor namely Shivraj, s/o Anand with direction to visit the accident spot and assess the damage of the vehicle and goods.  The surveyor has visited the accident spot and the damaged vehicle was shifted to nearest Garage as per the say of surveyor.   The garage belonged to one Rambabu Motors works garage, Bidar for repair of the vehicle.  The mechanic of the said garage had replaced some parts of the vehicle and damaged parts were to be replaced with ne ones.   The repair of the vehicle of the complainant was assessed at Rs.1,50,000/- including the mechanic charges.  The goods damaged were worth  Rs.1,77,775.  In this way complainant has sustained total loss of Rs.3,53,775/-.  Thereafter consequent to the report of the surveyor the O.Ps had issued cheque for sum of Rs. 675/- only instead of Rs.3,53,775/- but, the complainant has not received the said cheque and sent back to the O.P and he has requested to O.P. to pay a sum  of Rs. 3,53,775/- towards the loss caused to the complainant’s vehicle due to damage in the accident but, O.Ps. have not taken any pains to settle the said amount hence, the complainant is before this Forum.

 

3.              On receipt of the Court notice the O.P. no.1 has not appeared before this Forum and has been placed exparte.  O.P. no.2 has appeared before this Forum and filed written version wherein it is claimed the complaint filed by the complainant is prima facie not maintainable either in law or on the facts of case.  The averments made in para no.1 and 5 do not need  reply and the averment made in para no.2, 3, 4 and 6 are false and baseless without any proper records, hence the complainant be put to strict  proof of the same, except the surveyor namely Shivaraj s/o Anandwade.  Further the averments made in para no.7 to 9 are discussed by the complainant are legal points and should be considered by the Forum.  On the date of accident the complainant’s vehicle was more than 14 years old i.e. the said vehicle was registered in the year 1999 and the complainant’s  vehicle was not in good condition and his vehicle valuation was less than its repairable value.  So, he has colluded with concerned persons and created the false story and has filed the complaint against the O.P. only with an ulterior motive to make a wrongful claim of compensation. Further O.P.no.2 avered that the complainant’s vehicle was damaged  due to mechanical defects i.e. wheel of vehicle burst.  The complainant has failed to maintain his vehicle properly.   The complainant’s vehicle was damaged  due to mechanical defects and the O.P. Insurance Company is not liable to pay ay compensation to complainant on violation of policy conditions.  But, the O.P. Insurance Company has assessed the vehicle damages as per survey report, thereafter the O.P. has sent the cheque to the complainant on non standard basis and deducted as per policy conditions i.e. deductible under sections-1 (imposed excess Rs.12,500/- compulsory deductable Rs.500/- (Rs.13,000/-) and other miscellaneous expenses and remaining amount sum of Rs.675/-cheque was sent to the complainant for full and final settlement of claim under policy number 10010/32/13006829 in respect of damage and loss AP-10-U3235 on 20/06/2013.  Further the complainant himself has refused to receive the vehicle damages compensation cheque from O.P. So,  there  no question arise to prove deficiency in service  the complainant has suffered mental torture by the O.P. Company.   O.P. further avered that the complainant has colluded with “Ram Babu Works Gandhi Gunj Road Bidar”and created the false quotation and the said quotation has not disclosed K.S.T. and C.S.T. numbers and has not disclosed that, complaint has paid the billed amount.  The said bills are false and baseless and created by the complainant only to claim the exorbitant compensation from the O.P. Insurance Company.   Further the complainant has not filed any records to show the earlier condition of the vehicle and also the complainant is late in filing the complaint hence the complaint may be dismissed with costs.

4.          Taking into consideration the rival contentions of the parties and the citation quoted by the complainant and the documents listed at the end of this order. 

5.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Does the complainant prove that there has been a deficiency in service on the part of the O.Ps?

 

 

2. What order ?

 

6.           Our answers to the points stated above are as follows:-

 

               1.  In the affirmative.

                2. As per final orders due to the following

3.  
4.  

 

:: REASONS::

7. Point no.1   In the instant case, there has been no dispute regarding the accident and consequential damages to the vehicle and goods loaded therein.  However, the O.P.no.2 has raised a feeble point that, the upkeep of the vehicle was not proper, which caused the accident.  Further, the O.Ps have claimed that, the vehicle was very old, it’s repair charges were more than the vehicle and no photographs of the vehicle were obtained prior to the issuance of the policy and therefore basing on the surveyor’s report, the damages were assessed on non standard basis and after deductibles under              section-1( imposed excess Rs.12,500/- + compulsory deductible Rs.500/-) they had issued a cheque in a sum of Rs. 675/- which was not accepted by the complainant and hence they are not liable to pay him anything.  Significantly not any survey report worth the name has been ever produced by the O.Ps and the documents produced vide Ex.R.1 to R.3 are zigsaw puzzles themselves.  But the fact remains admitting the fact of accident and assessment of damages in whimisical and faulty manner, the O.Ps have approbated their responsibility as insurer, not with standing the mysterious entries in the policy issued by them at Ex.P.10.  In the said policy, the IDV of the vehicle has been assessed at Rs.1,49,253/- countenanced by the insurer and premiums to cover the vehicle has been received.  It was the duty of the insurer to satisfy himself about the condition of the vehicle, it’s insurability or other wise and after the insurance certificate was issued in due course, no such flimsy defence can be raised by him for which we hold that, there has been a clear deficiency of service and we answer this point accordingly.

 

8. Point no.2:  Arrieving to assess the just compensation to the complainant, we find that, he is raising a claim of Rs.1,50,000/- towards damages sustained bythe vehicle and loss of goods carried to the extent of Rs.1,77,775/-.  The complainant claims that, he was transporting merchandise of one OM SAI AGENCIES, Bhalki of which one Sri. Sruesh s/o Appana was the proprietor.  He has placed three documents at E.x.P.13 to P.15 of different dates issued in favour of said OM SAI AGENCIES and the total amount of bills works out to be Rs.1,37,225/-.   It is crystal clear that, a fictitious claim for a much higher sum is being made without any basis.  Herein but, OM SAI AGENCIES is not a party  before us.  Albeit a feeble attempt was made by that entity by filing application under order 1 Rule 10 C.P.C. to become a co-complainant, the same was rejected vide order dt.19/10/2016.  However, by no stretch of imagination, the present complainant can seek any compensation towards goods of a third party damaged in the accident, further no tangible proof having been produced evidencing such damages.

 

9.             Discussions above leaves only one matter to be resolved, i.e. the compensation towards the damages of the vehicle.  The complainant had produced two bills vide Ex..11 and 12 evidencing procurement of spares, the sum of which is calculated at Rs.40,550/-.  However, he has examined the garage owner as P.W.2, by name Ram Babu, s/o Sitaram, who has testified on oath that, he had received a total sum of Rs.1,50,000/- to repair the vehicle including the costs of the spare parts.  This clinches the issue of reimbursable damages of the vehicle.

 

10.              The Hon’ble National Commission in a Judgment rendered and reported in 2014(1) CLT 476 (NC)- Mallikarjuna Sakri V/s Oriental Insurance Co.Ltd. has been pleased to hold that, the bill indicating the repairs carries more credibility than the surveyor’s report even, indicating item wise damage caused to the vehicle and further that, delay in settlement of insurance claim tantamounts to deficiency of service.  In the instant case, there is no survey report worth the name and hence we are inclined to believe a sum of Rs. 1,50,000/- towards cost of repairing the vehicle.

 

11.                 But as the facts stand, the I.D.V. of the vehicle in Ex.P.10 appears to be Rs.1,49,253/- out of which a sum of Rs.13,000/-has to be given a set off under the head- “Deductible under section:1”of the policy conditions and the net claim is to be calculated at Rs.1,36,253/- ( rounded off at Rs.1,36,000/-) and we hold the same as the entitlement of the complainant and proceed to pas the following:-

 

: :   ORDER : :

 

                  The complaint is allowed in part.

1. The O.Ps are severally and jointly directed to pay a sum of Rs.1,36,000/- towards damages sustained by the vehicle of the complainant together with an interest @ 12% p.a. from the date of accident i.e. 23/04/2013 till the date of realisation.
2. The O.Ps are further jointly and severally directed to pay a compensationof Rs.20,000/- for the in conveniences and mental trauma undergone by the complainant, together with litigation expenses of Rs.5,000/-
3. Four week time is granted to comply this order.

                                                                                        

                                                                                                                                                                                                                                                                                                                                                                   

 

 

 

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 28^th   day of February-2017 )

 

 

 

Sri. Shankrappa H.                                          Sri. Jagannath Prasad                 

        Member                                                                  President

 

Documents filed by the complainant.

 

1. Ex.P.1-  Copy of claim discharge cum satisfaction voucher
2. Ex.P.2- Copy of cheque dt.20/06/2013. 
3. Ex.P.3- Receipt issued by Ram Babu Motor Works
4. Ex.P.4 to 6 Photographs.
5. Ex.P.7- Copy of legal notice, dt.02/06/2014.
6. Ex.P.8 & 9 Postal receipts
7. Ex.P.10- Copy of insurance policy.
8. Ex.P.11- Original Bill issued by M/s Salve Automobiles.
9. Ex.P.12-Original Bill issued by M/s Salve Automobiles.
10. Ex.P.13-Original Cash bill of Shambhulingeshwar Enterprises.
11. Ex.P.14-Original Bill of S.K.S. Agencies.
12. Ex.P.15-Original Bill of Karantha Enterprises.

 

 

 

Documents filed by the Opponent/s

 

1.  Ex.R.1- Copy of Survey Report.
2.  Ex.R.2-Copy of Motor claim approval sheet.
3.  Ex.R.3- Copy of Motor claim approval sheet.

 

 

 

Sri. Shankrappa H.,                                          Sri. Jagannath Prasad,                 

        Member                                                                     President.