Andhra Pradesh

Chittoor-II at triputi

CC/8/2017

Kuncha Govindarajulu, S/o Chinnamunaswamy, 60 years - Complainant(s)

Versus

The Manager, Cholamandalam MS General Insurance Co. Ltd., - Opp.Party(s)

K.S.R.B. Gopichand, G.Damodaram Naidu

21 Oct 2017

ORDER

Filing Date: 31.12.2016

Order Date:21.10.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

SATURDAY THE TWENTY FIRST DAY OF OCTOBER, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.08/2017

 

 

Between

 

 

Sri Kuncha Govindarajulu,

S/o. Chinnamunaswamy,

D.No.21-147, Kota,

Chandragiri,

Chandragiri Mandal,

Chittoor District,

Andhra Pradesh.                                                                               … Complainant.

 

And

 

 

1.         The Manager,

            Cholamandalam MS General Insurance Co. Ltd.,

            2^nd Floor, Dare House,

            2 NSC Bose Road,

            Chennai – 600 001.

 

2.         The Branch Manager,

            Cholamandalam MS General Insurance Co. Ltd.,

            D.No.19-4-121/13/D1, 2^nd Floor, 19^th Ward,

            STV Nagar,

            Tirupati – 517 501.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 05.10.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.K.S.R.B.Gopichand, Sri.G.Damodaram Naidu, counsel for complainant, and opposite parties remained exparte, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed by the complainant under Sections –12 and 14 of C.P.Act 1986, against the opposite parties 1 and 2 for the following reliefs 1) to direct the opposite parties, to pay the insured amount of Rs.9,69,293/- towards damages with interest at 24% p.a., 2) to direct the opposite parties to pay a sum of Rs.50,000/- for deficiency in service on the part of the opposite parties, 3) to direct the opposite parties to pay Rs.10,000/- towards physical and mental agony caused to the complainant, and 4) to direct the opposite parties to pay Rs.5,000/- towards litigation expenses.

2. The brief averments of the complaint are:-  That the complainant purchased Maxi Cab (Tempo Travels) bearing No.AP-03-TB-7389 on finance from Indus Ind Bank Ltd., Tirupati, and the vehicle is insured with opposite parties under policy No.3373/00417320/000/00 for one year from 22.10.2014 to 21.10.2015 midnight. While proceeding from Tirupati to Rajahmundry on 20.07.2015, at about     4 a.m., his vehicle met with an accident by hitting road side “under tunnel culvert”, as a result of which, the vehicle was badly damaged. One Kayam Muni Kumari, lodged a complaint in Chebrole Police Station, West Godavari District, A.P., and a case in Crime No.125/2015, was registered under Section-337 IPC, and took-up investigation and filed charge sheet against the driver of the cab under Section-304.A, 338 and 337 IPC. That the complainant intimated the same through his son by name Diwakar to opposite parties 1 and 2 over phone on 20.07.2015 at about 12.30 p.m. On 21.07.2015 at about 10 a.m., the authorized persons of the opposite parties visited the place of accident, their surveyor also prepared report of damages to the complainant’s vehicle. The Chebrole police have handed-over the vehicle to Diwakar, son of complainant, as the complainant fell sick. The vehicle was shifted from Chebrole to Tirupati, in a lorry by paying shifting charges of Rs.20,000/-. He kept the vehicle in Sri Durga Motors Show Room, Renigunta Road, Tirupati. The surveyor of the opposite parties inspected the vehicle, enquired the show room people in respect of damages to the vehicle and prepared the report assessing the loss and damages. Again after 1^1/2 month, one surveyor by name Rajesh visited the showroom and enquired the manner of accident with the driver and others and left the place. Thereafter the complainant made several representations for realization of the insured amount, but the opposite parties instead of discharging their liability in making insured payment dodging the matter. On 22.10.2015, the opposite parties gave letter expressing their inability to consider the claim and repudiated the claim of the complainant, without any justification on the ground that the complainant has violated the terms and conditions of the policy, that 16 persons were travelling in the vehicle by the time of accident under the clause “Limited to use”. Thus, there is deficiency in service on the part of the opposite parties. The complainant is entitled for the repair expenses of Rs.6,69,293/- incurred for the repairs of the damaged vehicle. By using the vehicle for hire, he used to get Rs.20,000/- per month, due to damage of the vehicle, he sustained loss for 14 months from 20.07.2015 to 20.09.2015 (as per complaint), and claimed the loss in a sum of Rs.2,80,000/-, and also claimed shifting charges of Rs.20,000/-, altogether he claimed a sum of Rs.9,69,293/-. The complainant insured the vehicle for Rs.10,00,000/-. Hence the complaint.

3.  The opposite parties 1 and 2, remained exparte.

4.  Complainant filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A15.

5.  Now the points for consideration are:-

(i).  Whether the repudiation is justified?

(ii). Whether the complainant is entitled for the reliefs sought for?

(iii). To what relief?

6.  Point No.(i):- Before answering this point, the admitted facts are that there is no dispute with regard to ownership of the vehicle, insurance of the vehicle with the opposite parties for Rs.10,00,000/- under policy No.3373/00417320/000/00 in favour of the complainant, that the policy is in force by the time of accident of the vehicle bearing No.AP-03-TB-7389 on 20.07.2015. No dispute with regard to damages to the vehicle, inspecting the vehicle after accident by the surveyor of opposite parties.

7.  The opposite parties though notices were served on them, and made their appearance through their counsel on 28.02.2017, did not choose to file their written version till 25.04.2017, on which date they were set exparte. Later on 19.05.2017, the opposite parties filed petition under Order-IX, Rule-7 CPC in I.A.No.37/2017, along with written version and affidavit of their counsel, and the same was dismissed on merits holding that this Forum has no power to set aside the exparte order dt:25.04.2017, as was held by their Lordships of the Hon’ble Supreme Court in (2011) 9 SSC case 541 Rajeev Hitendra Pathak and others Vs Achyut Kasinatha Karekar and another. So far, that order was not challenged by the opposite parties as per record.

8.  The report of the surveyor A.Ravindranth Reddy dt:03.10.2015 shows the gross total assessment amount as Rs.4,16,895-85 and net liability of the insurer is shown as Rs.3,00,000/-. This report dt:03.10.2015 filed by the opposite parties along with the petition under Order-IX, Rule-7 CPC, which was dismissed, and the said order was not challenged by the opposite parties so far.

9.  The claim made by the complainant is 1) repair expenses for his damaged vehicle is Rs.6,69,293/-, 2) loss of income for 14 months from 20.07.2015 to 20.09.2015 (only 2 months), as shown in para.6 of the complaint @ Rs.20,000/- per month, that total amount is shown as Rs.2,80,000/- towards loss, and the towing charges of Rs.20,000/-, totaling his claim in a sum of Rs.9,69,293/-. Since, there is no contest from the opposite parties, the case can be disposed-off on the basis of record available. Though the complainant claimed a total sum of Rs.9,69,293/-, he failed to file any document or proof to show that he is getting a sum of Rs.20,000/- per month by using the vehicle for hire and that he sustained loss for 14 months as contended by him, since it was mentioned in the complaint at para.6 that he sustained loss from 20.07.2015 to 20.09.2015, which shows two months only, even for the said two months also no proof is filed. So, in view of the absence of any proof, the amount of loss cannot be accepted. Therefore, considering the complainant’s case, as well as report submitted by the opposite parties surveyor, the vehicle damages, as claimed by the complainant in a sum of Rs.6,69,293/- can be accepted. The repudiation letter under Ex.A10 shows that the opposite parties have repudiated the claim of the complainant only on the ground that 16 passengers were travelling in the vehicle by the time of accident, which was not established by the opposite parties with any other evidence. As per the charge-sheet under Ex.A8, only 14 persons were travelling in the vehicle by the time of accident. Therefore, repudiation of the claim of the complainant, by the opposite parties is only on baseless and flimsy grounds, that the complainant has violated the terms and conditions by allowing 16 persons to travel in the vehicle, as against the “Limited to use” is unjust. Though Sri Durga Motors has given a quotation under Ex.A9 for Rs.12,59,268/-, and also another sum of Rs.1,28,000/-, the complainant is claiming only exact repair charges that were incurred by him for getting his vehicle repaired. Therefore, to that extent a sum of Rs.6,69,293/- can be given to the complainant. As there was no material or cogent evidence to prove that the complainant has violated the terms and conditions of the policy or that by the time of accident there were 16 passengers in the vehicle in question, the repudiation of claim, in our opinion is not justified. Accordingly, this point is answered.

10. Point No.(ii):-  The complainant apart from the repair expenses of Rs.6,69,293/-, claimed another amount of Rs.2,80,000/- towards loss said to have been sustained by him, but his complaint itself is against this claim, as he has mentioned the dates in para.6 of his complaint, in respect of the loss said to have sustained by him, as “from 20.07.2015 to 20.09.2015” i.e. only 2 months, that too, without filing any proof that he used to earn Rs.20,000/- per month by using his vehicle for hire purpose. Therefore, the claim of Rs.2,80,000/- cannot be considered. His claim of Rs.6,69,293/- was duly supported by the bills under Ex.A11. He has not filed the proof of payment of Rs.20,000/- towards towing charges also. Under the above circumstances, we are of the opinion that the complainant is entitled for repair charges of the vehicle in a sum of Rs.6,69,293/-, he is also entitled for a sum of Rs.25,000/- towards deficiency in service and Rs.10,000/- towards mental agony caused to the complainant, and Rs.2,000/- towards costs of the litigation. Thus, the complainant is entitled for a total sum of Rs.7,06,293/-. Accordingly, this point is answered.

11.  Point No.(iii):-  In view of our holding on points 1 and 2, we are of the opinion that the complainant has established that repudiation orders passed by the opposite parties under Ex.A10 is unjust, and that he is entitled for the repair charges of Rs.6,69,293/- and for deficiency in service and also for mental agony and costs of the compliant as mentioned supra and complaint therefore is to be allowed accordingly.

In the result, complaint is allowed in part directing the opposite parties 1 and 2 jointly and severally to pay a sum of Rs.6,69,293/- (Rupees six lakhs sixty nine thousand two hundred and ninety three only) towards repair charges with interest at 9% p.a. from the date of repudiation dt:22.10.2015, till realization, that the opposite parties also directed to pay Rs.25,000/- (Rupees twenty five thousand only) towards deficiency in service, Rs.10,000/- (Rupees ten thousand only) towards mental agony caused to the complainant, and Rs.2,000/- towards costs of the litigation. The opposite parties 1 and 2 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the amount awarded towards deficiency in service and mental agony in a total sum of Rs.35,000/- shall also carry interest at 9% p.a. from the date of this order, till realization.

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 21^st day of October, 2017.

 

       Sd/-                                                                                                                      Sd/-                                      

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

 

 Witnesses Examined on behalf of Complainant/s.

 

PW-1: Kuncha Govindarajulu (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

-NIL-

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of R.C. bearing Registration No.AP03 TB 7389 stands in the name of the Kuncha Govindarajulu(Petitioner/Complainant) issued by the RTO Authority, Tirupati filed by the petitioner/complainant.
	Photo copy of policy of the vehicle maxi cab bearing No.AP03 TB 7389 issued by the opposite parties filed by the complainant. Dt: 21.10.2014.
	Original Fitness Certificate issued by the Govt. of A.P. Transport Department to the vehicle maxi cab bearing No.AP03 TB 7389 filed by the complainant. Date of Issue: 29.10.2013.
	Photo copy of Driving License of P.Suresh issued by the RTA filed by the complainant. Date of Issue: 07.11.2009.
	Original copy of pollution under control certificate of the vehicle maxi cab bearing No.AP03 TB 7389 filed by the complainant. Dt: 10.07.2015.
	True copy of the FIR in Crime No.125/15 under Section 337 IPC of the Chebrole P.S, W.G. District , filed by the complainant. Dt: 21.07.2015.
	True copy of the altered FIR in Crime No.125/2015 from Sec. 337 to alter 304(A), 337 IPC of the Chebrole P.S., W.G. District, filed by the complainant. Dt: 21.07.2015, 10.08.2015.
	True copy of the charge sheet filed U/s 173 CR. P.C against the accused U/s 304(A), 338, 337 IPC in CR.No.125/15 of Chebrole Police Station filed by the complainant.
	Photo copy of the Quotation for Rs.12,59,268/- for the repair and Labour Charges for Rs.1,28,000/- for repair of vehicle maxi cab bearing No.AP03 TB 7389 issued by Sri Durga Motors, Renigunta Road, Tirupati filed by the complainant. Dt: 23.07.2015.
	Photo copy of the letter. Dt: 22.10.2015 issued by the opposite party to the complainant filed by the complainant.
	Original Bills in Nos.23 for Rs.6,69,293/- for repair of the damaged vehicle AP03 TB 7389 filed by the complainant.
	Damaged vehicle AP03 TB 7389 photos in bunch along with C.D. filed by the complainant.
	Legal Notice, dated 28.11.2016 to the opposite parties No.1 and 2 along with postal receipts filed by the complainant.
	Acknowledgements of the opposite parties No.1 and 2 filed by the complainant.
	Original Permit issued by Govt. of A.P. Transport Department to the vehicle maxi cab bearing No.AP03 TB 7389 filed by the complainant. Dt: 07.11.2013.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

-NIL-

    

 

                                                                                                                                     Sd/-  

                                                                                                                      President

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

              

 

Copies to:-     1.  The complainant.

                        2.  The opposite parties.