BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Thursday the 31^st day of March, 2011

C.C.No 50/10

Between:

B.Padma, W/o. B.Ravindra,

H.No.40/806, Nehru Nagar, Kurnool, Kurnool District. - 518 004.         

          …Complainant

                                          -Vs-

1. The Divisional Manager,Divisional Office III (CBU), The Oriental Insurance Company Limited,    

    Rosy Towers, 2^nd floor, No.7,Nungabakkam High Road, Chennai-600 034.

2. The Branch Manager,Shriram Transport and Finance Company Limited,

    H.No.40-581-A, 2^nd Floor, S.V.Complex,  Kurnool - 518 003.          

        …Opposite ParTies

This complaint is coming on this day for orders in the presence of Sri P.Siva Sudarshan, Advocate for complainant and Sri N.Isaiah, Advocate for opposite party No.1 and Sri N.Guru Shankaraiah, Advocate for opposite party No.2 upon perusing the material papers on record, the Forum made the following.

    ORDER

(As per Sri. M.Krishna Reddy, Male Member)

                                             C.C. No. 50/10

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying:- 

(a)    To direct the opposite party No.1 to pay Rs.1,88,488/- towards damages with interest at the rate of 24% from the date of accident to i.e. 05-05-2007 till the date of realization;

(b)    To grant a sum of Rs. 50,000/- towards mental agony;

(c)    To grant the cost of the complaint;

1. To grant any other relief as the Hon’ble Forum deems fit and proper in the circumstance of the case.

2.    The case of the complainant in brief is as under:- The complainant

is the  owner of the lorry bearing No.AP21 X 6566.   At the time of Original purchase of vehicle its registration No was KA25 A 9762.  Later it was changed as AP21 X 6566 opposite party No.1 is the insurer and opposite party No.2 is the financier of the said vehicle.  Opposite party No.1 issued insurance policy bearing No.411300/31/2006/241 in favour of the complainant in respect of above said vehicle.  The policy was in force from 05-04-2007 to 04-04-2008.  On 05-05-2007 the vehicle of the complainant is damaged in the accident at Mahaboob Nagar.  The complainant informed about the accident to the opposite parties.  The complainant also submitted claim along with relevant documents to opposite party No.1 through opposite party No.2.  The surveyor appointed by opposite party No.1 estimated the loss at Rs.1,88,488/-.  Inspite of several demands opposite party No.1 did not settle the claim. The complainant got issued a legal notice on 15-09-2009 to the opposite parties.  No reply has been received from opposite party No.1.  Hence the complaint.

3.     Opposite party No.1 filed written version, stating that the complaint is not maintainable.  No policy was issued in favour of the complainant for lorry bearing No.AP21 X 6566. The policy bearing No.411300/31/2006/241 was issued to vehicle No.KA25 A 9762.  The complainant’s lorry was not insured with opposite party No.1. The complainant is not entitled to any claim.   There is no deficiency of service on the part of opposite party No.1.  The alleged accident occurred on 05-05-2007.  The complainant is barred by time.  The complaint is liable to be dismissed.

        Opposite party No.2 filed written version stating that the complaint is not maintainable.  Opposite party No.2 is not a proper and necessary party.  Opposite party No.2 is a financier.  Opposite party No.2 gave finance to the complainant to purchase the vehicle.  The documents received from the complainant regarding to settlement of the claim are forwarded to opposite party No.1.  There is no deficiency of service on the part of the opposite party no.2.  It is opposite party No.1 who is liable to settle the claim of the complainant.  The complaint is liable to be dismissed. 

4.     On behalf of the complainant Ex.A1 to A5 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite parties 1 and 2 Ex.B1 and B2 are marked and sworn affidavits of Senior Divisional Manager Oriental Insurance Company Limited, Kurnool and opposite party No.2 are filed. 

5.     Both sides filed written arguments.

6.     The points that arise for consideration are:

1. Whether the complaint is barred by time.

1. Whether there is deficiency of service on the part of the Opposite Party No.1?

1. Whether the complainant is entitled to the reliefs as prayed for?

(c)                To what relief?

7.      POINT No.1 :  According to the complainant his vehicle bearing No.AP21 X 6566 met with an accident on 05-05-2007 and he filed the present complaint on 26-11-2009 as opposite party No.1 failed to settle the claim.  According to opposite party No.1 the complainant is failed beyond two years from the date of accident and it is barred by time.   The period of limitation to file the complaint under Consumer Protection Act is two year from the date on which the cause of action has arisen.  It is not the case of the opposite party No.1 that it repudiated the claim of the complainant.  According to the complainant claim is pending with opposite party No.1 and that opposite party No.1 has not chosen to repudiate the claim.  The period of limitation starts from the date of repudiation of the claim.  Hence the contention of the opposite party No.1 that the complainant is barred by time cannot be accepted.

8.      Points 2 and 3:-        It is the case of the complainant that he is the owner of the vehicle bearing No.AP21 X 6566 and the same was insured with opposite party No.1.  According to opposite party No.1 the vehicle bearing No.AP21 X 6566 was not insured with it and that under the policy bearing No.411300/31/2006/24, the vehicle bearing No.KA25 A 9762 was insured.  The complainant to show that the vehicle bearing No.KA25 A 9762 was subsequently registered as AP21 X 6566 relied on Ex.B2 form No.24 issued by RTO, Kurnool Andhra Pradesh. In Ex.B2 it is mentioned that the complainant B.Padma is the owner of the lorry bearing No.AP21 X 6566 and the date of registration is 24-02-2007.  It is also mentioned Ex.B2 that original registration No of the said vehicle was KA25 A 9762.  As seen from Ex.B2 it is very clear that the registration No of the vehicle KA25 A 9762 is changed as AP21 X 6566 on 21-02-2007.  The original registration No of the vehicle was KA25 A 9762.  Later on 21-02-2007 the said vehicle is registered as AP21 X 6566.  Admittedly opposite party No.1 issued the policy bearing No.411300/31/2006/241 in respect of the vehicle bearing No.KA25 A 9762 which is subsequently registered AP21 X 6566.  The opposite party No.1 filed Ex.B1 final surveyors report where in it is mentioned that the vehicle bearing No.AP21 X 6566 is that of the complainant that it was insured under the policy bearing No.411300/31/2006/241 and the said policy was in force from 05-04-2007 to 04-04-2008.  The contention of the opposite party No.1 that the vehicle bearing No. AP21 X 6566 and KA25 A 9762 are two different vehicles is not sustainable.

9.     It is the case of the complainant that immediately after the accident she informed about the damage caused to the vehicle to the opposite party No.1 and the opposite party No.1 appointed surveyor.  Opposite party No.1 filed Ex.B1 surveyors report where in it is mentioned that the total liability of the insurer is Rs.67,500/-.  It is also mentioned in Ex.B1 report that the insured produced bills on              01-03-2008 hence there was delay in submitting the report.  The complainant in support of her contention thats he is entitled to damages of Rs.1,88,488/- has not placed any documentary evidence.  As seen from the report of the final surveyor filed by opposite party No.1 it is very clear that the liability of the insurer is only Rs.67,500/-.  Both parties must give due weight to the report of the surveyor.     

10.    It is the case of the opposite party No.1 that there was no deficiency of service on its part and that the complainant is not entitled to the reliefs as prayed for.  As seen from Ex.B1 it is very clear that the surveyor submitted his report on 05-03-2008.   Opposite party No.1 did not settle the claim of the complainant.  According to opposite party No.1 the complainant did not produce necessary documents to settle the claim.  Admittedly before filing of the complaint, the complainant got issued a legal notice Ex.A4 to the opposite parties. Opposite party No.1 received the said notice and gave a reply Ex.A5.  It is simply mentioned in Ex.A5 that the vehicle No.AP21 X 6566 was not insured with the company under the policy bearing No.411300/31/2006/241.  In Ex.B1 report of the surveyor it is clearly mentioned that the vehicle of the complainant was insured with opposite party No.1 and the policy was in force from 05-04-2007 to 04-04-2008.  The opposite party No.1 having appointed a surveyor has not chosen to settle the claim of the complainant even after receiving the final surveyor report there was negligence on the part of the opposite party No.1 in settling the claim of the complainant.   There is deficiency of service on the part of opposite party No.1.

10.    In result, the complaint is partly allowed directing the opposite party No.1 to pay damages of Rs.67,500/- to the complainant, with interest at 9% P.A from the date of the complaint i.e. 26-11-2009 till the date of payment along with cost of RS. 500/-.  The complaint against opposite party No.2 is dismissed.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 31^st day of March, 2011.

Sd/-                                     Sd/-                               Sd/-

MALE MEMBER                      PRESIDENT                 LADY MEMBER

      APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant : Nil                  For the opposite parties : Nill

List of exhibits marked for the complainant:-

Ex.A1        Photo copy of Motor claim form.

Ex.A2.       Photo copy of repairs estimate AP21 X 6566 TATA 2515ZX issued by S.Babu Lorry Body Works, Kurnool.

Ex.A3                Photo copy of letter dated 17-04-2008.

Ex.A4        Office copy of legal notice dated 15-09-2009 along with postal acknowledgement.

Ex.A5        Letter dated 08-10-2009 issued by opposite party No.1 along with registered post cover.

List of exhibits marked for the opposite parties:-

Ex.B1                Motor survey report (Final) dated 05-03-2008 of

S.Ramesh Babu, Insurance Surveyor.

Ex.B2                Form – 24 B-Register of Motor Vehicle No.AP21 X 6566.

          Sd/-                                           Sd/-                                 Sd/-

MALE MEMBER                      PRESIDENT                 LADY MEMBER

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties  :

Copy was made ready on             :

Copy was dispatched on               :