BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL Present: Sri. T.Sundara Ramaiah, B.Com B.L., President And Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member And Smt. S.Nazeerunnisa, B.A., B.L., Lady Member Friday the 31st day of August, 2012 C.C.No.29/2012 Between: T.Narayana Swamy, S/o T.Parameswarudu, H.No.3/325, Enakandla Village, Banaganapalli Mandal – 518 124, Kurnool District. …Complainant -Vs- The Manager,Claims Department,Cholamandalam, M.S. General Insurance Company Limited, Dare House, 2nd Floor, No.2, N.S.C. Bose Road, Chennai – 600 001. ...Opposite ParTy This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate for complainant and Sri.L.Hari Hara Natha Reddy, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following. ORDER (As per Smt. S.Nazeerunnisa, Lady Member) C.C. No.29/2012 1. This complaint is filed under section 11 and 12 of C.P. Act, 1986 praying:- (a) To direct the opposite party to pay Rs.1,88,000/- towards the IDV Value of the complainant’s Vehicle; (b) To pay Rs.50,000/- towards compensation for causing mental agony; (c) To pay cost of the complainant; And (d) To pass such other relief or reliefs as the Honourable Forum may deems fit and proper in the circumstances of the case. 2. The case of the complainant in brief is as under:- The complainant is the owner of New Auto bearing No.AP21 TT 7096, which was insured with opposite party under the Cover Note No.6386676 for the sum of Rs.1,38,000/-. The policy was in force from 05-08-2010 to 04-08-2011. On 28-02-2011 the vehicle was stolen by unknown persons, when it was parked at his house at night. The complainant lodged a complaint before the Banaganapalli Police Station and the same was registered in Crime No.22/2011. The complainant informed the same to opposite party by notice dated 21-03-2011. On intimation the opposite party appointed investigator by name Sri.P.Naganna to investigate the matter. Later the police recovered the insured vehicle. The surveyor inspected the vehicle in Police Station, and submitted his report that engine of the Auto was found missing. The opposite party advised the complainant to take possession of the vehicle from Police Station. He shifted the same for repairs, estimates with Authorized Service Station Sasya Motor Works, Kurnool. The said service station estimated the cost of repairs for Rs.2,07,623/-. The complainant submitted the original estimation along with legal notice dated 07-09-2011, and requested to settle the claim but the opposite party did not respond. There is deficiency of service on the part of the opposite party. Hence the complaint. 3. Opposite party filed written version stating that the complaint is not maintainable. It is barred by period of limitation. It is liable to be dismissed on the ground of non-joinder of necessary party (i.e.,) financier M/S Indus Ind Bank, Kurnool. The opposite party admitted that the complainant insured his Auto under the policy No.3368/00387048/000/00 for the I.D.V. (Insured Declared Value) of Rs.1,38,000/-. The said vehicle of the complainant was hypothecated with M/S Indus Ind Bank Limited, Kurnool Branch. It is also admitted that the insured vehicle was stolen by unknown persons on 28-02-2011. On 21-03-2011 the complainant gave intimation to opposite party belatedly in violation of terms and conditions 1 and 9 of the policy. The opposite party appointed investigator to investigate the matter. It is also admitted that the insured vehicle was recovered by the police. The investigator inspected the vehicle in Police Station and submitted his report that the engine of the Auto was found missing and shifted the vehicle to the garage. The complainant without any basis demanded the opposite party to pay insured declared value of the vehicle (i.e.,) Rs.1,38,000/-. On 07-09-2011 the complainant addressed a letter to opposite party and informed that he has taken the possession of the vehicle. After the negotiations with the complainant, the opposite party settled the claim of the complainant for Rs.60,000/- and paid the amount to the financier under voucher bearing No.1032597279 dated 24-11-2011 as per the terms and conditions of the policy. The complainant executed consent letter duly signed and notarized voluntarily accepting on mutually negotiated full and final settlement of the claim on cash loss basis for an amount of Rs.60,000/-. The complainant intentionally not added his financier as a party to this proceeding. There is no deficiency of service on the part of opposite party. Hence the complaint is not maintainable and liable to be dismissed. 4. On behalf of the complainant Ex.A1 to A10 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite party Ex.B1 to B6 are marked and sworn affidavit of opposite party is filed. 5. Both sides filed written arguments. 6. Now the points that arise for consideration are: i. Whether the complaint is barred by period of limitation? ii. Whether there is deficiency of service on the part of Opposite Party? iii. Whether the complainant is entitled for the reliefs as prayed for? iv. To what relief? 7. POINT No.i:- Admittedly the complainant insured his vehicle with opposite party under Ex.B1 policy bearing No.3368/00387048/000/00. Ex.B1 is the policy copy along with terms and conditions of the policy. The alleged theft took place on 28-02-2011. The same was registered in Crime No.22/2011 Banaganapalli Police Station. The complainant submitted claim form on 31-05-2011 under Ex.A7. It is the case of the opposite party that the complaint is not filed within the period of limitation under section 24 (a) C.P. Act, 1986. The period of limitation to file a complaint before the District Forum is two years from the date, on which the cause of action has arisen. In the present case the theft took place on 28-02-2011. The complaint is filed on 23-02-2012. The complaint is well in time and it is not barred by period of limitation. 8. Points ii & iii :- Admittedly the complainant is the owner of the vehicle. Ex.A1 photo copy of Registration Certificate stands in the complainant. The complainant insured his vehicle with opposite party under Ex.B1. It is the case of the complainant that the insured vehicle was stolen by unknown persons, when it was parked at his house at night. After intimation, the opposite party appointed an investigator to investigate the matter. The complainant made a complaint before Banaganapally Police Station in Crime No.22/2011. Later the police recovered the insured vehicle and the investigator inspected the vehicle in Police Station, and submitted his report that the engine of Auto was found missing. Thereafter the vehicle was shifted to service station for repairs. The service station Sasya Motor Works, Kurnool, estimated the cost of repairs of vehicle for Rs.2,07,623/-. The complainant submitted the original estimation along with legal notice dated 07-09-2011 Ex.A9. Ex.A10 is the photo copy of estimation dated 23-08-2011 issued by Sasya Motor works, Kurnool. The opposite party did not respond. 9. According to the opposite party the theft was committed on 28-02-2011. The complainant has given intimation to opposite party on 21-03-2011 belatedly in violation of terms and conditions 1 & 9 of the policy. The opposite party appointed investigator and he inspected the vehicle and assessed the loss and submitted his report. The complainant took the possession of the vehicle. After the due negotiations with the complainant, the opposite party settled the claim of the complainant for Rs.60,000/- towards the full and final settlement. The opposite party paid the amount to the financier (i.e.,) Indus Ind Bank Limited, Kurnool Branch under voucher bearing No.1032597279 dated 24-11-2011 which is marked as Ex.B3. The complainant executed consent letter duly signed by him attested by notary dated 11-11-2011. It is marked as Ex.B2. 10. The learned counsel appearing for the complainant contended that without consent of the complainant the opposite party settled the claim and paid the amount to the financier. In support his contention he relied upon a decision reported in IV (2007) CPJ 217 (NC) New India Assurance Company Limited -Vs- Prahlad Singh Shekhwat, where in it was held that claim could not be settled with financier without complainant’s consent and prior notice. In the present case on hand the complainant executed a consent letter duly signed by him and attested by Notary. The facts of the above case are not applicable to present case. 11. The learned counsel appearing for opposite party contended that as per the terms and conditions of the policy the pledgee can receive the amount. It is stated in Ex.B1 that “if the pledgee is interested in any monies in respect of such loss or damage to the vehicle by repairs or replacement of parts and such monies shall be paid to the pledgee as long as they are the pledgee of the insured vehicle, and their receipts shall be a full and final discharge to the insurer in respect of such loss or damage”. Basing on this endorsement the opposite party paid the amount of Rs.60,000/- to the financier. The opposite party filed Ex.B1 photo copy of policy along with terms and conditions of the policy. Ex.B1 contains endorsements. Admittedly the investigator is appointed and submitted his report to opposite party. It is clear that as per the terms and conditions of policy, the opposite party paid the amount of Rs.60,000/- to the financier because the vehicle was still in hypothecation with the said financier. As seen from Ex.B2 and Ex.B3 it is evident that the complainant agreed to accept the amount of Rs.60,000/- and the financier received the said amount. The complainant suppressed the execution of Ex.B2 affidavit and filed the present complaint to gain wrongfully. He has not come with clean hands. There is no deficiency of service on the part of opposite party. Hence the opposite party is not liable to pay further amount to the complainant. 12. In the result, the complaint is dismissed without costs. Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 31st day of August, 2012. Sd/- Sd/- Sd/- MALE MEMBER PRESIDENT LADY MEMBER APPENDIX OF EVIDENCE Witnesses Examined For the complainant : Nill For the opposite party : Nill List of exhibits marked for the complainant:- Ex.A1 Photo copy of Certificate of Registration of the complainant’s Auto bearing No.AP21 TT 7096. Ex.A2. Photo copy of Policy cover note issued by opposite party. Ex.A3 Letter dated 22-03-2011 issued by opposite party. Ex.A4 Letter dated 08-04-2011 issued by opposite party with Xerox photos. Ex.A5 Letter dated 24-05-2011 issued by opposite party. Ex.A6 Office copy of Reply Notice dated 31-05-2011 with Postal Receipt and Acknowledgement. Ex.A7 Photo copy of Claim Forum Ex.A8 Letter dated 29-06-2011 issued by opposite party. Ex.A9 Office copy of Reply Notice dated 07-09-2011 with postal Receipt and Acknowledgment. Ex.A10 Photo copy of Estimation dated 23-08-2011 issued by the Sasya Motors, Kurnool. List of exhibits marked for the opposite party:- Ex.B1 Motor Insurance Policy bearing No.3368/00387048/000/00 along with terms and conditions. Ex.B2 Consent letter dated 11-11-2011. Ex.B3 Motor loss voucher. Ex.B4 Office copy of Letter dated 22-03-2011 issued by opposite party. Ex.B5 Office copy of Letter dated 08-04-2011 issued by opposite party with Xerox photos. Ex.B6 Office copy of Reply Notice dated 29-06-2011. Sd/- Sd/- Sd/- MALE MEMBER PRESIDENT LADY MEMBER // Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987// Copy to:- Complainant and Opposite parties : Copy was made ready on : Copy was dispatched on : | 
