The Branch Manager, Bajaj Allianz Insurance Co. Ltd., Raichur V/S Syed Shalam S/o. Syed Akbar, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/89

Syed Shalam S/o. Syed Akbar, Raichur - Complainant(s)

Versus

The Branch Manager, Bajaj Allianz Insurance Co. Ltd., Raichur - Opp.Party(s)

Sri. T.M. Swamy

24 Mar 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/89

Syed Shalam S/o. Syed Akbar, Raichur						...........Appellant(s)
Vs.
The Branch Manager, Bajaj Allianz Insurance Co. Ltd., Raichur The Branch Manager, Sriram Transport Finance Company Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by the complainant Syed Shalam against Opposites 1 & 2 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay an amount of Rs. 1,0,6025/- with interest and amount of Rs. 50,000/- for mental harassment and cost. 2. The brief facts of the complainants case are that, he is the owner of the lorry bearing No. KA-20/A-4771 insured with opposite No-1 for a period from 10-11-09 to 09-11-2010 finance by opposite No-2. On 12-07-10 at 7:30 PM, the said lorry met with an accident TBP canal Road towards Byagawat village, it badly damaged in the accident. He reported the matter to Insurance Company and also to police, thereafter he got repaired lorry by spending Rs. 1,25,000/-. Thereafter, he filed claim petition before the opposite No-1 with all necessary records, but opposite No-1 paid only an amount of Rs. 18,975/- out of Rs. 1,25,000/-. He issued protest letter and thereafter, requested to opposites to settle his claim, but both of them have shown their negligence, as such he filed this complaint for the reliefs as noted in his complaint. 4. Opposite No-1 Insurance Company appeared in this case through its Advocate, filed its, written version by denying all the allegations made against Insurance Company. It admitted the ownership of the complainant of the said vehicle, coverage of Insurance of the vehicle and accident. It contended that, after receipt of the information, it appointed a surveyor to conduct a survey on the spot for assessing the damage of the vehicle. Thereafter, he submitted his report and assessed to the loss to extent of Rs. 18,975/- accordingly the said amount was paid to the complainant, he issued receipt of the said amount as full and final settlement. Hence there was no deficiency in its service, accordingly it prayed for to dismiss the complaint among other grounds. 5. Opposite No-2 appeared in this case, through its Advocate, filed its written version by admitting the facts of the case of complainant regarding finance and other aspects regarding coverage of Insurance etc., as pleaded but, it contended that, finance company is entered into an hypothecation agreement with complainant. It is not a real owner of the vehicle, as such the complainant has no claim against there is no deficiency in service on its part, accordingly, it prayed for to dismiss the complaint among other grounds. 6. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his lorry bearing No. KA-20/A-4771 financed by opposite No-2, insured with opposite No-1 Insurance Company met with an accident on 12-07-10 at 7:30 PM on TBP canal road towards Byagawat village, thereafter he informed the fact that, accident to the police as well as opposite No-1 thereafter opposite No-1 sent surveyor and got assessed the damage of the vehicle, thereafter, he filed claim petition, but opposite No-1 paid only an amount of Rs. 18,975/- he received the said amount with protest even though his claim was not considered of Rs. 1,25,000/- which the actual cost of the repair charges of the damaged vehicle, they shown their negligence and thereby opposite Nos- 1 & 2 found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint.? 3. What order? 7. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 8. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he noted as PW-1. Documents Ex.P-1 to Ex.P-8 are marked. Written argument filed. Affidavit-evidence of Senior Manager (Legal) of opposite No-1 was filed, he was noted as RW-2. Affidavit-evidence of surveyor and loss assessor was filed, he was noted as RW-3. Totally documents Ex.R-1 to Ex.R-3 are marked. Written arguments filed. 9. In view of the pleadings of the parties and their respective affidavit evidences we have noticed some of the following points which are undisputed points in between the parties:- 1. It is undisputed fact that, the complainant is the owner and RC holder of the lorry bearing No. KA-20/A-4771 financed by opposite No-2, insured with opposite No-1 Insurance Company. 2. It is also undisputed fact that, the said lorry met with an accident on 12-07-10 at 7:30 PM on TBP Canal Byagawat road while insurance police was in force. 3. It is also undisputed fact that, the said lorry damaged in the accident and complainant got repaired the damaged vehicle. 4. It is also undisputed fact that, opposite No-1 Insurance Company appointed surveyor he inspected the damaged vehicle and assessed the loss to the extent of Rs. 18,975/-. 10. In view of these undisputed facts between the parties. Now the points that arise for our consideration and determinations are that: 1. Whether the complainant received an amount of Rs. 18,975/- from opposite No-1 Insurance Company, with protest as claimed in his complaint or whether he received the said amount as full and final settlement. 2. Whether opposite No-1 got the signatures of the complainant on some un-written papers and thereafter, it converted them as Ex.R-2 claim cost confirmation letter and Ex.R-3 claim discharge voucher. 11. To find out whether an amount of Rs. 18,975/- received by the complainant from opposite No-1 is towards full and final settlement or as to whether the complainant has kept his right open for to claim, further amount by way of filing protest letter. 12. In order to prove these facts, complainant has relied on Ex.P-6 i.e, un served envelop dt. 30-09-10 and Ex.P-7 the copy of the letter dt. 14-10-10. 13. We have noted one surprise fact in this case is that, on which date complainant is received an amount of Rs. 18,975/- with protest from opposite is not disclosed either himself or by opposite in their pleadings. However, we have perused the document Ex.P-6 which is dt. 30-09-10. Admittedly, he received an amount of Rs. 18,975/- from opposite No-1 and Ex.P-7 the letter dt. 14-10-10, which is said to be a protest letter. 14. If, we appreciated these two documents Ex.P-6 & Ex.P-7 together in the light of these documents Ex.R-1 survey report and Ex.R-2 claim cost confirmation letter and Ex.R-3 claim discharge voucher discloses to us from the claim cost confirmation for repair and discharge voucher that, complainant signed those documents with his consent for the amount mentioned in it. In view of those facts and in view of survey report Ex.R-1 and affidavit-evidence of RW-3, we are of the view that, the complainant has created a story, after thought as he received the said amount with protest. If really, he was not satisfied with the amount, as noted in surveyor report, then there was no reason for him to sign Ex.R-2 & Ex.R-3, as such, we have not considered this contention of the complainant that, he received an amount of Rs. 18,975/- from opposite No-1 with protest. 15. In this regard the learned advocate for complainant, relied on the following rulings: 1. AIR 1999 Supreme Court 3027 United India Insurance Vs. Ajmeer Singh Cotton & General Mills 2. 2001 (3) CPR 192 (NC) United India Insurance Company Ltd. V/s. K. Gangadharan 3. IV (2009) CPJ 230 (NC) Oriental Insurance Company Ltd., V/s. Mehar Chand. 4. IV 2009 CPJ 46 (SC) New India Assurance Company Ltd., V/s. Pradeep Kumar. 16. The learned advocate for opposite No-1 relied on the following rulings: 1. 2010(1) CPR 75 (NC) Ritu Bhuwania V/s. The secretary M/s. Vasta Corporation Ltd., and Anr. 2. 1999 SC Supreme Court 3027. 3. 2010(1) CPR 265 (NC) New India Assurance Company Ltd., V/s. Subhash Kumar. 4. 2010(1) CPR 398 P.K. Kohli V/s. M/s. Oriental Insurance Co. Ltd., 5. 2010(1) CPR 57 National Insurance Company Ltd., V/s. Gouri Shankar, Agarwalla & Others. 5. I (2000) CPJ 403 Kamalesh Tiwari V/s. New India Insurance Company. 6. 2002(3) CPR 251 (NC) Sri Jayajothi & Company Ltd., V/s. Oriental Insurance Co. Ltd., 7. 2008(3) SCALE 135 National Insurance Company Ltd., V/s. Sethia Shoes. 17. The learned advocate for opposite No-2 relied on ruling reported in AIR 2005 SC 2493 and unreported case bearing Appeal No. 2647/2009 of Honble Karnataka State Commission. 18. In view of the rulings submitted by parties. As regards to survey report is concerned, we are of the view that, Ex.R-1 not discloses the facts pleaded by the complainant and submitted before us apart from it. 19. In this case, the complainant has filed one application for to summon some receipts by saying that, those receipts are in the custody of opposite No.1, in response to the said application, opposite No-1 submitted some receipts with contention that those are the only receipts produced by the complainant. In such event the complainant is not forbidden to produce duplicate receipt from the concerned workshop to establish his claim. Mere making allegations against Insurance Company, will not absolve his duty to convince us regarding the actual expenditure incurred by him for repair of the vehicle. In the absence of all such documents, we are of the view that, the principles of the rulings of the Honble Supreme Court on which complainant relied are not helpful for him to over come the surveyors report Ex.R-1. The complainant, has not pleaded with regard to execution of Ex.R-2 & Ex.R-3 with an allegation in his complaint that, those documents obtained by opposite No-1 Insurance Company with coercion or force, he has made an allegation regarding fabricating it records Ex.R-2 & Ex.R-3 by the Insurance Company. Without any such pleadings, we are not agreeing with the submissions made by the learned advocate for complainant, regarding fabricating of Ex.R-2 & Ex.R-3 are in the hands of the Insurance Company without the knowledge of him. As such the rulings relied by the complainant to that aspect of this case are not helpful for him as Ex.R-2 is not prepared by opposite No-1, but it was prepared by the surveyor. Hence we have not accepted the above contention of complainant. 21. The complainant admitted the contents of Ex.R-2 and made his signatures, by consenting to the contents of it for the amount shown. In the light of these circumstances, we have considered the survey report and accepted it, accordingly Insurance Company has rightly paid an amount of Rs. 18,975/- towards full and final settlement, as such there is no deficiency in service on the part of it. 22. Admittedly the complaint is not maintainable against opposite No-2 finance company, and thereby complainant, is not entitled for any one of the reliefs as prayed in this complaint, accordingly, we answered Point Nos. 1 & 2 in negative. POINT NO.3:- 23. In view of our findings on Point No- 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by the complainant Syed Shalam against Opposites 1 & 2 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay an amount of Rs. 1,0,6025/- with interest and amount of Rs. 50,000/- for mental harassment and cost. 2. The brief facts of the complainants case are that, he is the owner of the lorry bearing No. KA-20/A-4771 insured with opposite No-1 for a period from 10-11-09 to 09-11-2010 finance by opposite No-2. On 12-07-10 at 7:30 PM, the said lorry met with an accident TBP canal Road towards Byagawat village, it badly damaged in the accident. He reported the matter to Insurance Company and also to police, thereafter he got repaired lorry by spending Rs. 1,25,000/-. Thereafter, he filed claim petition before the opposite No-1 with all necessary records, but opposite No-1 paid only an amount of Rs. 18,975/- out of Rs. 1,25,000/-. He issued protest letter and thereafter, requested to opposites to settle his claim, but both of them have shown their negligence, as such he filed this complaint for the reliefs as noted in his complaint. 4. Opposite No-1 Insurance Company appeared in this case through its Advocate, filed its, written version by denying all the allegations made against Insurance Company. It admitted the ownership of the complainant of the said vehicle, coverage of Insurance of the vehicle and accident. It contended that, after receipt of the information, it appointed a surveyor to conduct a survey on the spot for assessing the damage of the vehicle. Thereafter, he submitted his report and assessed to the loss to extent of Rs. 18,975/- accordingly the said amount was paid to the complainant, he issued receipt of the said amount as full and final settlement. Hence there was no deficiency in its service, accordingly it prayed for to dismiss the complaint among other grounds. 5. Opposite No-2 appeared in this case, through its Advocate, filed its written version by admitting the facts of the case of complainant regarding finance and other aspects regarding coverage of Insurance etc., as pleaded but, it contended that, finance company is entered into an hypothecation agreement with complainant. It is not a real owner of the vehicle, as such the complainant has no claim against there is no deficiency in service on its part, accordingly, it prayed for to dismiss the complaint among other grounds. 6. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his lorry bearing No. KA-20/A-4771 financed by opposite No-2, insured with opposite No-1 Insurance Company met with an accident on 12-07-10 at 7:30 PM on TBP canal road towards Byagawat village, thereafter he informed the fact that, accident to the police as well as opposite No-1 thereafter opposite No-1 sent surveyor and got assessed the damage of the vehicle, thereafter, he filed claim petition, but opposite No-1 paid only an amount of Rs. 18,975/- he received the said amount with protest even though his claim was not considered of Rs. 1,25,000/- which the actual cost of the repair charges of the damaged vehicle, they shown their negligence and thereby opposite Nos- 1 & 2 found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint.? 3. What order? 7. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 8. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he noted as PW-1. Documents Ex.P-1 to Ex.P-8 are marked. Written argument filed. Affidavit-evidence of Senior Manager (Legal) of opposite No-1 was filed, he was noted as RW-2. Affidavit-evidence of surveyor and loss assessor was filed, he was noted as RW-3. Totally documents Ex.R-1 to Ex.R-3 are marked. Written arguments filed. 9. In view of the pleadings of the parties and their respective affidavit evidences we have noticed some of the following points which are undisputed points in between the parties:- 1. It is undisputed fact that, the complainant is the owner and RC holder of the lorry bearing No. KA-20/A-4771 financed by opposite No-2, insured with opposite No-1 Insurance Company. 2. It is also undisputed fact that, the said lorry met with an accident on 12-07-10 at 7:30 PM on TBP Canal Byagawat road while insurance police was in force. 3. It is also undisputed fact that, the said lorry damaged in the accident and complainant got repaired the damaged vehicle. 4. It is also undisputed fact that, opposite No-1 Insurance Company appointed surveyor he inspected the damaged vehicle and assessed the loss to the extent of Rs. 18,975/-. 10. In view of these undisputed facts between the parties. Now the points that arise for our consideration and determinations are that: 1. Whether the complainant received an amount of Rs. 18,975/- from opposite No-1 Insurance Company, with protest as claimed in his complaint or whether he received the said amount as full and final settlement. 2. Whether opposite No-1 got the signatures of the complainant on some un-written papers and thereafter, it converted them as Ex.R-2 claim cost confirmation letter and Ex.R-3 claim discharge voucher. 11. To find out whether an amount of Rs. 18,975/- received by the complainant from opposite No-1 is towards full and final settlement or as to whether the complainant has kept his right open for to claim, further amount by way of filing protest letter. 12. In order to prove these facts, complainant has relied on Ex.P-6 i.e, un served envelop dt. 30-09-10 and Ex.P-7 the copy of the letter dt. 14-10-10. 13. We have noted one surprise fact in this case is that, on which date complainant is received an amount of Rs. 18,975/- with protest from opposite is not disclosed either himself or by opposite in their pleadings. However, we have perused the document Ex.P-6 which is dt. 30-09-10. Admittedly, he received an amount of Rs. 18,975/- from opposite No-1 and Ex.P-7 the letter dt. 14-10-10, which is said to be a protest letter. 14. If, we appreciated these two documents Ex.P-6 & Ex.P-7 together in the light of these documents Ex.R-1 survey report and Ex.R-2 claim cost confirmation letter and Ex.R-3 claim discharge voucher discloses to us from the claim cost confirmation for repair and discharge voucher that, complainant signed those documents with his consent for the amount mentioned in it. In view of those facts and in view of survey report Ex.R-1 and affidavit-evidence of RW-3, we are of the view that, the complainant has created a story, after thought as he received the said amount with protest. If really, he was not satisfied with the amount, as noted in surveyor report, then there was no reason for him to sign Ex.R-2 & Ex.R-3, as such, we have not considered this contention of the complainant that, he received an amount of Rs. 18,975/- from opposite No-1 with protest. 15. In this regard the learned advocate for complainant, relied on the following rulings: 1. AIR 1999 Supreme Court 3027 United India Insurance Vs. Ajmeer Singh Cotton & General Mills 2. 2001 (3) CPR 192 (NC) United India Insurance Company Ltd. V/s. K. Gangadharan 3. IV (2009) CPJ 230 (NC) Oriental Insurance Company Ltd., V/s. Mehar Chand. 4. IV 2009 CPJ 46 (SC) New India Assurance Company Ltd., V/s. Pradeep Kumar. 16. The learned advocate for opposite No-1 relied on the following rulings: 1. 2010(1) CPR 75 (NC) Ritu Bhuwania V/s. The secretary M/s. Vasta Corporation Ltd., and Anr. 2. 1999 SC Supreme Court 3027. 3. 2010(1) CPR 265 (NC) New India Assurance Company Ltd., V/s. Subhash Kumar. 4. 2010(1) CPR 398 P.K. Kohli V/s. M/s. Oriental Insurance Co. Ltd., 5. 2010(1) CPR 57 National Insurance Company Ltd., V/s. Gouri Shankar, Agarwalla & Others. 5. I (2000) CPJ 403 Kamalesh Tiwari V/s. New India Insurance Company. 6. 2002(3) CPR 251 (NC) Sri Jayajothi & Company Ltd., V/s. Oriental Insurance Co. Ltd., 7. 2008(3) SCALE 135 National Insurance Company Ltd., V/s. Sethia Shoes. 17. The learned advocate for opposite No-2 relied on ruling reported in AIR 2005 SC 2493 and unreported case bearing Appeal No. 2647/2009 of Honble Karnataka State Commission. 18. In view of the rulings submitted by parties. As regards to survey report is concerned, we are of the view that, Ex.R-1 not discloses the facts pleaded by the complainant and submitted before us apart from it. 19. In this case, the complainant has filed one application for to summon some receipts by saying that, those receipts are in the custody of opposite No.1, in response to the said application, opposite No-1 submitted some receipts with contention that those are the only receipts produced by the complainant. In such event the complainant is not forbidden to produce duplicate receipt from the concerned workshop to establish his claim. Mere making allegations against Insurance Company, will not absolve his duty to convince us regarding the actual expenditure incurred by him for repair of the vehicle. In the absence of all such documents, we are of the view that, the principles of the rulings of the Honble Supreme Court on which complainant relied are not helpful for him to over come the surveyors report Ex.R-1. The complainant, has not pleaded with regard to execution of Ex.R-2 & Ex.R-3 with an allegation in his complaint that, those documents obtained by opposite No-1 Insurance Company with coercion or force, he has made an allegation regarding fabricating it records Ex.R-2 & Ex.R-3 by the Insurance Company. Without any such pleadings, we are not agreeing with the submissions made by the learned advocate for complainant, regarding fabricating of Ex.R-2 & Ex.R-3 are in the hands of the Insurance Company without the knowledge of him. As such the rulings relied by the complainant to that aspect of this case are not helpful for him as Ex.R-2 is not prepared by opposite No-1, but it was prepared by the surveyor. Hence we have not accepted the above contention of complainant. 21. The complainant admitted the contents of Ex.R-2 and made his signatures, by consenting to the contents of it for the amount shown. In the light of these circumstances, we have considered the survey report and accepted it, accordingly Insurance Company has rightly paid an amount of Rs. 18,975/- towards full and final settlement, as such there is no deficiency in service on the part of it. 22. Admittedly the complaint is not maintainable against opposite No-2 finance company, and thereby complainant, is not entitled for any one of the reliefs as prayed in this complaint, accordingly, we answered Point Nos. 1 & 2 in negative. POINT NO.3:- 23. In view of our findings on Point No- 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 24-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.