Andhra Pradesh

Nellore

CC/69/2015

Surya Lakshmi Enterprises, Rep by Mr. Prakasam Kami Reddy - Complainant(s)

Versus

The Manager, The United India Insurance company Ltd - Opp.Party(s)

Inperson

16 Mar 2016

ORDER

                                          Date of filing       :  19-01-2016

                                          Date of disposal  : 16-03-2016 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Wednesday, this the 16th day of MARCH, 2016.

 

          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.69/2015

 

M/s.Surya Lakshmi Enterprises,

Rep. by Mr.Prakasam Kami Reddy, CEO

25-2-121, Kesavulu Nagar,

Vedayapalem,

Nellore-4.                                                                               … Complainant

                      Vs.

                                                                      

The Manager,

The United India Insurance Company Ltd.,

15/207, Subdedarpet Road,

Kanakamahal Centre,

Nellore-1.                                                                                    …   Opposite party

 

This matter coming on  04-03-2016 before us for final hearing in the presence of complainant  appeared as in-person and  Sri T.Kumar, 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 complaint is filed by the complainant (in-person) against the opposite party to directing him to settle the insurance claim, overdue charges of TATA Motors service centre, Tirupathi and all the charges like towing, parking charging etc. Rs.1,64,563/-; to pay Rs.3,00,000/- for causing expenses of conveyance, loss of efficiency, time and mental agony of the complainant and pass such other relief or reliefs  as the Hon’ble Consumer Forum may deem it fit under the circumstances of the case in the interest of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I.(a) It is the case of the complainant that he is the Chief-Executive Officer of M/s.Surya Lakshmi Enterprises, Vedayapalem, who are into the business Bayer public health chemicals/water proofing/tiles etc. He is having a very good driving experience from 1981 and also having in international exposure.  He had met with an accident, while he was driving alone vehicle from Tirupati to Chittoor on work on 4^th February, 2015 in the late afternoon. The rear left tyre of the vehicle got burst and was unable to pull his hand break or change the gear due to the traffic coming on the opposite direction and the vehicle was pulled down the road to the left side in the mango gardens which are approximately 15 feet down from the road.  Due to good reflexes, the complainant had managed to escape to hit the trunks of four trees and stopped the vehicle.  The accident took place around 25 Kms away from Tirupathi near Moravapalli, one kilometer away from Kasipenta village near Heritage Parlour.

 

    (b) It is further submitted by the complainant in para-2 of his complaint that

     after few minutes of the accident spot, the complainant had informed to  

    his insurance agent on his mobile phone to take care of his complaint and

    also official formalities.  Thereafter, the complainant was moved to Tirupati

    for medical examination and later on he came to know that one Mr.Pillai for

    spot inspection.  Later on, the vehicle was towed to authorized TATA service

    centre, at Tirupati.  Again, it was inspected and then asked them to proceed

    with repairs.  The complainant had requested to provide cashless facility to

    be extended by the opposite party for which they are liable to pay and for the

    same he had a telephonic call with the Manager of the opposite party and he

    had also accepted for the same.  The TATA service centre, Tirupati had taken

    up the work and received a text message from them on 30-04-2015 stating      

    that the said vehicle was ready.

 

( c )  It is also further submitted by the complainant that in para-3 of his complaint that he was put to run behind Mr.Haider (the surveyor) for post- inspection report to reach the opposite party’s office.  But the courier was unable to locate it for 10 days and after continuous persuasion the courier was located at opposite party’s other division. He had made several visits to Tirupathi and opposite party’s office but none of them had given time.  The manager of the opposite party even today says that the issue is not in his purview and has to approach his higher authorities but till today no action had been taken and did not even bother to give a minimum response to the complainant.  The TATA motors service centre is charging Rs.150/- per day for parking charges of the car at their work shop.  The spot inspection, pre-inspection and post-inspection reports were available with the opposite party and there was no proper response by the opposite party towards the complainant about the status of the claim.  The opposite party was filled partially the claim form also by putting the rubber stamp but was asked to come after the opposite party approaches their higher authorities.

 

(d) It is also further submitted by the complainant in the para-2 at page no.2 of his complaint that he had taken insurance policy had mentioned and enclosed it for ready reference and he had also completed his portion of the duty.  But the opposite party had totally failed to provide the promissory service and also made him to run from pillar to post.  The issue was closed by 6 months and the complainant had got no clue about his vehicle (car) and the insurance claim.  It was clearly indicates that the total lapse of service of the opposite party.  Hence, the complaint.

 

II.  DEFENCE:

      The opposite party was resisted the complaint by filing a written version dated 08-01-2016 of opposite party denying the allegations of the complainant.  Those allegations are false and the complaint is not maintainable either in law on facts. 

 

(a) It is further submitted by the opposite party in para-4 of its written version that the allegations of the complainant against the opposite party are not known and complainant is put to strict proof of the same.  In para-5 at page no.2 of its written version, the opposite party had admitted that the complainant had informed on phone to take care of his complaint.  It is also true that the opposite party insurance company had appointed one Mr.Pillai for spot accident and later on the vehicle was towed to authorize service centre, Tirupati and denied the other allegations of the complainant which are made in his complaint.

 

III.  The complainant had filed on 19-11-2015 an evidence affidavit as PW1 and he had also filed his written arguments on 01-12-2015 before this Forum and the documents are marked on his behalf as Exs.A1 to A12, whereas the  opposite party had  filed  document and which is marked as Ex.B1 and also filed on 02-02-2016 an evidence affidavit as RW1. The opposite party was also filed written arguments on 19-02-2016 in support of their case.

 

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 and depends on each other, 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, affidavit and documents filed herein.   It is nothing but repetition of them once again in his complaint.

 

       The party-in-person has vehemently argued that his complaint, chief-affidavit and written arguments may be read as part and parcel of his oral arguments of the case.  He has also further argued that the complainant-in-person had addressed a letter dt. 06-07-2015 (Ex.A1) to the opposite party explaining all the details but the opposite party had shown a deaf ear so far inspite of survey reports of Sri G.Somasekhar Pillai dt.15-02-2015(Ex.A9) and Sri H.Hyder Sahib dt.30-05-2015(Ex.A10). He has also further contended that (Exs.A4 to A6) job cards dtd.16-03-2015 of complainant-in-person and work-shop, established that the repairs of the said car and its value of Rs.1,64,563/-.  Ex.A11 is the letter by Sri P.Y.Giri, Advocate says that the facts which are mentioned in the complaint by the party-in-person are true to best of his knowledge.

 

       The party-in-person has once again stressed much that with regard to his case that material facts of the case are not denied by the opposite party.  He has also filed I.A.No.11/2016 for an interim order to stop the auction of the said vehicle against the opposite party and under section 13(3)(b).  Finally, he has argued that he had submitted all the documents to the opposite party taking suitable steps, the only thing is claim to be settled.  All the repairs of the said vehicle made and survey reports are available with insurer (opposite party) but the opposite party is not releasing money since long time.  It is clearly violation of law.  He has also prayed that the Hon’ble Forum to direct the opposite party to provide reliefs for and allow his complaint with costs.

 

Oral Submissions by the learned counsel for the opposite party:

       Sri T.Kumar, the learned counsel for the opposite party has also vehemently argued that the written version, chief-affidavit of administrative officer (RW1) of the opposite party and his written arguments may be read as part and parcel of his oral arguments of the case.

       He has also further argued that it is true that the said vehicle was insured with the opposite party and the policy (Ex.B1) is valid from           01-10-2014 to 30-09-2015.  He has also further contended that the complainant had informed to the opposite party on phone to take care of his complaint.  The opposite party does not admit that the complainant had made several visits to Tirupati and the opposite party’s office and the opposite party did not even bother to give a minimum response to the complainant.  He had urged further that still the damages caused to complainant’s vehicle (own damage claim) is not repudiated.  The complainant had not followed the procedure to settle his own damages claim as per the terms and conditions of the policy.  In case of the third party injuries/property damages/death the said accident to be reported to the police and obtained the copy of FIR but the complainant did not followed the above said procedure.  Immediately, after receiving the accident intimation, opposite party’s officers appointed and one Mr.G.Somasekhar Pillai, Surveyor and loss assessor R/o.Chittoor to conduct spot survey with regard to damages caused to the above said vehicle.  After getting the estimation for repairs for the damaged vehicle, the opposite party should depute final surveyor.  But in this case the opposite party had not deputed any authorized surveyor for final survey.  But, the opposite party had received final survey report from one Mr.Hyder Saheb, Surveyor (Ex.A10). 

 

      The said learned counsel for the opposite party has further contended that after getting repairs of the said vehicle completely from the work shop, the insured should intimate to the insurer to appoint in re-inspection of surveyor.  In this case, insured had not repaired the damaged vehicle and not produced the repairs cash paid bills from work shop.  The complainant should not follow the said procedure and further demanded cash less facility from the opposite party.  Actually, there is no tie up with the TATA Motors to the opposite party to pay the bills directly to the work shop.   The complainant had given letter to the opposite party to pay the work shop bills directly and requested the opposite party to deliver the repair vehicle.  The complainant had filed complaint with false allegations.  If the complainant had produced cash bills from the  work shop in which the said vehicle was repaired and after conducting re-inspection survey, the opposite party ready to pay own damages claim which was assessed by the Hyder Saheb.  The opposite party is not liable to pay Rs.150/- per day towards parking charges to work shop i.e., Vijaya Bharathi Auto Mobiles (P) Ltd., Tirupathi since  it is complainant’s own risk and it is not follow the procedure, terms and conditions of the policy and so  the opposite party is not liable to pay the said amount as claimed in the complaint.  There is no deficiency in service on the part of the opposite party towards the complainant.  The opposite party is not liable to pay Rs.3,00,000/- for causing expenses of inconvenience and loss of efficiency, time and mental agony to the complainant since his own damages claim was not yet repudiated.  Because of his attitude, the delay was caused.  In these circumstances, the opposite party had prayed the Hon’ble Consumer Forum may pleased to dismiss the complaint with costs.

 

Forum’s Findings and observations

     Heard, the party-in-person and the learned counsel for the opposite party and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of chief affidavits and produced their documentary evidence.  Each case has to be judged on its own facts. 

     The first and foremost question for our consideration is that whether the opposite party has acted legally or not in view of the facts and circumstances of the case.  Why there is so much of delay in settling the claim of the complainant by the opposite party till filing of the complaint before the District Consumer Forum? 

 

The concept of insurance:

   Many cases are filed in respect of insurance claims.  Insurance contract is contract of utmost good faith.  In United India Assurances Co.Ltd. Vs.M.K.J.Corporation, 1997 (5) CTJ 649 SC, it was held that  the principle is applicable both to the insured as well as insurer.   In Modern insulator Ltd. Vs. Oriental Insurance Co.Ltd. AIR 2000 SC 1014 = 1(2000) CPJ I, it was also held that utmost good faith and disclosure of all material facts is the duty of the both parties i.e. insured as well as insurer. Abnormal delay by insurer appointment of surveyor and settlement of claim of losses was held deficiency in service. 

 

Delay in settlement:  Normally a claim should be settled within 3 months.    Where the insurance company neither settled nor repudiated the claim for long time, it was held to be deficiency in service, rejecting the contention of the insurer that the claim was not settled due to non-production of original documents.  The complainants were held entitled to the insurance amount”United India insurance company limited Vs. Shaik Saida and another, 2007(3) CPJ 220 (AP).”.

 

Continuing cause of action :   Where the claim for the loss resulted due to an accident to the vehicle insured was neither settled nor repudiated for long time, the contention based on limitation was untenable because the complainant would have  continue cause of action for filing the complaint in such a case. (K.Balaiah Vs. G.Timmappa and another 2008 CTJ 788 AP -2008 (2) CPJ 221 AP).

    As the opposite party has categorically admitted that still the claim is not repudiated and it means not settled the claim, it appears to us that the opposite party has not acted legally and delayed the matter sufficiently.  After receiving the reports from the above said so called surveyors of the opposite party (Exs.A9 and A10) has not for the acted upon by perusing the contents of the reports as well as the job cards of the work shop.  It is crystal clear that opposite party has not applied its mind to decide the case and dispose of the claim accordingly.    In view of the facts and circumstances of the case as aforesaid, it can be said that there is a lot of deficiency in service and negligence on the part of the opposite party towards the complainant party-in-person.  Mental agony cannot be measured in terms of money.  We are satisfied with the arguments of the party-in-person who is the complainant in this case.  The counsel for the opposite party has miserably failed in his attempt to convince us.  Justice is done according to the Principles of Law.  These two points are held in favour of the complainant and against the opposite party, accordingly.

 

POINT NO.3: In the result, the complaint is allowed in part directing /ordering the opposite party to settle the insurance claim, overdue charges of TATA motors service centre, Tirupati and other charges of Rs.1,64,563/- (Rupees one lakh sixty four thousand five hundred and sixty three only) in favour of the complainant and also payable to him of Rs.20,000/- (Rupees twenty thousand only) towards his mental agony and for loss of his time and also pay to him Rs.2,000/- (Rupees two thousand only) towards costs of the complaint within one month from the date of receipt of the order, accordingly.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 16th day of MARCH,              2016.    

 

              Sd/-                                                                                    Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

19-11-2015

:

Prakasam Kami Reddy, S/o.K.Gopala Reddy, aged 54 years, CEO of Surya Lakshmi Enterprises, 25-2-121, Kesavulu Nagar, Vedayapalem, Nellore-524004.

 

WITNESSES EXAMINED FOR OPPOSITE PARTY:

 

RW1

02-02-2016

:

S.Chennasrikalyan, S/o.Sivaramaprasad, Hindu, aged about 25 years, working as Admn.Officer, residing at Nellore.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	06-07-2015	:	Photostat copy of letter addressed by the complainant to the opposite party claiming of insurance amount.
Ex.A2	01-10-2014	:	Certificate of insurance private car package  Insurance Policy no.1512013114P104304013             (attested copy by the complainant).
Ex.A3	11-09-2014	:	Receipt for Insurance premium paid Rt.no.10115120114104398068 (attested copy by the complainant) for Rs.9,975/-.
Ex.A4	03-16-2015	:	Job card customer copy Jc-VijAto-TP1-1415-002073(attested copy by the complainant)
Ex.A5	03-16-2015	:	Job card workshop copy(attested by the complainant).
Ex.A6	10-02-2015	:	Estimation for the repairs of the vehicle bearing AP26AP3241 for Rs.1,64,563/-. (attested copy by the complainant)
Ex.A7	05-10-2012	:	Certificate of registration of AP26-AR-3241 issued by the Andhra Pradesh Transport Department.(attested copy by the complainant)in favour of the complainant.
Ex.A8	15-07-2011	:	India Driving license (Tamilnadu) of Mr.Prakasam Kami Reddy(attested copy by the complainant).
Ex.A9	15-02-2015	:	Private and confidential motor(Spot) survey report (attested copy by the complainant).
Ex.A10	30-05-2015	:	Private and confidential motor final survey report (attested copy by the complainant).
Ex.A11	31-07-2015	:	Letter addressed by the advocate as Affidavit to the Hon’ble Forum. (attested by the complainant).
Ex.A12	27-06-2012	:	Firm registration certificate (attested copy by the complainant)

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1

01-10-2014

:

Attested(Certified) true copy of “Certificate of insurance private car package policy” bearing no.1512013114P104304013 issued by the United India Insurance Co.Ltd., Nellore in favour of the complainant vehicle no.AP-26-AR-3241.

            

         Id/-                                                                             PRESIDENT(FAC)

Copies to:

1) M/s.Surya Lakshmi Enterprises,Rep. by Mr.Prakasam Kami Reddy,

    CEO, 25-2-121, Kesavulu Nagar, Vedayapalem,Nellore-4.           

2)Sri T.Kumar, Advocate, D.No.17-1-615, Chakali street, Near Mahalakshmi    

   Temple, Nellore.   

 

Date when order copies are issued: