Tamil Nadu

North Chennai

CC/08/2022

K.Ramachandran,S/o.Kandasamy - Complainant(s)

Versus

The Manager Reliance General Insurance Co.Ltd - Opp.Party(s)

M/s.A.A.Venkatesan

29 Jan 2024

ORDER

 

Complaint presented on  :29.09.2021    Date of disposal            :29.01.2024

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

                    TMT. KAVITHA KANNAN,M.E.,                : MEMBER-1

                               THIRU V. RAMAMURTHY, B.A.B.L., PGDLA       : MEMBER II

 

 

C.C. No.08/2022

 

DATED THIS MONDAY THE 29th DAY OF JANUARY 2024

 

K.Ramachandran,

S/o.Kandasamy,

Plot.No.C-120, Iron & Steel Market,

Saathangadu, Chennai-600 068.

                                                                             .. Complainant.                                                                           ..Vs..

 

 

The Manager,

Reliance General Insurance Co.Ltd,

‘H’ Block, 4^th Street,

D.No.12, H-2035, 15^th Main Road,

Anna Nagar (West)

Chennai-600 101.                                                                       ..  Opposite party.

 

 

 

Counsel for the complainant                      : M/s. A.A.Venkatesan,

Counsel for   opposite party                     : M/s.Elveera Ravindra and S.Ponraj

 

 

 

ORDER

THIRU. V. RAMAMURTHY, B.A., B.L., PGDLA, MEMBER

          This complaint has been filed by the complainant against the opposite party under section 35 of the Consumer Protection Act, 2019 prays to directing the Opposite party to pay as compensation for the gross negligent and deficiency in the services provided by the opposite party, a sum of Rs.10,00,000/- with 12% interest per annum from the date of filing of this complaint and till the date of payment or realization and cost of the complaint.

1.THE COMPLAINT IN BRIEF:

The complainant submits that he is the owner of the Lorry bearing Regn. No. TN-04-AW- 9333 and insured with the above said vehicle with the opposite party insurance company under the policy No. 120322023340040830 and it is valid from 14.11.2020 to 30.11.2021 and the said policy is a commercial vehicle package policy and it covered own damage claim and third party claim.  On 02.06.2021 at about 2.30 pm while the driver was driving the Lorry along the Kavarapettai Sathiyavedu road with loaded steel coils and tied properly with lashes, the driver of the said lorry suddenly applied the brake to avoid the accident by hitting the unknown pedestrian who was suddenly crossed the road and in the process the lashes were cut off and the steel coil was rolled towards in front side of the lorry and hit the cabin of the lorry and caused heavy damages. Immediately accident was intimated to the nearest Kavarapettai police station and CSR filed P.No. 193/2021.  The complainant further states that he had immediately intimated the accident to the office of the opposite party on the same day over the phone and claim was registered. The damaged Lorry was brought to the popular Mega Motors Garage for repair. On 03 06.2021 as per the instruction given by the claim officer of the opposite party over phone, the said carriage gave a repair estimation bill for a sum of Rs.6,61,886/- to the complainant.  The complainant further states that he had submitted an OD claim Form to the office of the opposite party. The surveyor of the opposite party inspected the vehicle at the garage at Madhavaram couple of days after the lorry met with the accident.  The Surveyor did not properly examined the Lorry and he did not explain how the accident took place and he could not understand how the vehicle was able to travel too much distance from loading point safely, unless safety measures are followed during the vehicle was loading at the warehouse.  The surveyor has lethargically filed the report without applying his mind properly that the damages are caused due to shifting of the load in forward direction.  The complainant further states that the surveyor statement is wrong and against the principle of law and the damages caused to the lorry only due to the above said accident which took place on the public Road. The surveyor report is not acceptable either on law and or in facts and it should be rejected.  On the basis of the surveyor report the opposite party had rejected the claim form which is unreasonable and the opposite party had violated the policy conditions.  The complainant states that the said lorry was fully covered with package policy which included OD claims and third-party claims. In policy Own damages - section 1 basic OD covers for all parts of the Lorry including Lamps, tire tubes, Mudguard Bonnet side parts, etc. the front jeep portion of the said Lorry was badly damaged due to the accident, the said lorry was newly registered on 01.12.2019.  The complainant states that the opposite party has rejected the claim without any valid reasons and the surveyor is meant only to assess the cause of damages to the vehicle, he is not the authentic person to give conformation and damage caused to the vehicle. As per the policy condition the opposite party is liable to pay own damages claimed by the complainant.  The complainant further stated that opposite party had rejected the claim form and committed dereliction of duty and failure and neglect to rectify the same and the complainant suffered losses and incurred expenses. The garage issued the bill for repairing charges of the Lorry to the complainant and the complainant had paid the repair cost for sum of Rs.5,10,114/- to the garage on31-07-2021.In the above said circumstance the complainant submits that due to deficiency and negligence of services provided by the opposite party, the complainant is entitled to claim compensation to the tune of Rs. 10,00,000/- with 12% interest from the date of filing of this complaint from the opposite party for causing financial loss, hardships and for mental agony and pain to the complainant.  Hence this complaint.

2.WRITTEN VERSION OF OPPOSITEPARTY IN BRIEF:

The opposite party submits that the present complaint is not maintainable either in law or on the facts of the case. This opposite party submits that the complainant is not a consumer as envisaged under the Consumer Protection Act. Hence the present claim is not maintainable before this Commission and deserves to be dismissed.  The opposite party hereby denies all the allegations made in the complaint, except those that are specifically admitted herein, and the complainant is put to strict proof of the same.  This opposite party is not traversing paras 1 & 2 of the complaint as it a description of the parties to the dispute and the complainant is put to strict proof of the same. The opposite party puts the complainant to strict proof of the allegations made in para 3 of the complaint regarding the issue of policy of insurance. In any event it is submitted that the complainant admitted that he owned a commercial vehicle bearing No. 04 AW 9333.The opposite party puts the complainant to strict proof of the allegations made in para 4 that on 02/06/2021 at about 2.30 pm while the driver was driving the lorry along the Kavarapettai Sathiyavedu Road with loaded steel coils and tied properly with lashes, the driver of the said lorry suddenly applied the brake to avoid hitting an unknown pedestrian who was suddenly crossing the road, at that time the lashes were cut off and the steel coil was rolled towards the front side of the lorry and hit the cabin of the lorry and caused heavy damages. According to the complainant a CSR was filed.   In any event the CSR does not corroborate the cause of the accident as stated in the complaint.  The opposite party puts the complainant to strict proof of the allegations made in para 5 that he immediately intimated the accident to the opposite party and a claim was registered and that the damaged lorry was brought to the popular Mega Motors Garage for repair and that on 03/06/2021 as per the instruction given by the opposite party, the said carriage gave a repair estimation bill for Rs 6,61,886/- which is false even to the knowledge of the complainant. The opposite party puts the complainant to strict proof of the allegations made in para 6 that the surveyor appointed by the opposite party did not apply his mind while issuing the survey report. This opposite party submits that the complainant is now coming forward with a wild allegation which is not true even to his knowledge and which he is now alleging and had not made a whisper earlier.  The opposite party puts the complainant to strict proof of the allegations made in para 7 that the opposite party had rejected the claim only on the application of mind to the facts and circumstances of the case and in fact the opposite party vide their letter 02/07/2021 had clearly informed the complainant that as per Section 1 of the Policy the company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon by external means. However the loss sustained in the present case is not payable as it does not fall within the scope Policy, Terms and Conditions as it is observed that the damages to the cabin which are being claimed are not due to any accidental external means. As per the intimation made by the complainant and the surveyor confirmation, the damages are due to shifting of the load in forward direction resulting in the damages to the vehicle. Hence the claim was repudiated. The opposite party submits that the claim is baseless and is only a useless attempt by the complainant who is now trying to cover his serious lapses. The opposite party submits that ignorance is no excuse in law. The opposite party puts the complainant to para 8 of the policy and is in stark contradiction of the averments stated in the CSR. The complainant is blowing hot and cold at the same time and is inconsistent. Hence no statements made by the complainant can be relied upon.  The complainant is put to strict proof of the allegations made in paras 9 and 10 and submits that the claim was repudiated as per the terms and conditions of the policy. Further the complainant had not uttered any lethargy or other infirmities on the part of the surveyor which is being brought now. The complainant is put to strict proof that the cost of repair is Rs. 5,10,114/-.  The contract of insurance is a contract of Uberrimae Fidel and utmost good faith and both the contracting parties are bound by the terms and conditions of the policy.  The complainant is put to strict proof of the allegations made in the complaint and submits that it is only the complainant who has come out with this false and vexatious complaint and did not apply with the policy and the opposite party had diligently discharged their duties, hence there was no mental agony as alleged. The opposite party denies the allegation made in the complaint and submits that there was no disservice and deficiency in service and no court much less this Forum will come to his rescue to cover up for his glaring lapse. The opposite party denies all the allegations made in the complaint as a feeble and useless attempt made by the complainant which cannot be condoned. The opposite party submits that there is no cause of action and hence no claim is payable by this opposite party much less the claim for the sum of Rs. 10,00,000/- with interest at 12% pa from the date of filing the complaint, is payable by the opposite party. The opposite party deny the allegations made in the complaint and submits as stated in this reply that there is no deficiency of service on their part and they are not liable to honour the insurance claim or any other claim. It is submitted that there is no cause of action for the present dispute. It is therefore prayed that this Hon'ble Forum may be pleased to dismiss the above dispute with exemplary costs and thus render justice.

3. POINTS FOR CONSIDERATION:

1. Whether the complainant is a consumer?

2. Whether there is any deficiency in service on the part of the opposite party

as alleged in the complaint?

3. Whether the complainant is entitled to the reliefs prayed in the complaint.

If, so to what extent?

The complainant had filed proof affidavit, written argument and documents Ex.A1 to Ex.A10 were marked on his side.The opposite party have filed written version, proof affidavit, written arguments and document Ex.B1 to B3 were marked on their side.

4. Point No.1:-

The opposite party contended that complainant is not a consumer and the complainant had admitted that he was owning a commercial vehicle and hence the complaint is not maintainable.  The complainant in his averments contended that he is the owner of lorry and insured the vehicle with commercial vehicle package policy and it covers own damage claim and third-party claim.  On perusal of Ex.A5, the insurance policy, it is observed that complainant had taken Commercial Vehicles (GCV other than 3 wheelers Public) package policy from 14.11.2020 to 13.11.2021. 

 

According to Section 2 (42) of Consumer Protection Act 2019, service means "service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

 

According to the above, Section 2 (7) of CP Act 2019 and as per Section 2 (42) of CP Act 2019 the subject insurance falls under the category of service and the complainant had availed insurance service from the opposite party for consideration for his vehicle by paying necessary premium.  Ordinarily the nature of the insurance contract is always to indemnify the losses. Insurance contracts are contracts of indemnity whereby one undertakes to indemnify another against loss/damage or liability arising from an unknown or contingent event and is applicable only to some contingency or act likely to come in future.

 

This Commission relied on the judgement of Hon’ble Supreme Court of India in CIVIL APPEAL NO(S).5352-5353OF 2007, National Insurance Co. Ltd., vs Harsolia Motors and others wherein it is held that the insured person is a consumer .In view of the above said fact, this Commission of considered view that the complainant is a consumer and therefore the contention of the opposite party is not maintainable.  Point No. 1 answered accordingly.

 

5. Point No.2:-

The Complainant contended that the lorry owned by the complainant when the driver was driving the vehicle along with Kavarapettai, Sathyavedu Road with loaded steel coils and tied properly with lashes, the driver of the lorry suddenly applied the brake to avoid the accident by hitting the unknown pedestrian who suddenly crossed the road and in the process the lashes were cut off and the steel coil was rolled towards in front side of the lorry and hit the cabin of the lorry and caused heavy damages.  When the complainant submitted Own Damage claim to the opposite party who in turn deputed the surveyor.  The complainant alleged that the surveyor did not understand the nature of the accident and without applying his mind submitted a report stating that the damages are caused due to shifting of the load in forward direction.  The complainant further alleged that opposite party repudiated the complainant claim for own damages citing the surveyor report under Section 1 – Loss of or Damage to the Vehicle Insured (vi) by accidental external means. 

On the other hand the opposite party contended that as per the intimation made by the complainant and the surveyor confirmation the damages are due to shifting of the load in forward direction resulting in the damages to the vehicle and hence repudiated the claim.  The opposite party further contended CSR filed by the complainant does not corroborate the cause of accident.  The opposite party contended that the claim was repudiated since it does not fall within the scope of the policy terms and conditions as it is observed that the damages to the cabin are not due to any accidental external means.  As per section 1 of the policy, the insurance company will indemnify the insured against loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon by external means. 

We have carefully gone through the averments and documents of the complainant and opposite party.  Oral submissions of the learned counsels on both sides also heard.  On perusal of Ex.A5, the insurance policy, it is observed that the lorry No.TN04AW9333 was insured from 14.11.2020 to 13.11.2021 for Commercial Vehicles (GCV other than 3 wheelers public) Package Policy.  From the Ex.A1, CSR it is observed that the lorry while proceeding on Kavarapettai Sathyavedu road, the driver of the lorry Balamurugan suddenly applied the brake and steel roll tied with the lorry rolled towards front side and damaged the cabin of the lorry.   The opposite party contended that the CSR is not corroborating the cause of the accident.  CSR is only acknowledgement of complaint and for further investigation only and hence the contention of the opposite party is not maintainable in this regard.  The opposite party disputed the cause of accident stating that the accident has not happened due accidental external means.  The opposite party repudiated the claim stating that as per intimation and Surveyor confirmation the damages are due to shifting of load in forward direction resulting in the damages to the vehicle.

 On perusal of averments of the complainant no such information was averred by the complainant.  On perusal of Ex.B3, the Surveyor Report, we find no confirmation by the surveyor that the vehicle was damaged due to the shifting of the load.  In fact, in para 10 of the survey report the surveyor clearly mentioned that “The above damages are relevant to cause and nature of accident mentioned in the claim form” and in the concluding note “1. Due to tied rope cut load material moved and hit on insured vehicle rear side, it is not cover accidental external means perils”.  On perusal of Ex.10, the photographs, it appears that the steel coil was rolled front side and damaged the cabin of the vehicle and the lashes were cut off.  The opposite party contended that as per terms and conditions of the policy Section 1- Loss of or Damage to the Vehicle Insured “The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon : (vi) by accidental external meansand the claim for this damage is out of scope of policy and hence repudiated the claim.  The complainant in his averments contended that due to unknown pedestrian crossing the driver applied brake suddenly which resulted the cut off lashes and the steel coil rolled front side and damaged the cabin of the lorry which is not disputed by the surveyor in his report.  According to the averments of the complainant the accident took place on 02.06.2021, immediately it was informed to nearby police station and CSR filed on 07.06.2021.  The incident was also reported to opposite party on 02.06.2021 as seen in Ex.A6 and Ex.B2 and the surveyor surveyed the lorry on 16.06.2021 as observed in Ex.B3.  From the above facts, we have observed that the cause of damage was due to the steel coil which is not a part of the vehicle and the impact on the cabin was due to sudden brake to avoid hitting an unknown pedestrian and thus the cause of damage was due to external facts like pedestrian and steel coil.  There is no dispute that the cause of damage not due to any mechanical failure and defect in the lorry but the same happened due to applying of brake by the driver of the vehicle to avoid human hindrance as found in para 9 of the survey Report hence it hast to be construed that the accident was due to accidental external means. The opposite party failed to adduce any material evidence to prove its contention that the damage was due shifting of the steel coil by reason of not taking proper precaution in tying the steel coil with the vehicle. There is no evidence by the opposite party to prove that the shifting of the coil in forward direction happened on its own accord without happening of any external force. Hence it is found from the surveyor report and photograph filed by the complainant that the damage to the cabin of the vehicle was occasion only by virtue of accident by external means which is covered under the policy. In view of the above facts, repudiating the rightful claim for imaginary reason is unjustified and therefore the act of the opposite party amounts to deficiency in service. 

The learned counsel for complainant relied on the order of Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in FA No.133 of 2008, New India Assurance Company Ltd., Vs Harminder Singh wherein the trailer during movement got unbalanced and tilted causing damage to the prime mover and the Hon’ble State Commission concluded that the damage was caused due to external means and therefore the complainant is entitled for the compensation.

This Commission relied on the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in R.P. No.3011 of 2010 in Ravindra Ramnivas Bhutada vs National Insurance Co. Ltd., and Another wherein during excavation work the hydraulic machine fell down in the four feet deep dig trench resulting damage to dome, cabin, bucket and main hydraulic pump and other parts of the machine.  While allowing the petition the Hon’ble NCDRC held that “In our opinion, the expression, “accidental external means”, has to be construed in accordance with its ordinary grammatical meaning and on such occasions, we have no doubt whatever that the slide and caving in of the road certainly comes within the scope of the expression “accidental external means”.  The contention to the contrary, advanced before us by the Counsel appearing on behalf of the insurance company does not appeal to us as correct or acceptable.  We therefore hold that the repudiation of liability by the insurer was totally unjustified”.

In view of the above facts and discussion, we are of the opinion that repudiation of the complainant claim by the opposite party is unjustified and amounts to deficiency in service for which the opposite party is liable to compensate.

Coming to the point of quantum of claim, it is observed from Ex.A8, the Popular Mega Motors (India) Pvt. Ltd., where the complainant left the vehicle and where the surveyor conducted the survey had issued an estimation of Rs.6,61,886/-.  It is also observed from Ex.A9, the Popular Mega Motors (India) Pvt. Ltd., provided a tax invoice for Rs.5,10,144/- which the complainant paid as averred.  Whereas the surveyor deputed by the opposite party surveyed the vehicle and assessed the loss to the extent of Rs.4,42,772/- as evidenced in Ex.B3.  The learned counsel for opposite party contended that if at all the claim is allowed the amount shall be restricted to an amount of 4,42,772/- as assessed by the surveyor.  According to the policy terms and conditions of the insurance policy marked as Ex.B1, claim for own damages are subject to depreciation based on the age of the vehicle.  In this complaint, the alleged vehicle was registered on 02.12.2019 as evidenced in Ex.A1 and Ex.A2 and the damage to the vehicle was caused on 02.06.2021 which is more than one and half years and hence the claim is subject to depreciation.  In view of the above facts, we have considered the assessment of the surveyor justified and therefore the complainant is entitled for an amount of Rs.4,42,772/-.  Based on the above facts and observations, it is found that the repudiation of the claim is not valid and unjustified and hence it amounts to deficiency in service on the part of opposite party. Point No.2 is answered accordingly.

6. Point No.3.

            Based on the findings given to the PointNo.1 and 2, the opposite party committed deficiency in service and though the complainant has not claimed any amount which was spent by him towards the repairing charges but claimed Rs.10,00,000/- towards deficiency in service alone from the facts of the complaint as discussed above and in view of the complainant’s prayer in clause ( c) of the complaint praying for other suitable reliefs this commission deems that it is just and necessary that the complainant has to be paid by the opposite party a sum of Rs.4,42,772/-, towards the repairing charges with interest at 6%p.a from 02.07.2021 till date of payment and further the complainant is also entitled for Rs.25,000/- towards deficiency in service and mental agony. Point no.3 answered accordingly.

          In the result, the complaint is partly allowed. The opposite party is directed to pay the insurance claim amount of Rs.4,42,772/- with 6% interest from the date of repudiation i.e. 02.07.2021 to till the date of payment to complainant and Rs. 25,000/- towards compensation for deficiency in service and mental agony and Rs.5,000/- towards cost of complaint. The above amount shall be paid to the Complainant within two months from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order to till the date of payment.    

Dictated  by Member II to the Steno-Typist taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 29^th day of January 2024.

 

MEMBER I                                  MEMBER – II                           PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	07.06.2021	Police CSR Copy
Ex.A2	02.12.2019	Copy of the RC book
Ex.A3	04.12.2019	Copy of the permit
Ex.A4	20.12.2007	Driving license copy
Ex.A5	14.11.2020	Insurance policy copy
Ex.A6	02.07.2021	Claim Rejection Mail copy of the opposite party
Ex.A7	28.07.2021	Copy of Legal notice with acknowledgement
Ex.A8	15.06.2021	Estimation Bill given by garage
Ex.A9	13.07.2021	Copy of the payment bill paid by the complainant
Ex.A10		Original Photo Copy at the time of accident

 

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

 

 

Ex.B1		Policy along with terms and conditions
Ex.B2		Repudiation Letter dated 02.07.2021
Ex.B3		Survey Report

 

 

MEMBER – I                         MEMBER – II                       PRESIDENT