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

Friday the 1^st day of April, 2011

C.C.No.48 /10

Between:

G.M.D.Rafiq, S/o G.Mahaboob Sab,

H.No.6-591, NTR Colony, Adoni - 518 301,Kurnool District.                  

                        …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, Opp. 2 Town Police Station Adoni - 518 301.         

        …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. T.Sundara Ramaiah, President)

                                             C.C. No. 48/10

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.65,370/- towards damages with interest at the rate of 24% from the date of accident to i.e. 07-05-2007 till the date of realization;

(b)    To grant a sum of Rs. 20,000/- 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 3641.   Opposite party No.1 is the insurer and opposite party No.2 is the financier of the said vehicle. Opposite party No.1 issued policy bearing No.411300/31/2007/3828 in favour of the complainant in respect of the vehicle  bearing No.AP21 X 3641.   The policy was valid from 09-05-2006 to 08-05-2007.  On 07-05-2007 the vehicle of the complainant is damaged in the accident that took place on 07-05-2007.  The complainant informed about the accident to the opposite parties and submitted claim form along with relevant documents to opposite party No.1 through opposite party No.2.  The surveyor estimated the loss at Rs.65,370/-.  Inspite of several demands, opposite party No.1 has not settled the claim of the complainant.   On 16-11-2009 the complainant got issued a legal notice to the opposite parties.  Opposite parties received the notices but no reply was given by opposite party No.1.  Hence the complaint.

3.     Opposite party No.1 filed written version, stating that the complaint is not maintainable.  The vehicle of the complainant is insured with opposite party No.1.  After the accident the complainant submitted the claim.    Opposite party No.1 appointed S.N.Venugopal as spot surveyor and one C.Pullam Raju as final surveyor to assess the loss.  The final surveyor assessed the loss at Rs.60,270/- and submitted his report on 30-06-2008.  The complainant not submitted the Original Cash Bills for purchase of spares and English Translation copy of FIR.  In the reply notice got issued by opposite party No.1, the complainant was directed to produce above said documents to settle the claim.  The complainant instead of submitting the said documents filed the present complaint.  There is no deficiency of service on the part of opposite party No.1.  The accident took place on 07-05-2007 and the complaint is filed beyond two years from the date of accident.  The complaint is barred by time.  

        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 A11 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 :  Admittedly the complainant is the owner of the lorry bearing No.AP21 X 3641, Ex.A2 is the copy of Registration Certificate which stands in the name of the complainant.   Admittedly the vehicle of the complainant was insured with opposite party No.1.  Ex.A1 is the policy.  It was in force from 09-05-2006 to 08-05-2007.    It is the case of the complainant that his vehicle was damaged in the accident that took place on 07-05-2007.  Admittedly prior to the filing of the present complaint, the complainant got issued a legal notice to the opposite parties.  Opposite parties received the said notices and opposite party No.1 gave a reply Ex.B1 admitting that the vehicle of the complainant met with accident on 07-05-2007.  According to opposite party No.1 the complaint is filed beyond two years from the date of accident and it is barred by time.  The present complaint is filed on 24-11-2009 two years after the date of the accident.  Admittedly after the accident the complainant preferred claim to opposite party No.1 and the said the claim is pending with opposite party No.1.   Under the provisions of the Consumer Protection Act the period of limitation is two years from the date on which the cause of action has arisen.  The period of limitation starts from the date on which the claim of the complainant is repudiate.  Admittedly the claim of the complainant is pending with opposite party No.1 by the date of filing of the complaint.    Therefore    the contention of the opposite party No.1 that the complaint is barred by time cannot be accepted.

8.      Points 2 and 3:-         The complainant filed the present complaint claiming damages of Rs.65.370/-.  Admittedly after receiving the intimation about the accident opposite party No.1 appointed spot surveyor and final surveyor and they submitted their reports Ex.A5 and A6 respectively.  Opposite party No.1 also filed Ex.B2 final surveyor report.  In Ex.B2 final surveyors report it is mentioned that the net liability of the insurer is assessed at Rs.60,270/-.   The complainant placed no satisfactory evidence to show that he incurred loss of Rs.65,370/-.  The report of the surveyor must be given due weight.  The complainant also filed Ex.A7 reinspection report of the final surveyor where in it is mentioned that repairs were carried out as mentioned in the final survey report. 

9.     It is the case of the opposite party No.1 that the claim of the complainant was not settled as he failed to submit the Original Cash Bills and F.I.R. Translation.  The final surveyor filed his report on 30-06-2008.   The complainant gave a legal notice dated 16-11-2009 to the opposite parties.  Till that time no attempt was made by opposite party No.1 to get the above said documents from the complainant.  For the first time in Ex.B1 reply notice got issued by opposite party No.1 it is mentioned that above said documents are required to settle the pending claim of the complainant.    In Ex.A5 and A7 there is a clear mention about the nature of the accident and the replacement of the spare parts by the complainant in the place of damaged spare parts.   Those documents are not material to settle the claim of the complainant.  Opposite party No.1 neglected to settle the claim of the complainant even though the final surveyor filed reinspection report on 30-06-2008.   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.60,270/- to the complainant, with interest at 9% P.A from the date of the complaint i.e. 24-11-2009 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 1^st day of April, 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 Insurance Policy No.411300/31/2007/3828.

Ex.A2.       Photo copy of Certificate of Registration of vehicle

No.AP21 X 3641 issued by R.T.A, Kurnool.

Ex.A3        Photo copy of Driving License of S.Razak. 

Ex.A4        Photo copy of FIR No.0055 dated 07-05-2007 of Gudibande P.S. Karnataka State.

Ex.A5                Photo copy of Motor Spot Survey report dated 21-05-2007.

Ex.A6                Photo copy of Motor Final Survey report dated 30-06-2008.

Ex.A7                Photo copy of Re-Inspection Survey report

dated 30-06-2008.

Ex.A8        Photo copy of Photos.

Ex.A9                Photo copy of Motor claim form.

Ex.A10       Office copy of legal notice dated 16-11-2009 along with speed post receipt.

Ex.A11       Photo copy of Electricity bill dated 17-11-2009.

List of exhibits marked for the opposite parties:-

Ex.B1                Letter dated 22-02-2010 issued by opposite party No.1.

Ex.B2                Motor Final Survey Report dated 30-06-2008.

         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               :