The Branch Manager, Oriental Insurance Co. Ltd., Chennai V/S Sangappa Sakri S/o. Doddabasappa, Lingasugur - Consumer Court Case

Karnataka

Raichur

CC/10/29

Sangappa Sakri S/o. Doddabasappa, Lingasugur - Complainant(s)

Versus

The Branch Manager, Oriental Insurance Co. Ltd., Chennai - Opp.Party(s)

Sri. T.M. Swamy

23 Aug 2010

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/29

Sangappa Sakri S/o. Doddabasappa, Lingasugur						...........Appellant(s)
Vs.
The Branch Manager, Oriental Insurance Co. Ltd., Chennai The Branch Manager, Oriental Insurance Co. Ltd., Raichur The Branch Manager, Sriram Transport Finance Co. 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 complainant Sangappa Sakri against the opposite Nos. 1 to 3 U/sec. 12 of Consumer Protection Act for to direct the opposites to pay an amount of Rs. 1,50,000/- with interest and cost. 2. The brief facts of the complainants case are that, he is the owner lorry bearing No. KA-36/2350 which was comprehensively insured with opposite Nos. 1 & 2 Oriental Insurance Company Ltd., Opposite No-3 is the financier. The said vehicle met with an accident on 15-05-08 near Aurad cross on Jevargi Road Gulbarga District while insurance policy was in force, therefore he informed same to the Jevargi PS and also intimated to Opposites 1 & 2. He got repaired the vehicle in Ameer Lorry Body Builder Tumkur. He submitted original bills to opposite Nos. 1 & 2 through opposite No-3 with all connected records. But opposite Nos. 1 & 2 not settled his claim in spite of his repeated requests, accordingly he filed this complaint against opposite Nos. 1 to 3 for the reliefs as prayed in it. 3. The opposite Nos. 1 & 2 appeared in this case through its Advocate, filed its written version by contending that, there was no negligence on the part of Insurance Company, the main office which issued insurance certificate, is at Chennai. The alleged accident took place in Gulbarga District. Therefore this Forum has no jurisdiction to try the subject matter of this complaint. The complainant and opposite No-3 colluded and created documents and got issued legal notices only to get illegal monetary benefit. The complainant not reported the fact of accident to the Insurance Company within the reasonable time, it is breach of condition of the policy, they have not appointed surveyor accordingly it prayed for to dismiss the complaint among other grounds. 4. The opposite No-3 filed its written version by admitting the fact that, it financed to the complainant for purchase of lorry bearing No. KA-36/2350, as such the relationship of it with complainant is borrower and creditor. It is not liable to settle any claim of the complainant, it acted as a mediator with opposite No-1 and complainant to settle the claim, there is no deficiency in service, accordingly it prayed for to dismiss the complaint among other grounds. 5. 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-36/2350 financed by opposite No-3 which was comprehensively insured with opposite No- 1 & 2 met with an accident on 15-05-08 on Jevargi Road, near Aurad cross in Gulbraga District with another vehicle and in the said accident his lorry badly damaged, thereafter he got repaired the said vehicle by investing of Rs. 1,50,000/- therefore he submitted claim petition with necessary records to opposite Nos. 1 & 2 through opposite No-3 but opposite Nos. 1 & 2 not settled his claim inspite of his repeated requests, they shown their negligence in settling his claim and there by opposite Nos. 1 to 3 found guilty under deficiency n their serivces.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 6. Our findings on the above points are as under:- (1) In Affirmative against opposite Nos. 1 & 2 and in Negative against opposite No-3. (2) As discussed in the body of this judgement and as noted in the final order. (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 :- 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1 and affidavit-evidence of Mechanic cum Lorry Body Builder at Tumkur was filed, he was noted as PW-2. The documents Ex.P-1 to Ex.P-21 are marked. On the other hand the Branch Manager of opposite Nos. 1 & 2 was filed, he was noted as RW-1, affidavit-evidence of surveyor is filed, who is noted as RW-3. Affidavit evidence of Branch Manager of opposite No-3 Finance Company was filed, he was noted as RW-2 and one document marked at Ex.R-1. 8. On going through the pleadings of the parties and their respective evidences and documents, we are of the view that, some of the following points are undisputed points in between the parties which are:- 1. The complainant is the owner of the lorry bearing No. KA-36/2350 which was purchased with financial assistance of opposite No-3 and the said vehicle was comprehensively insured with opposite No- 1 & 2 Insurance Company from 08-08-07 to 07-08-08. 2. It is further undisputed fact that, the said lorry met with an accident on 15-05-08 while insurance policy was inforce near Aurad cross on Jevargi Road in Gulbarga District and his vehicle badly damaged. The fact of said accident was informed to the police and police have registered a case and ultimately field charge sheet bearing CC.No. 260/08. 9. In the light of these admitted facts, now let us see, the grounds of opposite Nos. 1 & 2 Insurance Company for non-settlement of the claim of complainant. 10. The first ground for non settling of the claim of Insurance is that, the complainant intentionally not informed the fact of accident to the Insurance Company, thereafter all the documents were created by him, in collusion with opposite No-3 with financier for illegal monetary benefit. It is violation of one of the terms and conditions of the Insurance Policy, therefore the Insurance Company is not liable to indemnify any alleged loss said to have sustained by the complainant for the repair of his vehicle. 11. Counter arguments to the said contention is that, complainant informed the fact of accident to opposite Nos. 1 & 2 Insurance Company personally immediately after the accident, thereafter he submitted estimated loss caused to the vehicle without any delay, there was no intentional claim to get illegal monetary benefit. Police case was registered they have prepared panchanama regarding the actual position of the lorry after the accident. The complainant submitted all the records to Insurance Company through opposite No-3, but Insurance Company keept silence without settling the claim is nothing but its negligency in settling his claim, Insurance Company fastening its liability on opposite No-3 who is no way concerned, to it. Hence he requested to reject the contention of opposite Nos- 1 & 2. 12. The learned advocate for opposite NO-3 denial all the allegations made against it and contended that it is acted as a mediator to settle the claim of complainant. Hence there is no negligence on its part. 13. In pursuance of submissions made by the respective advocates, we have referred material document Ex.P-18 as it will give correct answers to the contention of opposite Nos- 1 & 2. Ex.P-18 is the estimate copy issued by Ameer Lorry Body Builder Saw Mill Tumkur, it was issued by the said builder after examination of the damaged vehicle, it is dt. 30-05-08. The complainant has served the original copy of Ex.P-18 to opposite Nos. 1 & 2 on the same day i.e, on 30-05-08 that means Ex.P-18 was served on the Insurance Company, after (15) days date of accident dated 15-05-08. In addition to it another document Ex.P-13 surveyors dt. 29-05-08, the cumulative effect of these documents goes to show that, this ground as urged before us by the learned advocate for Insurance Company as the fact of accident was not reported to it is against to the document Ex.P-3 and Ex.P-18 as Insurance Company itself made an endorsement with seal regarding the receipt of Ex.P-18 on 30-05-08 itself. Hence this ground of the defence of opposite Nos 1 & 2 is not tenable for non-settling the claim. 14. Now coming to second ground of defence by the Insurance Company, this Forum has no territorial jurisdiction to entertain the complaint as accident took place near Aurad in Gulbarga District. The learned advocate for complainant referred ruling reported in (2010) CP 315 (NC) New India Assurance Company Ltd., V/s. Pavel Garg. 15. The learned advocate for complainant contended that, the facts case of the ruling referred by the opposite Insurance Company are different to the facts of the present case on hand and requested us to not to apply the said principles to this case. 16. In pursuance of the submissions made on both sides, we have gone through the principles of the ruling referred above, it was a case decided by the Honble National Commission with regard to filing of complaint U/Sec. 17(2) of C.P. Act before the Honble State Commission. In the instant case, this complaint is filed by the complainant before the District Forum U/sec. 12 of C.P. Act. jurisdiction of the District Forum is explained U/sec. 11 of C.P. Act. As per the said section, this complaint before this District Forum is maintainable as opposite No-2 is the Branch Office of opposite No-1 situated in Raichur, as such section 11(2)(b) is applicable to the facts of this case and the present complaint is maintainable before this Forum and this forum has got territorial jurisdiction to try the subject matter of the complaint. Hence with great respect to their lordships of the Honble National Commission, we have not made applicable the principles of that ruling to the facts of this case and thereby we rejected this ground of the opposites. 17. The complainant has got cause of action against opposite Nos. 1 & 2, because of the fact that, Insurance Company not settled his claim, even though it received claim petition and documents well in time which was affirmed by opposite No-3, as such the complainant has proved negligence on the part of opposite Nos. 1 & 2 in settling his claim and thereby opposite Nos. 1 & 2 found guilty under deficiency in their services. 18. Admittedly opposite No-3 is a financer. The complainant has no grievances against opposite No-3 for non-settling his claim by opposite Nos. 1 & 2. On the other hand opposite No-3 done its duty and extended its helping hand for settlement of the claim of the complainant with opposite No-1 & 2, as such we cannot say that, complainant and opposite No-3 colluded together only to get monetary benefit out of Insurance Company, as such there is no negligence on the part of opposite No-3 and accordingly we answered this point in affirmative against Insurance Company 1 & 2 and answered in negative against opposite No-3 financier and accordingly we answered this point. 19. As regards to the claim of the complainant he relied on the affidavit-evidence of PW-2 who is Proprietor of Ameer Lorry Body Builder- Saw Mill Tumkur wherein he estimated the loss to the extent of Rs. 1,11,000/-. On the other hand affidavit-evidence of surveyor RW-3 who assess the loss of the vehicle to the extent of Rs. 42,675/- for to restore it to the original condition. The evidence of PW-2 and evidence of RW-3 are before us, the affidavit-evidence of PW-2 is of private body builder, the evidence of RW-3 is of surveyor appointed under Insurance Act. The said surveyor is an independent person who has done his legal duties in assessing the loss to the vehicle under Insurance Act, his report is before us. The affidavit-evidence of RW-3 supports his report. Another survey report Ex.P-13 of Chandrashekar Patil is not supported by the affidavit-evidence, under the said circumstances, we have no reasons to discard the affidavit-evidence of RW-3 and his report Ex.R-1 accordingly we accepted the affidavit-evidence of RW-3 and his report Ex.R-1 and thereby complainant is entitled to get an amount of Rs. 42,675/- from the opposites Insurance Company by keeping in view of the principles of the ruling referred by the learned advocate for complainant reported in : 1. IV (2009) CPJ 46 SC. 2. IV (2008) CPJ 119 (RSCDRC) and 3. (2010) CJ 332. 20. We have noticed the deficiency in service on the part of opposite Nos. 1 & 2 to settle the claim of complainant and thereby complainant is entitled to recover a total sum of Rs. 3,000/- under the head of deficiency in service. 21. The complainant is entitled to get another lumpsum amount of Rs. 3,000/- towards cost of this litigation. 22. The complainant is entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 48675/- from opposite Nos. 1 & 2 from the date of this complaint till realization of the full amount. Accordingly we answered Point Nos- 1 & 2. POINT NO.3:- 23. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 48,675/- from opposite Nos. 1 & 2 jointly and severally. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 48,675/- from the date of the complaint till realization of the full amount. The complaint against opposite No-3 is dismissed. Opposite Nos. 1 & 2 are hereby by granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-08-10) 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 complainant Sangappa Sakri against the opposite Nos. 1 to 3 U/sec. 12 of Consumer Protection Act for to direct the opposites to pay an amount of Rs. 1,50,000/- with interest and cost. 2. The brief facts of the complainants case are that, he is the owner lorry bearing No. KA-36/2350 which was comprehensively insured with opposite Nos. 1 & 2 Oriental Insurance Company Ltd., Opposite No-3 is the financier. The said vehicle met with an accident on 15-05-08 near Aurad cross on Jevargi Road Gulbarga District while insurance policy was in force, therefore he informed same to the Jevargi PS and also intimated to Opposites 1 & 2. He got repaired the vehicle in Ameer Lorry Body Builder Tumkur. He submitted original bills to opposite Nos. 1 & 2 through opposite No-3 with all connected records. But opposite Nos. 1 & 2 not settled his claim in spite of his repeated requests, accordingly he filed this complaint against opposite Nos. 1 to 3 for the reliefs as prayed in it. 3. The opposite Nos. 1 & 2 appeared in this case through its Advocate, filed its written version by contending that, there was no negligence on the part of Insurance Company, the main office which issued insurance certificate, is at Chennai. The alleged accident took place in Gulbarga District. Therefore this Forum has no jurisdiction to try the subject matter of this complaint. The complainant and opposite No-3 colluded and created documents and got issued legal notices only to get illegal monetary benefit. The complainant not reported the fact of accident to the Insurance Company within the reasonable time, it is breach of condition of the policy, they have not appointed surveyor accordingly it prayed for to dismiss the complaint among other grounds. 4. The opposite No-3 filed its written version by admitting the fact that, it financed to the complainant for purchase of lorry bearing No. KA-36/2350, as such the relationship of it with complainant is borrower and creditor. It is not liable to settle any claim of the complainant, it acted as a mediator with opposite No-1 and complainant to settle the claim, there is no deficiency in service, accordingly it prayed for to dismiss the complaint among other grounds. 5. 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-36/2350 financed by opposite No-3 which was comprehensively insured with opposite No- 1 & 2 met with an accident on 15-05-08 on Jevargi Road, near Aurad cross in Gulbraga District with another vehicle and in the said accident his lorry badly damaged, thereafter he got repaired the said vehicle by investing of Rs. 1,50,000/- therefore he submitted claim petition with necessary records to opposite Nos. 1 & 2 through opposite No-3 but opposite Nos. 1 & 2 not settled his claim inspite of his repeated requests, they shown their negligence in settling his claim and there by opposite Nos. 1 to 3 found guilty under deficiency n their serivces.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 6. Our findings on the above points are as under:- (1) In Affirmative against opposite Nos. 1 & 2 and in Negative against opposite No-3. (2) As discussed in the body of this judgement and as noted in the final order. (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 :- 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1 and affidavit-evidence of Mechanic cum Lorry Body Builder at Tumkur was filed, he was noted as PW-2. The documents Ex.P-1 to Ex.P-21 are marked. On the other hand the Branch Manager of opposite Nos. 1 & 2 was filed, he was noted as RW-1, affidavit-evidence of surveyor is filed, who is noted as RW-3. Affidavit evidence of Branch Manager of opposite No-3 Finance Company was filed, he was noted as RW-2 and one document marked at Ex.R-1. 8. On going through the pleadings of the parties and their respective evidences and documents, we are of the view that, some of the following points are undisputed points in between the parties which are:- 1. The complainant is the owner of the lorry bearing No. KA-36/2350 which was purchased with financial assistance of opposite No-3 and the said vehicle was comprehensively insured with opposite No- 1 & 2 Insurance Company from 08-08-07 to 07-08-08. 2. It is further undisputed fact that, the said lorry met with an accident on 15-05-08 while insurance policy was inforce near Aurad cross on Jevargi Road in Gulbarga District and his vehicle badly damaged. The fact of said accident was informed to the police and police have registered a case and ultimately field charge sheet bearing CC.No. 260/08. 9. In the light of these admitted facts, now let us see, the grounds of opposite Nos. 1 & 2 Insurance Company for non-settlement of the claim of complainant. 10. The first ground for non settling of the claim of Insurance is that, the complainant intentionally not informed the fact of accident to the Insurance Company, thereafter all the documents were created by him, in collusion with opposite No-3 with financier for illegal monetary benefit. It is violation of one of the terms and conditions of the Insurance Policy, therefore the Insurance Company is not liable to indemnify any alleged loss said to have sustained by the complainant for the repair of his vehicle. 11. Counter arguments to the said contention is that, complainant informed the fact of accident to opposite Nos. 1 & 2 Insurance Company personally immediately after the accident, thereafter he submitted estimated loss caused to the vehicle without any delay, there was no intentional claim to get illegal monetary benefit. Police case was registered they have prepared panchanama regarding the actual position of the lorry after the accident. The complainant submitted all the records to Insurance Company through opposite No-3, but Insurance Company keept silence without settling the claim is nothing but its negligency in settling his claim, Insurance Company fastening its liability on opposite No-3 who is no way concerned, to it. Hence he requested to reject the contention of opposite Nos- 1 & 2. 12. The learned advocate for opposite NO-3 denial all the allegations made against it and contended that it is acted as a mediator to settle the claim of complainant. Hence there is no negligence on its part. 13. In pursuance of submissions made by the respective advocates, we have referred material document Ex.P-18 as it will give correct answers to the contention of opposite Nos- 1 & 2. Ex.P-18 is the estimate copy issued by Ameer Lorry Body Builder Saw Mill Tumkur, it was issued by the said builder after examination of the damaged vehicle, it is dt. 30-05-08. The complainant has served the original copy of Ex.P-18 to opposite Nos. 1 & 2 on the same day i.e, on 30-05-08 that means Ex.P-18 was served on the Insurance Company, after (15) days date of accident dated 15-05-08. In addition to it another document Ex.P-13 surveyors dt. 29-05-08, the cumulative effect of these documents goes to show that, this ground as urged before us by the learned advocate for Insurance Company as the fact of accident was not reported to it is against to the document Ex.P-3 and Ex.P-18 as Insurance Company itself made an endorsement with seal regarding the receipt of Ex.P-18 on 30-05-08 itself. Hence this ground of the defence of opposite Nos 1 & 2 is not tenable for non-settling the claim. 14. Now coming to second ground of defence by the Insurance Company, this Forum has no territorial jurisdiction to entertain the complaint as accident took place near Aurad in Gulbarga District. The learned advocate for complainant referred ruling reported in (2010) CP 315 (NC) New India Assurance Company Ltd., V/s. Pavel Garg. 15. The learned advocate for complainant contended that, the facts case of the ruling referred by the opposite Insurance Company are different to the facts of the present case on hand and requested us to not to apply the said principles to this case. 16. In pursuance of the submissions made on both sides, we have gone through the principles of the ruling referred above, it was a case decided by the Honble National Commission with regard to filing of complaint U/Sec. 17(2) of C.P. Act before the Honble State Commission. In the instant case, this complaint is filed by the complainant before the District Forum U/sec. 12 of C.P. Act. jurisdiction of the District Forum is explained U/sec. 11 of C.P. Act. As per the said section, this complaint before this District Forum is maintainable as opposite No-2 is the Branch Office of opposite No-1 situated in Raichur, as such section 11(2)(b) is applicable to the facts of this case and the present complaint is maintainable before this Forum and this forum has got territorial jurisdiction to try the subject matter of the complaint. Hence with great respect to their lordships of the Honble National Commission, we have not made applicable the principles of that ruling to the facts of this case and thereby we rejected this ground of the opposites. 17. The complainant has got cause of action against opposite Nos. 1 & 2, because of the fact that, Insurance Company not settled his claim, even though it received claim petition and documents well in time which was affirmed by opposite No-3, as such the complainant has proved negligence on the part of opposite Nos. 1 & 2 in settling his claim and thereby opposite Nos. 1 & 2 found guilty under deficiency in their services. 18. Admittedly opposite No-3 is a financer. The complainant has no grievances against opposite No-3 for non-settling his claim by opposite Nos. 1 & 2. On the other hand opposite No-3 done its duty and extended its helping hand for settlement of the claim of the complainant with opposite No-1 & 2, as such we cannot say that, complainant and opposite No-3 colluded together only to get monetary benefit out of Insurance Company, as such there is no negligence on the part of opposite No-3 and accordingly we answered this point in affirmative against Insurance Company 1 & 2 and answered in negative against opposite No-3 financier and accordingly we answered this point. 19. As regards to the claim of the complainant he relied on the affidavit-evidence of PW-2 who is Proprietor of Ameer Lorry Body Builder- Saw Mill Tumkur wherein he estimated the loss to the extent of Rs. 1,11,000/-. On the other hand affidavit-evidence of surveyor RW-3 who assess the loss of the vehicle to the extent of Rs. 42,675/- for to restore it to the original condition. The evidence of PW-2 and evidence of RW-3 are before us, the affidavit-evidence of PW-2 is of private body builder, the evidence of RW-3 is of surveyor appointed under Insurance Act. The said surveyor is an independent person who has done his legal duties in assessing the loss to the vehicle under Insurance Act, his report is before us. The affidavit-evidence of RW-3 supports his report. Another survey report Ex.P-13 of Chandrashekar Patil is not supported by the affidavit-evidence, under the said circumstances, we have no reasons to discard the affidavit-evidence of RW-3 and his report Ex.R-1 accordingly we accepted the affidavit-evidence of RW-3 and his report Ex.R-1 and thereby complainant is entitled to get an amount of Rs. 42,675/- from the opposites Insurance Company by keeping in view of the principles of the ruling referred by the learned advocate for complainant reported in : 1. IV (2009) CPJ 46 SC. 2. IV (2008) CPJ 119 (RSCDRC) and 3. (2010) CJ 332. 20. We have noticed the deficiency in service on the part of opposite Nos. 1 & 2 to settle the claim of complainant and thereby complainant is entitled to recover a total sum of Rs. 3,000/- under the head of deficiency in service. 21. The complainant is entitled to get another lumpsum amount of Rs. 3,000/- towards cost of this litigation. 22. The complainant is entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 48675/- from opposite Nos. 1 & 2 from the date of this complaint till realization of the full amount. Accordingly we answered Point Nos- 1 & 2. POINT NO.3:- 23. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 48,675/- from opposite Nos. 1 & 2 jointly and severally. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 48,675/- from the date of the complaint till realization of the full amount. The complaint against opposite No-3 is dismissed. Opposite Nos. 1 & 2 are hereby by granted one month time to comply the above order from the date of this judgment for to make the payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-08-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.