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

Monday the 21^st day of February , 2011

C.C.No 39/10

Between:

D.Ram Mohan Reddy, S/o. D.P.Subba Reddy,

H.No.1-19, Gutluru, Chagalamarri Mandal , Kurnool District.                   

…Complainant

                                -Vs-

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

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

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

    H.No.2-414 A, 1^st floor, TTD Road,Opp: Raj Theatre, Nandyal-518 501,   Kurnool District.                

                   …Opposite  ParTies

        This complaint is coming on this day for orders in the presence of Sri M.Sivaji Rao, Advocate, for complainant, and Sri                   V.V Augustine, 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. 39/10

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying to direct the Opposite party No.1:-

(a)    To pay Rs.55,000/- towards damages with interest at the rate of 24% from the date of accident to i.e. 22-04-2007 till the date of realization;

(b)    To pay a sum of Rs. 30,000/- towards mental agony;

(c)    To pay 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 vehicle bearing No. AP 21 W 5052.  Opposite party No.2 is the financier of the said vehicle.  The complainant insured his vehicle with opposite party No.1.  Opposite party No.1 issued the policy No.411300/31/2007/23676.  The said policy was in force from 25-03-2007 to 24-03-2008.  The vehicle of the complainant was damaged in the accident on 22-04-2007.  A case was registered in Duvvur police station.  After the accident the complainant informed the accident to the opposite parties.   Later he submitted the claim form to opposite party No.1 through opposite party No.2 who is the financier.  The surveyor of opposite party No.1 estimated the loss of Rs.55,000/-.  Even though more than two years is completed opposite party No.1 not paid the assessed amount to the complainant.  The complainant also got issued legal notice on                  18-11-2009.  Opposite party No.1 did not give any reply.  Hence the complaint.

3.     Opposite party No.1 filed written version, stating that the complaint is not maintainable.  It is true that opposite party No.1 issued insurance policy in favour of the complainant in respect of  vehicle No.AP21 W 5052.  Opposite party No.1 not appointed any surveyor in respect of alleged damage to the vehicle in the accident.   No intimation about the accident of the vehicle of the complainant was received by opposite party No.1.  No request for appointment of spot surveyor is received by insurer.  As per column 8(C) of the spot survey report, Sri Ram Transport Finance Company, Proddature made a request directly to the surveyor Sri K.C.Lakshmaiah to make spot survey.  Opposite party No.1 is totally kept out of picture.  No final survey was carried out and no final assessment of the loss was made.  No final survey report is filed.  As per the cash bills filed the Auto was repaired in May, 2007.  If it is so it is not known why reinspection of the auto by surveyor is E.Mukund was carried out one year later in May, 2008.  The cash bills filed by the complainant are false.  Opposite party No.2 has not submitted the required documents regarding the claim.  There is no deficiency of service on the part of opposite party No.1.  The complaint is liable to be dismissed.

4.     Opposite party No.2 filed written version, stating that the complaint is not maintainable.  Opposite party No.2 is not proper and necessary party.  The complainant took Financial Assistance from opposite party No.2 to purchase the vehicle.   The vehicle of the complainant met with an accident on 22-04-2007.  Opposite party No.2 informed about the intimation of the accident to opposite party No.1.  What all the documents received from the complainant were forwarded to opposite party No.1.  There is no deficiency of service on the part of the opposite party No.2.  The opposite party No.2 is not liable.  The complaint is liable to be dismissed.

5.     On behalf of the complainant Ex. A1 to A13 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite party No.1 sworn affidavit of Senior Divisional Manager Oriental Insurance Company Limited, Kurnool is filed.  Opposite party No.2 also filed sworn affidavit.

6.     Both sides filed written arguments.

7.     The points that arise for consideration are:

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 & 2:-  Admittedly opposite party No.2 gave Financial Assistance to the complainant for the purchase of the Auto bearing No.AP21 W 5052.   The said vehicle was insured with opposite party No.1.  Ex.A3 is the copy of the policy issued by opposite party No.1 in favour of the complainant.   Ex.A1 is the registration certificate issued by R.T.O. Nandyal, where in it is mentioned that the complainant is the owner of the Auto bearing No.AP21 W 5052.  It is the case of the complainant that his vehicle met with an accident on 22-04-2007 and that a case was registered in Duvvur police station.  As seen from Ex.A6 it is very clear that Duvvur police registered a case in Crime No.66/2007 on 22-04-2007 under section 337 I.P.C.  In the F.I.R. it is simple mentioned that one lorry dashed against an Auto.  It is not at all there in Ex.A6 that the Auto of the complainant met with an accident on             22-04-2007. The complainant did not choose to file the copy of the charge sheet to establish that his vehicle bearing No.AP21 W 5052 was involved in the accident on 22-04-2007.  Inspite of denial by opposite party No.1 about the accident, the complainant did not choose to establish that the vehicle of the complainant met with an accident on 22-04-2007.

8.     It is the case of the complainant that immediately after the accident he informed about the accident to the opposite parties.   Except affidavit evidence of the complainant and opposite party No.2 there is no independent evidence to show that opposite party No.1 got knowledge about the alleged accident.  It is the case of the opposite party No.1 that it was not informed about the accident to the vehicle of the complainant by any one.  It is also the case of the complainant that the opposite party No.1 appointed a surveyor to estimate the loss caused to the vehicle of the complainant.  Opposite party No.1 denied that it appointed a surveyor to estimate the loss.  The complainant filed Ex.A8 spot survey report dated 27-04-2007.  In the said report it is mentioned that on request of opposite party No.2 the surveyor made survey on 23-04-2007.  Opposite party No.2 no where in its written version stated that it appointed Sri.K.C.Lakshmaiah as a spot surveyor.  It is the case of the opposite party No.1 that no surveyor was appointed in this case as there was no intimation to it about the accident.  In the affidavit evidence of opposite party No.2 also there is no mention that it appointed spot surveyor after receiving the intimation about the accident from the complainant.  It appears that Ex.A8 report is brought up to suit the claim of the complainant.  The complainant did not choose to file at last the affidavit of Sri.K.C.Lakshmaiah to prove to contents of Ex.A8.  The complainant also filed Ex.A11 reinspection report dated           15-05-2008 said have been filed by one E.Mukund insurance surveyor.  According to the opposite party No.1 that E.Mukund was not appointed at all by it as surveyor in this case.  Inspite of denial of appointment of E.Mukund as surveyor, the complainant did not choose to file the affidavit evidence of E.Mukund surveyor to prove the contents of Ex.A11.  Admittedly there is no final surveyor report in the present case.  The complainant filed Ex.A10 copies of cash bills of the year 2007.  If relay the complainant got his vehicle repaired in 2007 it is no known why E.Mukund surveyor made reinspection in May, 2008. 

9.     It is for the complainant to intimate about the accident to the vehicle to the insurer immediately after the accident.  In the present case there is no material to come to the conclusion that the complainant informed about the alleged accident to the opposite party No.1.  It is also not established by the complainant that he sent his claim to opposite party No.1 through opposite party No.2.  The complainant no where in his sworn affidavit stated as to when he sent the claim form to opposite party No.2.  Opposite party No.2 also no where in its affidavit evidence stated the date on which the claim form of the complainant was submitted to opposite party No.1.   The complainant and as well as the opposite party No.1 insurer are bound by the terms and conditions of the policy.  As per the terms and conditions of the policy the insured has to intimate about the accident to the insurer.  As already stated there is no material on record to show that the vehicle of the complainant met with an accident on 22-04-2007 and that opposite party No.1 appointed surveyor to assess the damage.  Opposite party no.1is kept in darkness by the complainant and opposite party No.2.  For the first time the complainant got issued legal notice to opposite party No.1 on 18-11-2009.  Admittedly by that date the vehicle was got repaired.  As the complainant violated terms and conditions of the policy, the opposite party No.1 cannot be made liable for the claim made by the complainant. 

10.    It is argued by the learned counsel appearing for opposite party no.1 that the written version and affidavit of Divisional Manager Oriental Insurance Company Kurnool are filed with out any authorization from the Divisional Manager Oriental Insurance Company Limited Chennai who is opposite party No.1.  Admittedly the sworn affidavit of Divisional Manager Kurnool is filed.  No authorization empowering the Divisional Manager Kurnool, given by opposite party No.1 is filed in to forum.  Merely because the Divisional Manager Oriental Insurance Company Kurnool filed written version and sworn affidavit on behalf of opposite party No.1 the complainant is not entitled to the reliefs.  The complainant relied on a decision reported in 2006 CPJ 1075 (Supreme Court) (C.P).  The said decision is not applicable for the simple reason that opposite party No.1 is not a complainant.  The complainant filed to establish that his vehicle met with an accident on 22-04-2007 and that a surveyor was appointed by opposite party No.1.  Even if the accident is true, the complainant is not entitled to the relifes as she failed to intimate about the accident to the insurer and kept it in darkness till the vehicle was got repaired.  The complainant could not establish that he made a claim to opposite party No.1 and that the said claim is pending with opposite party No.1.  No deficiency of service is found on the part of opposite party No.1.

11.    In the result, the complaint is dismissed.  In the circumstances each party do bear its own costs.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 21^st day of February, 2011.

  
            Sd/-                                                                      Sd/-

MEMBER                                                              PRESIDENT

      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 Certificate of Registration issued

by R.T.O. Nandyal.

Ex.A2.       Photo copy of permit of the vehicle No.AP21 W 5052.

Ex.A3        Photo copy of motor insurance certificate cum policy schedule.

Ex.A4                Photo copy of fitness certificate.

Ex.A5                Photo copy of driving license of G.Laxmanudu.

Ex.A6                Photo copy of F.I.R. No.66/2007 dated 22-04-2007 of

                Duvvur Police Station.

Ex.A7                Photo copy of motor claim form.

Ex.A8                Photo copy of survey report dated 27-04-2007.

Ex.A9                Photo copy of A bench of photos (9).

Ex.A10       Photo copy of bills of repairs.

Ex.A11       Photo copy of reinspection report dt.15-05-2008

of E.Mukund.

Ex.A12       Office copy of legal notice dt.18-11-2009.

Ex.A13       Reply notice of opposite party No.2 dated 20-11-2009.

List of exhibits marked for the opposite parties:- Nill

             Sd/-                                                                                 Sd/-

     MALE MEMBER                                                         PRESIDENT

// 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 :

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