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

 

M/s K. Narayana Reddy and Co. Rep. by its One of the partner

K. Brahmananda Reddy, S/o K. Narayana Reddy,

D.No. 9/158, 1^st floor, Sri Ram Nagar, Railway Kodur,

Kadapa district .                                                                       ….. Complainant.

 

1) The Regional Manager, The Oriental Insurance Co. Ltd.,

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

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

                                                                                                                                     

 

 

This complaint coming on this day for final hearing on 3-8-2010 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri D. Lakshminrayana, Advocate for R1 & R2 and Sri G.S. Murthy, 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 was a partnership firm represented by one of its partners namely K. Bramanda Reddy, who filed a complaint on behalf of registered partnership firm. The complainant was owner of Ashok Leyland Tipper Bearing No. AP 04 V : 5646 with the finance availed from O.P. No. 3, insured with O.P. 2 and obtained policy for one year period.   The complainant was renewing the policy from time to time.    On 7-6-2008 the vehicle met with an accident due to rash and negligent driving of the driver of the vehicle.   It was informed immediately to the Opposite parties. The surveyor inspected the damage caused to the vehicle and submitted a report on 20-2-2009. After taking permission to the Opposite parties, the complainant shifted the vehicle to the garage for getting it repaired.   The mechanic estimated the damage and issued estimated bill for Rs. 1,98,000/-. The estimated bill was submitted to the Opposite parties and requested to sanction the amount as per estimated bill, so that the complainant could get repairs to his vehicle.   The complainant waited for one year but there was no response from the Opposite parties. Due to the accident the parts of the vehicle were also damaged.   Apart from it the vehicle had not got it repaired due to non sanction of the amount by the Opposite parties.  On 28-10-2009 the complainant got issued legal notice to the Opposite parties to settle the claim with interest within a week. But they did not give any reply nor made any payment.   The relevant documents have been submitted to the Opposite parties 1 & 2.   The Xerox copies were misplaced and the complainant could not succeeded to get the documents and hence, he was unable to file the documents before the District Consumer Forum. Thus the complaint was filed for Rs. 1,98,000/- with interest @ 24% p.a. and costs of Rs. 10,000/-. 

 

3.                The R2 filed a counter adopted by R1 with a memo. The vehicle belonged to KNR & company and the address in the R.C. was K. Narayana Reddy, Ayyapareddypalli, Obulavaripalli Mandal, Kadapa District.   K. Nrayana Reddy has signed in the R.C. as owner.   The legal notice dt. 28-10-2009 was also issued in the name of K. Narayana Reddy but not on behalf of KNR and Company. In the partnership deed dt. 15-4-2006, clause No. 6 revealed that K. Narayana Reddy should operate the bank account authorized to sign the documents, agreements and relevant papers relating to KNR & Co.   Though  Sri K. Brahmananda Reddy was shown as partner, he was not given such powers to entertain on behalf of KNR and company. Therefore, K. Brahmananda Reddy had no locus standi to file the petition and may be dismissed in limine. 

 

4.                The policy issued in favour of the petitioner was admitted. On receiving intimation about the accident on 7-6-2008 the R1 appointed Mr. Badruzama for spot survey to note the details of damage, alleged to have been suffered by the insured vehicle.   Subsequently, the petitioner did not intimate the name and details of workshop where they left the vehicle for repairs, so as  to enable the respondent company to arrange for final survey to assess the loss. The allegations that as spot survey was conducted the liability of the insurance  company was fixed was a strange allegation. Mere appointment of spot surveyor could not be an admission of liability. It was only for outward inspection of damage so as to connect the relevance of damages with that of final survey.   The respondent company had not arranged any final survey because the complainant did not pursue the matter after the spot survey. The petitioner did not produce the vehicle for the post inspection after completion of repair works if any. When the vehicle was not produced for final  survey, there was no question of payment towards damages.   The petitioner had to produce the vehicle after repairs for final survey. It was not informed about the alleged repairs. Therefore, the petitioner was not entitled for any claim. 

 

5.                The allegations of the petitioner that he got estimation of the alleged damage of the vehicle and basing on the estimation the company should have to pay the amount was nothing but strange and mischievous. The amount to be paid by the insurance company was not a debt. After spot survey the insured should get the vehicle repaired and later the vehicle should be produced for final survey by the insurance company.  The final surveyor would inspect the repaired vehicle and compare their repairs effected with that of the findings of the sport surveyor and decide genuineness of the repairing works entertained by the insured.  Most of the insured persons would try to modify the entire vehicle by replacing the parts which was damaged due to wear and tear also and tries to include such costs in the repairs of the vehicle by taking advantage of the accident.   Therefore, the final survey was necessarily to be conducted.   The complainant shifted the vehicle to garage after spot survey and obtained estimation from the mechanic and demanded for payment. In the entire complaint it was stated that the insurance company did not pay the amount and so the repairs could not be done. The contract of insurance was contract of indemnity.  The insured should prove the amount spent towards repairs of the vehicle and then seek reimbursement from the insurance company. The insurance company should pay amount after final survey. The complainant had not submitted the claim document such as original R.C, fitness certificate, tax paid proof, driving license of the driver, permit, claim form with cash bills for purchase of spare parts and labour undertaken for repairs duly stamped and signed. It was not correct all the documents were submitted to the O.P. 1 & 2.   The  respondent branch office was under the control of Divisional Office, Tirupati. The policy issuing office was O.P. 1 at Chennai. So the question of submission of documents did not arise. It was alleged that the sport surveyor submitted the report to Opposite parties on 20-2-2009. It was not known how the complainant got information about the submission of the spot surveyor’s report since it was a confidential matter in between the surveyor and the company.  Any information relating to the survey could not be  disclosed or furnished to the insured without permission of the insurance company.   When the accident was occurred on 7-6-2008, submission of spot surveyor report on 20-2-2009 after lapse of 8 months would not arise.   The respondent company had not received the sport surveyor report. It was alleged that the spot surveyor submitted the report on 20-2-2009 and in the legal notice dt. 28-10-2009 it was alleged that the complainant made a claim and submitted all documents to the insurance company on 20-2-2009. Both the allegations were contrary to each other.  In the petition it was alleged that the repairs were not conducted as the amount was not sanctioned. But in the cause of action paragraph it was alleged that the vehicle was got repaired after borrowing funds from outside financiers. So both were  contrary to each other. Therefore, the complainant was not entitled to any relief. 

 

6.                The complainant did not produce any FIR, Charge sheet, MVI report, inquest report. It was not known the nature of accident and result of the accident or any causality or damage to the other vehicle.  The complainant had to produce the documents atleast before the District Consumer Forum. In case the copies were not available the complainant could get certified copies and file before the District Forum and they were vital and essential documents.   In its absence the complaint was fictitious and there was no deficiency of service.  The legal notice was not sent to O.P. 2, but added as party. Thus the complaint may be dismissed with costs. 

 

7.                The O.P. 3, filed a counter that the complainant had no locus standi to file the complaint. It was an admitted fact that the complainant availed finance facility from O.P. 3 under the loan cum hypothecation agreement and therefore, the O.P. 3 was the real owner of the vehicle in question and the hirer was the complainant and the complainant became the ostensible owner and the O.P. 3 had a right over the vehicle in question.  The O.P. 3 had right as owner to seize the vehicle in case of default committed by the complainant as loan borrower. The financier was a secured creditor with a license to repossess the property in case of default. The allegations leveled by the complainant in the complaint were completely denied and the complainant should prove the same by documentary evidence. The notice dt.  28-10-2009 was issued only to O.P.1 and it was not issued to O.P. 2. But in the complaint it was stated that notice was issued to both Opposite parties, which was incorrect statement. 

 

8.                The complainant was not a consumer because he purchased Tipper for commercial purpose. Basing on the facts and circumstances the complainant could not be decided in the summary proceedings that required more evidence and therefore, it could be referred to Civil Court. Under the hire purchase agreement the financier did not render any services to the complainant and the complainant was not a consumer. Under the Arbitration and Conciliation Act in case of any dispute the complainant is entitled to seek reference to the arbitration clause of the agreement in between the complainant and the Respondents for claiming compensation to the vehicle. The complainant had to approach proper forum and not before District Forum and the complaint was not maintainable.    Therefore, there was no deficiency of service and the complaint may be dismissed with costs. 

 

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

i.                   Whether there is any negligence and deficiency of service on the part of the Respondents?

ii.                 Whether the complainant is entitled to the relief as prayed for?

iii.              To what relief?

 

10.              On behalf of the complainant Ex. A1 to A7   were marked.    

 

11.               Point No. 1& 2.  The complaint was filed by M/s K. Narayana Reddy & Co., represented by its one of the partners K. Bramanada Reddy, S/o K. Narayana Reddy against Opposite parties 1 to 3.   The complainant was a registered partnership firm with Managing partner K. Bramhanada Reddy. The partnership firm had to carry an partnership business in execution of Civil and works contract under the name and style of M/s KNR & Co., Mangampeta, Obulavaripalli Mandal, Kadapa District.   The complainant filed Ex. A1 photostat copy of registered partnership deed along with acknowledgement of registration of firm, dt. 18-4-2006. Under Ex. A1 it was very clear for the firm was formed to carry on partnership business in execution of civil and works contract.   Because the firm was formed for  the purpose of business and it had many vehicles including the subject vehicle Ashok Leyland Tipper bearing No. AP 04 V : 5646. So the subject vehicle tipper was for the purpose of business and not for self employment. It was for commercial purpose.  Therefore, on that ground the complaint is not maintainable and liable to be dismissed.  Clause 8 of Ex. A1 disclosed that the profits and losses of the business should be shared by the parties of the partnership firm.

 

12.              The complainant filed Ex. A7 a Photostat copy of registration certificate in the name of KNR and company as registered owner, in which the name was shown as K. Narayana Reddy. So the KNR & Co. was represented by K. Narayana Reddy with registration of the tipper bearing No. AP 04 V : 5646.   It was not registered with the name of K. Bramhananda Reddy. Thus the complaint was filed by one person and the Registration Certificate was in the name of another person.   Apart from it under clause – 6 of Ex. A1, it was clearly stated “that it is agreed to open account or accounts in any of the Scheduled Bank or Banks in the name of the firm and the account shall be operated upon by the 1^st party to this indenture viza., K. Narayana Reddy individually and he is further authorized to sign in the documents, agreements and other relevant papers”. In view of the clause – 6 of Ex. A1, K. Narayana Reddy was given power to sign the documents, agreements and other relevant papers.   It would mean that he was authorized to file any complaint also, even though it was not specifically mentioned in Ex. A1 by whom the case should be filed. Contrary to Ex. A1. The complaint was filed by K. Bramhananda Reddy, who was not given any authorization to sign the documents, agreements and other relevant papers. He was only a Managing Partner.   He was not given any power specifically in Ex. A1 to file the complaints or cases. Therefore, K. Bramhananda Reddy had no locus standi to file the complaint on behalf of registered partnership form. On that ground also the complaint is not maintainable. 

 

13.              The complaint disclosed that on 7-6-2008 the Ashok Leyland tipper bearing No. AP 04 V : 5646 was involved in an accident due to rash and negligent driving of the driver of the vehicle.   There was no proof of accident. If really there was an accident the firm or any individual would not be kept silent.   A police complaint would be given immediately. There was no proper proof that the case was registered and FIR was issued. Atleast the photos would have been taken to the damaged vehicle to claim the compensation in any forum. The complainant had not filed any one of the photos to prove the accident.   There was no proper explanation from the complainant.  In the complaint under para – 6 it was mentioned that the surveyor inspected the damaged vehicle and submitted his report on 20-2-2009, after taking permission from the Opposite parties, the vehicle was shifted to garage to get it repaired and the mechanic estimated the damage and issued estimated bill of  Rs. 1,98,000/- and same was submitted to the Opposite parties requesting to sanction the amount to get repairs to the vehicle. But in the cause of action paragraph of the complaint it was mentioned that the complainant got it repaired from borrowing funds from the out side financiers.   So at one point of time, it was mentioned as the vehicle was notrepaired and at the cause of action it was mentioned that the vehicle was repaired by borrowing funds from out side financiers. Both the statements were contrary to each other and there was no scope to believe that the accident was occurred on 7-6-2008 and so the bills under Ex. A4 could not be believed. The complaint was silent when the claim form was submitted.   Generally the firm would keep the copy of the claim form with attached documents. It was not filed. So it could be concluded that there was no claim form submitted to the O.P. 1 & O.P. 2 with knowledge of O.P. 3. 

 

14.              The complainant filed Ex. A2 a Photostat copy of policy issued by O.P. 1 in which also the name of the insured was KNR & Co. represented by K. Narayana Reddy but not by K. Bramhanda Reddy. Even if the name was noted wrongly the company of the firm would have taken steps to correct the name as K. Bramhananda Reddy. Ex. A3 a Photostat copy of driving license of one Govardhana Reddy. Ex. A4 was Photostat copy of bills.  They could be secured easily by various methods. Ex. A5 was office copy of notice issued by K. Narayana Reddy to O.P. 1 on 28-10-2009.   It was not issued to O.P. 2, who was the financier.  However, the notice was issued in the name of K. Narayana Reddy, who stated in the notice that he was registered owner of the vehicle bearing No. AP 04 V : 5646 but he did not state that it belonged to KNR & Co. a registered partnership firm. The notice Ex. A5 was not issued on behalf of firm. Ex. A6 was postal acknowledgements. It was not mentioned anywhere in the complaint how much installments were due to the O.P. 3. In its absence the O.P.3, the financier was the real owner of the vehicle.  The complainant failed to produce the hypothecation agreement executed to O.P. 3. When the surveyor verified and inspected the damage thoroughly and submitted the report on 20-2-2009 as stated by the complainant in para – 6 of the complaint, there was no hurdle to the complainant to produce copy of the surveyors report. It was not filed for the reason best known to the complainant. The complainant stated that the spot survey was conducted and the sport survey report was filed on 20-2-2009. It was a confidential report.   There was no explanation about knowledge of spot survey report to the complainant submitted to the company by the surveyor on 20-12-2009. When the spot survey was conducted it was duty of the complainant to produce the vehicle for final survey after repairs before the surveyor. If the documents were misplaced the complainant as a firm would get the certified copies of the misplaced documents. But they were not filed and the vehicle was not produced for final survey before the surveyor. Therefore, there are no merits in the case and there is no deficiency of service and negligence on the part of the Opposite parties. It is only a chance petition to get unlawful gain. Thus the complaint may be dismissed without costs. 

 

15.              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 6^th August 2010

 

 

 

Witnesses examined.

For Complainant    NIL                                                  For Respondent :     NIL

Exhibits marked for Complainant : -  

 

 

Ex. A1         P/c of acknowledgement of registration of firm dt. 18-4-2006 with

Ex. A2         P/c of policy No. 411300/31/2009/453 issued in favour of KNR & Co.

Ex. A3         P/c of driving license issued in favour of Govardhana Reddy.

Ex. A4         P/c of bills  in different shops and different dates. (8 Nos.)

Ex. A5         P/c of legal notice from complainant’s advocate to R1, dt. 28-10-2009.

Ex. A6         Two postal acknowledgement cards.

Ex. A7         P/c of R.C. bearing Tipper No. AP 04 V : 5646 issued by RTA, Kadapa.

 

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

 

 

 

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

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

 

2) Copy was dispatched on      :

3) Copy of delivered to parties :