Karnataka

Bellary

CC-37/2010

KHALEEL AHMED - Complainant(s)

Versus

THE DIVISIONAL MANAGER,M/S ORIENTAL INSURANCE CO.LTD. - Opp.Party(s)

SHRI THIPPESWAMY.K

26 Mar 2015

ORDER

FILED ON: (Remanded)	10-03-2010
ORDER ON:	26-03-2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

 

C.C.No. 37 of 2010

 

Present :

 

 

(1)   Shri. R.Bandachar,

B.Com, LL.B.  (Spl) ……    President

(in-charge)

 

(2) Smt Mary Havila,

B.A.                       ……        Member

 

 

DATED THIS THE 26^th DAY OF MARCH 2015.

 

 

COMPLAINANT     By-Shri.K.Shyamsundar, Advocate, Bellary.       //VS//	Sri. Khaleel Ahamed, S/o S.Allabakshi, Owner of lorry bearing Regn.No.KA-34/9716, R/o D.No.8, W.No.24, Near S.B.M., Cantonment, Bellary.
RESPONDENTS   By-Shri.K.Venkatesh Babu, Advocate, Bellary, For respondent no.1.   Shri M Neelakantareddy, advocate, Bellary, For respondent no.2.	(1)The Divisional Manager, Oriental Insurance Co. Ltd., S.L.V. Towers, 2nd floor, Parvathi Nagar, Main road, Bellary.   (2)Sundaram Finance Ltd., Chennai, rep. by Branch Manager, Sundaram Finance Ltd., Bellary.

 

//ORDER//

 

Per Shri. R.Bandachar.

 

In this case, the complainant filed the complaint against the respondents, U/Sec-12 of Consumer Protection Act 1986.

2.  The complainant’s case is that he is the absolute owner of the tipper bearing Regn.No.KA-34/9716 which was purchased on 06/02/2008 by hypothecating the same to the Sundaram Finance Ltd., and insured with the Respondent no.1 which was valid from 02-02-2009 to 01-02-2010.   The said vehicle of the Complainant on 23-09-2009 while transporting iron ore from S.K.M.P.L. Mines to Janaki Factory met with accident and was fully damaged. The Sandur Police registered the case regarding the accident in Crime No.129/2009.   The complainant got his vehicle transported from the spot of the accident to Bellary with the help of a crane for which he spent Rs.10,000/-.  Thereafter, the complainant submitted claim before the Respondent no.1 with necessary documents and the Respondent no.1 got conducted two surveys and repudiated the claim of the Complainant stating that the value of the vehicle was assessed at lowest. The reason assigned by the Respondent no.1 for repudiation of the claim is baseless and imaginary.  The Bellad & Co. prepared estimation of the repair of the vehicle of the Complainant at Rs.24,58,990/-. The Complainant produced it before the Respondent no.1.  The Complainant’s driver was having valid Driving Licence and the Policy was also in force at the time of the alleged accident. Hence, the Respondent no.1 is liable to pay the compensation to the Complainant.  Hence, the complaint claiming compensation of Rs.19,99,990/-.

3.   The Respondent no.1 filed the written version stating that the Complaint is bad in law and false on facts and the same is not maintainable.   All the allegations made in the complaint, except those which are expressly admitted, are denied.  The contents of Para-1 of the complaint are true and correct.   The contents of Para-2 to 8, 10 and 13 of the complaint are denied as false.   The claim of the Complainant was never repudiated by the Respondent no.1.   The vehicle damaged in the accident can be repaired and used again, as per the surveyor’s report.   The Respondent no.1 has sent the notice dated: 24-09-2009 to the Complainant to furnish the documents and particulars as mentioned in it. But till this day, the Complainant neither gave reply nor complied with the letter.  The allegations made in Para-9 and 11 of the complaint are not correct.  On receipt of intimation of accident, the Company’s Surveyor assessed the loss caused to the vehicle and submitted report. According to it, the net loss assessed was Rs.6,28,000/- and according to the said report, the vehicle can be repaired and it can be used. The Respondent no.1 has not received bills, R.C., D.L., Permit, Tax Paid Receipt, Load Challan, Claim form, FIR/Charge Sheet, Original Invoice etc. and it is the foremost duty of the Complainant to submit all these documents to the Respondent no.1 to settle the claim.  Usually, the  Insurance Company settle the claim once these documents are received. The Complainant has not produced these documents even after notice to cause production of the same.  There is absolutely no deficiency in service on the part of the Respondent no.1. Hence, the complaint be dismissed with exemplary cost.

4.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and he got marked 17 documents as Ex.P.1 to Ex.P.17. On the part of the respondent no.1, the affidavit of Divisional Manager is filed, which is marked as R.W.1 and he got marked 06 documents as Ex.R.1 to Ex.R.6.

5.  This Forum earlier after getting evidence produced by both the parties and after hearing arguments addressed by both sides, partly allowed the complaint filed by the complainant by its order dated: 07-07-2010 ordering the respondent no.1 to pay Rs.8,00,000/- with interest @ 6% p.a. from the date of the complaint i.e.10-03-2010 till realization and Rs.1,000/- towards cost of the proceedings to the complainant.

6.   As against the above said order, the respondent no.1 preferred an Appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore which was numbered as Appeal No.3774/2010 and after hearing the counsel for both sides, the Hon’ble State Commission disposed of the Appeal by its order dated: 18-01-2011 allowing the Appeal by setting aside the order of this Forum and remitted back the case to dispose off  by fresh enquiry and to record its finding after giving opportunity to both litigating parties to lead their additional evidence if any, appellant is permitted to produce surveyor’s report as prayed for.

7.  After remand of the case, the respondent no.2 was impleaded to this proceedings. The complainant filed his affidavits which are marked as Pw.1(a) & P.w.1(a)(i) and got marked 06 documents as Ex.P.18 to Ex.P.23. The respondent no.1 filed affidavit which is marked as R.w.2 and got marked 05 documents as Ex.R.7 to Ex.R.11.  The respondent no.2 filed his affidavit which is marked as Rw.3 and got marked 05 documents as Ex.R.12 to Ex.R.16.

8.  The written arguments are filed by both the parties and the oral arguments addressed by the counsel for both sides are heard.

9.  On the basis of the pleadings of the parties, the points that arise for our consideration are;

 

1.	Whether the complainant has proved that there was deficiency in service on the part of the respondents towards him, as alleged in the complaint?
2.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
3.	What order?

 

 

 

 

 

 

 

 

 

 

 

 

 

10.  The findings on the above points are as under.

 

Point No.1:	In the affirmative.
Point No.2:	Partly in the affirmative.
Point No.3:	As per final order.

 

//REASONS//

Point No.1: -

 

11.   The Hon’ble State Commission has observed at Para-11 of its order in Appeal No.3774/2010 thus;

 

11. Of course the appellant/OP has not produced the surveyor’s report before the DF, though it has mentioned that the surveyor has assessed the loss to the tune of Rs.6,28,000/-.  As could be seen complainant has not disputed the said submission of the OP.  Then what is the basis for the DF to come to the conclusion that complainant entitled for Rs.8,00,000/- compensation is not known.  DF either would have relied on the surveyor’s report or on the claim made by the complainant if at all it is substantiated by producing cogent and consistent evidence both oral and documentary.  As could be seen the DF has not considered both and formed its own estimation about the compensation. Here we find the compensation awarded appears to be arbitrary, it calls for the interference.

12.     In view of the above direction of the Hon’ble State Commission, we consider the said surveyor’s report which is marked as Ex.P.18 in which the surveyor has assessed the net loss at Rs.6,28,000/- towards damages caused to the complainant’s vehicle in the alleged accident. Besides this, as per the request of the complainant, this Forum appointed one Mr.Kuppagal Veeresh, Insurance Surveyor & Loss Assessor, as court commissioner.  The said Surveyor has produced his report which is marked as Ex.P.C-1 in which he assessed the loss at Rs.18,85,034/- towards the damages caused to the complainant’s vehicle.  The Ex.P.C-1 is disputed by the respondent no.1 by filing objections.  The complainant has also not produced the affidavit evidence of the said court commissioner in support of his report.

13.   Since there is lot of inconsistency between the report of the surveyors towards the damages caused to the complainant’s vehicle as well as both parties have not produced any cogent and convincing evidence before this Forum to arrive at proper and justifiable conclusion regarding damages caused to the vehicle of the complainant, the said surveyors’ report Ex.P.18 & Ex.P.C-1 cannot be relied on. Besides this, the respondent no.1 stated that the said vehicle of the complainant was not completely damaged to make it to be fit for scrap and the respondent no.1 further stated that it may be repaired and used once again. However, on perusal of the policy of insurance towards the said vehicle which is marked Ex.P.6, it is found that the IDV of the vehicle in question is Rs.14,17,500/-.

14.  In view of all the aspects discussed above and circumstances of the case, we are of the opinion that it is just and proper to award Rs.8,00,000/- towards damages caused to the vehicle of the complainant in the alleged accident.  Therefore, non-settlement of the said claim by the respondent no.1 amounts to deficiency in service on his part.  Accordingly, this point is answered in the affirmative.

Point No.2:-

15. For the reasons discussed under Point No.1, the complainant is entitled for Rs.8,00,000/- towards damages caused to his vehicle in the alleged accident with interest as well as cost of the proceedings, from the respondent no.1, which shall be as per final order.  Accordingly, we answer this point partly in the affirmative.

Point No.3: -

16. In view of the discussions made on Point No.1 and 2, we pass the following;

 

//ORDER//

The complaint filed by the complainant is partly allowed.

The complainant is entitled to recover sum Rs.8,00,000/- (rupees eight lakhs only) with interest @ 6% p.a. from the date of complaint i.e. 10-03-2010  till realization, from the respondent no.1.

The complainant is also entitled to recover sum of Rs.2,000/- (rupees two thousand only) towards cost of the proceedings, from the respondent no.1.

The respondent no.1 is liable to pay the entire amount ordered and interest to the complainant, within two months from the date of this order.

Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 26th day of March 2015)

 

 

 

	(R.BANDACHAR) PRESIDENT.
	(MARY HAVILA) MEMBER.