DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri C.Thyagaraja Naidu, B.Sc., B.L., President
Smt.S.Lalitha, Member, M.A., M.L.,
Sri S.Niranjan Babu, B.A., B.L., Male Member
Tuesday, the 30th day of November, 2010
C.C.NO.114/2010
Between:
S.Mohammad Vali
S/o K.Kaseem Vali
D.No.20/186,
Amberpet Street,
Old Town
Anantapur. … Complainant
Vs.
The Divisional Manager,
Oriental General Insurance Co. Ltd.,
Kalpana Complex, Post Box No.7
Opposite Jonna Iron Mart
ANANTAPUR. …. Opposite party
This case coming on this day for final hearing before us in the presence of Sri G.Kesavaiah, advocate for the complainant and Sri V.Krishna Sharma, advocate for the opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri C.Thyagaraja Naidu, President: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite party to direct him to pay a sum of Rs.58,173/-, which includes the value of vehicle of Rs.21,025/-, interest on Rs.21,025/- @18% p.a. from 13-11-2008 to 23-08-2010 Rs.7,148/-, mental agony of Rs.20,000/- and costs of Rs.10,000/-.
2. The brief facts of the complaint are that: -The complainant is resident of Anantapur Town. The complainant has purchased the vehicle TVS XL Super bearing No.AP-02-S-0883 through M.G.Brothers Automotive Enterprises, Anantapur for valuable consideration of Rs.21,025/- on 02-01-2008 and the same was insured with the opposite party and the opposite party has issued policy bearing No.432400/31/2008/2331 in favour of the complainant valid from 04-01-2008 to 03-01-2009. The said policy covers theft of vehicle also. While so on 13-11-2008 at about 7.30 P.M. the complainant parked the above vehicle in the open place relating to Axis Bank and went into Medical Shop to purchase some medicines. After purchasing the medicines the complainant came and found that his vehicle was stolen by some unknown offenders. Immediately the complainant gave a complaint to the I-Town Police Station, Anantapur and the Police registered the case as Cr.No.304/2008 under section 379 I.P.C. The complainant on 14-11-2008 approached the opposite party by producing copy of F.I.R., Insurance Policy, original R.C. relating to the vehicle and key with a request to pay the policy amount to the complainant. The opposite party directed the complainant to produce final report and promised that they will settle the matter. The complainant submitted referred notice issued by the Police to the opposite party and requested to pay the amount covered under the policy to the complainant. But to his surprise on 31-03-2010 the opposite party directed him to produce original driving licence relating to him to settle the claim. There is no necessity to submit original driving licence to enable the opposite party to settle the claim as the vehicle was committed theft by some unknown offenders. The opposite party is unnecessarily delaying the payment on one pretext or the other. Hence, the complainant having no other go filed this complaint against the opposite party to direct him to pay the amount as claimed in the complaint.
3. The opposite party filed counter and contended that this opposite party asked the complainant to submit all the records F.I.R., Final Report, Non-Traceable Certificate etc.,including driving licence of the complainant. Inspite of repeated requests, the complainant submitted only Xerox copies of F.I.R., Non-traceable certificate and final report only. He has not submitted his driving licence to this opposite party till today for the reasons best known to him only. Having waited sufficient period and also after sending number of reminders i.e. 02-08-2009, 18-09-2009 and 06-01-2010 etc., finally repudiated through its letter dt.31-03-2010 and informed that as it is learnt that the complainant was not holding any kind of driving licence on the date of alleged theft, the claim is repudiated as the policy has issued to him subject to drivers clause as per rule 3 of the Central Motor Vehicles Rules, 1989 only. In view of the clear repudiation of the claim under valid grounds, there is no deficiency of service on the part of the opposite party and the complaint is not maintainable and the same is liable to be dismissed. The claim of the complainant for Rs.58,173/- is highly excessive and exaggerated and the complainant is not entitle for the same or any portion thereof and the complainant is not entitled for interest @18% p.a. as claimed in the complaint and that therefore the complaint filed by the complainant is liable to be dismissed. This opposite party denied other averments and contended that the complaint is liable to be dismissed with exemplary costs.
4. Basing on the above pleadings, the points that arise for consideration are:
1. Whether there is deficiency of service on the part of the opposite party? If so
whether the complainant is entitled in respect of the amount claimed in the
complaint as prayed for from the opposite party ?
2. To what relief?
5. To prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Ex.A1 to A10 documents. On behalf of the opposite party the evidence on affidavit of the opposite party has been filed and marked Ex.B1 to B6 documents.
6. Heard both sides.
7. POINT NO.1 – It is not in dispute that the complainant has insured his TVS XL Super bearing No.AP-02-S-0883 with the opposite party vide policy bearing No.432400/31/2008/2331 and the said policy was valid from 04-01-2008 to 03-01-2009 under Ex.A3 policy. Hence policy covers the risk of theft of the said vehicle.
8. The evidence on affidavit of the complainant is that on 13-11-2008 at about 7.30 P.M. he parked his vehicle in open place of Axis Bank and subsequently he found that his vehicle TVS XL Super bearing No.AP-02-S-0883 was stolen away by some unknown offenders. Immediately he gave complaint to I-Town Police Station, Anantapur and a case was registered in Cr.No.304/08 under section 379 I.P.C. Ex.A4 is copy of F.I.R. On 14-11-2008 he approached the opposite party by producing copy of F.I.R., Insurance Policy, Original R.C. and original key of the vehicle and the opposite party directed him to produce final report and he produced the same before the opposite party. Ex.A5 is copy of referred notice issued by the Police. Ex.A6 is copy of final report submitted by the Police. Surprisingly on 31-03-2010 the opposite party issued letter under Ex.A7 to him to produce original driving licence to settle the claim. Subsequently, he got issued legal notice to the opposite party demanding the payment of the amount to the opposite party with interest. Ex.A8 is office copy of legal notice and Ex.A9 is postal acknowledgement for receipt of the notice by the opposite party. Since the opposite party failed to pay the amount inspite of submitting documents, he has filed this complaint against the opposite party to direct him to pay the amount with interest as claimed in the complaint.
9. The opposite party in his evidence on affidavit has stated that after receiving the information with regard to the theft of the vehicle of the complainant, they have informed the complainant to submit all the required documents i.e. F.I.R., Non-traceable certificate, final report and Non-Transfer Certificate from the R.T.O., Anantapur and the Form No.29,30, 35 duly signed by the complainant and the financier i.e. M/s Indus Ind Bank Ltd., Kurnool letter of subrogation and letter of Indemnity on Rs.200/- and Rs.100/- stamp papers duly notarized alongwith driving licence of the complainant. Inspite of the same, the complainant has not submitted all the required documents, without which the claim can not be processed. They have also sent letter to the complainant on 02-08-2009 requesting him to send the same. Ex.B2 is office copy of the said letter. As there is no response from the complainant, again 1st reminder was sent to him on 18-09-2009. Even for that also, there is no response, II reminder was sent on 06-01-2010 and also informed him that if he has not submitted the required documents, the claim will be closed as no claim. They waited all these days as there is no other go the claim is repudiated and also closed as no claim and the same is informed to the complainant through a letter dt.31-03-2010, which they have also sent suitable reply to the notice issued by the complainant on 09-08-2010 under original of Ex.B6. Therefore, the complaint filed by the complainant is liable to be dismissed as there is no deficiency of service on the part of the opposite party.
10. The counsel for the opposite party contended that since the complainant has not submitted the required documents as sought for by the opposite party, therefore, the opposite party has closed the claim as no claim.
11. As seen from Ex.A7 notice dt.31-03-2010 issued by the opposite party to the complainant, it goes to show that the opposite party requested the complainant to submit the required documents mainly driving licence copy, since theft occurred in the public place whether the complainant brought the vehicle by driving and parked for further processing the claim, but so far the complainant neither responded for their letters nor submitted the required documents. In the above connection, they understood that the complainant is not having valid and effective driving licence at the time of loss of the said vehicle brought into public place and also regret to express their inability to consider the claim as the motor policy issued by them is subject to Drivers Clause as per Rule-3 of the Central Motor Vehicles Rules, 1989 and hence they are constrained to repudiate the claim.
12. Thus, in view of Ex.A7 it clearly goes to show that the opposite party has only asked the complainant to produce the copy of driving licence and as the complainant did not produce driving licence, hence the opposite party has closed the claim of the complainant. Ex.A7 is the last correspondence made by the opposite party to the complainant prior to that the opposite party has sent letters Ex.B2 dt.02-08-2009, Ex.B3 reminder-I dt.18-09-2009 and Ex.B4 reminder-II dt.06-01-2010. Since Ex.A7 is letter dt.31-03-2010, therefore we can safely come to conclusion that the complainant has complied with the requirements as called for under Ex.B2 to B4. Therefore, the contention of the counsel for the opposite party and evidence on affidavit of the opposite party, the complainant has not produce required document as called for under Ex.B2 to B4 can not be accepted.
13. When the vehicle of the complainant was parked in front of Axis Bank and went to the Medical Shop to purchase some medicines and after purchasing the medicines, the complainant found that his vehicle was stolen away by some unknown offenders. Therefore, the question of producing driving licence by the complainant on the presumption of the opposite party that the complainant brought the vehicle by driving the same and that he has to produce driving licence can not be accepted. There is no need for the complainant to produce copy of driving licence. If at all the complainant had claimed insurance amount for causing damage to his vehicle while he was driving the vehicle, then only driving licence of the complainant to be produced. Therefore, the repudiation of the claim of the complainant by the opposite party on the ground that the complainant has not produced his driving licence for processing the claim of the complainant can not be accepted and that it amounts to deficiency of service on the part of the opposite party. Therefore, the opposite party is liable to pay to the complainant a sum assured in the insurance policy under Ex.A3.
14. The contention of the counsel for the opposite party is that the amount claimed by the complainant is excessive; therefore the complainant is not entitled in respect of the amount claimed in the complaint. As seen from Ex.A3 the vehicle of the complainant was insured for Rs.19,900/-as insured’s declared value.
15. In the decision reported in 2010 CTJ 1184 (C.P.) S.C.D.R.C. between Cholamandalam M.S. General Insurance Co. Vs.Mohammad Ibrahim wherein it was held that” in case of theft of insured vehicle, there is total loss. In such situation, the question of depreciation in the insured amount, which is contractual value under Insurance Agreement dos not arise. “ Therefore, in view of the principles laid down in the above decision, the opposite party is liable to pay to the complainant a sum of Rs.19,900/- since the said amount is insured’s declaration value of the complainant for which the complainant has insured his vehicle and the theft of the vehicle of the complainant and the complainant vehicle was committed theft within a period of the insurance coverage since the insurance coverage under Ex.A3 from 04-01-2008 to 03-01-2009. Therefore, considering the said facts and circumstances, the opposite party is liable to pay to the complainant a sum of Rs.19,900/- with interest @ 12% p.a. from the date of repudiation of the claim i.e. 31-03-2010 till the date of realization. Since the complainant is granted interest on the said amount, therefore the question of granting the amount claimed under mental agony does not arise. Accordingly, this point is answered.
16. POINT NO.2 – In the result the complaint is allowed and the opposite party is directed to pay a sum of Rs.19,900/- to the complainant with interest @ 12% p.a. from 31-03-2010 till the date of realization with costs of Rs.2,000/-. The said amount shall be payable by the opposite party to the complainant within one month from the date of this order.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum this the 30th day of November, 2010.
MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES:
-NIL- - NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – Original Vehicle Invoice No.3623 dt.04-01-2008 for Rs.21,025/- issued by M.G.
Brothers Automotive Enterprises, Anantapur in favour of the complainant.
Ex.A2 - Photo copy of Delivery Certificate dt.02-01-2008 issued by M.G. Brothers
Automotive Enterprises, Anantapur.
Ex.A3 – Photo copy of Insurance Policy bearing No.432400/31/2008/2331 issued by the
opposite party in favour of the complainant.
Ex.A4 - Photo copy of F.I.R. in Cr.No.304/2008 of I Town P.S. u/s 379 I.P.C.
Ex.A5 – Form No.96 notice to the complainant issued by the Sub Inspector of Police,
I-Town P.S., Anantapur.
Ex.A6 - Photo copy of Final Report issued by the Sub Inspector of Police, I-Town P.S.,
Anantapur.
Ex.A7 - Repudiation letter dt.31-03-2010 issued by the opposite party to the complainant.
Ex.A8 - Office copy of legal notice dt.19-07-2010 got issued by the complainant to the
Opposite party.
Ex.A9 - Postal acknowledgement signed by the opposite party.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
Ex.B1 - Photo copy of Insurance Policy bearing No.432400/31/2008/2331 issued by the
opposite party in favour of the complainant.
Ex.B2 – Letter dt.02-08-2009 issued by the opposite party to the complainant.
Ex.B3 – Reminder-I dt.18-09-2009 issued by the opposite party to the complainant.
Ex.B4 – Reminder-II dt.06-10-2010 issued by the opposite party to the complainant.
Ex.A5 - Photo copy of postal acknowledgment signed by the complainant.
Ex.A6 - Office copy of legal notice dt.09-08-2010 got issued by the opposite party to
the complainant.
MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR.
Typed by JPNN
