DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 12th day of March 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing : 01/03/2010
C.C.No.29/2010
Madhusudhanan
S/o. Kunhiraman Nair
Kadathithodi
Pavakkonam
Ananganadi
Ottappalam
Palakkad - Complainant
(Adv.K. Tony Jose)
Vs
1. The Branch Manager
The Oriental Insurance Company Ltd
Pranavam Building
Mele Pattambi
Pattambi
Palakkad.
2. The Branch Manager
The Oriental Insurance Company Ltd
No.7, Uthamar Ghandhi Salai
2nd Floor, Rosy Towers
Nungampakkam, Chennai
Tamil Nadu. - Opposite parties
(By Adv.P.Ramachandran)
O R D E R
By Smt. Preetha.G. Nair, Member
The complainant had purchased Tata LP 407 vehicle bearing Registration No.KL-09-L-2256 after obtaining the financial assistance from Shriram Transport Finance company. The complainant had insured the vehicle with the opposite party company vide policy number 411300/31/2007/13766. The insurance policy is a comprehensive policy which commences from 13/11/2006 to 12/11/2007. The vehicle met with an accident at Kanniyampuram near Ottappalam and sustained heavy damages. Thereafter the damages were assessed by the authorized surveyor appointed by the opposite parties. The complainant has incurred an expense of Rs.1,78,621/- to repair the damaged vehicle. The complainant has submitted a claim form for own damages in the prescribed manner on 25/09/2007 for Rs.1,78,621/-. The opposite party is bound to consider the claim form submitted by the complainant and to disburse the amount as claimed in the claim form as per the terms and conditions of the policy.
The opposite party has not granted the amount claimed in the claim form or repudiated the claim so far. The complainant earns his livelihood from the income generated from plying the vehicle which is a stage carrier. The complainant could not ply the vehicle and generate income as the vehicle was lying idle in the workshop after the accident. If the Opposite party had disbursed the amount claimed in time, the complainant could have repaired the vehicle in time and started plying on the roads. The complainant had to borrow money from his friends and relatives to repair the vehicle at the earliest. Thus complainant could not pay the monthly installment towards the finance company. The complainant had to pay more than Rs.80,000/- as delayed payment charges to the finance company. The act of opposite parties is a clear case of deficiency in service. Then the complainant has send a lawyer notice to the opposite parties on 12/11/2009. The notice was served to the opposite party. But the opposite party has not issued a reply notice or to disburse the amount. The irresponsible behaviour of the opposite party amounts to deficiency of service and the complainant is put to severe hardships. Hence the complaint. Complainant prays an order directing the opposite parties
- to pay an amount of Rs.1,78,000/- towards vehicle damages as claimed.
- Pay an amount of Rs.80,000/- as compensation for financial loss incurred by the complainant.
- Pay an amount of Rs.30,000/- on account of the mental agony.
After admitting the complaint, notice was issued to both opposite parties. opposite parties exparte. The complaint allowed. Thereafter opposite parties preferred an appeal before the Hon’ble State Commission. Then the complaint remanded back by the Hon’ble State Commision to file version and contest the matter.
Opposite parties filed version stating the following contentions. The compliant is not maintainable as it is barred by limitation. The complainant does not disclose sufficient cause for not filing the complaint within time nor the circumstances by which the complainant is entitled to get the delay condoned. Since the initial intimation of the alleged accident the complainant has not pursued the claim or take any steps to help the opposite parties to process the claim by producing vehicular documents and also intimating the name and place of the workshop, where the vehicle had kept for repair. The complainant has not so far produced the registration certificate, tax, permit, fitness certificate and the driving license of the driver for verification. So the opposite parties could not confirm the validity of these documents. The contention in the complaint that the alleged damages were assessed by the authorized surveyor appointed by the opposite parties is not correct and denied. On receipt of intimation as to the alleged accident the opposite parties appointed one Jayakrishnan as spot surveyor in order to conduct outwardly inspection of the damages. But the complainant did not intimate the company about the workshop where he had left the vehicle for repairs, so as to enable the opposite parties to appoint a final surveyor to assess the actual damages or loss caused to the vehicle. The spot survey was conducted for the outward inspection of the vehicle from the accident spot. It will disclose only the appearance of the vehicle at the place of accident. The actual damage is assessed subsequently from the workshop where the vehicle is taken for dismantling and repair. Mere spot inspection will not help to assess the actual damages because police will not allow to check and examine the parts of the vehicle.
The opposite parties sent reply to the notice sent by the complainant on 3/2/10 and the same was acknowledged by the complainant’s advocate on 11/2/10. The complaint is the result of a collusion between the complainant and M/s.Shriram Transport Finance Corporation. The contentions in the complaint would disclose that the vehicle was a stage carriage one. Hence the vehicle was being used for making profit and the claim will not come under the purview of the Consumer Protection Act. There was no deficiency in service on the part of opposite parties. Hence the opposite parties prayed that dismiss the complaint with costs.
Both parties filed their affidavits and documents. Ext.A1 to A10 marked on the side of the complainant. Ext.B1 to B2 marked on the side of opposite parties. Complainant was examined as PW1. Both parties filed argument notes.
Issues to be considered are
1.Whether the complaint is maintainable ?
2.Whether there is any deficiency in service on the part of opposite parties ?
3.If so, what is the relief and cost ?
Issue No.I
The opposite parties stated that the complaint is not maintainable as it is barred by limitation. According to the opposite parties the documents produced by the complainant would disclose that the accident was on 12/9/07 and the claim form was filed on 25/9/07. But the complaint filed on 1/3/10. The complainant stated that after filing the claim form there was no response from the side of opposite parties. Then the complainant sent a lawyer notice on 12/11/09. In Ext.B1 series on 3/2/10 the opposite parties sent a reply notice. So the complaint is filed within the time limit.
Further opposite parties stated that complainant used the vehicle for commercial purpose. So the complainant cannot be considered as a consumer. According to the complainant, he has purchased the vehicle after obtaining finance assistance from Shriram Transport Finance Company Ltd. and earns his livelihood from the income generated in the vehicle. No contradictory evidence produced by the opposite parties. It is the case of opposite parties that the vehicle was purchased for commercial activity or commercial purpose. Admittedly there was a valid insurance policy issued by the opposite parties. The service rendered by the opposite parties can be considered as a service availed on consideration as defined under Section 2(1) (o) of the Consumer Protection Act. The definition of the term of service under section 2(1)(o) of the Consumer Protection Act would make it clear that the service or facility availed in connection with insurance is to be treated as a service under the purview of the Consumer Protection Act. Thus in all aspects the complainant who availed the services of opposite parties is a consumer coming within the ambit of the Consumer Protection Act. The complainant who availed the services of opposite parties for insuring the stage carriage can only be treated as a consumer as defined under section 2(1)(d) (ii) of the Consumer Protection Act. In the present case the dispute between the complainant and opposite parties is a consumer dispute.
In Nageshwara Rao Vs.National Insurance Company Ltd. and others dated 5/2/11 the Hon’ble State Commission held that the complainant is a consumer who availed the services of opposite parties and the dispute between the complainant and 1st opposite party is a consumer dispute coming within the ambit of the Consumer Protection Act. So the complaint is maintainable. Hence the 1st issue answered in favour of the complainant.
Issues 2 & 3
Admittedly there is a valid policy on the date of accident. It is evident from Ext.A2 that period of insurance was 13/11/2006 to 12/11/2007. The date of alleged accident was on 12/9/07. According to the complainant he has purchased the vehicle after obtaining financial assistance from Shriram Transport Finance Company Ltd. and he earns his livelihood from the income generated the vehicle. No contradictory evidence produced by the opposite parties.
The opposite parties admits that they appointed one Jayakrishnan as spot surveyor in order to conduct outwardly inspection of the damages. But the complainant did not intimate the workshop where the vehicle kept for repairs. The opposite parties have not produced the spot surveyor and examined as a witness. The complainant filed application to call for the original documents from the opposite parties. I.A.allowed. But the opposite parties filed affidavit stating that the complainant has not produced the actual bills for the purchase of spare parts and the labour undertaken for the repair of the vehicle. Later the opposite parties produced the copy of the policy and marked as Ext.B2. In Ext.B1 series the reply notice the opposite parties stated that the following documents not submitted by the complainant.
- Original RC/FC/DL/Permit for our verification
- Road tax for the period covering the date of accident
- Original trip sheet
- FIR with English translation
At the time of cross examination the complainant deposed that he had given the documents directly to 1st opposite party. The complainant has not produced evidence to show that original bills and documents given to opposite parties. In Ext.A9, the report of inspection of a motor vehicle shows that damages sustained by the vehicle due to accident. Ext.A8 copy of FIR shows the date of accident was on 12/9/07. In Ext.A10 the Motor Accidents claims Tribunal allowed the petition filed by one Unnikrishnan. The accident was happened on 12/09/2007 and the bus bearing registration No.KL-9L-2256 driven by Noushad.
On the available evidence and records we find that the accident was happened on 12/9/07. In Ext.A5 shows the copy of permit of the vehicle and there is a valid permit on the date of accident.Ext.A6 is the copy of R.C.shows the name of registered owner is the complainant. Ext.A7 series was the copy of bills. The opposite parties stated that the name of the complainant was not mentioned in Ext.A7 series. But the registration number of the vehicle KL-9L-2256 mentioned in Ext.A7 series. The complainant sated that the original bill given to 1st opposite party. But the opposite parties denied the production of bills to them. Ext.A3 was the copy of letter given by the complainant to the 1st opposite party. But the opposite parties have not produced evidence to show that they had trying to inspect the vehicle. Ext.A4 shows that claim intimation form prepared on 25/09/2007. The opposite parties have not produced evidence to show that the complainant has not given help to assess the actual damages. At the time of cross examination complainant deposed that the bills directly given to the Pattambi office. No contradictory evidence produced by the opposite parties.
In view of the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result complaint allowed. We direct the opposite parties jointly and severally liable to pay the complainant an amount of Rs.1,78,000/- (Rupees One lakh seventy eight thousand only) as the claim amount with 12% interest from the date of filing the claim form to the date of order and pay Rs.3,000/-(Rupee Three thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on the 12th day of March 2012
Sd/-
Seena.H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
1.Ext. A1 series – Copy of lawyer notice dated 12/11/2009 and acknowledgment card
2. Ext. A2 - Copy of Motor Insurance Certificate cum Policy Schedule of the Oriental
Insurance Company Limited.
3. Ext A3 - Copy of letter dated 24/09/07
4. Ext. A4 (1) – Copy of Claim Intimation Form dated 25/09/2007.
Ext. A4 (2) - Copy of Motor Claim Form of the Oriental Insurance Company Limited.
5.Ext.A5 - Copy of Permit in respect of a Stage Carriage
6.Ext.A6 – Photocopy of RC Book
7.Ext.A7 series– Copy of Receipts (9 Nos)
issued by Mangala Automobiles Koonathara
8.Ext.A8 - Copy of the FIR on Crime 503/07 of Ottapalam Police Station
9. Ext.A9 – Copy of the AMVI Report on crime No.503/07 of Ottapalam Police
Station
10.Ext.A10 – Copy of Award in OP(MV)No.719/2008
Witness examined on the side of the complainant
Complainant examined as PW1.
Witness examined on the side of the opposite party
Nil
Exhibits marked on the side of the Opposite Party
Ext.B1 series - Reply to the notice send to Natesan Ananad by the opposite
party along with acknowledgement card
Ext.B2 – True copy of Policy
Cost (allowed)
Rs.3,000/- (Rupees Three thousand only) allowed as cost of proceedings
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of October 2010 .
Present : Smt. Seena.H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member
C.C.No.29/2010
Madhusudhanan
S/o. Kunhiraman Nair
Kadathithodi
Pavakkonam
Ananganadi
Ottappalam
Palakkad - Complainant
(Adv.K. Tony Jose)
Vs
1. The Branch Manager
The Oriental Insurance Company Ltd
Pranavam Building
Mele Pattambi
Pattambi
Palakkad.
2. The Branch Manager
The Oriental Insurance Company Ltd
No.7, Uthamar Ghandhi Salai
2nd Floor, Rosy Towers
Nungampakkam, Chennai
Tamil Nadu. - Opposite parties
O R D E R
By Smt. Preetha.G. Nair, Member
The complainant had purchased Tata LP 407 vehicle bearing Registeration No.KL-09-L-2256 after obtaining the financial assistance from Shriram Transport Finance company. The complainant had insured the vehicle with the opposite party company vide policy number 411300/31/2007/13766. The insurance policy is a comprehensive policy which commences from 13/11/2006 to 12/11/2007. The vehicle met with an accident at Kanniyampuram near Ottappalam and sustained heavy damages. Thereafter the damages were assessed by the authorized surveyor appointed by the opposite parties. The complainant has incurred an expense of Rs.1,78,621/- to repair the damaged vehicle. The
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complainant has submitted a claim form for own damages in the prescribed manner on 25/09/2007 for Rs.1,78,621/-. The opposite party is bound to consider the claim form submitted by the complainant and to disburse the amount as claimed in the claim form as per the terms and conditions of the policy.
The opposite party has not granted the amount claimed in the claim form or repudiated the claim so far. The complainant earns his livelihood from the income generated from plying the vehicle which is a stage carrier. The complainant could not ply the vehicle and generate income as the vehicle was lying idle in the workshop after the accident. If the Opposite party had disbursed the amount claimed in time, the complainant could have repaired the vehicle in time and started plying on the roads. The complainant had to borrow money from his friends and relatives to repair the vehicle at the earliest. Thus complainant could not pay the monthly installment towards the finance company. The complainant had to pay more than Rs.80,000/- as delayed payment charges to the finance company. The act of opposite parties is a clear case of deficiency in service. Then the complainant has send a lawyer notice to the opposite parties on 12/11/2009. The notice was served to the opposite party. But the opposite party has not issued a reply notice or to disburse the amount. The irresponsible behaviour of the opposite party amounts to deficiency of service and the complainant is put to severe hardships. Hence the complaint. Complainant prays an order directing the opposite parties
to pay an amount of Rs.1,78,000/- towards vehicle damages as claimed.
Pay an amount of Rs.80,000/- as compensation for financial loss incurred by the complainant.
Pay an amount of Rs.30,000/- on account of the mental agony.
After admitting the complaint, notice was issued to both opposite parties. Both opposite parties received the notice and was absent before the Forum. Hence both opposite parties were set ex parte. Complainant filed chief affidavit and documents. Exhibit A1 to A4 marked on the side of the complainant.
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Matter was heard.
Issues to be considered are
Whether there is any deficiency in service on the part of opposite parties?
If so, what is the relief and cost entitled to the complainant?
Issues I & II
We perused relevant documents on record. As per Exhibit A2 the complainant insured the vehicle with the 2nd opposite party vide Policy number 411300/31/2007/13766. The period of insurance policy from 13/11/2006 to 12/11/2007. The complainant stated that the vehicle met with an accident at Kanniyampuram near Ottappalam and he had submitted a claim form on 25/09/2007 for Rs.1,78,621/-. According to Exhibit A3 the complainant has intimated to the 1st opposite party through letter dated 24/09/2007. As per Exhibit A4(1) and (2) the complainant has submitted the claim intimation form and Motor claim form to opposite parties. Both opposite parties have not filed version and affidavit. According to Exhibit A4(1) the complainant stated that the accident was happened on 12/09/2007 and the estimated cost of repairs was Rs.1,78,621/-. No contrary evidence was produced by the opposite parties. The complainant counsel argued that the damages were assessed by the authorized surveyor appointed by the opposite parties and the survey report was given to them. The complainant stated that he had to pay more than Rs.80,000/- as delayed payment charges to the finance company . The complainant has not produced documentary evidence to prove the delayed payment of Rs.80,000/-. The complainant stated that he earns his livelihood from the income generated by plying the vehicle which is a stage carrier and the opposite parties has neither granted the amount claimed in claim form nor repudiated the claim so far. Admittedly the policy commences from 13/11/2006 to 12/11/2007. But the opposite parties have not granted the claim amount or repudiated the claim so far.
The complainant stated that he had obtained financial assistance from the Shriram Transport Finance Company for purchasing the vehicle. As per Exhibit A1 series the complainant has sent lawyer notice to the 2nd opposite party. The 2nd opposite party
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received the lawyer notice. But the 2nd opposite party has not sent the reply notice or disbursed the claim amount. After admitting the complaint notice was issued to both opposite parties. Both opposite parties have received the notice. But the opposite parties has not appeared before the Forum and not filed version and affidavit. It shows the opposite parties still continue indifferent attitude towards the complainant. The opposite parties are bound to consider the claim form submitted by the complainant and to disburse the amount as claimed in claim form as per the terms and conditions of the policy. The opposite parties are failed to disburse the claim amount or repudiated the claim. In the above discussions we hold the view that there is deficiency in service on the part of opposite parties. Hence the complaint allowed. We direct both opposite parties jointly and severally liable to pay the claim amount of Rs.1,78,000/- with 12% interest from the date of filing the claim form to the date of order and pay Rs.2,000/- as cost of the proceedings to the complainant. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.
Pronounced in the open court on the 30th day of October 2010
PRESIDENT (SD)
MEMBER (SD)
MEMBER (SD)
APPENDIX
Date of filing : 01/03/2010
Witness examined on the side of Complainant
Nil
Witness examined on the side of Opposite party
Nil
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Exhibits marked on the side of the complainant
Ext. A1 series – Copy of lawyer notice dated 12/11/2009 and acknowledgment card
2. Ext. A2 - Copy of Motor Insurance Certificate cum Policy Schedule of the Oriental
Insurance Company Limited.
3. Ext A3 - Copy of letter dated 24/09/07
4. Ext. A4 (1) – Copy of Claim Intimation Form dated 25/09/2007.
5. Ext. A4 (2) - Copy of Motor Claim Form of the Oriental Insurance Company Limited.
Exhibits marked on the side of the Opposite Party
Nil
Forums Exhibits
Nil
Cost (allowed)
Rs.2,000/- (Rupees Two thousand only) allowed as cost of proceedings
