ORDER
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking refund of insurance claim of Rs.3,10,326/- being the amount spent for repair of the vehicle bearing No.AP07 TT 8779 and interest thereon at 24% p.a. from 25-02-12 onwards; Rs.1,00,000/- as compensation towards mental agony; Rs.1,00,000/- towards deficiency of service and Rs.5,000/- towards costs.
2. In brief averments of complaint are hereunder:
The complainant is owner of the lorry bearing No.AP07 TT 8779 and insured it with the opposite party vide policy No.62100 23111 01000 05370. The said lorry met with an accident on 25-02-12 within the jurisdiction of Mangalagiri PS and was damaged very badly. The said policy was in force at the time of accident. The SHO, Mangalagiri PS registered the said accident as crime No.35/12 on 01-03-12 on the report given by the defacto complainant therein. In the said case the police authorities had shown the cleaner as driver mistakenly. After completion of investigation the SHO, Mangalagiri PS filed charge sheet and the same was numbered as CC 298 of 2012 on the file of the court of the Additional Junior Civil Judge, Mangalagiri against the driver of the said lorry and is pending. Driver of the said lorry had got valid and effective driving license. The complainant submitted the repair expenses bill amounting to Rs.3,10,326/- to the opposite party. The opposite party repudiated the claim on 25-09-12 basing on FIR only. Repudiating the claim without any valid reason to avoid paying insurance amount amounted to deficiency of service. The opposite party gave reply with false allegations to the notice issued by the complainant. The complainant suffered mentally and financially on account of adamant nature of the opposite party. The complaint therefore be allowed.
3. The contention of the opposite party in brief is thus:
The opposite party issued the policy bearing No. 62100 23111 01000 05370 and it covered the period from 12-01-12 to 11-01-13. Cleaner of the lorry drove the vehicle bearing No. AP 07 TT 8779 at the time of accident as per FIR and statements recorded by police. Driver of the said lorry himself gave report to the police. The opposite party gave suitable reply to the complainant denying liability. Cleaner of the said lorry namely V. Koteswara Rao did not possess valid and effective license at the time of accident. The opposite party thus validly repudiated complainant’s claim and did not commit any deficiency of service. The complaint therefore be dismissed.
4. Exs.A-1 to A-30 and Exs.B-1 to B-5 were marked on behalf of the complainant and opposite party respectively.
5. Now the points that arose for consideration in this case are these:
1. Whether the opposite party committed deficiency of service as contended by the complainant?
2. Whether the complainant is entitled to compensation and damages as claimed?
3. To what relief?
6. Admitted facts in this case are these:
- The complainant is owner of the vehicle bearing No.AP 07 TT 8779 (Ex.A-1).
- The complainant insured the said vehicle with the opposite party and it was valid from 12-01-12 to 11-01-13 (Ex.A-2=B-1).
- The said vehicle met with an accident on 25-02-12 near Mangalagiri.
- The SHO, Mangalagiri PS (R) registered the said accident as crime No.35/12 and issued FIR against one Vuyyuru Koteswara Rao (Exs.B-2 and B-3).
- The SHO, Mangalagiri PS (R) filed charge sheet against Myneni Subba Rao and the same was numbered as CC 298/12.
- Exchange of notices between the complainant and opposite party (Ex.A-28 and A-30 = B-5).
7. POINT No.1:- The complainant in her complaint as well as in her affidavit mentioned “In the above case the police authorities shown the cleaner as driver in the above said lorry mistakenly after completion of the investigation the real fact came out and the Mangalagiri police filed the charge sheet and it was shown as the driver who drove the said vehicle”.
8. One Myneni Subba Rao set the criminal law into motion by giving a report to the SHO, Mangalagiri Rural PS (Ex.B-3) mentioning that he entrusted driving to one Vuyyuru Koteswara Rao cleaner of the lorry bearing No.AP 07 TT 8779 as he was getting sleep. On the basis of Ex.B-3 only the SHO, Mangalagiri PS (R) issued FIR against Vuyyuru Koteswara Rao s/o Arjun Rao (Ex.B-2) but not mistakenly by police as contended by the complainant. The police filed Ex.A-3 charge sheet against the defacto complainant of Ex.B-3. The opposite party repudiated the claim vide Ex.A-27 dated 25-09-12 for the reason that the cleaner of the vehicle AP 07 TT 8779 namely V. Koteswara Rao did not possess a valid and effective driving license.
9. The entire controversy now rests regarding the identity of the person who was driving the vehicle at the time of accident. The learned counsel for the complainant contended that the charge sheet would prevail against FIR and relied on the decision reported in AIR 2011 SC 255. On the other hand, the learned counsel for the opposite party vehemently argued that the complainant in collusion with police got charge sheet filed against driver of the ill fated lorry to have wrongful gain.
10. In Ranjit Singh and others vs. State of Madhya Pradesh AIR 2011 SC 255 the question that arose was the evidentiary value of FIR if name of culprit was not mentioned. The Supreme Court after considering the earlier rulings held:
“While dealing with a similar issue in Animireddy Venkata Ramana & Others vs. Public Prosecutor, High Court of Andhra Pradesh, (2008) 5 SCC 368 : (AIR 2008 SC 1603), this Court held as under:
‘While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important facts which may weigh with the court is as to implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well-known principles of caution.’
Therefore, from the law referred to herein above, it is evident that in case the informant fails to name a particular accused in the FIR, and the said accused is named at the earliest opportunity, when the statements of witnesses are recorded, it cannot tilt the balance in favour of the accused.”
11. In Rotash vs. State of Rajastan 2007 Cri.L.J. 758 SC it was held that the First Information Report as is well known is not an encyclopedia of the entire case, it need not contain all the details, however although did not intend to ignore the importance of naming of an accused in the First Information Report.
12. In the present case the issue was otherwise. Therefore the above decision reported in AIR 2010 SC 255 in our considered opinion is not applicable to the facts of the case as the culprit was named in Ex.B-3 FIR by the person shown as accused in Ex.A-3 charge sheet.
13. A similar question arose in the decision reported in Amalsai & another vs. United India Insurance Company Limited through Branch Manager and another 2012 (4) CPR 633 (NC). In the said case one Rajesh Panka was shown as driving the ill fated vehicle at the time of accident at the earliest stage, while one Ramdas was shown as driving the said ill fated vehicle at later point of time; the District Forum held that after a long period in an after thought manner to get the benefit of insurance it had been shown as driven by Ramdas and the same was disbelieved and dismissed the complaint. The same was affirmed by Chattisgarh State Consumer Disputes Redressal Commission, Raipur and also by National Consumer Disputes Redressal Commission.
13. In Jagdish Prasad Dagar vs. Senior Divisional Manager, Life Insurance Corporation 1992 (2) CPJ 493 (NC) dated 05-03-92 in appeal No.153/91 while dealing the aspect of deficiency of service held:
“Once it is found that the insurer had duly considered all the relevant facts and circumstances and taken a decision in good faith as to whether the claim put forward by the insured or a nominee under the policy should be allowed to any extent, it cannot be said that there has been any ‘deficiency in service’ on the part of the insurer in relation to the performance of its duties under the contract of insurance.
In such a case, in the event of the insured or his nominee or legal heir as the case may be, feeling dissatisfied with the decision communicated by the insurer, he will have to seek redressal either by resort to arbitration under the relevant clause in the policy or by institution of a suit before the ordinary Civil Court. The jurisdiction of the Forum constituted under the Consumer Protection Act can be invoked only in case there has been a ‘deficiency in service’ on the part of the insurer. Whether the decision to repudiate the liability has been communicated by the insurer without stating reasons or where the decision is taken arbitrarily or without due application of mind or otherwise than in good faith, the insured can in all such cases legitimately maintain an action before the Redressal Forum under the Act on the ground of deficiency”.
14. Similarly the said aspect was also dealt in Janta Machine Tools vs. Oriental Insurance Company Limited 1991 (1) CPJ 234, dated 21-08-90 in Original Petition No.12/90 (Full bench) held:
This is a claim primarily against the first respondent – Oriental Insurance Company., on the allegation that there has been a deficiency in the service which the company was bound to render to the complainant under two policies of general insurance that the complainant had take out with the company. From the facts disclosed by the record and particularly the averments contained in the counter affidavit filed by the first respondent it is seen that the Insurance Company had fully investigated into the claim put forward by the complainant, got surveys conducted and had finally come to the conclusion that the claim put forward by the complainant was false and accordingly informed the complainant that his claim was rejected. Thus this not a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the policies of insurance. It may be that the complainant is not satisfied with the said rejection of his claim by the Insurance Company. Having regard to the facts and circumstances of this case and the nature of the controversy between the parties we consider that this is a matter that should be adjudicated before a civil court where the complainant as well as the respondent will have ample opportunities to examine witnesses at length, take out Commission for local inspections etc. and have an elaborate trial of the case. Without prejudice to the right of the complainant to take resort to the remedy by way of civil before the proper Court. We dismiss this petition.
It is not the case of the complainant that Vuyyuru Koteswara Rao shown as accused in Ex.B-3 FIR did possess valid and effective driving license. The repudiation of claim by the opposite party for the reasons mentioned in Ex.A-27 letter in our considered opinion is justified and thereby did not amount to deficiency of service. We therefore answer this point against the complainant.
15. POINT No.2: In view of above findings, the complainant is not entitled to any compensation or damages much less the one claimed. We therefore answer this point also against the complainant.
16. POINT No.3: In view of above findings in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 16th of July, 2013.
Sd/-XXX Sd/-XXX
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant :
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS
|
A1 |
08-02-06 |
Copy of certificate of registration |
A2 |
|
Copy of policy schedule cum certificate of insurance |
A3 |
|
Copy of charge sheet |
A4 |
15-05-12 |
Copy of cash voucher for Rs.14,400/- |
A5 |
15-05-12 |
Copy of cash voucher for Rs.9,500/- |
A6 |
15-05-12 |
Copy of cash voucher for Rs.35,000/- |
A7 |
15-05-12 |
Copy of cash voucher for Rs.13,000/- |
A8 |
15-05-12 |
Copy of cash voucher for Rs.90,000/- |
A9 |
15-05-12 |
Copy of cash voucher for Rs.7,000/- |
A10 |
15-05-12 |
Copy of cash voucher for Rs.8,00/- |
A11 |
15-05-12 |
Copy of cash voucher for Rs.5,000/- |
A12 |
12-05-12 |
Copy of invoice/cash bill for Rs.10,100/- |
A13 |
12-05-12 |
Copy of invoice/cash bill for Rs.4300/- |
A14 |
12-05-12 |
Copy of invoice/cash bill for Rs.3700/- |
A15 |
12-05-12 |
Copy of cash bill for Rs.4040/- |
A16 |
12-05-12 |
Copy of cash bill for Rs.15300/- |
A17 |
12-05-12 |
Copy of cash bill for Rs.21,500/- |
A18 |
12-05-12 |
Copy of cash bill for Rs.5050/- |
A19 |
14-05-12 |
Copy of cash bill for Rs.11,750/- |
A20 |
12-05-12 |
Copy of cash bill for Rs.18,000/- |
A21 |
09-05-12 |
Copy of cash bill for Rs.11,550/- |
A22 |
08-05-12 |
Copy of cash bill for Rs.12,500/- |
A23 |
15-05-12 |
Copy of cash bill for Rs.3893/- |
A24 |
04-04-12 |
Copy of cash bill for Rs.7443/- |
A25 |
10-04-12 |
Copy of tax invoice for Rs.4200/- |
A26 |
20-03-12 |
Copy of tax invoice for Rs.2300/- |
A27 |
25-09-12 |
Copy of repudiation letter |
A28 |
29-11-12 |
Copy of legal notice |
A29 |
|
Acknowledgement |
A30 |
16-01-13 |
Copy of reply legal notice |
For Opposite Parties:
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS
|
B1 |
|
Copy of policy |
B2 |
|
Copy of FIR |
B3 |
|
Copy of 161 statements |
B4 |
|
Copy of Inquest report |
B5 |
|
Copy of reply notice issued by opposite party |
Sd/-XXXX
PRESIDENT
