PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

SRI S.A. KHADER BASHA, B.Sc., MEMBER.

 

Tuesday, 22^nd June 2010

                                                                 

S. Mahaboob Basha, S/o D. Chinna honnur Saheb,

aged about 38 years, Resident of Narasapuram Village,

Kasinayana Mandal, Kadapa District.                                           ….. Complainant.    

 

Vs.

1) The Oriental Insurance Co. Ltd., Division-3, No. 7,

2) The Branch Manager, Oriental Insurance Co. Ltd.,

3) The Branch Manager, Shriram Transport Finance Co. Ltd.,

 

  

This complaint coming on this day for final hearing on 16-6-2010 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri D. Lakshminarayana, Advocate for R1 & R2 and Sri G.S. Moorthy, Advocate for R3 and upon perusing the material papers on record, the Forum made the following:-

 

 

 

1.                Complaint filed under section 12 of the Consumer Protection Act 1986.

 

2.                The brief facts of the complaint are as follows:- The complainant S. Mahaboob Basha, is a resident of Narasapuram Village, Kasinayana Mandal, Kadapa District. He is the owner of Eicher motors bearing No. AP 04 V : 6812. He availed finance from O.P. No. 1.  The vehicle was insured with O.P. No. 2 and obtained a policy from O.P. No. 2. On 24-9-2007 the vehicle of the complainant met with an accident due to rash and negligent driving of the driver of the vehicle. Immediately on the date of accident itself the complainant informed about the accident to the respondents.   The surveyor thoroughly verified /inspected the damages caused to the vehicle of the complainant and submitted his report to the Respondents on              24-3-2008. After taking permission from the Opposite parties, the complainant shifted the vehicle to the garage for repairs. The mechanic estimated the damages to the tune of Rs. 74,162/-. The estimation bill was submitted to the Opposite parties and requested to sanction the amount as per estimation bill so that the complainant can get repairs of his vehicle.  During the month of January 2008 the complainant made a claim with all original bills. The complainant waited more than one year for sanction of estimated bill submitted by him but there is no response from the Respondents, even on repeated approached by the complainant. Due to the said accident the parts of the vehicle are similarly damaged. Apart from that the said damage has not get it repaired due to non sanction of the amount by the Respondents.   The vehicle became rusted, to avoid further damages for the said vehicle. Even after sending the assessment bills Respondents neither replied nor paid single pie to the complainant even after repeated approaches by the complainant  finally the complainant got vexed with the attitude of the Respondents and issued legal notice, dt. 16-11-2009 calling upon the Respondents to settle the claim with interest within a week.   The said legal notice was received by the Respondents but till today Respondents have not given any reply to the said notice or made payment. The relevant documents relating to the said accident submitted the Respondents 1 & 2, dt. 24-3-2008. The Photostat copy of the above said document are misplaced and the complainant tried his level best to trace those documents but in vain. He is unable to file those documents before Hon’ble Forum for kind personal. The Respondents neither repaired the vehicle nor settle the claim even today.   The Respondent No. 1 issued a reply notice dt. 16-12-2009 alleging that had no knowledge about the accident, without enquiring the matter from R2.   The Respondent No. 1 gave a vague reply. They are liable to pay compensation. The cause of action arose on 24-9-2007 when the vehicle of the complainant met with an accident, when the Respondent sent his surveyor and when the surveyor visited the spot, estimated the cost of damages of the vehicle to the tune of Rs. 1,65,685/-. When the complainant got it repaired by borrowing funds from outside financiers, when the complainant got issued legal notice to the Respondents and to settle the claim with interest, when the Respondents received notice and therefore, cause of action arose till the disposal of the complaint. The office of Respondents 2 & 3 are within the jurisdiction of the Hon’ble Forum. Therefore, this forum got territorial jurisdiction and the complaint is filed within the limitation period. Respondent No. 3 financier of the complainant is added as formal party to this case.    The complainant prayed this Forum to direct the Respondents to pay an amount of Rs. 74,162/- with interest @ 24% p.a. till realization, award this complaint, costs of award of Rs. 10,000/- and to pass such other orders as this Hon’ble Forum may deem fit and proper in the circumstances of the case.  

 

3.                R1 filed a counter denying all the allegations except those which are specifically admitted herein by R1. R1 admits the issuance of the policy in favour of the complainant for his vehicle bearing No. AP 04 V : 6812. R1 stated the real facts that no claim was reported to the Respondents for the alleged accident dt. 24-9-2007. R1 has not arranged any surveyor either spot or final to assess the loss alleged to have been suffered by the insured vehicle. R1 strongly denies the alleged intimation of the accident and consequential appointment of surveyor in the present case. The complainant got issued a legal notice dt. 16-11-2009 which was received on 18-11-2009? on verification of records, R1 has sent reply dt. 16-12-2009 informing the complainant that no claim was reported to the Respondents for the alleged accident dt. 24-9-2007. Therefore, the complainant is requested to furnish    1) name of the branch where the claim or accident was intimated, 2) name of the spot surveyor, 3) name of the final surveyor, 4) name of the workshop / garage where the vehicle was left and got repaired, 5) proof of documents submitted to the Respondents.   The complainant was informed that the said particulars are necessary so as to enable the Respondents to coordinate with the concern branch office for issuing a suitable reply to his legal notice, dt. 16-11-2009. R1 is a Divisional Office but not the Head office to have access with all Divisional / Branch Offices. Surprisingly, there was no response from the complainant on this regard. Therefore, the complainant is not entitled for the relief sought for in this case. The complainant has filed a surveyors report alleging that it was a final survey conducted by B.A. Samad Khan, and alleged that the said report was submitted to the Respondents on 24-4-2008. Absolutely, it is not known how the complainant has got the copy of the surveyors report and how he could know that it was submitted to the Respondents on 24-3-2008.   Submission of a report by surveyor is confidential and copy of such reports will not be furnished to the insured by any surveyor without prior permission from the concerned Insurance company. Surveyor’s report is a confidential record of the insurance company. R1 did not appoint any surveyor either spot or final as stated earlier. Thus, the said survey report cannot be relied upon to decide the present complaint since the alleged survey was without the knowledge of R1 and without appointment of surveyor by R1, it is curious to observe that the said copy of survey report does not contain the signature of the surveyor. Further the said survey report was dt. 25-1-2008, shows there were enclosures of 1) spot report, 2) Final survey report, 3) Re-inspection report, 4) Estimation, 5) Cash bill and 6) Survey fees bill.  But, surprisingly no such enclosures are found along with the said surveyor’s report filed by the complainant. It is needless to say that when R1 has denied the appointment of such surveyor itself, the question of receipt of his report or the said enclosures by them closes not arise.  The complainant has stated that his mechanic has estimated the damages of the vehicle @ Rs. 74,162/-. The copy of the alleged estimation is also filed along with the complaint and it was dt. 2-10-2007 issued by Standard Automotives, Kadapa.  Surprisingly, the alleged survey report discloses the estimation at Rs. 1,65,685/-. It is curious to observe that the alleged inspection by the surveyor was dt. 29-9-2007 whereas the estimation issued by the garage was dt. 2-10-2007. therefore, it is clear that the claim of the complainant is fraudulent.  It is not known how the complainant could claim Rs. 1,65,685/- in the present complaint while he himself is contending that the estimation issued by the garage is Rs. 74,162/- and that on          26-12-2007 he has paid an amount of Rs. 74,162/- only to the garage. Another important point to observe that the net liability of the insurer was fixed by the alleged surveyor as Rs. 46,000/- only. Therefore, the documents filed by the complainant are themselves contradicting with each other and finally with that of the relief claimed in the present complaint.   

 

4.                The averments of the complaint in para – 6 & 7 disclosed that the vehicle of the complainant was not repaired due to non sanction of the amount by the Insurance company.  Again in para – 6 the complainant added in handwriting that during the month of January 2008 the complainant has made a claim with all original bills. Again in para – 8 it was stated that the relevant documents were sent to R1 & R2 on 24-3-2008.  It is clear that his own pleadings defeat the claim of the complainant in the present complaint.  The complainant has not filed any criminal case records relating to the alleged accident like FIR, Charge sheet, M.V.I report, inquest report if any. Even it is not known what the nature of the accident, what is result of the accident, whether there are any causalities or there were damages to the vehicle only etc.,   Irrespective of receipt or non receipt of the said documents by the Respondents, it is the duty of the complainant to file atleast copies of the documents before the forum. If at all he is not in possession of the copies of the said documents, he can get certified copies of the said documents and file the same along with the complaint. They are primary, vital and essential documents for processing the claim and to decide the present complaint by the Hon’ble forum. In their absence, the alleged cause of action will become ficititious and the complaint is liable to be dismissed.    The entire typed averments of the complaint disclose as if the R1 has not given any reply to his legal notice dt. 16-11-2009.   The present complaint is filed on 24-11-2009. Surprisingly, it is added in handwriting at para No. 8 of the complaint that the R1 has given a reply dt. 16-12-2009.  Thus, it is clear that the present complaint is prepared in a cryptic manner without there being sufficient material by making unnecessary and untenable allegations against R1.   Admittedly, the said legal notice dt. 16-11-2009 was not sent to the R2 which is a local branch of the Insurance company. But the said branch office is added as R2 in the present complaint. In view of the above facts and reasons, it is clear that there is no cause of action for filing the present complaint and the alleged cause of action is fictitious since the complainant has not furnished the name of the branch where the claim was intimated and also not produced the vital documents for processing the claim. Thus, it is clear that there is no deficiency in service on the part of R1, as alleged by the complainant and in fact the question of deficiency of service does not arise in the present case in view of the peculiar facts and circumstances.   R1 therefore, prayed this forum to dismiss the complaint with exemplary costs against R1. 

 

5.                R2 filed a memo adopting the counter of R1. 

6.                R3 filed a counter denying all the allegations in the complaint except those that are expressly admitted herein. R3 stated that the complainant has no locus standi to file this complaint against R3. It is an admitted fact that according to the complaint, the complainant availed finance from R3. Therefore, it is clear that loan cum hypothecation agreement, the financier i.e. R3 is the legal and real owner of the vehicle in question and hirer i.e. complainant is the user and person in possession of the vehicle and is only ostensible owner and that the financier i.e. M/s Shriram Transport Finance Co. Ltd., has a bonafied right over the vehicle in question.   Hence, R3 is the owner and the complainant is only hirer of the vehicle in question. It is a settled law that seizure is a paramount right of the owner to take back his asset letout on hire from the hirer when he commits default and that the financer is a secured creditor with a license to re-possess the asset in case of default.  R3 stated that the allegations that the on 24-9-2007 the vehicle of the complainant met with an accident and that on the date itself the complainant informed about the accident to the Respondents and the surveyor surveyed the damaged vehicle and estimated the cost of damages at Rs. 74,162/- and that even after submission of estimated bills, there was no response from Respondents and not paid single paise and that the complainant issued legal notice dt. 16-11-2009 to the Respondents to settle the claim etc., facts are denied and disputed and that the complainant must prove the same by documentary evidence.   The complainant has not placed true and correct version and as per the list of documents filed i.e. legal notice dt. 16-11-2009 the complainant is not a consumer as he purchased the Eitcher Medum Motor vehicle for commercial purpose. Therefore, the complainant was not a consumer within the meaning of the act and that the complainant is not maintainable.   Basing on the facts and circumstances and material available on record, the present case is complex in nature and can not be decided in the summary proceedings, as envisaged under consumer protection act, so the matter requires a detailed examination and cross examination of witnesses, experts evidence etc., and therefore, the case ought to be referred to civil court for adjudication. More over, under hire purchase agreement transaction, the financier does not render any service within the meaning of the C.P. Act 1986 and the complainant is thus, not a consumer.   In accordance with the provisions of arbitration and conciliation Act 1996, it is a settled law that, if at all, the complainant is having any dispute or claim, he is entitled or he is at liberty to seek reference of the dispute to the arbitration in terms of the arbitration clause of the loan agreement entered in to between the complainant and R3, claiming compensation for damages caused to the vehicle. The complainant has to approach proper forum i.e. the motor vehicle accident claims tribunal and District Judge by way of filing O.P or suit and not before District Consumer Forum and that the claim of the complainant is not tenable and maintainable. There is no deficiency of service on the part of R3, as such the complaint may be dismissed with exemplary costs against R3. There is no cause of action to file the complaint against R3 and one mentioned is not correct.

7.                On the basis of the above pleadings the following points are settled for determination. 

i.                   Whether the complainant is entitled to the relief’s as prayed for?

ii.                 To what relief?

 

8.                On behalf of the complainant PW1 was examined and Ex. A1 to A10 were marked.    Oral arguments were heard from both sides. 

 

9.                Point No. 1 & 2 Ex. A1 is the Photostat copy of registration certificate in which the vehicle was hypothecated to R3. Ex. A2 is the Photostat copy of insurance policy of the vehicle bearing No. AP 04 V : 8812.   Ex. A3 is the Photostat copy of VAT invoice copy dt. 25-12-2007. Ex. A4 is the Photostat copy of cash receipt No. 0378, dt. 26-12-2007. Ex. A5 is the Photostat copy of private and confidential motor survey final report dt. 25-1-2008. Ex. A6 is the Photostat copy of driving license of Ramana. Ex. A7 is the Photostat copy of invoice dt. 22-8-2006. Ex. A8 is the Photostat legal notice dt. 16-11-2009. Ex. A9 are two postal acknowledgement cards of legal notices given by R1 and R3. Ex. A10 is the reply notice dt. 16-12-2007 by R1 to the complainant. 

 

10.              As could be seen from the documentary evidence coupled with evidence of the complainant PW1 and the arguments advanced by both sides, it appears to be a complex matter placed before this forum for adjudication, either in the complaint or in the affidavit of the complainant the full details of the accident are mentioned. The date of alleged accident as per complaint as well as affidavit of the complainant it was on 24-9-2009. In the evidence affidavit (Chief Examination) of the complainant he mentioned the date of accident as 24-9-2007 at about 5.30 a.m near Maddimadugu  village of C.K. Dinne mandal. But the complainant PW1 in his cross examination in the first para he admitted that the accident was on 24-7-2007. Again in 4^th paragraph of cross examination of PW1 he admitted that the date of accident was  24-7-2007. The contradiction pertaining to the date of accident place an important role so as to truthfulness of the accident. The date mentioned by the complainant in his complaint, affidavit and chief examination was 24-9-2007 and in his cross examination he stated the date of accident as 24-7-2007 not once but thrice, this major contradiction from the complainant himself create a gap for doubting the genuineness of the date of accident. 

 

11.              It is not known to whom the complaint reported about the accident. It is also not clear to whom he submitted the claim form. The complainant thoroughly failed to produce any piece of evidence to show that he has submitted the claim along with relevant documents and photographs.   Even at the stage of filing this complaint or during the trial he never bothered to produce atleast the copies of document sent to the opposite parties for settlement of the claim. R1 denied for appointing any surveyor either for spot or final assessment of the loss to the alleged damages to the vehicle. The R1 also denied the intimation of accident and consequential appointment of surveyor, as such the surveyor’s report Ex. A5 plays an important role. Ex. A5 Photostat copy of the final report alleged to have been conducted by one B.A. Samad Khan, dt. 25-1-2008 contains no signature of the surveyor. It is a very big question how the complainant has got a copy of Ex. A5 surveyors report which is a confidential document of the insurance company. This surveyor’s report Ex. A5 cannot be relied upon as it is without signature of the surveyor and that the said report shows there were enclosures like spot report, final survey report, re-inspection report, estimation, cash bill and survey fee bills. No such documents were received by R1 as per his counter and also no such copies were enclosed to Ex. A5 and filed before this forum by the complainant. The complainant stated that his mechanic has estimated the damages of the vehicle at Rs. 74,162/- (Ex. A3), dt. 2-10-2007.    The alleged survey report Ex. A5 disclosed the estimation at Rs. 1,65,685/-. It is interesting to note that the alleged inspection by the surveyor was dt. 29-9-2007, whereas the estimation issued by the garage was dt. 2-10-2007 (Ex. A3) and this claim indicates a fraudulent submission. It is not known how the complainant claim Rs. 1,65,685/- while he himself contending that the estimation issued by the garage (Ex. A3) is Rs. 74,162/- and that on 26-12-2007 he has paid an amount of              Rs. 74,162/- to the garage vide Ex. A4.   Another important observation is that the net liability of the insurer was fixed by the alleged surveyor in Ex. A5 at Rs. 46,000/- only. Therefore, all the documents filed by the complainant and relied by the complainant themselves are contradicting with each other.   There is no proper explanation from the complainant for this major lapse.  The complainant stated that after the accident he approached the concerned police station who failed to register the case, in such a situation there are number of alternatives for the complainant. One of such alternatives is to prefer the complaint to superior police officers and there is no attempt by the complainant on this direction.   The complainant vehicle was dashed against a vehicle which was proceeding ahead of his vehicle and dashed to the rear portion of that vehicle which was going in front of the vehicle of the complainant. If it is true the driver / owner of that vehicle definitely prefer a police complaint for the damages to his vehicle on the rear side. In the absence of such transaction again and again a doubt creates whether there is an accident at all. The contention of R1 in his counter cannot be rejected which is on strong footing. R3 the financier who is a formal party also denied all allegations leveled against R1 and R3 in the complaint of the complainant. The complainant thoroughly failed to prove his case at any stage. The complainant deserves no consideration in his favour. 

 

12.              Point No. 3 In the result, the complaint is dismissed without costs.

 

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 22^nd June 2010

 

 

 

 

 

Witnesses examined.

For Complainant    NIL                                           For Respondent :         NIL

 

Exhibits marked for Complainant : -  

 

Ex. A1         P/c of R.C in which the vehicle was hypothecated to R3. 

Ex. A2         P/c of insurance policy of the vehicle bearing No. AP 04 V : 8812.

Ex. A3         P/c of VAT invoice copy dt. 25-12-2007. 

Ex. A4         P/c of cash receipt No. 0378, dt. 26-12-2007. 

Ex. A5         P/c of private and confidential motor survey final report dt. 25-1-2008.

Ex. A6         P/c of driving license of Ramana. 

Ex. A7         P/c of invoice dt. 22-8-2006. 

Ex. A8         P/c of legal notice dt. 16-11-2009. 

Ex. A9         Two postal acknowledgement cards of legal notices given by R1 and R3. Ex. A10           Reply notice dt. 16-12-2007 by R1 to the complainant. 

 

Exhibits marked for Respondents: -           ------- NIL ------

                             1) Sri G. Trivikram Singh, Advocate for complainant.

2) Sri D. Lakshminarayana, Advocate for R1 & R2.

3) Sri G.S. Moorthy, Advocate for R3.   

                  

2) Copy was dispatched on      :

3) Copy of delivered to parties :