Andhra Pradesh
Chittoor-II at triputi
CC/38/2011
V.Nagarajan,S/o. Chandra Sekhar, - Complainant(s)
Versus
The Divisional Manager, Reliance General Insurance Company Ltd., - Opp.Party(s)
Chevireddy Sreedevi
20 Jan 2015
ORDER
Date of first filing:20.04.2011
Date of first disposal:27.10.2011
Matter remanded and case restored on :25.06.2013
Date of disposal:20.01.2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,
TIRUPATI
PRESENT: Sri.M.Ramakrishnaiah, President ,
Smt. T.Anitha, Member
TUESDAY THE TWENTIETH DAY OF JANUARY, TWO THOUSAND AND FIFTEEN
C.C.No.38/2011
Between
V.Nagarajan,
S/o. Chandra Sekhar,
D.No.19-3-2-G10, Srinivasa Puram,
Telugu Nagar,
Adjacent to Hotel Bliss,
Tirupati,
Chittoor District. … Complainant
And
1. The Divisional Manager,
Reliance General Insurance Company Ltd.,
D.No.19-6-27, 2nd Floor,
D.R.Mahal Road,
Tirupati.
2. The Authorized Signatory,
Reliance General Insurance Company Ltd.,
H.No.4-1-327, 4th Floor, Sagar Plaza,
Abids Road,
Hyderabad – 500 001. … Opposite parties.
This complaint coming before us for final hearing on 18.12.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Chevireddy Sreedevi, counsel for the complainant, and S.M.Jhan, counsel for the opposite party No.2, and opposite party No.1 remained exparte, and having stood over till this day for consideration, this Forum makes the following:-
ORDER
DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT
ON BEHALF OF THE BENCH
This complaint is filed under Section-12 of C.P.Act 1986, by the complainant praying the Forum to direct the opposite parties 1) to pay Rs.5,00,000/- towards damages / loss assessed by the surveyor with interest at 18% p.a. from the date of accident i.e. from 15.05.2009, till realization; 2) to direct the opposite parties to pay Rs.20,000/- per month towards rent paid by the complainant from the date of accident, till claim is settled towards deficiency in service; 3) to direct the opposite parties to pay Rs.50,000/- towards mental agony caused to the complainant; 4) to direct the opposite parties to pay Rs.250/- per day, towards parking charges of the damaged car in the workshop of Ford Company at Nellore and to direct the opposite parties to pay the costs of the complaint.
2. The brief averments of the complaint in brief are:- that the complainant is a businessman and looking after the educational institutions. He purchased a Ford car baring registration No.AP-03-S-8330 for his regular use and the same was insured with opposite parties insurance company under policy No.1811782311001937, which is valid from 17.06.2008 to 16.06.2009. The policy is covering the personal risk and 3rd party risk as well and the opposite party is collecting the premium of Rs.13,589/-.
3. That on 15.05.2009 at about 5.30 a.m. on N.H-5, near IBP Petrol Pump, Manubolu Mandal, Nellore District, while the driver of his car proceeding towards Vijayawada, the driver of the lorry going ahead of the car applied sudden brake, due to which the driver of the complainant’s car lost control and dashed the lorry and hit the cement pole, as a result of which his driver by name Kota Subramanyam received head injury and died on the spot. The car also badly damaged and it is still in the workshop at Nellore, and the opposite parties are liable to pay parking charges at Rs.250/- per day as claimed by the Ford Company. The mechanic informed the complainant that the damaged car will not be useful and sustained total loss. The M.V.O.P.No.437/2009 filed by the legal representatives of the car driver Subramanyam, on the file of III Additional District Judge’s Court, Tirupati, was settled before Lok Adalat for Rs.3,80,000/- and the award amount was also deposited by the opposite parties.
4. The complainant informed the opposite parties about the accident and the officials of opposite parties visited the place of accident. The surveyor took photos and noted the damages caused to the car. Immediately, after the accident, the complainant also sent his claim form with relevant documents to opposite parties under claim No.209105011. He also met the opposite parties personally several times at Tirupati. He contacted the opposite parties through phone also, but in vain, as the opposite parties gave evasive replies. The opposite parties did not settle the claim. That the complainant engaged another car for hire due to non-availability of his car and continued his activities. He paid Rs.20,000/- per month towards hire charges. The opposite parties are liable to pay the total damages of Rs.5,00,000/- assessed by the surveyor to the complainant with interest. That the complainant got issued notice dt:18.10.2010 for which the opposite parties neither replied nor complied. The complainant is a consumer within the meaning of Section-2(i)(d) and the dispute is a consumer dispute. There is deficiency in service on the part of the opposite parties. Hence the complaint.
5. The opposite party No.1, remained exparte.
6. The 2nd opposite party filed objections / written version denying parawise allegations made in the complaint and further contended that the accident was occurred due to negligence on the part of the car driver, that the complainant did not submit the claim form within the time stipulated. He also did not submit the surveyor report and documents as per the terms and conditions in the policy. The complainant made delay in sending the surveyor report along with relevant documents. Therefore, the opposite party No.2 is not liable to pay any compensation to the complainant. Complainant is put to strict proof of allegations in respect of rent, parking charges etc. as averred in para.11 of the complaint. That the complainant has not shown any real facts and have not supplied the supporting documentary proof to process his claim. The claim is excessive. There is no deficiency in service on the part of the opposite party No.2. Complainant claim is not within the terms and conditions of the policy and prays the Forum to dismiss the complaint with costs.
7. Complainant and opposite party No.2 have filed their respective evidence affidavits and written arguments as well and got marked Exs.A1 to A15 for the complainant and no documents were marked for opposite party No.2. Heard the counsel for complainant and opposite party No.2. The insurance policy filed by opposite parties marked as Ex.C1, for proper adjudication of the case.
8. Now the points for consideration are:-
(i) Whether there is deficiency in service on the part of the opposite parties?
(ii) Whether the complainant is entitled to the reliefs sought for?
(iii) To what relief?
9. Point No.(i):- In order to answer this point, the complainant is relying on Ex.A1 copy of insurance policy pertaining to the car bearing No.AP-03-S-8330. The policy was in force from 17.06.2008 to 16.06.2009, whereas the accident was occurred on 15.05.2009. Thus it is clear that the accident was occurred while the policy under Ex.A1 was in force. The complainant also relied on other document under Ex.A2 copy of Certificate of Registration pertaining to the car of the complainant. Ex.A3 is copy of FIR and Ex.A4 is M.V.I. report dt:19.05.2009. Ex.A5 is Estimation Report for repairs by Lakshmi Ford, Nellore, dt:11.01.2010. Ex.A6 is the surveyor report dt:16.08.2009. The Motor Vehicle Inspector has inspected the place of accident and damaged car and filed his report under Ex.A4 dt:19.05.2009 i.e. within 4 days after the accident, in which under columns - 9 and 10, the Motor Vehicle Inspector stated that vehicle was not in a condition to conduct road test. Further he inspected the brake system and found it in tact. He opined that accident is not due to any mechanical defect. Ex.A5 is Estimation Report for repairs by Lakshmi Ford, Nellore. The Estimation Report is not from the company with which the car is insured i.e. the opposite parties herein, as such the Estimation Report under Ex.A5 cannot be taken into account in Toto. That too the report was given on 11.01.2010 i.e. about 8 months after the accident. The written version / objections filed by the opposite party No.2 appears to be formal, except denying the parawise allegations of the complaint, no specific case of opposite party No.2 was put-forth. The opposite party No.2 simply mentioned that the complainant has not submitted his claim form in time, however, contended that the complainant did not inform about the accident and did not submit the surveyor report within the time stipulated. Except that, opposite party No.2 did not mention the date on which they received the claim form from the complainant. According to complainant he submitted the claim form and surveyor report as well as photographs of the vehicle under Ex.A13 to the opposite parties immediately after the accident, contrary to it, the opposite parties did not file any scrap of paper to disprove the contention of the complainant that he has filed the claim form and surveyor report as well as the photos of the damaged vehicle immediately after the accident. Except Ex.C1 policy copy relating to damaged car, no other documents were filed on behalf of opposite party No.2. Even according to Ex.C1, there is no specific time stipulated for reporting the accident or making the claim form in the event of any accident, as such the contention of opposite party No.2 that the complainant failed to inform about the accident to the opposite parties within time stipulated cannot be accepted. The opposite parties admitted the purchase of Ford Car bearing No.AP.03-S-8330 by the complainant. They also not denying insuring the vehicle under Ex.A1 policy and the payment of premium of Rs.13,589/- by the complainant. Under Ex.C1 also it is specific that the opposite parties is collecting Rs.800/- towards basic liability premium; Rs.100/- towards compulsory PA covers for owner-driver of CSI; Rs.25/- legal liability to paid driver, cleaner and conductor and package premium (Total A + Total B) Rs.12,094/- and also collecting Rs.1,451/- towards service tax, Rs.29/- towards Education Cess. Thus the total premium of Rs.13,589/- is collected from the complainant. Admittedly, the car driver by name Kota Subramanyam, died on the spot due to accident and another person, who was traveling in the same car at the time of accident was received injuries and died in the hospital while undergoing treatment. Therefore, taking into consideration, the deaths of the persons in the accident, a little bit delay, if any, in filing the claim and submitting the surveyor report etc., in our opinion is not a fatal to the complainant’s case. If any such abnormal delay in reporting the matter, the opposite parties could have placed the same contest in the criminal case in Crime No.65/2009. The wife of deceased Subramanyam (car driver) lodged a complaint on 15.05.2009 itself by 9 a.m. Admittedly, the policy was for the personal risk of the owner as well as 3rd party risk. As per the surveyor’s report, no 3rd party properties were damaged in the accident. The compensation was given to the wife of the deceased in the M.V.O.P No.437/2009 by the opposite parties is only for the death of the driver Kota Subramanyam. So far as the damage of the vehicle i.e. car of the complainant is not so far settled. The opposite parties 1 and 2 being the Insurance Company, with which the Ford Car bearing No.AP-03-S-8330 was insured, are jointly and severally liable to pay the damages. According to the estimation report submitted to them, the Insurance Company cannot absolve from its liability of paying damages. In view of the above facts and circumstances, opposite parties 1 and 2 are found guilty deficiency in service. Therefore, the opposite parties 1 and 2 being the Insurance Company are liable to pay the damages for the loss of the vehicle and also liable to pay the amount towards deficiency in service. Accordingly this point is answered.
10. Point No.(ii):- The Hon’ble State Commission in the appeal order observed that awarding compensation of Rs.4,21,071/- with interest at 9% p.a. without any proof, that the opposite parties contended that no photographs about the accident were filed and that the first formula out of three formulas suggested by the surveyor is advantageous to the Insurance Company. It appears that the Insurance Company also accepted the report of the surveyor but disputing the formulas, whether 1st formula is applicable or 2nd formula is applicable or 3rd formula is applicable. After the case is remanded to this Forum, the evidence affidavits of P.W.2 and 3 were filed i.e. the surveyor, who inspected the vehicle immediately after the accident filed his report under Ex.A6 and another witness is transport operator. Ex.A13 is the photographs and C.D exhibiting the damaged vehicle, quantum of damages and severity of damage to the car bearing No.AP-03-S-8330. In the report submitted by the surveyor under Ex.A6 the parts required with 15% depreciation were listed out and its cost also submitted. In the report three liabilities were set out; one is “liability on salvage less loss basis” in a sum of Rs.3,49,500/-; second one is “liability on total loss basis” in a sum of Rs.3,99,500/- and the last one is “liability on cash loss basis” in a sum of Rs.4,21,071/-. This Forum at the time of disposing of this case earlier on 27.10.2011, the highest estimation was taken into consideration, as it was specifically mentioned the cost of the new parts required for getting the damaged vehicle repaired. In support of this Ex.A6 document, now the evidence of P.W.2, the surveyor is also filed on 29.12.2014. It is pertinent to mention the contents of affidavit of P.W.2. In para.3 of his affidavit P.W.2 stated that “on 15.05.2009 (date of accident) he received a call to his mobile No.9849037677 from one of the officials from the Motor OD claims, department of M/s.Reliance General Insurance Co. Ltd, Regional Office, Hyderabad, to carry out spot survey of the accident occurred insured vehicle bearing registration No.AP-03-S-8330 belongs to the complainant of Renigunta of Chittoor District, Andhra Pradesh. Immediately he rushed to the accident spot located at N.H-05, opposite to IBP Petrol Bunk, Manubolu Mandal of Nellore District and carried out spot survey of the subject vehicle. The details of the vehicle and accident are also given hereunder...., Further, he submitted that after completion of spot survey and the police formalities, the subject vehicle had been shifted to M/s.Lakshmi Ford garage (an authorized dealers for the subject make & model vehicles) in Nellore for repairs. The repairers submitted the repair estimate to the insured for Rs.9,98,377/-”. We have already noted above in para.1 that the said report issued by Lakshmi Ford garage cannot be accepted in Toto. That report was already forwarded by the insured / complainant to the opposite parties. While so, P.W.2, the surveyor further stated that once again the insurer gave telephonic instructions to him to carry out detailed survey or to assess the net loss. On the basis of the said instructions, he has prepared the report under Ex.A6 and submitted the same to Insurance Company. The report is disclosing the net approximate insurers liability on repair basis was worked out to Rs.5,47,094/- as the vehicle was insured for Rs.5,00,000/-. The evidence of P.W.2 remains unchallenged. The opposite parties did not choose to atleast cross examine P.W.2. Therefore, the evidence of P.W.2 coupled with the report under Ex.A6 is sufficient to hold that the complainant has informed about the accident to the opposite parties immediately after the accident, on that information only the opposite parties instructed P.W.2 to conduct spot inspection of the damaged vehicle and submit his report, accordingly Ex.A6 came into existence. Therefore, complainant is entitled to compensation / damages in respect of the damaged vehicle. Therefore, this Forum having considered the report under Ex.A6 awarded earlier a sum of Rs.4,21,071/-, which is “liability on cash loss basis”. Though the opposite party stated before the State Commission that 1st formula is advantageous for them because it is less amount of Rs.3,49,500/- out of the three formulas and that is why perhaps the opposite party might have accepted the 1st formula. All these aspects show that there is no strong contest from the opposite party No.2 (opposite party No.1 since already remained exparte). Complainant, in our view is entitled to compensation and damages.
11. For the reasons best known to the opposite parties, they could not get the insurance policy containing terms and conditions, got marked on behalf of them though filed in the Forum. As it is necessary, the said document is marked as Ex.C1, for proper adjudication of the case. The opposite party No.2 contending that the complainant failed to make the claim and also submit the relevant documents along with surveyor report. Exs.A14 and A15, the reference made there under clearly establishes that claim No.2091105011 dt:15.05.2009 implies that the claim was already made before the opposite parties by the complainant but the opposite parties simply mentioning “the date of loss inspite of claim or presentation of claim”, perhaps it may be with an intention to avoid the claim. As per Ex.A14, the opposite party requested the complainant to furnish the below mentioned documents against which the tick mark was made under Sl.No.4 which required to furnish the ‘repair bills’, except that remaining 13 documents were deemed to have been furnished as they were not required by opposite party No.2. Ex.A14 is dt:28.09.2009, under Ex.A15 dt:25.03.2010, again the opposite arty required to furnish the document under Sl.No.14 i.e. gate pass and consent letter, which were already furnished according to Ex.A14. Therefore, the Insurance Company is intentionally avoiding to furnish the date of claim made by the complainant. Unless the complainant made his claim, the opposite party No.2 has no need to ask for the production of documents under tick mark under Ex.A14 and Ex.A15, which were marked on 29.12.2014.
12. The opposite party No.2, though failed to place any strong contest, raised an objection that the complaint is barred by limitation. Even assuming for a moment that the limitation is to be completed from the date of accident, the accident was occurred on 15.05.2009 at about 5.30 a.m., whereas the complaint is filed on 20.04.2011, within two years from the date of accident. The opposite party though admitted under Ex.A14 and Ex.A15, by referring claim of the complainant, neither the claim was returned nor repudiated nor accepted. In the cases of this nature, if the claim is repudiated, limitation will start from the date of repudiation.
13. The learned counsel for the opposite parties relied on the following decisions of Hon’ble National Commission in 1) R.P.No.2719/2014 dt:18.07.2014 in National Insurance Co. Ltd Vs. Kulwant Singh. This decision is against the case of the opposite party herein and therefore need not be discussed in depth. 2) R.P.No.3101/2013 order pronounced by Hon’ble National Commission dt:01.04.2014 in The New India Assurance Co. Ltd Vs. Shri Rajesh Yadav, which is a theft case of Tata Sumo, the complaint was dismissed by the Hon’ble National Commission holding that complainant had no permit for Delhi and as such find fault with the findings of the District Forum, which allowed the complaint and also findings of the State Commission, which dismissed the appeal filed by the Insurance Company. Their Lordship National Commission further held that the theft of Tata Sumo took place on 18.08.2009, information was given to the Insurance Company on 31.08.2009, that delay in informing the Insurance Company was fatal as it deprived the Insurance Company of its legitimate right to enquire into the alleged theft of vehicle and made endeavour to recover the same and allowed the Revision Petition of the Insurance Company setting aside the order of the District Forum and State Commission and dismissed the complaint.
14. The facts of the above case are not applicable to the facts on hand. In view of the evidence affidavit of P.W.2, the surveyor, who deposed on oath that he inspected the place of accident immediately after the accident on the directions of the Insurance Company and again inspected the damaged vehicle and filed detailed report as per the directions / instructions of the Insurance Company, accident was informed to the police and case also registered under Crime No.65/2009 dt:15.05.2009 itself as shown in Ex.A3 FIR
15. The R.P.No.4166/2011 order pronounced by the Hon’ble National Commission on 29.05.2014 in ICICI Lombard General Insurance Co. Ltd & 2 others Vs. Sh.Pawan Kumar, it is an accident case wherein the vehicle bearing No.HP-37-A-8213, which was insured with opposite party / revision petitioner for a period from 12.12.2006 to 11.12.2007. On 29.09.2007 at about 2.30 a.m. when the complainant was on en-route from Kullu to Hoshiarpur, vehicle met with an accident and suffered damage, police report was lodged in Hoshiarpur and intimation was also given to opposite party, opposite party surveyor inspected the vehicle on 11.10.2007 and assessed the loss of Rs.3,54,661/-, complainant submitted his claim with opposite party but opposite party refused to settle the claim, complainant therefore filed a case before the District Forum against the opposite party alleging deficiency in service. The District Forum dismissed the complaint holding repudiation of claim of the complainant by the opposite party is right on the ground that one Sunny (not complainant) was driving the vehicle without valid driving licence at the time accident. On appeal the State Commission allowed the claim of the complainant and directed the opposite party to pay Rs.2,16,650/- with interest at 9% p.a.. The Hon’ble National Commission allowed the Revision Petition filed by the Insurance Company holding that the driver of the vehicle Sunny was not holding valid driving licence at the time of accident and set aside the order of the State Commission and also dismissed the complaint. The facts are different, not applicable to the facts of the case on hand. In view of our discussion on point No.1 and by the facts and circumstances of the case, we are of the opinion that there is deficiency in service on the part of the opposite parties and the complainant is entitled for the compensation and damages for deficiency in service and this point is answered accordingly.
16. Point No.(iii):- In view of our discussion on points 1 and 2, we are of the opinion that the complainant is entitled to the damages of Rs.4,21,071/- and also entitled to a sum of Rs.1,00,000/- for deficiency in serviced on the part of the opposite parties, that the complainant is also entitled to a sum of Rs.5,000/- towards costs of the litigation.
In the result, the complaint is partly allowed directing the opposite parties 1 and 2 jointly and severally, to pay a sum of Rs.4,21,071/- (Rupees four lakhs twenty one thousand and seventy one only) towards damages of the Ford Car bearing No.AP-03-S-8330 and also to pay Rs.1,00,000/- (Rupees one lakh only) towards deficiency in service committed by the opposite parties and also to pay Rs.5,000/- (Rupees five thousand only) towards costs of the litigation. The opposite parties 1 and 2 are further directed to pay the awarded amounts towards damages and deficiency in service to the complainant within six (6) weeks from the date of receipt of copy of this order, failing which both the amounts i.e. Rs.4,21,071/- and Rs.1,00,000/- shall carry interest at 9% p.a. from the date of complaint, till realization. Rest of the claim of the complainant is dismissed.
Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 20th day of January, 2015.
Sd/- Sd/-
Lady Member President
APPENDIX OF EVIDENCE
WITNESS EXAMINED ON BOTH SIDES
PW-1: V.Nagarajan S/o. Chandra Sekhar (Affidavit filed)
RW-2: Banda Bhojaraju(Affidavit filed)
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S
Ex-A1. | Photocopy of Insurance Policy of Private Car with Registration No.AP.03/S-8330 for ID value of Rs.5,00,000/- valid from 17.06.2008 to 16.06.2009. |
2. | Photocopy of Certificate of Registration in favour of the complainant for the vehicle No.AP.03/S-8330 validating up to 24.08.2021 issued by Additional Registering Authority, Tirupati. |
3. | Photocopy of F.I.R in crime No.65 of 2009 of Manubolu P.S., Nellore District. Dt: 15.05.2009. |
4. | Photo copy of accident report from the M.V.Inspector. Dt: 19.05.2009. |
5. | Report of estimates for the repairs of Ford accident vehicle issued by Lakshmi Ford, Nellore in favour of the complainant. |
6. | Surveyor Report L.C. Rami Reddy assessing net loss Rs.5, 47,094/- to the damaged vehicle. Dt: 16.08.2009. |
7. | Office copy of legal notice issue by the complainant to the opposite parties with two postal receipts. Dt: 18.10.2010. |
8. | Acknowledgement Card. Dt: 13.12.2010. |
9. | Rent receipt for a sum of Rs.4,60,000/- issued by Srivari Travels & hire bus operations, Tirupati. Dt: 22.03.2011. |
10. | Photo copy of Driving License of the driver of the car bearing No.AP.03/S-8330. |
11. | Final Report in Crime No.65 of 2009 of Manubolu P.S., Nellore District. |
12. | Letter issued by the Lakshmi Ford Company, Nellore to the Complainant. Dt: 08.04.2011. |
13. | Bunch of Photographs (9) along with C.D on behalf of complainant. |
14. | Letter Dt: 28.09.2009 filed on behalf of the complainant. |
15. | Letter Dt: 25.03.2010 filed on behalf of the complainant. |
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
-NIL-
Ex.C1 | Copy of the policy with terms and conditions. |
Sd/-
President
// TRUE COPY //
// BY ORDER //
Head Clerk/Sheristadar,
Dist. Consumer Forum-II, Tirupati.
Copies to:- 1. The Complainant.
2. The opposite parties.
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