Complaint is filed on 3-6-2009
Compliant disposed on 18-2-2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM::AT:: KARIMNAGAR
PRESENT: HON’BLE SRI K. DEVI PRASAD, B.Sc., LL.B., PRESIDENT
SMT. E. LAXMI, M.A.,LL.M.,PGDCA (CONSUMER AWARENESS), MEMBER
FRIDAY, THE EIGHTEENTH DAY OF FEBRUARY, TWO THOUSAND ELEVEN
CONSUMER COMPLAINT NO. 89 OF 2009
Between:
Bandi Rajamallu, S/o Mallaiah, Age 25 years, Occ: Occ: Agrl., R/o Gopalraopet village of Ramadugu mandal of Karimnagar district.
…Complainant
AND
- The Bajaj Allianz General Insurance Company Limited, 8-6-126, 1st Floor, Near Gandhi Statue Circle, Kothirampur, Karimnagar. R/by its’s Branch Manager.
- The Bajaj Allianz General Insurance Company Limited, G.E.Plaza, Airport Road, Yerwada, PUNE – 411 006. R/by its’s Manager.
…Opposite Parties No.1 & 2
This complaint is coming up before us for final hearing on 18-1-2011, n the presence of Sri G.Srinivas Goud and R. Shashidhar, Advocates for complainant and Sri R.Srikanth, Advocate for opposite parties no.1 and 2, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following
::ORDER::
1. This complaint is filed under Section 12 of C.P. Act, 1986 seeking direction to the opposite parties to pay an amount of Rs.13,09,257/- towards costs of the Harvester and Rs.6,50,000/- towards damages together with costs of the proceedings.
2. The brief averments of the complaint are that the complainant is the owner of combined Harvester comprising of New Holland Tractor – 3630 with combine Harvester bearing no. AP-15 AL 1155 which was purchased by him to eake out his livelihood. In order to harvest paddy crops at Shakalla Village he took his Harvester to the said village. On 14.11.2008 at about 6.00PM he stopped the Harvester in the paddy filed of one Karunakar Rao after harvesting the paddy and went to his room to resume the work in the morning. On the next morning at about 6.00A.M some persons informed him that smoke is coming out from his harvester on which he immediately rushed there and found that the harvester is completely burnt. At the time of purchasing the Harvester he had taken Insurance Policy from the opposite parties by paying premium of Rs.18,387/- and the opposite parties issued Insurance coverage for the period between 24.9.2008 to 23.9.2009. The complainant informed the Police, Gollapally about the fire accident on which a case is registered in Crime No.126/2008. Subsequently Police filed final report stating that the incident occurred due to fire accident.
3. After the incident the complainant submitted a claim to the opposite parties informing about the damages caused to the Harvester and requested them to settle the claim. The opposite parties appointed a Surveyor to inspect the vehicle and assess the damages caused to it. The complainant shifted the Harvester to Adarsha Tractor Show Room at Karimnagar who has given an estimate for the damages caused to the vehicle at Rs.13,09,257/-. Even after making inspections the opposite parties failed to pay the damages caused to the vehicle though there is insurance coverage. As the Harvester is kept without repairs the complainant sustained loss of Rs.10,000/- per day. The complainant got issued a Legal Notice to the opposite parties on 28.3.2009 calling upon them to settle the claim, but inspite of service of notice the opposite parties failed to pay the amount. Therefore, the complainant prayed for an order for payment of the amount.
4. The opposite parties filed counter denying the claim made by the complainant. It is submitted that they have issued Insurance Policy in respect of the Harvester owned by the complainant. It is further submitted that on receiving information about the damages caused to the Harvester the opposite parties appointed B.Srinivas, Surveyor to assess the loss caused to the Harvester, accordingly the said Surveyor inspected the vehicle and took it’s photographs and assessed the net loss at Rs.3,28,128-50. It is further submitted that the complainant did not produce the Harvester for re-inspection by the Surveyor and did not inform the place where it is given for repairs. Several times the opposite parties and Surveyor addressed letters, but the complainant did not produce the vehicle for inspection. It is submitted that as there was no constructive loss to the vehicle he cannot claim the total value declared in the policy. The complainant is not entitled for Rs.6,50,000/- towards damages. As per the terms and conditions of the policy the complainant has to inform the Insurance Company before getting it repaired. Since the complainant did not produce any bills he is not entitled for the amount claimed in the complainant but he is entitled for only 60% of the value assessed by the Surveyor. In this case the Surveyor assessed the loss at Rs.3,28,198-50 paise but the complainant claimed Rs.13,09,257/-. It is submitted that the Harvester was damaged due to negligence of complainant only as he left it in the paddy field without taking proper precautions. Since there is no deficiency in service on the part of opposite parties, they prayed for dismissal of the complaint.
5. The complainant filed Proof Affidavit reiterating the averments made in the complaint. The complainant also got filed Proof Affidavit of one Kadari Gangaiah in support of his claim. The documents filed on behalf of complainant are marked as Ex.A1 to A30. Ex.A1 is the photo copy of Insurance Policy Dt: 26.9.2008. Ex.A2 & A3 are the postal receipts. Ex.A4 is the office copy of Legal Notice Dt: 28.3.2009 issued by counsel for complainant. Ex.A5 is the receipt issued by Sub Inspector of Police, PS, Gollapally, Police Department, Karimnagar. Ex.A6 & A7 are the Delivery Certificates issued by Department of Posts, India, Karimnagar Division Dt: 29.4.2009 & 2.6.2009. Ex.A8 is the photo copy of Final Report of PS., Peddapalli Dt: 25.1.2009 in Cr.No.126/2009. Ex.A9 is the letter from Sri B.Srinivas, surance Surveyor & Loss Assessor addressed to complainant Dt: 13.5.2009 copy marked to opposite party. Ex.A10 & A11 are the letters from opposite parties addressed to complainant Dt: 5.6.2009 & 25.5.2009. Ex.A12 is the Estimation of New Holland 3630 TX Tractor with combine Harvester (burnt). Ex.A13 contains seven photos of Harvester. Ex.A14 & A15 are the two estimation bills issued by Sri Dharani Engineering Works, Karimnagar Dt: 26.12.2008 for Rs.7,500/- and Rs.7,000/-. Ex.A16 is the bill for Rs.250/- issued by Al-Azizia Auto Electrical Parts, Karimnagar Dt: 6.4.2009. Ex.A17 is the bill for Rs.250/- issued by Maruthi Auto Agencies, Karimnagar Dt: 7.4.2009. Ex.A18 is the bill for Rs.3,840/- issued by Krishna Paints & Hardware, Karimnagar Dt: 2.4.2009. Ex.A19 is the bill for Rs.18,569/- issued by Ratna Tractor Spares, Karimnagar Dt: 29.3.2009. Ex.A20 is the bill for Rs.1182/- issued by Al-Azizia, Auto Electrical Parts, Karimnagar Dt: 6.4.2009. Ex.A21 is the bill for Rs.250/- issued by Aarvee Hydrolines, Jagitial Dt: 7.4.2009. Ex.A22 is the bill for Rs.800/- issued by Auto Electrition Batteries, Karimnagar Dt: 7.4.2009.Ex.A23, A24 & A25 are the bills for Rs.4,950/-, Rs.1,813/- and Rs.7,437/- issued by Sri Srinivasa Agencies, Karimnagar Dt: 2.6.2009. Ex.A26 is the photo copy of Temporary Receipt issued by Adarsha Tractors, Karimnagar for Rs.30,000/- Dt: 07.07.2009. Ex.A27 is the photo copy of Surveyor’s Report Dt: 13.11.2009 issued by Lam Insurance Surveyors & Loss Adjusters Pvt. Ltd. Karimnagar. Ex.A28 is the photo copy of Particulars of Assessment issued by Sri B.Mohan Director-LAMINS, Lam Insurance Surveyors & Loss Adjusters Pvt. Ltd. Karimnagar. Ex.A29 is contains four photographs of Harvester. Ex.A30 is the postal cover.
6. The opposite party filed Proof Affidavit reiterating the averments made in the counter and filed documents which are marked as Ex.B1 and B2. Ex.B1 is the Private & Confidential Motor (Final) Survey Report issued by Sri B. Srinivas, Insurance Surveyor & Loss Assessor, Karimnagar Dt: 14.3.2009. Ex.B2 is the Certificate cum Policy Schedule of opposite party no.2.
7. The points for consideration are:
- Whether there is any deficiency of service on the part of opposite party?
- If so, to what relief the complainant is entitled?
8. Heard both sides.
9. This case is filed seeking an order for payment of Rs.13,09,257/- towards the value of the Harvester which was damaged in a fire incident which took place on 14.11.2008 at Shakalla Village from the opposite parties on the ground that there is Insurance coverage as per the policy issued by them under Ex.A1. A perusal of Ex.A1 discloses that there is insurance coverage for an assured sum of Rs.12,29,147/- for own damages caused to the Harvester owned by the complainant. The said policy was in force from 24.9.2008 to 23.9.2009. The complainant kept his Harvester in the field of one Karunakar Rao after harvesting the paddy field and went home. On the next morning some persons informed him that the Harvester is burnt and smoke is coming out on which he immediately went there and found his tractor totally burnt. On a complaint filed by him the Police Gollaplli registered a case in Cr.No.126 of 2008 and subsequently the Police have filed report under Ex.A8 stating that there was accidental fire to the Harvester and there is a loss to the tune of Rs.9,80,000/-. The complainant informed the opposite parties about the damages caused to the Harvester with a request to appoint a Surveyor to assess the damages. The Surveyor inspected the vehicle and taken photographs and asked him to shift the Harvester to the authorized service center. The complainant shifted his Harvester to M/s.Adarsha Tractor, Karimnagar for repair. After inspecting the vehicle they have prepared estimate under Ex.A12 assessing the damages at Rs.13,09,257/-. Apart from the said estimate the complainant got the Harvester surveyed to assess the damages through one B.Mohan who is a licensed Surveyor. After inspecting the vehicle he has given a report under Ex.A27 assessing the damages caused to the Harvester at Rs.10,98,855/-. In the said report he has shown the particulars of the damages caused to the vehicle.
10. The opposite parties opposed the claim of the complainant on the ground that the complainant left the Harvester in the fields without protection and because of his negligence it was damaged. They have further contended that on receiving the claim from the complainant the opposite parties appointed one B.Srinivas, Insurance Surveyor and Loss Assessor to assess the damages caused to the vehicle and he submitted a report under Ex.B1 assessing the net loss at Rs.3,28,198-50 paise. A perusal of Ex.B1 discloses that the Harvester is manufactured in September 2008 and the estimated cost of the Harvester is Rs.7,74,957/- In Ex.B1 it is also mentioned that the Surveyor inspected the Harvester on 15.11.2008 i.e. one day after the fire accident. The photographs under Ex.A13 filed by the complainant and Ex.A29 taken by the Surveyor B.Mohan shows the extent of damages caused to the Harvester in the fire accident. The photos also shown complete damages to the tyres, body, engine and other parts of the vehicle. The Surveyor appointed by the complainant gave report stating that the damage caused to Harvester IS to a tune of Rs.10,98,855/- after depreciation under Ex.A27. The contention of counsel by opposite party is that no notice was issued before appointing Surveyor by the complainant or the complainant informed to the opposite party about the appointment of Surveyor. The Surveyor was appointed by the complainant without the permission of the Forum during pendency of the proceeding before the Forum. It was necessary for the complainant to seek permission of the Forum to get another Surveyor appointed as the matter is pending before this Forum. Therefore the report of the Surveyor appointed by the complainant can not be considered. Further it is contended that the salvage parts of the Harvester have not been handed over to the Insurance Company nor the vehicle was produced before Insurance Company after its repair for inspection.
11. A comparative perusal of the estimate prepared by Surveyor of complainant under Ex.A27 and the survey report prepared by Surveyor appointed by opposite parties under Ex.B1 discloses that extensive damages were caused to the Harvester assembly including Tractor. In both these estimates the items damaged in the accident are common but some of the items like tyres, clutches, break assembly, head lights, wiring and other damaged items were not mentioned in Ex.B1. As per Ex.B1 i.e. report of Surveyor the year of manufacture of vehicle is September 2008 and it was damaged on 14.11.2008 i.e. within two months from the date of manufacturing. Since the vehicle is a new one there cannot be any depreciation. In the said report it is mentioned that the cost of the Tractor Engine is Rs.3,54,571/-. After the damage the Surveyor assessed the net liability at Rs.2,00,000/- though there is no depreciation. There is no explanation from the opposite parties as to why they did not allow the total cost of the engine when it is burnt just within three months after it was purchased. Likewise the damages caused to clutch assembly and Hydraulic lift assembly costing about Rs.83,000/- is not mentioned in the estimate. Though the Harvester box worth Rs.1,25,000/- is burnt the Surveyor of opposite parties assessed the net loss at Rs.25,000/- even if there is no depreciation to be applied. In Ex.B1 it should have been assessed that the net loss at Rs.1,25,000/- for the Harvester box. Likewise there are number of items which were completely damaged in the fire accident, but which were not assessed by the Surveyor in his estimate under Ex.B1. Admittedly the complainant obtained Insurance Policy for own damages to the vehicle for an assured sum of Rs.12,29,147/-. Even in the survey report under Ex.B1 the estimated cost of the vehicle is shown at Rs.7,74,957/-. The opposite parties contended that there was no constructive loss to the Harvester assembly and the loss is assured at Rs.3,28,198-50 paise by the Surveyor appointed by them. The decision cited by the learned counsel reported in:
1) I (2005) CPJ 27 (NC)
2) 2009 (2) CPR 185
3) 2009 (2) CPR 211
4) 2009 (1) CPR 156 (NC)
5) 2010 (1) CPR 326
6) 2009 (4) CPR 113 (SC) are not relevant for the present case as they were delivered in connection with the dispute between the charges in respect of using the vehicle as commercial purpose. In the decision cited in 2009 (1) CPR 156 (NC) it is held that, the accident occurred ten months after its purchase 5% of depreciation was allowed. But in this case since the complainant failed to file the purchased bill to show the price for howmuch he bought the Harvester, basing on the date given in the insurance policy it has to be held that its purchased in the month of September. The accident occurred in the month of November. Near about three months after purchase of the Harvester the accident occurred. Since the Harvester is not completely damaged as found from the photographs, it is held by us that the Harvester is partly damaged.
12. A perusal of survey report under Ex.A27 coupled with photographs clearly reveal that the loss assessed by the Surveyor appointed by complainant at Rs.10,98,855/-. Though the estimated loss caused on account of the damages to the Harvester as found from Ex.B1 is Rs.7,75,000/-. The opposite parties failed to settle the claim on receiving claim application, the complainant got issued a Legal Notice under Ex.A4 calling upon them to settle the claim. Inspite of service of Legal notice the opposite parties failed to pay the sum assured under the policy.
13. The complainant did not file any bill showing the amount for which he purchased the Harvester. Merely because the Harvester was insured for Rs.12,29,147/- the same could not be awarded without their being any proof. The photographs filed by the complainant show that there was no constructive loss to the Harvester. Ofcourse the photographs depict that unless and until the Harvester is repaired it cannot be put to use. Further more the complainant failed to hand over the salvage parts for which the depreciation has to be made from the price of new parts. As found from the report of the Surveyor appointed by opposite parties Ex.B1, the estimated cost of the damages is shown as Rs.7,74,957/-. In view of these facts neither the net loss mentioned in Ex.B1 under 6th clause of 1st page at Rs.3,28,198=50 paise nor the report of the Surveyor appointed by the complainant under Ex.A27 can be considered to fix the amounts mentioned therein. Therefore, as some of the damaged parts have to be completely replaced and the price which cannot be reduced and considering both the reports Ex.A27 and Ex.B1 and also taking into consideration the failure on the part of the complainant to hand over salvage parts an amount of Rs.6,00,000/- is considered to be just amount towards the repair charges of the damaged Harvester and also for the new parts purchased for the Harvester to make it to roadworthy.
14. For the foregoing reasons, we hold that the damages caused to the Harvester can be fixed at Rs.6,00,000/- and the opposite parties having issued Insurance Policy under Ex.A1 are bound to pay the sum fixed by this Forum in terms of the policy. Since opposite parties have failed to settle the claim, they have committed deficiency in service. Therefore we direct the opposite parties to pay a sum of Rs.6,00,000/- to the complainant towards the net loss caused to the Harvester assembly. Though the complainant claimed Rs.6,50,000/- towards damages for keeping the Harvester idle it cannot be granted as there is no liability on the opposite parties to pay the consequential damages.
15. In the result the complaint is partly allowed directing the opposite parties to pay Rs.6,00,000/- towards net loss caused to the Harvester together with Rs.2,000/- towards costs of the proceedings within one month from the date of receipt of this order. There is no order to pay interest. Failure on the part of opposite parties to pay the amount as directed above within one month, the complainant is entitled to claim 6% interest on the awarded amount of Rs.6,00,000/- from the date of filing the complaint i.e. 3.6.2009 till payment.
Typed to my dictation by Stenographer (DUR), after correction the orders pronounced by us in the open court this the 18th day of February, 2011.
Sd/- Sd/-
MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the photo copy of Insurance Policy Dt: 26.9.2008.
Ex.A2 & A3 are the postal receipts.
Ex.A4 is the office copy of Legal Notice Dt: 28.3.2009 issued by counsel for complainant.
Ex.A5 is the receipt issued by Sub Inspector of Police, PS, Gollapally, Police Department, Karimnagar.
Ex.A6 & A7 are the Delivery Certificates issued by Department of Posts, India, Karimnagar Division Dt: 29.4.2009 & 2.6.2009.
Ex.A8 is the photo copy of Final Report of PS., Peddapalli Dt: 25.1.2009 in Cr.No.126/2009.
Ex.A9 is the letter from Sri B.Srinivas, surance Surveyor & Loss Assessor addressed to complainant Dt: 13.5.2009 copy marked to opposite party.
Ex.A10 & A11 are the letters from opposite parties addressed to complainant Dt: 5.6.2009 & 25.5.2009.
Ex.A12 is the Estimation of New Holland 3630 TX Tractor with combine Harvester (burnt).
Ex.A13 contains seven photos of Harvester.
Ex.A14 & A15 are the two estimation bills issued by Sri Dharani Engineering Works, Karimnagar Dt: 26.12.2008 for Rs.7,500/- and Rs.7,000/-.
Ex.A16 is the bill for Rs.250/- issued by Al-Azizia Auto Electrical Parts, Karimnagar Dt: 6.4.2009.
Ex.A17 is the bill for Rs.250/- issued by Maruthi Auto Agencies, Karimnagar Dt: 7.4.2009.
Ex.A18 is the bill for Rs.3,840/- issued by Krishna Paints & Hardware, Karimnagar Dt: 2.4.2009.
Ex.A19 is the bill for Rs.18,569/- issued by Ratna Tractor Spares, Karimnagar Dt: 29.3.2009.
Ex.A20 is the bill for Rs.1182/- issued by Al-Azizia, Auto Electrical Parts, Karimnagar Dt: 6.4.2009.
Ex.A21 is the bill for Rs.250/- issued by Aarvee Hydrolines, Jagitial Dt: 7.4.2009.
Ex.A22 is the bill for Rs.800/- issued by Auto Electrition Batteries, Karimnagar Dt: 7.4.2009.
Ex.A23, A24 & A25 are the bills for Rs.4,950/-, Rs.1,813/- and Rs.7,437/- issued by Sri Srinivasa Agencies, Karimnagar Dt: 2.6.2009.
Ex.A26 is the photo copy of Temporary Receipt issued by Adarsha Tractors, Karimnagar for Rs.30,000/- Dt: 07.07.2009.
Ex.A27 is the photo copy of Surveyor’s Report Dt: 13.11.2009 issued by Lam Insurance Surveyors & Loss Adjusters Pvt. Ltd. Karimnagar.
Ex.A28 is the photo copy of Particulars of Assessment issued by Sri B.Mohan Director-LAMINS, Lam Insurance Surveyors & Loss Adjusters Pvt. Ltd. Karimnagar.
Ex.A29 is contains four photographs of Harvester.
Ex.A30 is the postal cover.
FOR OPPOSITE PARTIES:
Ex.B1 is the Private & Confidential Motor (Final) Survey Report issued by Sri B. Srinivas, Insurance Surveyor & Loss Assessor, Karimnagar Dt: 14.3.2009.
Ex.B2 is the Certificate cum Policy Schedule of opposite party no.2.
Sd/- Sd/-
MEMBER PRESIDENT
