Date of filing: 08.10.2012
Date of Order: 16.04.2015
BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI
DISTRICT AT RAJAHMUNDRY
PRESENT: Sri B.Vinay Kumar, B.Sc., B.L., PRESIDENT
Smt H.V. Ramana, B.Com., L.L.M., MEMBER.
Sri A. Madhusudana Rao, M.Com., B.L., MEMBER
Thursday, the 16th day of April, 2015
C.C.No.53 /2012
Between:-
P. Srinivas, S/o. P. Venkateswari, Hindu, Age 40 years,
Business, D.No.85-13-2, Bank Colony, Rajahmundry. … Complainant
And
1) The Bajaj Allianz General Insurance Company Ltd.,
Rep. by its Manager, D.No.75-8-12, Sona Complex,
Gandhipuram, Rajahmundry.
2) Bajaj Allianz General Insurance Co. Ltd.,
Divisional Manager, Peeja Plaza, D.No.44/9, 3rd floor,
CBM Compound, Visakhapatnam. … Opposite parties
This case coming on 02.04.2015 for final hearing before this Forum in the presence of Sri K.V.S.S. Prabhakar Rao, Advocate for the complainant and Sri D.S.R.K.V.V.S. Srinivasa Rao, Advocate for the opposite parties, and having stood over till this date for consideration, this Forum has pronounced the following:
O R D E R
(Per Sri A. Madhusudana Rao, Member)
This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay Rs.4,07,766/- towards insurance premium together with interest @ 24% p.a. from the date of refusal till the date of realization; to award Rs.1,00,000/- towards mental agony; to award Rs.1,00,000/- towards damages and award costs of Rs.10,000/- towards costs of the complaint.
2. The case of the complainant is that he purchased a car Ford Figo for Rs.5,00,000/- and insured the same with the 1st opposite party and the policy covers of total own damage premium, third party liability, one person of employee as well as personal accident to the owner of the car. The policy was valid from 23.3.2011. On 15.8.2011, the car was met with an accident in Thallada Police Station of Khammam District and police registered a case in crime No.105/2011 u/s 337 I.P.C. the complainant intimated about the accident to the 1st opposite party and the 1st opposite party sent their surveyor to the assess the damage of the car, but the surveyor did not pass any report to the complainant. On 2.5.2011, the opposite parties ent a letter by minimize the claim for sum of Rs.1,23,543/-, out of total coverage value of Rs.4,07,766/-. The complainant got issued a legal notice on 16.6.2012 to the opposite parties, for which the 2nd opposite party gave reply on 18.7.2012. Minimizing the claim by the opposite parties up to Rs.1,23,543/- instead of Rs.4,07,766/- amounts to deficiency in service on the part of the opposite parties. Hence, the complaint.
3. The 2nd opposite party filed its counter, adopted the same by the 1st opposite party and denied the allegations made in the complaint by the complainant. This opposite party submit that the complainant is the owner of Ford Figo bearing No.AP 5 BX 0257 and the said vehicle is insured with this opposite party vide policy No.OG-11-1804-1801-00015363 for the period valid from 18.3.2011to 17.3.2011. But the said policy was issued under Private Car Package Policy under certain terms, conditions and exceptions thereof. The said car of the complainant is hypothecated to State Bank of Hyderabad, Thorrur as it was financed. This opposite parties denies the allegations that at the time of entering into contract with the company, the opposite party promised that the company will indemnify all sorts of risks, losses and damages if any arising out of accidents and by believing the representation made by the opposite party entered into an agreement with the opposite party by paying huge amount of premium etc. This opposite party submits that on 17.8.2011 at about 19-30 while he was going through Khammam District from Rajahmundry, when he reached near Thallada village, one auto came in opposite party direction in wrong side and dashed the car in front right side as a result his car was dragged to right and dashed one tree and bushes on the road margin and the said vehicle was damaged. Soon after the claim intimation, the opposite party appointed one Mr. KSS Srinivasa, an Independent Surveyor-cum-loss assessor approved by IRDA. The independent surveyor assessed the loss to the vehicle of the complainant at Rs.1,60,679/- and the opposite party informed after receipt of investigation report, the liability of opposite party as per the policy terms and conditions and requested to submit original bills for recommended repairs through a letter dt.2.5.2011. The claim was offered as per the assessment made by the Independent surveyor cum loss assessor approved by IRDA after deducting the depreciation and salvage value as per the terms and conditions of the policy. As per the insurance policy issued to the vehicle of the complainant, the company shall not be liable to make any payment in respect of all respects. Moreover, the complainant did not take reasonable care in handling the insured vehicle immediately after the alleged accident. As per the policy condition No.4, “the insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or part thereof or driver or employee of the insured”. The complainant was informed immediately through the above letter the reasons for non-payment of entire claim. As such the complainant was aware the factual contractual and legal position. The reported loss does not fall under the purview of policy coverage. None of the perils covered under the above said policy has resulted into reported loss. Hence, the claim of the complainant is not tenable as per the terms and conditions of the policy. Hence, the same was informed to the complainant. The insurance policy between the insurer and the insured represents contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the liability of the insurer. The insured has to act strictly in accordance with the statutory limitations and terms of the policy expressly set out therein. Hence, there is no deficiency of service on the part of this party and the complaint is liable to be dismissed.
4. Exs.A1 to A6 have been marked for the complainant and Exs.B1 to B3 have been marked on behalf of the opposite parties.
5. Points raised for consideration are:
1. Whether there is any deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled for the reliefs asked for?
3. To what relief?
6. POINT Nos.1 & 2:- As per the available record, the complainant herein obtained private car package policy vide No.OG-11-1804-1801-00015363 from the opposite parties Bajaj Allianz Insurance Company under Ex.A1 = B1 for his new Ford Figo Car with Engine No.BC86374 with Chassis No.MAJXXMRJIBC86374 bearing Registration No.AP05BX 0257 and the IDV of the said vehicle is at Rs.4,07,766/-. The period of the said insurance policy is from 18.3.2011 to 17.3.2012 (midnight) and the policy was issued on 23.3.2011. The said insured vehicle of the complainant met with an accident on 15.8.2011 at 19.30 hours at Anjanapuram village of Thallada Mandalam, Khammam district and case was registered by the S.H.O., Thallada P.S. under Section 337 IPC vide F.I.R.No.105/2011 dt.17.8.2011 at 14-00 hours after receipt of information by one P. Venkateswarlu as per Ex.A2 F.I.R. and the written complaint.
On that, the complainant informed to the opposite parties about the accident and preferred the claim for damages with the opposite party insurance company vide Ex.B2 claim form. The 2nd opposite party informed the complainant that they restricted the claim of the complainant to the extent of Rs.1,23,543/- as the coverage is restricted to the damages caused due to the perils of the policy and damages to the side body panel parts does not fall under the purview of insurance contract and therefore, expressed their inability to the damages to the insured vehicle as per Ex.A3 letter dt.2.5.2011. On that, the complainant got issued legal notice dt.16.6.2012 vide Ex.A4 to the 1st opposite party claiming total loss as the car totally damaged and not fit for running on road. The 2nd opposite party in their reply notice dt.18.7.2012 vide Ex.A5 stated that as per the policy condition No.4: “The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or part thereof or driver or employee of the insured” and the complainant had not took reasonable care in handing the insured vehicle immediately after the alleged accident.
As seen from the record, the complainant claimed the entire insured declared value of Rs.4,07,766/- towards insured amount on total loss basis and filed Ex.A6 estimation for repairs of the insured accident vehicle of the complainant at a cost of Rs.4,92,210-19ps on 26.9.2011 and the date of issuance of estimation is on 6.11.2014 by the Tristar Ford, Visakhapatnam. We further observed that the opposite party insurance company filed Ex.B3 motor final survey report dt.20.1.2012 issued by one K.S.S. Srinivas, Insurance Surveyor, who conducted the final survey on 28.10.2011 at Tristar Ford at Rajahmundry. The surveyor stated that as per the insured statement, the insured vehicle while going Thorrur from Rajahmundry an auto came in the opposite direction and dashed at front and right side of the insured vehicle, then the driver turned the car to the right side, as a result the car dragged to the right and dashed one feet and bushes on the road margin. The surveyor further stated that the complainant not accepted depreciation on plastic parts and he wants to settle the claim on total loss basis. The surveyor stated that the damages of both side doors and real damages were not corroborating with cause and nature of the accident. Even then, he included the assessment of these damages also and assessed the repair liability at Rs.1,60,679/- after verification of spot photographs.
We observed from the F.I.R. details and the written complaint by one P. Venkateswarlu, the insured car driver dashed the auto coming in the opposite direction in a rash and negligent manner and as a result the driver of the auto and two others sustained fractured injuries and the said car driver run away from the accident spot after the incident and even as per the statement of the insured, his car dashed against one tree and bushes on the road margin after the accident. So, naturally under those rash and negligent driving conditions, there is every possibility of damages to the car mentioned by the surveyor in his final survey report. Further, no spot survey report and the photographs filed along with final survey report.
The complainant filed the following citations in (1) Dharmendra Goel Vs. Oriental Insurance Co. Ltd. (2008(8) SCC 279), (2) National Insurance Company Limited Vs. Nitin Khandelwal (2008(11) SCC 259) and (3) Amalendu Sahoo Vs. Oriental Insurance Company Ltd. (2010 (4) SCC 536). We perused all the above decisions, but, the same were not applicable to the facts and circumstances of the case.
Whereas the opposite party relied on the following decisions: (1) United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal: 2004 (6) ALD 112 (SC), (2) M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd: Civil Appeal No.1375/2003 (SC), (3) New India Assurance Co. Ltd. Vs. Kamal Nayan in F.A. No.81 and 201 of 1999 (NCDRC) IV(2006) CPJ 84 (NC), (4) National Insurance Co. Ltd. Vs. M/s. Jyothi Tobacco Traders (NCDRC), F.A.No.493/2006 decided on 18.9.2012 and (5) D.N. Badoni Vs. Oriental Insurance Co. Ltd. in R.P.No.817/2006 (NCDRC) decided on 4.11.2011. In all the above cases, it was held that it is well settled law that the surveyors report has significant evidentiary value unless it is proved otherwise and the report is an important and substantial piece of evidence to be relied unless it is controverted by cogent and convincing reasons challenging the surveyors finding and the same is applicable to the present case also.
With the above said discussion and according to the facts and circumstances of the present case, we are in the considered opinion that the complainant is only entitled for Rs.1,60,679/- as per estimation of the independent surveyor in his final motor survey report dt.20.1.2012 to meet the ends of justice. However, the complainant is not entitled for any reliefs for mental agony and damages except for interest and costs.
7. POINT No.3: In the result, the complaint is allowed partly, directing the opposite parties to pay Rs.1,60,679/- as claim for damages to the insured vehicle with interest @ 9% p.a. from the date of complaint till payment and Rs.2,000/- towards costs of this complaint. Time for compliance is two months from the date of this order.
Typed to dictation, corrected and pronounced by us in open Forum, on this the 16th day of April, 2015.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR COMPLAINANT: None. FOR OPPOSITE PARTIES: None.
DOCUMENTS MARKED
FOR COMPLAINANT:-
Ex.A1 copy of Policy.
Ex.A2 FIR in Crime No.105 of 2011 registered by Thallada Police.
Ex.A3 Letter from the opposite party dt.2.5.2011.
Ex.A4 Legal notice dt.16.6.2012.
Ex.A5 Reply notice dt.18.7.2012.
Ex.A6 Estimation Details by Tristar Auto Agen. (Vizag) Pvt. Ltd., dt.6.11.2014.
FOR OPPOSTIE PARTIES:-
Ex.B1 Insurance Policy bearing No.OG-11-1804-1801-00015363 issued in favour of
complainant valid from 18.3.2011 to 17.3.2012.
Ex.B2 Motor Insurance claim form submitted by the complainant.
Ex.B3 copy of Independent Motor Insurance Surveyor’s report (final) issued by Sri K.S.S.
Srinivas, D.A.E., SLA No.30020.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT.
