Andhra Pradesh

Nellore

CC/73/2013

Ch.Venkateswarulu Reddy - Complainant(s)

Versus

The Manager Corporate Motor Claims - Opp.Party(s)

V.Venkatesh

31 Aug 2015

ORDER

                                                             Date of filing       :  17-06-2013

                                                             Date of disposal  :   31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the  31st day of AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.73/2013

 

Ch.Venkateswarlu Reddy,

S/o.Ramanareddy,

Hindu, aged 50 years,

Lorry AP 26 TT.8429 owner,

Ravulakollu Vilalge,

Atmakur Mandal, Nellore Dt.                                 …         Complainant

 

                      Vs.

                                                                            

The Branch Manager,

Corporate Motor Claims,

Royal Sundaram Alliance Insurance Co.Ltd.,

1^st Floor, Kaizen Haights,

Sunday Market, Nellore-1.                                  …            Opposite party

 

This matter coming on 24-08-2015 before us for final hearing in the presence of Sri V.Venkatesh, Advocate for the complainant and  Sri N.Kodandaramireddy, Advocate for the  opposite party and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

This Consumer case is filed by the complainant against the opposite party to direct him to pay a sum of Rs.4,60,350/- along with interest at 12% from the date of repudiation of the claim till its payment; to grant costs of the complaint to the complainant and pass such other and further reliefs as the Hon’ble Forum may be pleased to deemed it fit and proper in the circumstances of the case.

The factual matrix leading to filing of this complaint is as stated as hereunder:-

I (a) It is the case of the complainant that he is the registered owner of the lorry bearing no.AP 26 TT 8429.  He got the insured the said vehicle with the opposite party under policy no.VGC 0162731000101.  While so, the said policy was in-force, the said vehicle met with an accident on 26-05-2012 at about 22.30 hours on Butchi-Kovur road within the limits of Kovur P.S.  The said matter was reported to Kovur P.S. and a case in crime no.77/2012 was registered under section 338 of I.P.C.  The driver of the said lorry was arrested and later on released on bail.

(b) It is also further submitted by the complainant in para-4 of his complaint that his vehicle (lorry) was badly damaged.  It was informed to the opposite party’s branch at Nellore.  According to the advice of the branch manager of the opposite party, the said vehicle was kept at Sri Lakshmi Lorry body builders, Auto Nagar, Nellore for affecting the repairs of it.  A sum of Rs.4,60,350/- was estimated for the repairs of the said vehicle.  The complainant got spent the said amount and submitted the invoice along with the bills to the opposite party.  Surprisingly, the opposite party in its letter dated 24-09-2012 repudiated the claim of the complainant on the ground that there has been a misrepresentation of facts as regards to the driver of the said vehicle.  There is no substance in rejecting the said claim. Thus, there is a clear negligence in deficiency of service on the part of the opposite party towards the complainant. Hence, this complaint.

   II.  DEFENCE:

The allegations of the opposite party against the complainant as per written version

 

(i) The complaint was resisted by the opposite party in all particulars in their written version by denying the allegations of the complainant in the complaint. The complaint is not maintainable either on facts or in law against the opposite party.  The complainant/petitioner is put to strict proof of his allegations except those which are specifically admitted in the written version.

(ii) It is submitted by the opposite party in para-3 of its written version/counter that complainant is running a commercial fleet business and owns numerous vehicles as they are used for commercial purpose with “profit motive” and while engaging his vehicle for business purpose i.e. for carrying 22 tonnes of Eucalyptus wood logs and therefore complaint in respect of the same not maintainable under section 2(1)(d) of the Consumer Protection Act,  Further the complainant has not pleaded that the carrying on such commercial fleet business was for the earning livelihood which clearly proves that the complainant was using the vehicle for commercial purpose.  It is submitted that commercial transaction with profit motive are expressly excluded from the purview of the definition of “Consumer” as defined under section 2(1)(d) of the Consumer Protection Act, 1986.

(iii)  It is also further submitted that in paras-4and 5 of its written version that the complainant had taken a motor policy No.VGC0162731000101 in respect of Ashok Leyland vehicle No.AP 26 TT8429 from the opposite party valid from 4-6-2011 to 3-6-2012 subject to terms and conditions issued therein.  He had made a claim on  29-05-2012 by stating that a 3^rd party lorry hit the complainant’s vehicle on 27-05-2012 as a result of his vehicle suffered extensive damage.  The driver of the said vehicle is one Mr.S.Prasad Reddy.

(iv)  It is also further submitted that in para 6 of its written version that the opposite party had appointed an investigator cum surveyor M/s.Southern Claim Bureau for investigating the claim as reported by the complainant.  It is further submitted that the investigator upon inspection of the vehicle and discreet investigation noted that the vehicle has sustained extensive damages as the vehicle front portion got mangled into pieces, however the alleged driver of the vehicle Mr.S.Prasad Reddy did not receive any injuries even though the third party vehicle had hit the complainant’s vehicle on the driver’s side i.e., right hand side of the vehicle, however cleaner Mr.Y.Kumar had received crush injuries on the  right leg, it was allegedly that cleaner was sitting on the left hand side of the vehicle.  It is submitted that if alleged driver of the vehicle Mr.S.Prasad Reddy would have been on the wheels at the time of accident then it would have been impossible for him to escape unhurt, however in this instant matter instead Mr.S.Prasad Reddy, it was cleaner Mr.Y.Kumar who had received crush injuries on the right leg.  It is needless to state here that Mr.Y.Kumar was driving the vehicle at the time of accident while the complainant has misrepresented the opposite party by stating that Mr.S.Prasad Reddy was driving the vehicle, as cleaner Mr.Y.Kumar was not holding valid driving license on the date of accident.  It is further submitted that the person driving the vehicle should hold valid and effect driving licenses to make any claim under the policy issued, however cleaner Mr.Y.Kumar did not have a valid driving license to drive the vehicle. It is further submitted that cleaner Mr.Y.Kumar had agreed in writing that on   that day i.e., 27-05-2012 he himself was driving the vehicle which was loaded with Eucalyptus logs and on the way at about 10-30 P.M. near sugar factory the driver of another lorry bearing no.RJ06GA7444 drove rashly as a result the accident occurred. The relevant excerpt of the investigation report is reproduced below for the kind reference of the Hon’ble Forum.

(v) It is also submitted by the opposite party that in paras 7 to 9 of its written version/counter that the person driving the vehicle holds a valid driving license no claim under the policy is admissible and in this instant case since the vehicle was being driven by Mr.Y.Kumar who had no valid driving license the claim of complainant is inadmissible and untenable under law.  As per section 3(1) of the driver driving the vehicle Act driver driving the vehicle should hold a valid and effective driving license, however herein the complainant has not disclosed the name of the driver.  As per the policy terms and conditions of every person 3(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him and authorizing him to drive the vehicle and no person shall so drive a transport vehicle (other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under sub-section 75) unless his driving license specially entitles him so to do.  It is submitted that as per the policy terms and conditions every person driving the vehicle at the time of accident should hold a valid and effective driving license.

        It is also submitted by the opposite party that in paras 10 to 12 of its written version/counter that it is apparent that Mr.Y.Kumar was driving the vehicle at the time of accident and for that reason he got badly injured on his right leg, as his leg got crushed badly.  These facts shows that the complainant has tried to manipulate the facts with driver details and therefore the claim was validly denied as the same is inadmissible under the terms issued.  The person who was driving the said vehicle at the time of accident, did have valid driving license that is reason the complainant is trying to hide the facts from the opposite party.  It is submitted that the opposite party is not liable to indemnify the complainant if the vehicle is used or driven otherwise than in accordance with the limitation as to use.  Therefore this opposite party has very rightly repudiated the claim of the insured vide its letter dated 24-09-2012.  The opposite party appointed a IRDA licensed surveyor Mr.Sreedhar to assess the loss and the IRDA licensed surveyor quantified the loss to the tune of Rs.1,20,000/- and therefore this opposite parties liability in any case cannot exceed the sum assessed by the surveyor herein.  It is vehemently denied that any sum of Rs.4,60,350/- as prayed by the complainant in the complaint is payable as the same is untenable and without any justification.

        It is also submitted by the opposite party that in paras 13 to 16 of its written version/counter that the opposite party is not liable to indemnify the complainant, is the vehicle which is used or driven otherwise than in accordance with the limitation as to use.  It is further denied that the claim amount is Rs.4,60,350/- is payable to complainant as being alleged and the complainant is put to strict proof for the same even otherwise the same is not liable to be paid as there is violation of drivers’ clause by the complainant.  For all the reasons as stated above the claim of the complainant is not payable as the claim was repudiated only after proper application of mind by the opposite party.  Considering the facts of the case, there is absolutely no deficiency in service on account of any delay in repudiation of claim on the part of the opposite party.  There are complicated questions of fact involved in the present case.  Thus, the issues involved in the present complaint require a full-fledged trial by the Civil court and the same cannot be decided by summary procedure as provided under the Consumer Protection Act, 1986.

   There are no causes of action to file this complaint.  No cause of action has ever arisen to file the present complaint against the opposite party and therefore the relief’s claimed cannot be considered/granted and the same deserve to be rejected.  It is submitted that the claim is strictly subject to the terms and the conditions of the policy.  One of the terms of the policy is that the driver of the vehicle must hold a valid driving license at the time of the accident and the claim of the complainant is not payable as the cleaner who not holding valid driving license was driving the vehicle at the time of accident.  It is submitted that this instant case is liable to be dismissed in-limine with costs as the complainant is trying and has not disclosed material facts on the accident.

   It is amply clearly from the above said (supra) that the statutory survey report as given under section 64 UM of the Insurance Act by Insurance Regulatory and Development Authority licensed Surveyor is binding on the complainant.  It is submitted that the claim of the complainant is inadmissible as there is deliberate misrepresentation on the part of the complainant with regard to cause and nature of accident.  Therefore, his complaint may be dismissed as complainant has not proved any deficiency of service on the part of the opposite party.  There is no negligence and deficiency in service.

   In view of the facts and circumstances of the case as detailed above, it is further respectfully prayed that the Hon’ble Consumer Forum that the complaint may kindly be dismissed with costs.

III. The complainant had filed an affidavit as PW1 on 16-06-2014 and marked his documents as Exs.A1 to A6 on his behalf whereas the opposite party had filed its affidavit as RW1 on 13-04-2015 and marked its documents as Exs.B1 to B6.  The complainant has filed his written arguments in support of the case on 24-06-2015.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    party towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V. POINTS 1 AND 2:     In view of these two points are inter-related with each other and depends on them, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.    It is nothing but repetition of them once again in her complaint.  Sri V.Venkatesh, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has further argued that by reiterating the facts of the case once again and further contended that the complainant is the said vehicle-lorry was badly damaged and as per the advice of branch manager, the said vehicle was kept at Sri Lakshmi Lorry body builders, Auto Nagar, Nellore for effecting the repairs.  He has further also urged that the opposite party wrote a letter dt.24-09-2012 by repudiating the claim of the complainant on the ground of mis-representation of facts with regard to the driver of  the said vehicle and insured declared value of the vehicle of Rs.1,20,000/- as per the policy.  Finally, the said learned counsel for the complainant has prayed that the Hon’ble Forum may be pleased to allow the complaint as prayed for.

   On the other hand Sri N.Kodandaramireddy has also vehemently argued that the written version and affidavit may be read as part and parcel of his oral arguments.   He has also further argued that the consumer dispute cannot be decided in summary case of like of this nature, the case is involves complex questions of fact and law.  He has also further contended that driver of the said vehicle is other than the driver, who holds no valid license at all and further more a IRDA licensed Surveyor one Mr.Sreedhar has assessed loss to the tune of Rs.1,20,000/- and therefore the opposite party’s liability in any case cannot exceed the sum assessed by the said Surveyor.  The claim amount is Rs.4,60,350/- too excessive and hypothetical and there is a clear cut violation of driver’s clause by the complainant.  There is no deficiency in service on the part of the opposite party towards the complainant. Finally, the said learned counsel for the opposite party has prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

Forum Findings and observations

   Heard, the learned counsel for the parties and perused the record very carefully.  Parties led their evidence by way of affidavits.  The respective counsels of the parties have submitted their oral arguments.

   It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary.  The order is required to be passed in accordance with justice and equity on the basis of the evidence available on record.  The C.P.Act, 1986 is for the protection of the consumers and matters that are required to be decided by having rationale approach and not technical one.  This is made clear by the Hon’ble Supreme Court of India in the case of  India Photographic Company, Limited Vs.H.D.Shourie, 1996(6) S.C.C.428.  It is also clear from the decision of the Hon’ble National Commission reported in 2006(1) CPR 219 (NC) in the case of Deepak Jaiswal Vs. The Oriental Insurance Company.

    This consumer case is lingering on since two years.

    Justice delivery system by the Consumer Fora should be with utmost promptitude. There is a force in the arguments of the said learned counsel for the complainant.   It is apt to remember at this juncture the decision of Supreme Court namely Dalbir Singh Vs.State of Punjab AIR 1987  SC p 1328,  No hard and fast rule can be laid down about appreciation of evidence – it is a question of act and each case has to be decided on the facts as they stand in that particular case.   This principle is laid down as in no two cases the facts are identical and the court should always keep in mind this aspect.  Further, the principle that the standard of a prudent person to appreciate evidence on commonsense basis and ordinary human probabilities subject of course to any rule of law which prohibits the admissibility of such evidence.

Relevant Case law:

1. In the case Dharmendra Goel Vs. Oriental Insurance Co.Ltd., SLP No:14054 of 2006 decided on 30-07-2008, the Hon’ble Supreme Court had directed payment as per the IDV of the vehicle.

2.  It is held by the Apex court in Dr.J.J.Merchant & others Vs.Shrinath Chaturvedhi – AIR 2002 SC 2931, that “ even if a complaint is said to involve complicated issues party need not be directed to approach Civil Court and that Consumer Forum headed by Judicial authorities are competent to decide complex issues.  A plea that trial by a Forum is summary in nature is not a ground to direct party to a Civil Court”.

3. The Hon’ble Supreme Court’s and Hon’ble A.P.State Commission’s decisions on the topic of compensation:-  The Hon’ble Supreme Court in State of Gujarath Vs.Shantilal Mangaladas, AIR 1969 SC 634 discussed about award of compensation.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of  Chansingh Vs.Healing Touch Hospital and others III(2000) CPJ1 (SC) and also stressed the need of balancing between the compensation awarded recompensing the Consumer and the change it brings in the attitude of the service provider.

4. Report surveyor has got sanctity – 2011(2) CPR 53(NC).

     These decisions are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.  Gannavaram Technical Training centre and another which is reported in I (2015) CPJ page 1 (AP), which awarding compensation to Appellant/complainant.

 

     It is also well settled that every litigation has come to an end ultimately.    Consumer Forum is primarily would function on the principles of natural justice, equity and good conscience.

      Section 14(1)(d)  of the C.P.Act, 1986 deals with the subject of award of compensation. The Supreme Court of India has dealt with the subject of award by consumer Courts in the case of Ghaziabad  Development Authority Vs.Babir Singh, 2004 CTJ 605 (SC)(CP) wherein it has been asserted that”………  Compensation is a recompense for the loss or injury.  It is therefore, necessarily has to correlate with the amount of loss or injury.  

        In view of the facts and circumstances of the case on hand and with regard to points of fact and law, we are of the opinion that the said learned counsel for the complainant has convinced us with his oral arguments of the case.  We have considered the rival submission of the said learned counsel for the parties. There is a lot of deficiency in service on the part of the opposite party towards complainant.  These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT No.3: In the result, the complaint is allowed in part, ordering the opposite party is to pay Rs.1,20,000/- (Rupees one lakh twenty thousand only)(Insured declared value) to the complainant along with interest @9% p.a., from the date of the complaint i.e., 17-06-2013 till the date of realization; and also to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint within one month from the date of the receipt of the order.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of AUGUST,              2015.    

 

 

              Sd/-                                                                          Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

 

  APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

16-06-2014

:

Ch.Venkateswarlu Reddy, S/o.Ramana Reddy, Hindu, aged about    years, lorry owner, residing at Ravulakollu Vilalge, Atmakur Mandal, Nellore District.

 

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

13-04-2015

:

G.Vinay Prakash, S/o.Shri K.Govinda Reddy, aged 32 years, having office at 46, Whites Road, Chennai – 600 014.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	-	:	Copy of estimation of accident lorry No.AP26TT8429-Ashok Leyland model 2010 issued by Sri Lakshmi Lorry body builders, Auto Nagar, Nellore.
Ex.A2	24-09-2012	:	Letter addressed by the opposite party regarding the repudiation of the claim to the complainant.
Ex.A3	29-05-2012	:	True copy of FIR along with representation  given by Lohar Bablu to the S.I. of Kovur P.S. and remand report.
Ex.A4	-	:	True copy of charge sheet filed u/s.338, IPC in Cr.No.77/2012 of Kovur P.S. in the court of Hon’ble Addl.Judl.Magistrate of I Class, Kovur.
Ex.A5       Ex.A6	09-06-2011       23-06-2010 24-06-2010	:       :	Photostat copy of policy schedule (Insurance coverage) issued by the opposite party in the name of complainant.   Photostat copy of certificate of registration of the lorry and national permit issued by transport department, Government of Andhra Pradesh.

 

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1	04-06-2011	:	Photostat copy of the policy bearing No.VGC0162731000101 schedule and its terms.
Ex.B2   Ex.B3     Ex.B4   Ex.B5     Ex.B6	-   11-09-2012 10-08-2012         -   24-09-2012     26-07-2012	:   :     :     :     :	Photostat copy of motor insurance - claim form.   Photostat copy of the investigation report with written statement given by cleaner Mr.Y.Kumar.   Photostat copies of the accident spot photos.   Photostat copy of the claim denial letter addressed by the opposite party to the complainant.   Photostat copy of the statutory survey report issued by the opposite party to the complainant.

 

 

        Id/-                                                                                           PRESIDENT(FAC)

 

Copies to:

 

1. Sri V.Venkatesh, Advocate, Ramalingapuram, Nellore-3.
2. Sri N.Kodanda Rami Reddy, Advocate, Nellore-3.

          

 

Date when order copies are issued: