BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Friday the 5th day of December, 2014
C.C.No.01/2013
Between:
Boya Ramanjaneyulu,
Aged about 35 Years,
S/o B.Venkateswarlu,
H.No.12, Nannur Village-518 010,
Orvakal Mandal, Kurnool District. …Complainant
-Vs-
Cholamandala MS General Insurance Company Limited,
Represented by its Manager,
Dare House, 2nd Floor, No.2, N.S.C. Bose Road,
Chennai-600 001. …OPPOSITE PARTy
This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate for complainant and Sri.L.Hari Hara Natha Reddy, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member)
C.C. No.01/2013
1. This complaint is filed under section 11 and 12 of Consumer Protection Act, 1986 praying:-
(a)To pay Rs.1,41,822/- as estimated by the dealer.
(b)To award Rs.50,000/- towards compensation for causing mental agony and for hardship to the complainant.
(c)To award costs of the complainant.
And
(d)To pass such other relief or reliefs as the Honourable Forum may deem fit and proper in the circumstances of the case.
2. The case of the complainant in brief is as under:- The complainant is the owner of the Auto bearing No.AP21 TU 6872 which was insured with opposite party with policy bearing No.3368/00411679/000/00. The policy was in force from 24-12-2010 to 23-12-2011. On 29-08-2011 the said Auto met with an accident and got damaged near NH-7 Laxmipuram Cross Road. Kallur Mandal, Kurnool District. The Ulindakonda Police Station registered a case in Crime No.72/2011 under section 337, 304A IPS. The complainant informed about the accident to opposite party and the opposite party appointed spot surveyor and he inspected the vehicle and submitted his report to the opposite party. According to the instructions of opposite party the complainant shifted the damaged vehicle for repairs to authorized service station Sasya Motors Kurnool. The authorized dealer estimated the loss at Rs.91,822/- and the said estimation is submitted to opposite party. The final surveyor inspected the said vehicle after got it repaired, he received the original bills and submitted along with his report to opposite party. On 24-12-2011 the opposite party issued a repudiation letter stating that the complainant breach the terms and conditions of policy as the vehicle was being driven in breach of seating capacity at the time of accident. So the opposite party denied to pay the assured amount. The allegation of opposite party is baseless. There is deficiency of service on the part of opposite party and cause mental agony and hardship to the complainant. Hence the complaint.
3. The opposite party filed written version stating that the complaint is not maintainable. It is admitted that the complainant / insured took commercial vehicle policy bearing No. 3368/00411679/000/00 with opposite party and the said policy was subsisting at the time of the alleged accident. On intimation about the accident the opposite party appointed a IRDA surveyor to assess the loss. The said surveyor assessed the loss and submitted his report. As per permit, and policy the seating capacity of insured Auto is four in all but according to F.I.R., at the time of accident eight persons were travelling in the said Auto. The said insured was used it against the terms and conditions of policy and M.V. Act. Hence the opposite party is not liable to pay any compensation to the complainant towards his own damages claim.
4. On behalf of the complainant Ex.A1 to Ex.A4 are marked and sworn affidavit of the complainant is filed. On behalf of opposite party Ex.B1 to Ex.B8 are marked and sworn affidavit of opposite party is filed.
5. Complainant filed Written Arguments.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of opposite party?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
Points I and ii: Admittedly the complainant is the owner of Auto bearing No.AP21TU6872. Ex.A1=Ex.B6 is the Registration Certificate stands in the name of the complainant. The complainant insured his Auto with opposite party for the insured declare value of Rs.1,55,000/- under Ex.B1, (photo copy of policy along with booklet bearing No.3368/00411679/000/00). Ex.A2 is the Insurance cover note No.6471461. The policy was in force at the time of accident on 29-08-2011. Admittedly the complainant intimated the same to opposite party and the appointed spot surveyor to assess the loss. The said surveyor assessed the loss and submitted his report. It is the case of the complainant that under the instructing of opposite party the damaged vehicle was shifted to Sasya Motors, Kurnool for repairs. The Sasya Motors estimated the loss at Rs. 91,822/-. It is marked as Ex.A3. After repairs final surveyor inspected the vehicle and submitted report. On 24-02-2011 the opposite party issued repudiation letter with baseless allegation that the complainant violated the terms and conditions of policy, which is marked as Ex.A4.
It is a case of opposite party that there is no dispute, with regard to issuance of the policy under Ex.B1 and alleged accident on 29-08-2011 and the complainant made a claim under Ex.B8 (Claim form). The F.I.R. in Crime No.72/2011 is marked as Ex.B7. The spot surveyor and final surveyor were appointed and submitted report. It is marked as Ex.B3 dated 13-10-2011. The opposite party contended that the insured Auto involved in the accident was being driven against the terms and one of condition of the policy and Motor Vehicle Act and without valid fitness certificate. As per RC, permit and policy the seating capacity of it is four in All but according to F.I.R. and other criminal records at the time of accident 8 persons were travelling in the said Auto. (It is a violation as to “Limitation as to use” of vehicle). So the claim may not be considered for settlement and repudiated under Ex.A4=Ex.B2 dated 24-12-2011. The fitness certificate is marked as Ex.B5. Ex.B4 is the photo copy of Driver Particulars.
9. It is admitted fact that the alleged accident was took place on 29-08-2011 and the time of accident the policy was in subsistence (Ex.B1). On intimation the opposite party appointed spot surveyor and final surveyor to inspect the insured vehicle before and after the repairs. The final surveyor gave his opinion in his report, that the extent of damages corroborates with the stated cause of accident. It is marked as Ex.B3 dated 13-10-2011. The damaged vehicle got it repair in authorized dealer for service station Sasya Motors, Kurnool. The said dealer estimated the same at Rs.91,822/-. Photo copy of estimation dated 08-09-2011 is marked as Ex.A3. After the completion of repairs the opposite party repudiated the claim under section A4 & B2 dated 24-12-2011, on the ground that the complainant used the vehicle against the terms and one of the condition of the policy. The learned counsel appearing for the complainant contended that though there is a violation of policy condition in regard to use of vehicle, the opposite party must settle the claim of 75% on non standard basis to support his version he cited decision reported in 2013 (3) CPR 641 (SC) Amalendu Sahoo -Vs- Oriental Insurance Company Limited. Where in it was held that where condition of policy including “Limitation as to use” of vehicle was breached. The Insurance Company cannot repudiate the claim in toto, they must settle and pay up to 75% of admissible claim as non standard basis United India Insurance Company Limited -Vs- Gian Sigh, 2006 CTJ 221 (CP) (NCDRC), National Commission held that in case of violation or breach of condition of the policy as to the use of vehicle, the claim ought to settle non standard basis National Insurance Company Limited -Vs- Nitin Khandelwal, 2008 (7) SCALE 351 the state commission allowed 75% of claim on non-standard basis and it was upheld by National commission. We consider all material available on record and in the light of above decisions we are of the opinion that the opposite party ought to have settled the claim on non-standard basis. We found there is a deficiency of service on the part of opposite party and caused mental agony the complainant.
10. POINT No.iii:- The complainant claimed a sum of Rs.1,41,822/-. The estimation of loss caused to the insured vehicle is Rs.91,822/- on repaired basis and Rs.50,000/- for mental agony. Whereas the insured declared value was at Rs.1,55,000/-. The IDV is higher than the estimated loss. So the complainant is entitled for Rs.91,822/-. The complainant is also entitled compensation of Rs.5,000/- for mental agony.
11. In the result, the complaint is partly allowed directing the opposite party to pay a sum of Rs.91,822/- as insurance claim to the complainant it is further directed to pay a sum of Rs.5,000/- as compensation towards mental agony and Rs.1,000/- as costs of the case. The time for compliance is one month from the date of receipt of this order.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 5th day of December, 2014.
Sd/- Sd/-
LADY MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite party : Nil
List of exhibits marked for the complainant:-
Ex.A1 RC of the Auto bearing No.AP21 TU 6872.
Ex.A2 Motor Insurance cover note No.6471461.
Ex.A3 Photo copy of Estimation dated 08-09-2011.
Ex.A4 Repudiation Letter dated 24-12-2011.
List of exhibits marked for the opposite party:-
Ex.B1 Photo copy of Motor Policy Schedule Cum Certificate of Insurance
Policy bearing No.3368/00411679/000/00 along with Booklet.
Ex.B2 Photo copy of Repudiation Letter dated 24-12-2011.
Ex.B3 Photo copy of Final Survey Report dated 13-10-2011.
Ex.B4 Photo copy of Driver Particulars
Ex.B5 Photo copy of Form-38 Fitness Certificate dated 05-01-2011
Ex.B6 Photo copy of RC of the Auto bearing No.AP21 TU 6872.
Ex.B7 Photo copy of FIR in Crime No.72/2011 dated 29-08-2011.
Ex.B8 Photo copy of Motor Insurance Claim Form.
Sd/- Sd/-
LADY 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 :
Copy was dispatched on :
