O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking a direction to the opposite parties for replacement of body shell and repairs to the vehicle bearing No.AP05BS 4788 and Rs.1,00,000/- as compensation for mental agony besides costs.
2. In brief the averments of the complaint are these:
The complainant on 06-09-10 purchased Maruthi Swift LDI BS IV from authorized showroom at Kakinada and insured the vehicle with the 1st opposite party. The policy was in force from 06-09-10 upto the midnight of 05-09-11. The said vehicle was subsequently registered as AP05 BS 4788. On 13-10-10 at 4.30 a.m., driver of the said car was proceeding towards Perecherla from Guntur. When the said car reached the 6th mile turning an unknown vehicle all of a sudden came in opposite direction with dazzling lights. The driver could not notice the curve of the road and the car went on the left side road margin and hit the road side tree. As a result the car sustained damage on front and right side portion. Driver of the said car gave report in Medikonduru Police Station, the police came and investigated the matter and took photographs. As there was no injuries to any person the police levied Rs.300/- as fine to the driver of the complainant. Driver of the complainant paid Rs.300/- and obtained receipt bearing No.443311 dated 15-10-10. Immediately the accident was informed to the 1st opposite party. But the authorities of the 1st opposite party did not inspect the damaged car. After completion of police investigation the complainant shifted the car to M/s Jayalakshmi Automotives, Guntur and kept it in their custody. The officials of M/s Jayalakshmi Automotives came to a conclusion that the body shell was totally damaged and the complainant is eligible for total loss. After that the officials of the 1st opposite party sent e-mail to the complainant asking to submit record relating to the said car and also agreed for payment of RS.3,75,000/-. The 1st opposite party through its letter dated 16-03-11 informed the complainant as per IRDA independent surveyor body shell can be repairable with necessary child parts and asked complainant to get it repaired and submit bills for reimbursement. In the alternative the 1st opposite party directed the complainant to handover the vehicle or settle the matter without bill for Rs.65,000/-. The complainant got the vehicle surveyed by the independent surveyor Abshaloam of General Insurance Company. M/s Jayalakshmi Automotives estimated repair to the vehicle at Rs.3,21,814/-. The complainant on 22-08-11 got issued notice to the 1st opposite party marking a copy to the 2nd opposite party. The act of the 1st opposite party for not agreeing to replace body shell and getting the same repaired amounted to deficiency of service. The complaint therefore be allowed.
3. The contention of the 1st opposite party in nutshell is hereunder:
The complainant is not a consumer and there was no consumer dispute. The 1st opposite party issued policy bearing No.OG-11-1814-1801-00001171 covering the period from 06-09-10 to 05-09-11 subject to conditions and exceptions and limitations mentioned in the policy. Except the certificate issued by the inspector of police dated 15-10-10 and compounding fee receipt neither there was FIR, nor charge sheet u/s 279 or 427 of IPC for the alleged damages caused by the alleged driver. The complainant deliberately removed the vehicle from the accident spot without intimation to the 1st opposite party or its consent. The complainant thus deprived the 1st opposite party’s right to ascertain the vital information relating to the facts of the accident. The 1st opposite party appointed one Y. Raghavendra Rao as investigator. The said investigator required the complainant to show the place of the accident. The place of accident shown by the complainant is not matching with the cause of loss and place of loss. The complainant did not respond/clarify to the tree noticed dated 11-01-11, 22-01-11. One V. Balaji also conducted final survey and assessed the net amount of loss at Rs.1,04,081/-. There was no reply from the complainant for the notices dated 16-02-11, 26-02-11, 16-03-11 and 29-03-11. An independent surveyor of IRDA opined that the body shell is repairable. The 1st opposite party did not commit any deficiency of service. Rest of the allegations contra mentioned in the complaint are all false and fabricated for the case. The complaint therefore be dismissed.
4. This Forum on 18-02-12 received version from the 2nd opposite party through registered post. By that time the 2nd opposite party was set exparte on 17-02-12. In brief the contention of the 2nd opposite party is hereunder:
This Forum has no territorial jurisdiction to entertain the case as head quarters of the 2nd opposite party was located at Gurgaon, Haryana at its regional office at Hyderabad, and the branch office of the 1st opposite party at Vijayawada. The complainant with malafide intentions and with ulterior motives filed this present complaint to obtain unjustified gains. The complaint therefore be dismissed.
5. Exs.A-1 to A-12 and Exs.B-1 to B-11 were marked on behalf of complainant and 1st opposite party respectively.
6. Now the points that arise for consideration are:
1. Whether the complainant is a consumer?
2. Whether there is consumer dispute?
3. Whether this Forum has territorial jurisdiction to entertain the case?
4. Whether the opposite parties committed deficiency of service?
5. Whether the complainant is entitled to compensation?
6. To what relief?
7. POINT No.3:- The complainant is resident of Samalkota of East Godavari District. The complainant had shown the opposite parties residing at Vijayawada and Hyderabad respectively. Section 11(2) of Consumer Protection Act deals with territorial jurisdiction and is extracted below for better appreciation:
“Section 11(2) in The Consumer Protection Act, 1986
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 1[ carries on business or has a branch office] or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 1[ carries on business or has a branch office] or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 1 carry on business, or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises”.
8. The complainant purchasing the subject car and obtaining insurance policy by themselves does not create cause of action to approach consumer Forums. Insurance policy is in the nature of an indemnity. An accident is a pre-requisite for any insured to approach consumer forums seeking their redressal as it gives rise to cause of action. Allegations made in the complaint alone have to be looked into to ascertain territorial jurisdiction of a particular Forum. The complainant in his complaint mentioned that the subject car dashed against a tree near Perecherla village which comes within the jurisdiction of this Forum. It is the accident which created cause of action for the complainant to approach Consumer Forum seeking indemnity. Section 11(2) (c) says that a complaint shall be instituted in a District Forum where the cause of action wholly or in part arises. Under those circumstances, the decision relied on by the 2nd opposite party reported in Brahma Prakash Manav vs. Vikas Yadav and another 2010 (1) CPJ 136 has no application to the facts of this case. We therefore opine that this Forum has territorial jurisdiction to entertain the case and answer this point against the 2nd opposite party.
9. POINTS 1 & 2:- The 1st opposite party categorically admitted about it issuing policy in favour of the complainant for the vehicle AP05 BS 4788 covering the period from 06-09-10 to 05-09-11. Non settlement of the claim by the 1st opposite party made the complainant to approach this Forum. Therefore the complainant is a consumer and there is a consumer dispute. We therefore answer these points in favour of the complainant.
10. POINT No.4:- The complainant in para 3 of his complaint mentioned that the 1st opposite party is authorized insurer of the 2nd opposite party. It appears to us that the 2nd opposite party is manufacturer of the subject vehicle AP05 BS 4788. It is not the case of the complainant that the said vehicle suffered from manufacturing defect. Under those circumstances, the complainant is not entitled to seek any relief against the 2nd opposite party. Hence the claim against the 2nd opposite party is liable to be dismissed.
11. The insurance policy (Ex.A-1=B1) amounts to a contract and the liability of the 1st opposite party is subject to limitations and exceptions mentioned in the policy as rightly contended by the learned counsel for the 1st opposite party.
12. The complainant in his affidavit as well as complaint mentioned that the driver of the ill fated car gave report to the police immediately and the 1st opposite party and relied on Ex.A-4. The 1st opposite party questioned the genuineness of Ex.A-4 for the absence of any FIR, Mediatornama, and report given by the complainant. The complainant did file neither FIR nor report given to the police nor Mediatornama for the reasons best known to him. For better appreciation Ex.A-4 (attested true copy of certificate issued by the Inspector of Police, Medikonduru) is extracted below:
“This is to certify that on 13-10-10 at 11 a.m., one Mamidala Chandra Mouli S/o Veeranjaneyulu, 29 yrs, Rajaka, 6th lane, Gunturuvari Thota, Guntur came to Medikonduru PS and reported that on 13-10-10 at 4.30 a.m., while he was going towards Perecherla from Guntur driving Maruthi Swift Car No.AP05 BS 4788 and when he reached near the 6th mile turning, all of a sudden an unknown vehicle came from the opposite direction with dazzling head lights. As such, he could not notice the curve of the road ahead and the car went onto the left side road margin and hit to the road side tree resulting damages to the front and right side of the car. None sustained any injuries in the accident. He requested for action.
As such, I visited the scene of offence and inspected the same. I found the Maruthi Swift Car No.AP05 BS 4788 parked on the left side of the road with damages on its front portion including radiator and engine while the right side of the car also has been extensive damaged. caused enquiries and found that none sustained any injuries in the accident.
I perused the records of the vehicle and found that the car AP05 BS 4788 is registered in the name of Bethina Bulli Joginath S/o Papa Rao, Near Gandhi Statue, Samalkot. It has been insured with Bajaj Allianz General Insurance Company vide policy No.200045116 valid upto 05-09-11. The driver of the vehicle is having D.L. bearing No.DLEAP 007372302010 valid upto 29-04-2023. Thus I found the vehicle and its driver to have all valid records.
Since none sustained any injuries in the mishap, since it is found that the driver of the car drove the car in a negligent manner resulting this incident. I levied a fine of Rs.300/- under Section 184-B of MV. Act and the complainant who is the driver of the vehicle paid the same vide receipt No.443311 dt.15-10-2010”.
13. Ex.A-4 revealed that the Inspector of Police levied Rs.300/- u/s 184-B of M.V. Act and the complainant i.e., driver of the ill fated car paid the same vide receipt No.443311 dated 15-10-10. Section 184 of M.V. Act prescribed punishment for the persons driving dangerously. We did not find any section like 184-A or 184-B in the Bare Act of the Motor Vehicles Act, 1988 (2011 editions of Professional Book Publishers). Mentioning of non-existing offence i.e., 184-B of M.V. Act in Ex.A-4 raised a serious doubt in the minds of this Forum regarding its genuineness that too in the absence of any entry in General Dairy, FIR, report of driver of the ill fated car, photographs said to have been taken at the place of accident and Mediatornama. Therefore, the contention of the 1st opposite party regarding the nature of Ex.A-4 is having considerable force.
14. The complainant relied on the correspondence through e-mail that took place between him and one Shaik Shafivulla (Exs.A-5 & A-6). The 1st opposite party has not specifically denied that Shaik Shafivulla is not its employee. The relevant portion in Ex.A-6 is extracted below for better appreciation:
“With reference to our discussion had today morning for full and final settlement of your vehicle (AP05BS4788) for an amount of Rs.3,75,000/-, would request you to please submit the below mentioned documents for further process of your claim at the earliest possible time.
1. Vehicle Original Registration Certificate
2. Hundred Rupees stamp papers 2 nos on the name of insured.
3. Transfer letters each 2 copies with insured signature
4. Vehicle finance statement
5. Service book and original keys”.
15. The complainant also relied on Ex.A-7 dated 16-03-11. Ex.A-7 was referred to by the 1st opposite party in its Ex.B-9 dated 29-03-11. In Ex.A-7 letters of the 1st opposite party other letters dated 26-02-11 and 16-02-11 were referred to. In Ex.A-7 the 1st opposite party gave three options mentioned infra and required him to elect it and they are as follows:
“1. As per IRDA independent surveyor body shell can be repairable with necessary child parts. Therefore you are requested to get the vehicle repaired and submit us the bills at the earliest for reimbursement.
2. Alternatively, should you find any difficulty in repairing the vehicle, you may handover the physical possession of vehicle along with authorization to enable us to get the vehicle repaired and handover back to you.
3. Else you may opt for the without bill settlement which is 75% of the repair liability recommended by the surveyor i.e., Rs.1,00,000/-”
16. The complainant is insisting for replacement of body shell but not for repair. To show that the body shell is beyond repair the complainant relied on technical opinion expressed by Ch. Abshloam dated 17-03-11 (Ex.A8). The 1st opposite party expressed its intention to repair the body shell and other damaged parts. It is not the contention of the complainant that the vehicle suffered from manufacturing defect. Under those circumstances, the complainant insisting the 1st opposite party to replace the body shell in our considered opinion is not proper. It is for the engineers of the 1st opposite party or the manufacturer of the ill fated vehicle to arrive at a conclusion whether the body shell can be replaced or not considering the safety of its users.
17. Under Ex.B-3 the surveyor appointed by the 1st opposite party namely Y. Raghavendra Rao secured investigation report, police certificate, challan for compounding offences, statement of the insured and photographs. The learned counsel for the complainant contended that having addressed Ex.B-3 it is not open for the 1st opposite party to insist for police report or mediatornama. The 1st opposite party never disputed the damage to the ill fated car as seen from Ex.A-7. The 1st opposite party did not place any material to rebut Ex.A-4 and the documents referred to in Ex.B-3. The 1st opposite party cannot blow hot and cold at the same breath as rightly contended by the complainant. The 1st opposite party also cannot insist the complainant to accept for its proposal. Under those circumstances, the decisions relied on by the 1st opposite party reported in Nanda Kishore Gupta vs. United India Insurance Company 2009 (2) CPJ 164, United India Insurance Company vs. Deendayal 2009 (2) CPJ 45 (NC), New India Assurance Company Limited vs. Pradeep Mahapatra 2009 (2) CPJ 436B and Shyam Sundar vs. New India Assurance Company Limited 2011 (1) CPR 82 are not applicable to the facts of the case.
18. The complainant relied on Ex.A-8 report, while the 1st opposite party relied on Ex.B5 surveyor report. Ex.B-5 report did not contain regarding repairability of the body shell of the ill fated car. Ex.B-5 was not filed along with version. The complainant did not file affidavit of author of Ex.A-8. It is the contention of the 1st opposite party that the damage to the vehicle including body shell is repairable. Under those circumstances the complainant cannot insist for replacement in the absence of manufacturing defect. The complainant obtained Ex.A-8 subsequent to the letter issued by the 1st opposite party referred to in Ex.A-7.
19. The 1st opposite party is changing its versions from time to time i.e., Exs.B-6, B-7, B-8 and Ex.A-6 as rightly contended by the complainant. The said attitude of the 1st opposite party in our considered opinion amounted to deficiency of service. We therefore answer this point against the 1st opposite party.
20. In view of clause (2) in Exs.B-7 and B-8 giving a direction to the 1st opposite party to get the vehicle repaired ensuring the safety of its users will meet ends of justice.
21. POINT No.5:- The complainant is insisting for replacement of body shell contending as irreparable while the contention of the 1st opposite party is that the body shell is repairable in view of independent surveyor of IRDA. Under those circumstances, the complainant in our considered opinion is not entitled to any compensation. We therefore answer this point against the complainant.
22. The complainant insured the vehicle for Rs.4,76,531/-. The repairs estimated under Ex.A-2 is Rs.3,21,814.65 ps where as according to the 1st opposite party the cost of estimated repair is Rs.1,04,081/-. Both the estimates are below the insured amount.
23. POINT No.6:- In view of above findings in the result the complaint is partly allowed as indicated below:
1. The complainant is directed to handover the vehicle to the 1st opposite party as mentioned in Ex.A-7 at the office of the 1st opposite party, Vijayawada at his expenses within two weeks under acknowledgement.
2. The 1st opposite party is directed to effect necessary repairs to the ill fated vehicle ensuring safety of its users within six weeks thereafter at their expenses and is directed to deliver the vehicle to the complainant under acknowledgment.
3. The 1st opposite party is further directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint within six weeks.
4. The claim against the 2nd opposite party is dismissed without costs.
Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 3rd day of July, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos. |
DATE |
DESCRIPTION OF DOCUMENTS |
A1 |
06-09-10 |
Xerox Copy of certificate of Insurance in the name of complainant. |
A2 |
01-10-10 |
Xerox Copy of R.C. Book of the complainant. |
A3 |
30-04-03 |
Photostat copy of Driving License of M.Chandramouli, driver of vehicle No.AP 05BS 4788. |
A4 |
|
Xerox copy of Certificate issued by the Inspector of Police, Medikonduru, P.S. |
A5 |
09-11-10 |
Service estimate issued by the Jayalakshmi Automotives, Autonagar, Guntur. (Original) |
A6 |
|
Copy of E-mail correspondence between complainant and 2nd opposite party.(email printout) |
A7 |
16-03-11 |
Letter sent by 1st opposite party to the complainant (original) |
A8 |
17-03-11 |
Technical opinion report issued by Independent Surveyor along with survey bill (original). |
A9 |
22-08-11 |
Office copy of Regd. legal notice got issued by complainant to Opposite parties |
A10 |
25-08-11 |
Postal Acknowledgement by 1st opposite party (Original) |
A11 |
27-08-11 |
Postal Acknowledgement by 2nd opposite party (Original) |
A12 |
|
Photos (3 in number) taken by the Insurance Surveyor (Original) |
For 1st opposite party:
Ex.Nos. |
DATE |
DESCRIPTION OF DOCUMENTS |
B1 |
06-09-10 |
Copy of certificate cum policy schedule |
B2 |
23-02-11 |
Motor Survey Report (final) along with survey bill for Rs.2,800/- by Sri V. Balaji, insurance surveyor |
B3 |
29-12-10 |
Investigation report of Sri Y.Raghavendra Rao |
B4 |
|
Independent licensed surveyor’s affidavit on b/o of OP1 |
B5 |
|
Affidavit filed by Sri Y. Raghavendra Rao, investigator on b/o of 1st opposite party |
B6 |
22-01-11 |
Letter from 1st opposite party to complainant |
B7 |
16-02-11 |
Letter from 1st opposite party to complainant |
B8 |
26-02-11 |
Letter from 1st opposite party to complainant |
B9 |
29-03-11 |
Letter from 1st opposite party to complainant |
B10 |
01-11-11 |
Copy of registered legal notice to the counsel for the complainant |
B11 |
|
Photographs (2) |
PRESIDENT
