BEFORE THE DISTRICT CONSUMER FORUM AT NALGONDA
PRESENT: SRI MAMIDI CHRISTOPHER,
PRESIDENT.
SMT.S.SANDHYA RANI,
FEMALE MEMBER.
. . .
FRIDAY, THE SIXTH DAY OF DECEMBER, 2019
CONSUMER COMPLAINT No. 22 OF 2017
Between:
M.Saidi Reddy S/o Laxma Reddy, Aged: 40 years,
Occ: Owner of Lorry bearing No.TS-05UA-4555,
R/o H.No.14-721, Shanthi Nagar Colony, Miryalguda Town,
Nalgonda District, Pin:508 001.
…COMPLAINANT.
]
AND
The New India Assurance Company Limited, Huzurnagar Road,
Kodad Town, Nalgonda District, Pin: 508216. Represented by
its Branch Manager.
…OPPOSITE PARTY.
This complaint coming on before us for final hearing, in the presence of Sri T.Kiran Kumar, Advocate for the Complainant, and Sri T.Rajashekhar, Advocate for the Opposite Party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:
ORDER OF THE FORUM DELIVERED
BY SMT.S.SANDHYA RANI, FEMALE MEMBER
1. The Complainant filed this complaint under section 12 of the Consumer Protection Act, 1986 to direct the Opposite Party to pay a sum of Rs.20,00,000/- with interest @ 12% p.a. from the date of accident till realization under the heads, i.e. Rs.10,00,000/- towards damages, Rs.5,00,000/- towards loss of income, Rs.5,00,000/- towards mental agony, in total Rs.20,00,000/-.
2. The facts of the case as disclosed from the complaint are as follows:
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The Complainant is the owner of Lorry bearing No.TS-05UA-4555 and the said vehicle was insured with the Opposite Party, vide Policy No.61320131150100018267, valid from 28/03/2015 to 27/03/2016. On 24/08/2015 at about 0245 hours the Complainant’s driver Javed driver of Lorry bearing No.TS-05UA-4555 was proceeding from Jaggaiahpet to Salem with a load of iron and on the way when the said lorry reached PS.Naidupeta jurisdiction, Javed drove the vehicle in a rash and negligent manner and dashed a stationed lorry on its rear side, resulting a gas cylinder which was in the Lorry of the Complainant leaked and caught fire, due to which the Lorry of the Complainant was totally burnt and damaged and the Cleaner of the said Lorry died in the hospital due to burn injuries. The Police, Naidupeta registered a case against the driver Javed, U/S 337 and 279 of IPC. and took up the investigation. After the accident, the Complainant intimated the Opposite Party Branch Office at Kodad and submitted claim form and requested to pay OD claim. The Opposite Party appointed a Surveyor to inspect the spot, who submitted a preliminary report on 24/08/2015. The Opposite Party appointed another Surveyor for final survey. After final survey, the surveyor submitted Final (Motor) Survey Report on 22/02/2016. On 17/01/2017 the Opposite Party sent a repudiation letter to the Complainant stating that “it is observed that at the time of accident, gas cylinder was carried in the lorry cabin which is a violation of policy condition. Hence, no claim”. The Complainant submits that he spent Rs.10,00,000/- towards spare parts of the lorry and repairing charges. The Opposite Party failed to render service properly in spite of collecting OD premium and there is deficiency of service in not settling
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the issue and violated the terms and conditions of the policy, due to
which the Complainant suffered mentally and financially. Hence, the complaint.
3. The Complainant filed his proof affidavit and marked Ex.A-1, i.e. Repudiation Letter, dated 17/01/2017 issued by the Opposite Party.
4. The Opposite Party filed his written version denying that there is deficiency in service on the part of the Opposite Party. The facts of the case as per F.I.R. and Chargesheet, i.e. Exs.A-5 and A-6, are that the driver of the Lorry bearing No.TS-05UA-4555 drove the vehicle in a rash and negligent manner and dashed against another stationed Lorry bearing No.NL-01G-4919, as a result the gas cylinder which was kept in the Lorry exploded and raised flames, due to which the lorry was damaged. Therefore, it is clearly revealed that the said lorry was burnt due to the carriage of gas cylinder in the lorry and it is a violation of terms and conditions of the policy. The driver and cleaner of the lorry are not expected to travel in the lorry with the gas cylinder as it is a hazardous goods and gas cylinder is a flammable article. The lorry was insured with the Opposite Party, Kodad Branch, vide Policy No.61320131140100012672, valid from 05/12/2014 to 04/12/2015. As per the permit, the lorry can carry only goods except prohibited. The Opposite Party repudiated the claim of the Complainant as he violated the terms and conditions of the policy and permit and the same was informed to the Complainant, vide letter Ex.A-7, dated 17/01/2017, as such there is no deficiency of service on the
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part of the Opposite Party and the Complainant is not entitled any compensation as claimed in the complaint. The Opposite Party finally prayed for the dismissal of the complaint.
5. The Opposite Party filed his proof affidavit and marked Exs.B-1 to B-7. Ex.B-1 is the attested copy of Policy, Ex.B-2 is the Survey Report, Ex.B-3 is the Registration Certificate of the Lorry bearing No.TS-05UA-4555, Ex.B-4 is the Permit, Ex.B-5 is the Xerox copy of F.I.R., Ex.B-6 is the Xerox copy of Chargesheet and Ex.B-7 is the attested copy of Repudiation Letter issued by the Opposite Party to the Complainant. Written Arguments were also filed on behalf of the Opposite Party.
6. Now the points that arise for consideration are:
- Whether there was deficiency in service on the part of the
Opposite Party?
- Whether the Complainant is entitled for the claims
he made in his complaint?
3) If so, to what extent?
7. POINT No.1:
It is not in dispute that the Complainant is the owner of Lorry bearing No.TS-05UA-4555 and the said vehicle was insured with the Opposite Party, vide Policy No.61320131140100012672, valid from 05/12/2014 to 04/12/2015. It is a fact that on 24/08/2015 at about 0245 hours the Complainant’s driver Javed, driver of Lorry bearing No.TS-05UA-4555 was proceeding from Jaggaiahpet to Salem with a load of iron and on the way when it reached PS.Naidupeta jurisdiction, Javed drove the vehicle in a rash and negligent manner and dashed a stationed lorry on its rear side, resulting a gas cylinder which was in
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the Lorry of the Complainant leaked and caught fire. Due to which, the Lorry of the Complainant was totally burnt and damaged and the Cleaner of the said Lorry died in the hospital due to burn injuries. The Police, Naidupeta registered a case against the driver Javed, U/S 337 and 279 of IPC. and took up the investigation. The Complainant intimated the Opposite Party Branch Office at Kodad and submitted claim form and requested to pay OD claim. The Opposite Party appointed a Surveyor to inspect the spot, who submitted a preliminary report on 24/08/2015. The Opposite Party appointed another Surveyor for final survey. After final survey, the surveyor submitted Final Survey Report on 22/02/2016. On 17/01/2017 the Opposite Party sent a repudiation letter to the Complainant stating that “it is observed that at the time of accident, gas cylinder was carried in the lorry cabin which is a violation of policy condition. Hence, no claim”. The Complainant submits that it is a false reason for denying the claim.
8. The Opposite Party denied the claim of the Complainant and submitted that as the Complainant violated the terms and conditions of the policy by carrying hazardous and prohibited goods, he is not entitled for any compensation. The Opposite Party appointed a surveyor to estimate the damage caused to the Lorry bearing No.TS-05UA-4555 and the said surveyor after surveying the vehicle and damages has given a detailed Motor Final Survey Report Ex.B-2, dated 16/02/2016 and assessed the damages to a tune of Rs.5,77,012/- which can be taken into consideration as there is no mention in the Final Survey Report about the carrying of gas cylinder in the vehicle
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and that the damages caused to the Lorry bearing No.TS-05UA-4555
due to the leakage of gas and fire. The cause of the accident shown in the Final Survey Report is due to Complainant’s lorry dashed against a stationed lorry and sustained heavy damage. As the Opposite Party failed to settle the claim of the Complainant, we are of the opinion that there is deficiency in service on the part of the Opposite Party.
9. POINT Nos.2 & 3:
The Motor Final Survey Report Ex.B-2 issued by the Surveyor clearly reveals that the various parts of the lorry were damaged due to the accident and the Surveyor assessed the said damages to a tune of Rs.5,77,012/-. Hence, the Motor Final Survey Report can be considered.
10. In a decision reported in Ajeet Pathania Vs.Shriram General Insurance Co.Ltd. II (2019) CPJ 65 (HP), it was held by Hon’ble State Consumer Disputes Redressal Commission, Himachal Pradesh that Report submitted by Surveyor-cum-Loss Assessor appointed under Section 64UM(2) of Insurance Act, 1938 is substantial piece of evidence and is a valuable document and should be given due credence by Insurer and non-payment of amount as assessed by Surveyor-cum-Loss Assessor appointed under Insurance Act, 1938 is ipso facto deficiency in service on the part of Insurance Company.
11. In another decision reported in Kemali Bai Vs.Oriental Insurance Co.Ltd. I (2018) CPJ 3A (CN) (Chha.), it was held by the Hon’ble State Consumer Disputes Redressal Commission, Himachal Pradesh and
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Hon’ble State Consumer Disputes Redressal Commission, Chhattisgarh that Report of surveyor is a reliable document which cannot be discarded lightly.
12. In the light of the above decisions and in the light of the findings under Point No.1, the Complainant is entitled for an amount of Rs.5,77,012/- towards replacement of parts made and repairing charges of the damaged Lorry bearing No.TS-05UA-4555 with interest @ 9% per annum from the date of the complaint till realization. The Complainant is further entitled for Rs.5,000/- towards mental agony apart from costs of Rs.2,000/-.
In the result, the Opposite Party is directed to deposit in this Forum, an amount of Rs.5,77,012/- [Rupees Five Lakhs Seventy Seven Thousand and Twelve only] towards replacement of parts made and repairing charges of the damaged Lorry bearing No.TS-05UA-4555 of the Complainant with interest at the rate of 9% per annum from the date of the complaint, i.e. 12/06/2017 till realization, Rs.5,000/- [Rupees Five Thousand only] towards mental agony and Rs.2,000/- [Rupees Two Thousand only] towards costs. Time for compliance one month from the date of receipt of this Order. Accordingly, the complaint is partly allowed.
Dictated to Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum on this 6th day of December, 2019.
FEMALE MEMBER PRESIDENT
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant: For Opposite Party:
Affidavit of Complainant. Sri P.S.Amosvictor, Divisional
Manager, New India Assurance
Co.Ltd., filed his affidavit
on behalf of Opposite Party.
EXHIBITS MARKED
For Complainant:
Ex.A-1: Dt.17/01/2017 Original Repudiation Letter, issued by
the Opposite Party.
For Opposite Party:
Ex.B-1 Dt.05/12/2014 Attested copy of Insurance Policy.
Ex.B-2 Dt.16/02/2016 Xerox copy of Motor(Final) Survey Report.
Ex.B-3 Dt.31/12/2014 Xerox copy of Registration Certificate of
the Lorry bearing No.TS-05UA-4555.
Ex.B-4 Dt.31/12/2014 Xerox copy of Permit.
Ex.B-5 Dt.23/08/2015 Xerox copy of F.I.R.
Ex.B-6 Dt.29/09/2015 Xerox copy of Chargesheet.
Ex.B-7 Dt.17/01/2017 Attested copy of Repudiation Letter.
PRESIDENT
DISTRICT CONSUMER FORUM
NALGONDA
