BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 23rd of May 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.253/2010
Admitted on 20.09.2010)
Mr.Sushan,
So. Mrs.Shamira,
Aged about 35 years,
Sushan Villa,
Ramaiya Compound,
Babugudda, Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.A.Nagaraj N).
VERSUS
1. The Oriental Insurance Co. Ltd.,
Rathore Mansion,
1st Floor, Bank Floor,
Dhanbad 828122,
Bihar State,
Rep. by its Branch Manager.
2. The Oriental Insurance Co. Ltd.,
Divisional Office,
“Beauty Plaza”,
Balmatta Road,
Mangalore – 575 001,
Rep. by its Divisional Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri. Anil Kumar K.)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is the registered owner of the Tipper Lorry bearing registration No.GJ-5-UU-1860. The above said vehicle insured under the comprehensive policy bearing No.332703/31/2007/7452 with the Opposite Party No.1 and the same was valid from 15.01.2007 to 14.01.2008.
It is stated that, the above said lorry met with a road traffic accident on 04.12.2007 at 11.00 a.m. near Haripadavu in Derebail Village of Mangalore Taluk and case was registered by Kavoor Police Station in crime No.121/2007. Due to the accident, the Complainant’s said vehicle was damaged the same was towed to garage, wherein, estimation has been done on 10.12.2007 for Rs.1,56,049/-. Thereafter, the Complainant submitted the claim form and the Opposite Party surveyed the vehicle. With the consent of the Opposite Parties’ Surveyor the Complainant got it repaired and forwarded the entire repair and spare parts bill to Opposite Party No.2 which has been acknowledged by Opposite Party No.1 but the Opposite Party No.1 has not settled the legitimate claim of the Complainant. Thereafter the Complainant issued a letter dated 21.10.2010 calling upon them to settle his claim but there is no response and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.1,56,049/- along with interest at 12% p.a. from 04.12.2007 till date and also claimed Rs.50,000/- as compensation and Rs.5,000/- as cost of the litigation expenses.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy but it is stated that, the Complainant has failed to submit necessary documents either at the time of submitting the claim form or at any subsequent dates inspite of several reminders. It is also stated that, the driver who was driving the said lorry as on the date of accident was not possessing the valid and effective driving licence and stated that there is no deficiency and further stated that the liability if any subject to the depreciation and to the extent of assessment of actual loss done by the Surveyor and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Sushan (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C20 were marked for the Complainant as listed in the annexure. One Mr.Sudhakar (RW1), Senior Divisional Manager of the Opposite Party No.2 and one Mr.Harish (RW2) – General Insurance Surveyor and Loss Assessor of the Opposite Parties filed counter affidavits and answered the interrogatories served on them. Ex R1 and R2 were marked for the Opposite Parties as listed in the annexure. The Complainant as well as Opposite Parties filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute is that, the Complainant is the registered owner of the Tipper Lorry bearing registration No.GJ5 UU 1860 and the above said vehicle insured with the Opposite Party under the Comprehensive Policy bearing No.332703/31/2007/7452 and the same was valid from 15.01.2007 to 14.01.2008 (as per Ex C5). It is also admitted that, during the subsistence of the policy the above said vehicle met with a road traffic accident on 4.12.2007 at 11.00 a.m. near Haripadavu in Derebail Village of Mangalore Taluk and the case was registered by Kavoor Police in Crime No.121/07 (as per Ex C1).
Now the point in dispute between the parties before this FORA is that, the Complainant came up with a complaint stating that the above said vehicle owned by him met with an accident and sustained damage in the above accident. Since he has availed Insurance Policy the claim was submitted before the Opposite Party along with all required documents, despite of that the Opposite Parties not settled the claim, hence came up with this complaint.
The Opposite Parties on the other hand admitted the policy as well as the accident in question, the only contention is that after receiving the intimation of the accident, the Surveyor was deputed and Surveyor submitted the report. As per the survey report, the Complainant is entitled only Rs.45,455.48 but the Complainant failed to come forward to accept the offer and also stated that the vehicle is 1999 model, considering the model of the said vehicle some depreciation of the spare parts recommended for replacement but the bill issued by Afzal Automobiles Bangalore for Rs.48,000/- towards the second hand cabin of the lorry purchase is not a receipt, tax invoice or bill and stated that there is no deficiency.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C20. Opposite Parties also filed affidavit of RW1 and RW2 and produced Ex R1 and R2.
On perusal of the oral as well as documentary and admitted facts available on record, we find that, during the validity of the policy the above said vehicle met with a road traffic accident near Haripadavu in Derebail Village of Mangalore Taluk and the case was registered in Kavoor Police station in Crime No.121/07 (as per Ex C1, C14, C15 i.e., FIR and mahazar). In the instant case, the dispute is only with regard to the consideration of the repair bills for Rs.48,000/- issued by the Afzal Automobiles for repair of the second hand cabin assy. However, we have noticed that, in the present case no doubt the Surveyor assessed the damage caused to the tipper lorry. The Ex R2 is the survey report dated 02.03.2008, wherein, the Surveyor stated that, “the insured vehicle was loaded with excavated soil and while ascending a steep and narrow road, the vehicle could not proceed further, moved reverse, driver lost control, overturned to its left side, fell into the water filled pond of a farm which is about 50 meters from the road level and sustained damage”. The Surveyor assessed the loss in parawise with regard to the spare parts and labour charges and towing charges etc. etc. On perusal of the survey report, the Surveyor recommended the above damage as follows:-
A. Spare parts recommended:
Amount Amount
claimed recommended
1. ……………….
2. ………………..
3………………..
4. ………………
5. ……………….
6. ……………….
7. ………………….
After depreciation of 40% Rs.3,507.98
8……………..
9. …………….
10. ………….
After depreciation of 50% Rs. 551.25
11. ………
12. ……….
0% depreciation Rs.1,946.20
13. Cabin assy (2nd hand reusable one), recommended
after discussing with the Divisional Manger,
Mangalore Rs.40,000.00
Less : Salvage Rs. 9,000.00
Rs.37,005.48
B. Labour and Repair Charges recommended Rs. 6,950.00
C. Towing and repair charges Rs. 2,500.00
Rs.52,460.91
When that being the case, the Complainant is entitled for the above said amount as per the survey report. But, in the instant case, the Complainant produced the repair bill issued by Afzal Automobiles for Rs.48,000/- stating that the above said bill was towards the second hand cabin assy. According to the Opposite Party the above said bill is not genuine. However, we have perused the above said bill issued by Afzal Automobiles but it does not contain seal and signature of the Proprietor of the above said firm. In the absence of the same, the bill issued by the Afzal Automobiles cannot be considered as a whole. But the Surveyor has recommended for second hand cabin assy instead of new one as per the recommendation of the Divisional Manager of the Opposite Party. When that is so, the Opposite Party cannot reject the entire bill amount. If at all the Complainant has not fixed the cabin assy then the matter would have been different. The Surveyor recommended for Rs.40,000/- for second hand cabin assy atleast that amount should have been considered by the Opposite Party Company. Since the Surveyor recommended for Rs.40,000/- we feel that the Complainant is entitled only for Rs.40,000/- in this case towards the cabin assy. However, the Opposite Party Company instead of settling the claim as per the Surveyor’s recommendation dragged the Complainant before this FORA without there being any justifiable grounds. Atleast the Opposite Party Company should have come forward to settle the claim after filing the consumer complaint. No such attempt was made that shows that the Insurance Company is not ready to settle the claim which amounts to deficiency in service.
In view of the above discussion, we hereby direct the Opposite Party No.1 and 2 i.e., Oriental Insurance Company Limited to pay to the Complainant a sum of Rs.52,460.96 under different heads as recommended by the Surveyor which is rounded to Rs.52,500/- along with interest at 12% p.a. from the date of accident till the date of payment and also pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation and hence separate compensation not allowed in this case.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 and 2 i.e., Oriental Insurance Company Limited is hereby directed to pay to the Complainant Rs.52,500/- (Rupees fifty two thousand and five hundred only) along with interest at 12% p.a. from the date of accident till the date of payment and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 23rd day of May 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Sushan – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 08.12.2007: Copy of the Motor Vehicle Accident report.
Ex C2 – : Notarized copy of R.C. of Tipper lorry.
Ex C3 – 10.12.2007: Copy of estimate of repair cost.
Ex C4 – : Notarized copy of Registration Certificate.
Ex C5 - : Copy of the Insurance Policy bearing No.332703/31/2007/7452 for the period from 15.01.2007 to 14.01.2008.
Ex C6 – 04.06.2007: Notarized copy of the Goods Carriage permit.
Ex C7 – 10.12.2007: Copy of the claim form submitted to the Opposite Party No.1
Ex C8 – 16.10.2008: Letter of the Opposite Party No.1 to the Complainant.
Ex C9 – 31.10.2008: Reply of the Complainant to the above said letter dated 16.10.2008.
Ex C10 – 22.12.2008: Copy of the letter issued by the Opposite Party No.2 to Opposite Party No.1.
Ex C11 – 11.01.2010: Letter of the Complainant to Opposite Party No.1 with endorsement of postal authority for service of said letter to Opposite Party No.1 (copy).
Ex C12 (a) to (d) – 17.07.2010: Copy of the legal notice sent to the Opposite Parties along with postal receipt and postal acknowledgements.
Ex C13 – 05.12.2007: Certified copy of the FIR and complaint.
Ex C14 – 08.12.2007: Certified copy of the Motor vehicle accident report.
Ex C15 - : Certified copy of the spot mahazar.
Ex C16 – 10.12.2007: Estimate for replacement parts and labour charges of the accident vehicle.
Ex C17 - : Original repair and spare parts bills (4 in numbers).
Ex C18 – 05.12.2008: Copy of the letter of the Opposite Party.
Ex C19 – 10.02.2009: Report of the investigator.
Ex C20 – 13.03.2009: Letter issued by the Opposite Party to M/s.Afzal Auto Mobiles, Bangalore.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.Sudhakar, Senior Divisional Manager of the Opposite
Party No.2.
RW2 – Mr.Harish – General Insurance Surveyor and Loss Assessor of the Opposite Parties.
Documents produced on behalf of the Opposite Parties:
Ex R1 – 05.12.2007: Original survey report (spot survey) issued by Sri. Praveen Kumar Kamath, General Insurance Surveyor and Loss Assessor along with photographs (13 in numbers).
Ex R2 – 02.03.2008: Original survey report (final survey) issued by
Sri.Harish, General Insurance Loss Assessor
along with photographs (18 in numbers).
Dated: 23.05.2011 PRESIDENT
