BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy B.Com., LL.B., Member
Tuesday the 21st day of March,2006
CD NO. 62/2005
Smt . S. Krishnavanamma,
W/o. S. Venkateswarlu,
Aged. 47 years,
D.No. 65/96, For,
Kurnool. . . . Complainant
-Vs-
1. The Claims Officer,
Royal Sundaram Alliance Insurance Co., Ltd,
No. 46, Whites Road, Chennai-600014.
2. Manager-Operations,
Royal Sundaram Alliance Insurance Co., Ltd,
No. 46, Whites Road, Chennai-600014.
3. Managing Director,
Royal Sundaram Alliance Insurance Co., Ltd,
No. 46, Whites Road, Chennai-600014.
4. Branch Manager, Kurnool Branch,
Royal Sundaram Alliance Insurance Co., Ltd,
R.M.K Plaza, Opp. Zilla Parishad, Kurnool. . . . Opposite parties
This complaint coming on 20.3.2006 for arguments in the presence of Sri M.D.V. Jogaiah Sarma, Advocate, Kurnool for complainant and Sri K. Laxmi Prasad Advocate, Hyderabad and Sri P. Sreenivasulu, Advocate, Kurnool for opposite parties 1 to 4, and stood over for consideration till this day, the Forum made the following.
O R D E R
(As per Smt C. Preethi, Hon’ble Member)
1. This CD complaint of the complainant is filed under section 12 of CP. Act, 1986, seeking a direction on the opposite parties to pay to the complainant an amount of Rs. 1,86,130/- with 18% interest per annum, Rs.10,000/- towards damages, Rs.5,000/- towards costs and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case are that the complainant is the owner of the Tempo Trax Judo Vehicle bearing No. AP 21 G-5225 and the said vehicle was insured with opposite parties under comprehensive policy bearing No. VP 00083118000100 and the policy commenced from 20.5.2003 to 19.5.2004. On 18.7.2003 the said vehicle was used by complainant’s family friend and colleague of complainant’s husband by name Sri P. Venkateshwarlu to receive his cousin Prasad Rao who arrived from U.S.A., involved in an accident at Venkatapuram (V), Srivella (M), Kurnool (District), as the said vehicle dashed by a lorry bearing No. AP 16 T 4477, resulted in the death of Prasad Rao. Thereafter,the complainant got the vehicle repaired and put forth a claim with opposite parties for Rs.1,86,130/-. The opposite parties deputed one surveyor by name Sri E. Mukund to inspect the vehicle and even after several trips to the local office there was no response. In the month of December 2003 the opposite parties approached the complainant and obtained her signatures on blank papers stating that a cheque will be issued to her.
3. But to the dismay of the complainant the opposite parties through their letter dt 24.2.2004 repudiated her claim on the ground of “ misrepresentation of facts”. Thereafter, the complainant got issued legal notice dt 26.3.2004 requesting the opposite party to accept her claim, the opposite parties replied dt 1.4.2004 stating that the complainant admitted in a statement dt 9.12.2003 that the said vehicle was used for hire, contra to the terms and conditions. The above said lapsive conduct of opposite parties in repudiating her valid claim constrained the complainant to resort to the Forum for redressal.
4. The complainant in support of her case relied on the following documents Viz (1) Original Insurance policy No. VP 00083118000100 valid from 20.5.2003 to 19.5.2004 (2) letter, dt 24.2.2004 of opposite party No.1 to complainant (3) Office copy of legal notice dt 26.3.2004 and (4) reply letter, dt 1.4.2004, besides to the sworn affidavit of the complainant and a third party affidavit of P.Venkateshwarlu and the above documents are marked as Ex A.1 to A.4 for its appreciation in this case. The complainant caused interrogatories to the opposite party, the complainant and third party suitablely replied to the interrogatories caused by the opposite parties.
5. In pursuance to the notice of this Forum as to this case of the complainant the opposite parties appeared through their standing counsel and contested the case. The opposite party No.3 filed its written version and opposite party No.1, 2 and 4 adopted the written version of opposite party No.3.
6. The written version of opposite parties submits that the complaint is not maintainable either in law or on facts, and submits that the complainant’s vehicle was insured as private vehicle and cannot be used for hire and reward (commercial purpose) and there is no cause of action and the complainant is not a consumer. On being informed about the accident the opposite party deputed a surveyor to inspect the vehicle. After receiving claim form the entire claim was investigated and enquired and repudiated the said claim on the reason” misrepresentation of facts’”, as the vehicle was put for commercial purpose and was used for hire and reward which itself bars the complainant and there is breach of terms and conditions of the policy. The independent surveyors who were entrusted the task of finding out the veracity and genuineness of the claim contacted the complainant with her statement and the complainant admitted the same stating that she filed this false and frivolous claim.
7. It also submits that the driver of the lorry bearing No. AP 16 T 4477 sole liable for the rash and negligent driving, and the petitioner in OP No. 650 of 2003 filed by the legal heirs of the deceased Prasad Rao, stated they did not pay any amount to the driver of the Jeep and the said Jeep was not taken on hire bases. It also says that passengers of the Jeep are colluding with each other and it is clear that the vehicle was hired by one P. Venkateshwarlu a family friend of complainant’s husband, hence, there is no deficiency of service and the settlement of claim is at the own discretion of opposite parties only and seeks for the dismissal of complaint with exemplary costs.
8. The opposite parties in support of their case relied on the following documents Viz (1) claim application submitted by the complainant (2) survey report of E. Mukund dt 20.7.2003 (20 numbers) and (3) letter dt 8.1.2004 of E. Mukund, surveyor besides to the sworn affidavit of opposite party No.3 in reiteration of its written version and the above documents are marked as Ex B.1 to B.3 for its appreciation in this case. The opposite parties caused interrogatories to the complainant and third party P. Venkateshwarlu and suitablely replied to the interrogatories caused by the complainant.
9. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties:-
10. The opposite parties are not denying the complainant as the owner of the Tempo Trax Judo vehicle bearing No. VP 00083118000100 and she got insured her vehicle with opposite parties and obtained a policy vide Ex A.1. The said policy was in force from 20.5.2003 to 19.5.2004. While the said policy was in force the said vehicle met with accident on 18.7.2003 near Sirvel and the complainant submitting claim forms vide Ex B.1 with necessary/ relevant documents, but to the dismay of the complainant the opposite parties repudiated the said claim vide Ex A.2 dt 24.2.2004 on the ground of mis representation of facts. As the repudiation letter does not disclose any specific particulars of misrepresented facts, the complainant got issued legal notice dt 26.3.2004 vide Ex A.3 stating the repudiation of opposite parties is arbitrary and baseless and it amounts to deficiency of service and seeks immediate payment of claim amount. The opposite parties replied to Ex A.3 vide Ex A.4 letter dt 4.1.2004 stating that complainant used the vehicle for hire purpose to pickup up a passenger from Chennai who arrived from U.S.A. and the complainant herself admitted in the statement dt 9.12.2003 that the vehicle was used for hire. As there is violation of policy conditions the opposite parties are not liable to pay claim amount. So the only ground on which the opposite parties repudiated the claim of the complainant was the said vehicle of the complainant was used for hire purpose.
11. The opposite parties in support of their version relied on the unattested xerox copy of statement of complainant dt 9.12.2003 wherein, the complainant alleged to have been admitted that her vehicle was given for hire to P. Venkateshwarlu. Where as, on the other side the complainant disputes the said statement dt 9.12.2003 as not issued by her to the opposite parties, the complainant further alleges that the opposite parties approached her stating that a cheque will be issued to her obtained and signatures on blank paper and further strongly denies that she has not given the said statement.
12. The complainant in the interrogatory No.4 issued to the opposite parties put a specific question that were you present when this complainant is alleged to have given a statement on 9.12.2003? The opposite parties replied stating that the said statement dt 9.12.2003 of the complainant was given to the licensed surveyor who conducted investigation, and in the interrogatory No.5 the question was who enquired/ investigated into the claim of the complainant, the opposite parties replied Sri E. Mukund, Insurance Surveyor and Loss assessor enquired into the accident and he filed his report dt 20.7.2003. The Ex B.2 is the Investigation Report dt 20.7.2003 of E. Mukund, in the said report no where it is stated that he collected the alleged statement of the complainant dt 9.12.2003, the said report is prepared and submitted to opposite parties on 20.7.2003 after through investigation and enquiry and the alleged statement of complainant is dt 9.12.2003 i.e subsequent to the said report in Ex B2, so what appears is that the said statement said to have been collected by the investigator/ Surveyor is doubtful and when the statement itself is doubtful the opposite parties cannot rely on said statement and it does not carry any force and the repudiation by the opposite parties being on said statement remains not justifiable.
13. The Ex A.3 is the letter dt 8.1.2004 of Surveyor E. Mukund, to opposite parties, if 9.12.2003 alleged statement of the complainant is true then it would have found place in Ex B.3. But on the other hand it says that the vehicle was given without consideration towards hire charges, i.e free of cost on account of friendship bearing fuel charges. Therefore, the said 9.12.2003 statement appears to have been concocted as Ex B.3 dt 8.1.2004 says no documentary evidence is available to prove otherwise.
14. The opposite parties also relied on the un attested Xerox copy of evidence of Smt S.Krishnavenamma in O.P No. 650/2003 before the Prl. District Judge Kurnool, stating that they are necessary document to consider in this case, the complainant in the said evidence stated that she except signing on the blank paper doesn’t know any thing about the case filed in the Kurnool District Forum. Reliance was placed on the decision of National Commission, between National Insurance Co Vs Faquir Chand reported in IV part (10) 2005 CPJ pg 82, it was held that petitions filed before the Motor Accident Claims Tribunal are not relevant pieces of evidence for taking into consideration before Consumer Forum, hence the above documents does not support the case of the opposite parties and cannot be looked into.
15. The opposite parties except stating that the vehicle in question at the time of the accident was being used for hire in violation of terms and conditions of the policy, but miserablely failed to prove the same and there is no evidence except the statement dt 9.12.2003 and evidence of RW3 (complainant) before the Prl. District Judge to prove the vehicle was being used for hire, as already held the statement dt 9.12.2003 appears to be doubtful and concocted. and evidence of RW3 is not relevant piece of evidence to take into consideration in Consumer Forums. Hence, there is nothing on record to show that the complainant’s vehicle was used for hire purpose in violation of terms and conditions of policy.
16. Following the afore mentioned citation and the exhibits marked and having regard to over all consideration there is no hesitation to hold the opposite parties have miserablely failed to substantiate that vehicle of the complainant was used for hire purpose in violation of terms and conditions of policy. Therefore, in the said circumstances the repudiation of claim by opposite parties is wholly arbitrary and unjust and amounts to deficiency of service on their part and the complainant is perfectly remaining entitled to get the amount which she spent in getting the said insuredv ehicle repaired for the
damages it sustained in the accident covered under the policy and the opposite parties are liable to pay the same and there is deficiency of service on part of opposite parties in not paying the said amount.
17. In the present case the complainant claimed a sum of Rs.1,86,130/- but the Ex B.2 survey report dt 20.7.2003 assessed the loss after depreciation to Rs.1,07,000/-. Thus basing on Ex B.2 the claim of the complainant has been reduced to Rs.1,07,000/- which the opposite parties has to pay to the complainant.
18. Consequently, the complaint is allowed directing the opposite parties to pay to the complainant Rs. 1,07,000/- with 12% interest per annum from the date of accident till realization along with costs of Rs.5,000/- within a month of receipt of this order. In default the opposite parties shall be liable to pay supra awarded amount with 18% interest from the date of default till realization.
Dictated to the Stenographer, transcribed by her corrected and Pronounced by us, in the Open Court this the 21st day of March, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- -Nil-
List of Exhibits marked for the complainant:-
Ex A.1 Original Insurance Policy No. VP 00083118000100 valid from
20.5.2003 to 19.5.2004.
Ex A.2 Letter dt 24.2.2004 of opposite party No.1 to complainant.
Ex A.3 Office copy of legal notice dt 26.3.2004.
Ex A.4 Reply letter dt 1.4.2004.
List of Exhibits marked for the opposite parties:-
Ex B.1 Claim application submitted by the complainant.
Ex B.2 Survey report of E. Mukund dt 20.7.2003 (20 numbers).
Ex B.3 letter dt 8.1.2004 of E. Mukund, surveyor.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri M.D.V. Jogaiah Sarma, Advocate, Kurnool.
2. Sri K. Laxmi Prasad Advocate, Hyderabad and Sri P. Sreenivasulu, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
