Karnataka

Bidar

CC/51/2016

Shankar Reddy S/o Advereddy - Complainant(s)

Versus

The Branch Manager United India Insurance company Limited Bidar - Opp.Party(s)

Sri. Sanjaykumar.S. Patil

28 Apr 2017

ORDER

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

 

 

                                                                                                      C.C.No.  51/2016

 

                                                                                      Date of filing : 27/07/2016

 

                                                                                 Date of disposal : 28/04/2017

 

 

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:          Shankar Reddy, s/o Advereddy

                                         Age: Major, Occ: Business,

                                      R/o Chitta, Tq.& Dist.Bidar,

                                         Now at Shivaji Nagar, Bidar.

                                                                

 

 

                                     (By Shri. Sanjay Kumar.S.Patil, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-             The Branch Manager,

                                          United India Insurance Co. Ltd.,

                                          Basawa Shree Complex, # 8-10-268 to 273,

                                          1^st Floor, Behind Ganesh Maidan,

                                       Stadium road, Bidar-585401.

 

           

                                      (  By Shri. Mansoor Ahmed Khan, Advocate)

 

 

::   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.P claiming reimbursement  of a sum of Rs.2,97,125/- for damage to his vehicle.

 

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

                           The complainant is the owner and possessor of Mahindra & Mahindra Bolero Jeep bearing Reg.no. KA-38-M-2323 and it was insured with the O.P. Company under policy no. 240602/31/08/01/00003084 being valid from 25/10/2008 to 24/10/2009.  The complainant had been using the said vehicle for his own use.  On 28/12/2008 at about 13.20 hours the said vehicle was proceeding towards Aurad-B and when reached near Boral village on Aurad Bidar road proceeding in normal speed a lorry was turtle on the road side and hence the  vehicle of the complainant caused accident.  Due to the accident the vehicle of the complainant was extensively damaged.  Hence, the complainant filed the complaint before Aurad (B) P.S. against the jeep driver.  The concerned police registered the case in Crime no. 182/2008 U/S 279,337 against the driver and issued F.I.R.  Thereafter the complainant had intimated alleged accident and necessary information regarding the damage to the vehicle  to the O.P. on 28/12/2008 upon which the O.P. deputed a Surveyor, who assessed the damages to the vehicle and advised the complainant to get  the vehicle repaired.  The complainant initially kept said vehicle at Habeeb garage in Bagh-Lingampalli at Hyderabad, where it was laying idle.  Thereafter the complainant brought the vehicle Bidar for rapair at Royal Auto work.  The complainant spent a sum of Rs. Rs.2,42,125/-for repair of the vehicle and submitted the claim application with the O.P.  Thereafter visited the office of the O.P. and the O.P. stated that the claim papers submitted by the complainant were missing and at the time of  shifting the office and the said papers were not trace.  So, the O.P. requested the complainant to re submit the claim.  Accordingly the complainant after obtaining fresh bill,  has re-submitted claim on 02/08/2014.  The O.P. in spite of issuing legal notice has not settled the claim of the complainant.  The O.P.had  replied the legal notice sent by the complainant therein stating that, the O.P. and the newly recruited officer both are new to the branch office and they are unable to find the claim particulars in the office and the O.P intimated  to provide particulars of the claim i.e. a) Claim intimation received copy b) Spot Survey Report c) Final & Re-inspection  survey report.   Thereafter,  though the complainant as per requisitions of the O.P. furnished all relevant documents, the O.P. has not settled the claim of the complainant.  Hence the complainant filed this complaint before this Forum claiming total sum of Rs.2,97,125/- with interest from the O.P. towards the damages caused to the insured vehicle of the complainant.

 

3.              On receipt of the Court notice the O.P.   appeared before this Forum and   filed written version wherein it is claimed that, the complaint filed by complainant is misconceived, both in law and on facts.  The complainant’s vehicle Mahindra & Mahindra Bolero Jeep bearing no. KA 38-M-2323 was hypothecated with Canara Bank Br. Bidar and insured with the O.P. Company under the policy valid from 25/10/2008 to 24/10/2009 and during the subsistence of this policy, it met with accident on 28/12/2008 and suffered damage.  The complainant has approached with this complaint during 2016 i.e. more than seven years after the accident.  Thus, the complaint is barred by limitation hence it is not maintainable.  As per the copy of insurance policy and as admitted by the complainant himself, the said vehicle was hypothecated with Canara Bank Br. Bidar.  As per rules, the financier will be the owner of the vehicle unless the hypothecation is discharged.  Though the complainant is contending that he has repaid the loan amount of Canara Bank and discharged hypothecation, yet he has not produced any such record.  Therefore since as per policy copy, the vehicle was hypothecated with Canara Bank, the said bank becomes necessary party to the complaint, otherwise the complaint is not maintainable. 

4.                The contents of para no.2 of the complaint, the O.P. Company does not admit the contention of the complainant about the accident since the complainant never informed any such accident to the O.P. Company soon after its occurrence, and it is only when the complainant issued notice, it is brought to the notice of the O.P. Company.  The complainant being the registered owner and insured of the vehicle ought to have given immediate intimation of the alleged accident and damage to the insured vehicle to the O.P. company, but he failed to do so.  Therefore, the O.P. Company specifically denies that on 28/12/2008 while his vehicle was proceeding on Aurad-Bidar road, it turned turtle and suffered damage and the police registered case for the offences punishable under sections 279, 337 IPC against the driver.  From the F.I.R. it could be seen that no case is registered for the offence punishable under section 427 IPC i.e. for damage to the vehicle.  Therefore it becomes evident that his vehicle did not suffer any damage much less extensive damage as alleged.   The contents of para no.3 of the complaint are false.  It is false that on 28/12/2008 itself the complainant gave information of accident to the O.P. Company and that the O.P. Company deputed Surveyor who assessed the damages and advised the complainant to get the vehicle repaired.  In fact, the complainant never gave any such intimation to the O.P. Company, nor there was any occasion of respondent Company to appoint or depute surveyor.  The complainant has made all false statements.  Even he has not furnished the name of surveyor who conducted survey.  His further contention that he kept the said vehicle at Habeeb Garage in Bagh-e-Lingampalli Hyderabad for repairs, where it was lying idle and then brought it to Bidar and got repaired at Royal Auto work by spending Rs. 2,42,125/-.   It is surprising to note that though according to the complainant, his vehicle was damaged on 28/12/2008, yet he kept it idle for over six years and got it repaired during 2014.  This shows that the complainant is fraudulent.  It appears that the damages were subsequently caused and the complainant created false story that those damages were caused in the accident on 28/12/2008,  making false claim.  When the vehicle was damaged in the year 2008, what was the reason for him to keep the vehicle idle for over six years.  Moreover, admittedly the police have not included the offence punishable under section 427 IPC in the F.I.R., indicating that there  were no visible damages to the vehcle, hence it cannot be believed that the repair bills produced by the complainant pertained to the damages caused in the accident on 28/08/2008.   

5.                  The contents of para no.6 of the complaint are not disputed.  It is true that on 25/07/2014 the complainant wrote letter for settlement of his alleged claim and on 31/08/2015 he issued legal notice, to which the O.P. Company has sent reply, since the claim made by the  complainant was after lapse of more than six years form the date of accident, without any prior intimation as per records available in the office.  The O.P denies the contents of para no.7 of the complaint.  The O.P. denies that the complainant had spent Rs. 2,42,125/- for repair of his vehicle.  At the outset the complainant has not placed any photograph of the vehicle taken after the accident and after repairs, to show that the repair carried out during 2014, were pertaining to the accident that took place in the year 2008, therefore the question of payment of said amount does not arise.  The content of the complainant that he got cause of action on 14/09/2015 when the O.P. company replied his legal notice is false.  This reply would not give rise to cause of action or limitation, because, the very legal notice issued is after lapse of limitation, hence, on the point of limitation the complaint is not maintainable and the complaint may be dismissed with costs.

6.         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 ?

 

7.           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::

8. Point no.1:-    To determine the issues in this point, we have to read the contents of documents produced by the complainant vide Ex.P.5, together with the contents of the document at Ex.P.16.  The Insurance Company received Ex.P.5 under due acknowledgment on 12/08/2014.  In this, a letter addressed by the complainant to the O.P., a claim is foisted that, after the accident 29/12/2008, intimation of the same was given to the O.P. Insurance Company.  The said assertion has been never contradicted by the O.P. at any point of time.  Rather vide the communiqué at Ex.P.16, consequent upon a legal notice dt. 04/09/2015, the O.P. has sought for certain particulars once again from the complainant, claiming that, the officers concerned were new to the Branch and were unaware of the claim.  Had there been any legitimate ground favouring the O.P., why the matter was kept in limbo after receiving the letter dt. 12/08/2014 ( Ex.P.5)?  It proves that, there is certain amount of complacency in the part of the O.P.

 

9.                The O.P. has taken a major defence that, the accident took place in the year 2008 and the claim was raised in the year 2014 and hence the same is time barred.  We feel, the O.P. has failed to read the lines at para-2 of the Ex.P.5, which asserts about the earlier claim lodged just after the accident.  In this connection, we indulge to refer to a decision rendered by Gujarat State Commission, in the case ICICI Lombard General Ins. Co. Ltd. V/s Principal, Sh. J.P. Pardiwala College, reported in 2014 (I) CLT-160 (Guj) where in it was held that, “cause of action will continue till in Insurance Co. settles or rejects the claim”.

 

10.                 We also further refer to another decision of the Hon’ble Punjab State Commission in the case L.I.C. V/s Manchand & Anr. Reported in III (2009) CPJ-141, in which quoting an earlier Judgement of the Hon’ble Apex Court in the case United India Insc. Co. Ltd. V/s Great Eastern Shipping Co.Ltd. reported in III (2007) CPJ-3 (S.C.), it has been held that,

 

                “Where two views are possible, the one which favours the Consuemr should be accepted”.

 

11.                   Keeping at parlance the two case laws quoted supra, we hold the view that, the defence of the O.P. regarding limitation holds no water and the O.P. sitting lame duck in spite of reminder dt. 12/08/2014 has committed deficiency of service and we answer the point in affirmative.

 

12. Point No.2:-   Treading to ascertain the genuineness of the claim of the complainant, we have before us documents in Ex.P.1 to P.4, proving the accident and resultant damages caused to the vehicle.  Ex.P.4, ( I.M.V. report dt. 31/12/2008) spells out the damages sustained by the vehicle and Ex.P.1 is the F.I.R.  F.I.R(s) is registered for alleged offence U/s. 279 & 337 I.P.C., but the O.P. is hammering about non inclusion of section 427 of the I.P.C.  Said section 427 is connected to mischief, which is allegation of none and that tell tale defence of O.P. is of no significance.  Vis-a-vis to Ex.P.4, we have before of us bills submitted vide Ex.P.6 to P.10, evidencing procurement of spares and repairs.  Damages described inEx.P.4, synchronises with the spare parts obtained and repairs done and hence we decipher that, the repair claims of the complainant is not exorbitant.

 

13.                However, we would hesitate to endorse the inaction of the complainant in keeping the damaged vehicle from 2008 to 2014 unrepaired and the delay must have added further corrosion to the damaged vehicle and hence we propose to deduct 25% from the claim of the complainant and further propose not to award any compensation in  his favour and resultantly, proceed to pass the following:-

: :   ORDER : :

 

                  The complaint is allowed in part.

1.  The net repair cost coming out at Rs. 2,42,065/- a sum of 25% i.e. Rs. 60,516.25 ps. ( rounded off at Rs. 60,520/-) is to be deducted for which the O.P. is directed to pay a sum of Rs. 1,81,545/- to the complainant.

 

2. A sum of Rs. 5,000/- is awarded as litigation cost in favour of complainant payable by the O.P.

 

 

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 April-2017 )

 

 

 

Sri. Shankrappa H.                                          Sri. Jagannath Prasad                 

        Member                                                                  President

 

Documents filed by the complainant.

 

1. Ex.P.1- Copy of FIR.
2. Ex.P.2- Copy of Panchanama,dt. 28/12/2008.
3. Ex.P.3- Copy of letter to RTO,Bidar.
4. Ex.P.4-Copy of Motor Vehicles Accident report.
5. Ex.P.5- Copy of letter to United India Ins.Co. Bidar,by complainant.
6. Ex.P.6 to 10- Copy of Bills.  
7. Ex.P.11- Copy of R.C. of  Shankar Reddy.
8. Ex.P.12-Copy of driving licence of Shankar Reddy.  
9. Ex.P.13-Copy of insurance certificate.
10. Ex.P.14 & 15- Original postal receipts.
11. Ex.P.16-Original letter addressed to D. Baswaraj, Advocate by United India Insurance Co. Ltd.dt. 14/09/2015.

 

 

Documents filed by the Opponent

 

              Nil  

 

 

 

Sri. Shankrappa H.,                                          Sri. Jagannath Prasad,                 

        Member                                                                     President.

 

mv.