BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KADAPA Y.S.R DISTRICT
PRESENT SMT. K. SIREESHA, B.L., PRESIDENT FAC
SRI M.V.R. SHARMA, MEMBER.
Thursday, 31st July 2014
CONSUMER COMPLAINT No. 21 / 2013
Seelam china Subbi Reddy, S/o Subba Reddy,
aged 42 years, Hindu, D.No. 1/219, Lakshmipeta
Chapadu Mandal, Kadapa YSR District. ….. Complainant.
Vs.
1. The Unit Head, M/s ICICI Lombard General Insurance Co. Ltd.,
Interface Building, No. 11, 401/1 402 4th floor, New Links Road,
Mala (W) Mumbai – 400 064.
2. The Claims Manager, M/s ICICI Lombard General Insurance Co. Ltd.,
15/343, 2nd floor, KVR Enclaves, Kanaka Mahalakshmi Circle,
Subedarpeta, Nellore – 524 001.
3. The Regional Claim Manager,
M/s ICICI Lombard General Insurance Co. Ltd.,
39-1-82-A, 4th floor, Anjaneya Gold House, Labbipeta,
M.G. Road, Vijayawada, Krishna District – 520001.
4. The Branch Manager, M/s ICICI Lombard General Insurance Co. Ltd.,
Obul Reddy Complex, Near Apsara Theatre,
RTC Bus Stand Road, Kadapa City.
5. Cholamandalam Investments & Finance Corporation Ltd.,
Chennai having its Branch office at NGO Colony,
Kadapa city, Rep. by its Branch Manager. ….. Opposite parties.
This complaint is coming before us for final hearing on 17-7-2014 and perusing complaint and other material papers on record and on hearing the arguments of Sri V.A. Vara Prasad,, Advocate for complainant and Sri D. Rajasekhar Reddy, Advocate for O.P.4 and O.P.5 and O.P.1 & O.P.2 are called absent and set exparte on 4-3-2014 and O.P.3 are also called absent and set exparte on 19-6-2014 the matter is having stood over for consideration this day, the Forum made the following:-
O R D E R
(Per Sri M.V.R. Sharma, Member),
1. This Complaint is filed under section 12 of the Consumer Protection Act 1986 requesting this forum to direct the Opposite parties:-
(a) To pay Rs. 5,82,586/- towards own damages claim of insured vehicle bearing No. AP 04 X : 9934 together with 24% interest per annum from the date of accident till the date of realization.
(b) To pay Rs. 1,50,000/- towards compensation for the mental agony and physical strain.
(c) To pay Rs. 10,000/- towards cost of this complaint and
(d) Grant such other relief or reliefs as this Hon’ble forum deems fit and proper under the circumstances of this case.
2. The brief averments of the complaint are that, the complainant is the owner of the Eicher goods carriage vehicle bearing registration No. AP 04 X : 9934 (Engine No. E483CDAG239152 and Chassis No. MC229HRCOAG205921) and duly insured the said vehicle with the O.P’s company under policy bearing No. 3003/60656023/00/000, which is valid from 10-8-2010 to 9-8-2011 and he paid total premium of Rs. 22,042/- including Rs. 13,788-80Ps. Premium for own damages and that the policy was in existence at the time of accident. The insured company O.P.1 head office and O.P.2 branch office at Nellore and O.P.3 Regional Office at Vijayawada.
3. The complainant stated that on 8-6-2011 the said vehicle was taken to Shadnagar to bring a load of eggs and that on the next day i.e. 9-6-2011, While goingShadnagar to Proddatur the said vehicle met with an road accident at about 11.45 a.m on 9-6-2011 Deebaguntla village of Kurnool District as one lorry came and hit the insured vehicle and the said vehicle got damaged completely and the said accident including the load of eggs and that on a complaint given by one B. Subba Reddy to the Police ofGospadu of Kurnool District and the police has registered a case under Section 337 of IPC vide Cr. No. 34/2011 and the said policy was existence at the time of accident.
4. The complainant further stated that he has informed about the accident with insured vehicle to O.P.2 personally and that the surveyor came to the scene of offence and made survey upon the said vehicle and assessed the loss that since the policy is inforce. He will be reimbursed of the expenses incurred for repairs and on the promise of the person of O.P.2 company. After that, he got repaired the vehicle with standard automotive Proddatur (Branch of standard automotive dealer of Eicher vehicle Kadapa) and incurred expenses to a tune of Rs. 5,82,586/- and he submitted claim for an amount of Rs. 5,82,586/- along with original bills including FIR and relevant records to O.P.2 for settlement of claim. But there is no response from the O.P.2. Finally he got issued a legal notices to the O.P’s on 16-8-2012, 01-1-2012 and also 15-11-2012 and the same were received the O.P’s.
5. The complainant also stated that the driver of the damaged vehicle was having valid and effective driving license and also vehicle records as on the date of accident. The accident occurred only due to rash and negligent driving of the lorry driver which was dashed against the complainant’s vehicle and charge sheet was also field against the said lorry and also stated that the insured vehicle is under hypothecation with Cholamandalam Investments and Fiancé Company Ltd., Chennai i.e. O.P.5 and they are take steps for settlement of their own damages of insurance claim. But O.P. 5 did not respond to their requests. Hence, the O.P.5 is added as a party to the present complaint and also no relief is sought against him. The O.P’s intentionally failed to satisfy the complainant. Hence, this complaint.
6. Notices were served to the Opposite parties 1 to 3 and they were called absent and set exparte and O.P.’s 4 & 5 filed separate counters.
7. The O.P.4 filed counter and not denied that the complainant insured his vehicle with the O.P”s company under “goods carrying vehicle package” policy under bearing No. 3003/60656023/00/000 for the period from 10-8-2010 to 9-8-2011, which is registered with ARTA, Proddatur as “goods carriage MMV” and also stated that the complainant is not a consumer as defined under section 2 (d) of C.P. Act as such the complainant does not comes under the purview of consumer dispute as envisaged in section 2 (e) of the Act. Hence, this forum has no jurisdiction to entertain the complaint and the contract of insurance does not comes under purview of the sale of goods act as defined under section 2 (i).
8. The O.P. 4 further stated that the complainant is insured his vehicle with the O.P’s under commercial vehicle policy and he using the vehicle for transporting of goods on commercial activities at the time of accident. As per the chambers 20th century dictionary “Commercial” be noted “pertaining to commerce” it means “commercial or engage in commerce; mercantile; having profit as the main aim”. Hence, the complainant would not come under purview of the definition under section 2 (d) (ii) of the C.P. Act 1986 and the contract of insurance does not comes under purview of the sale of goods act as defined under section 2 (i).
9. The O.P. 4 also stated that O.P. company appointed a spot surveyor immediately after receiving the claim form from the complainant and process the claim of him and the O.P. company also appointed one K. Pratap Rudra Kumar, Guntur for investigation and surveyor submitted his report to this company and also O.P’s company appointed for conducting final survey, another surveyor by name T. Gangadara Prasad.
10. The O.P. 4 also stated that his company sent a letter to the complainant on 5-9-2011 requesting the complainant to produce repair bills as the vehicle was already repaired and he did not respond neither produce the repair bills nor replied to the letter. Again the O.P’s sent a reminder to the complainant on 10-10-2011 requested to provide the repair bills for settlement of the claim. But he did not provided the repair bills. Without repair bills the claim could not be settled. As such finally the O.P’s company closed the claim of the complainant.
11. The O.P 4 also stated the O.P’s company shall pay compensation subject to depreciation of the damaged parts, after that one T. Gangadara Prasad, I.R.D.A licensed independent surveyor conducted final survey and he was unable to recommend the damages of the complainant’s vehicle as he did not produced the repair bills. Hence, dismiss the complaint against the O.P’s with exemplary costs.
12. The O.P.5 field a counter and stated that the company is a non-banking finance company and it is incorporated and registered under the companies act 1956 and this company is conducting business under name and style as Cholamandalam Investments and Finance Co. Ltd., for promoting their business and also established their location office at Kadapa under the control of Anantapur area office. The complainant approached this O.P. company at Kadapa location office for seeking finance facility for purchasing the vehicle bearing No. AP 04 X : 9934 and this O.P. provided financial facility to the complainant under loan agreement bearing No. XVFPKPA 00000494361,dt. 22-7-2010 executed by him and his wife stood a co-applicant and the said vehicle was hypothecated in favour of this O.P. company, which is did not repay the loan amount till today.
13. The O.P.5 also stated that as per article 29 of the aforesaid loan agreement all disputes differences and / or claims arising out of the said agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the arbitration and conciliation act 1996. The complainant and his wife herein have voluntarily agreed and acted upon the aforesaid agreement, dt. 22-7-2010. Hence, it is highly necessary to refer the matter to arbitration under section 8 (1) of the Arbitration and Cancelation act 1996 and also stated that this O.P. company has been added as a formal party to the proceedings and no relief sought against this O.P. company. Hence, dismiss the complaint with costs.
14. To prove his case the complainant filed an affidavit along with documents which are marked Ex. A1 to A11 and on behalf of the O.P.4 filed counter, written arguments along with documents are marked as Ex. B1 to B6 and on behalf of the O.P.5 filed counter along with documents are marked as Ex. B7 & B8
15. On the basis of the above pleadings the following points are settled for determination.
i. Whether the complainant is eligible for compensation as prayed by him?
ii. Whether there is negligence or deficiency of service on the part of opposite parties?
iii. To what relief?
16. Point Nos. 1 & 2. The contention of the complainant is that, the complainant is the owner of the Eicher goods carriage vehicle bearing registration No. AP 04 X : 9934 (Engine No. E483CDAG239152 and Chassis No. MC229HRCOAG205921) and duly insured the said vehicle with the O.P’s company under policy bearing No. 3003/60656023/00/000, which is valid from 10-8-2010 to 9-8-2011 and he paid total premium of Rs. 22,042/- including Rs. 13,788-80Ps. Premium for own damages.
17. The complainant further contended that on 8-6-2011 the said vehicle was taken to Shadnagar to bring a load of eggs and that on the next day i.e. 9-6-2011, While going Shadnagar to Proddatur the said vehicle met with an road accident at about 11.45 a.m Deebaguntla village of Kurnool District as one lorry came and hit the insured vehicle and the said vehicle got damaged completely and the said accident including the load of eggs and that on a complaint given by one B. Subba Reddy to the Police of Gospadu of Kurnool District and the police has registered a case under Section 337 of IPC vide Cr. No. 34/2011 and the policy was existence at the time of accident. 18. After that the complainant has informed about the accident with insured vehicle to O.P.2 personally and that the surveyor came to the scene of offence and made survey upon the said vehicle and assessed the loss that the policy was inforce. He will be reimbursed of the expenses incurred for repairs and on the promise of the person of O.P.2 company. After that, he got repaired the vehicle with standard automotive Proddatur (Branch of standard automotive dealer of Eicher vehicle Kadapa) and incurred expenses to a tune of Rs. 5,82,586/- and he submitted claim for an amount of Rs. 5,82,586/- along with original bills including FIR and relevant records to O.P.2 for settlement of claim. But there is no response from O.P.2. Finally he got issued a legal notices on 16-8-2012and 01-1-2012 and also 15-11-2012 to O.P’s and O.P’s acknowledged the said legal notices.
19. The complainant contended that the driver of the damaged vehicle was having valid and effective driving license and also vehicle records as on the date of accident. The accident occurred only due to rash and negligent driving of the lorry driver which was dashed against the complainant’s vehicle and charge sheet was also field against the said lorry and also stated that the insured vehicle is under hypothecation with Cholamandalam Investments and Fiancé Company Ltd., Chennai i.e. O.P.5 and they are take steps for settlement of their own damages of insurance claim. But O.P. 5 did not respond to their requests. Hence, the O.P.5 is added as a party to the present complaint and also no relief is sought against him.
20. The O.P.4 admitted that the complainant insured his vehicle with O.P’s company under “goods carrying vehicle package” policy under bearing No. 3003/60656023/00/000 for a period from 10-8-2010 to 9-8-2011, which is registered with ARTA, Proddatur as goods carriage MMV. The contention of the O.P’s that the complainant is insured his vehicle with O.P’s under commercial vehicle policy and he using the vehicle for transporting of goods on commercial activities at the time of accident. Hence, the complainant is not a consumer as defined under section 2 (d) of C.P. Act as such the complainant does not comes under the purview of consumer dispute as envisaged in section 2 (e) of the Act and also contended that as per the Chambers of 20th Century Dictionary “Commercial” be noted “pertaining to commerce” it means “commercial or engage in the commerce; mercantile; having profits as the main aim. Hence, the complainant would not come under the purview of definition under section 2 (d) (ii) of C.P. Act 1986 and the contract of insurance does not comers under purview of the sale of goods act as defined under section 2 (i).
21. The O.P’s further stated they appointed a spot survey immediately after receiving the claim form from the complainant and process the claim of him and the O.P. company also appointed one K. Pratap Rudra Kumar, Guntur for investigation and surveyor submitted his report to this company and also O.P’s company appointed for conducting final survey, another surveyor by name T. Gangadara Prasad.
22. The O.P. 4 further contended that his company sent a letter to the complainant on 5-9-2011 requesting the complainant to produce repair bills as the vehicle was already repaired and he did not respond neither produce the repair bills nor replied to the letter. Again the O.P’s sent a reminder to the complainant on 10-10-2011 requested to provide the repair bills for settlement of the claim. But he did not provided the repair bills. Without repair bills the claim could not be settled. As such finally the O.P’s company closed the claim of the complainant.
23. The O.P 4 also contended that the O.P’s company shall pay compensation subject to depreciation of the damaged parts, after that one T. Gangadara Prasad, I.R.D.A licensed independent surveyor conducted final survey and he was unable to recommend the damages of the complainant’s vehicle as he did not produced the repair bills.
24. The O.P.5 contended that the company is a non-banking finance company and it is incorporated and registered under the companies act 1956 and this company is conducting business under name and style as Cholamandalam Investments and Finance Co. Ltd., for promoting their business and also established their location office at Kadapaunder the control of Anantapur area office. The complainant approached this O.P. company at Kadapa location office for seeking finance facility for purchasing the vehicle bearing No. AP 04 X : 9934 and this O.P. provided financial facility to the complainant under loan agreement bearing No. XVFPKPA 00000494361, dt. 22-7-2010 executed by him and his wife stood a co-applicant and the said vehicle was hypothecated in favour of this O.P. company, which is did not repay the loan amount till today.
25. The O.P.5 further contended that as per article 29 of the aforesaid loan agreement all disputes differences and / or claims arising out of the said agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the arbitration and conciliation act 1996. The complainant and his wife herein have voluntarily agreed and acted upon the aforesaid agreement, dt. 22-7-2010. Hence, it is highly necessary to refer the matter to arbitration under section 8 (1) of the Arbitration and Cancelation act 1996 and also stated that this O.P. company has been added as a formal party to the proceedings and no relief sought against this O.P. company.
26. We have gone through the contentions and documents filed by both parties the complainant is the owner of Eicher goods carriage vehicle as seen Ex. A1 and the vehicle was registered with ARTA, Proddatur as “goods carriage” on 04-9-2010. The vehicle bearing No. AP 04 X : 9934, (Engine No. E483CDAG239152 and Chasis No. MC229HROAG205921). As seen Ex. A2 and B2 the said vehicle was insured with O.P’s as “goods carrying vehicle package policy” under policy bearing No. 3003/60656023/00/000 which is valid from 10-8-2010 to 9-8-2011 and the complainant paid total premium amount of Rs. 22,042 /- includes Rs. 13,788-80Ps premium for own damages. The complainant approached O.P.5 i.e. Cholamandalam Investment and Finance Co. Ltd., Kadapa for seeking finance facility for purchasing the above vehicle and the finance company provided financial facility to the complainant under loan agreement bearing No. XVFPKPA00000494361, dt. 22-7-2010 under Ex. B8 and the same vehicle was hypothecated in favour of O.P.5 under Ex. A9.
27. On 8-6-2011 the said vehicle was taken to Shadnagar to bring load of Eggs from Shadnagar to Proddatur. On the next day i.e. 9-6-2011 the said vehicle met with an accident at about 11.45 a.m near Debaguntla Village, Kurnool District under Ex. A3 i.e. FIR. The said vehicle got damaged completely in the said accident including the load of eggs and that on a complaint was given by one B. Subba Reddy to the police of Gospadu, Kurnool District. The police has registered a case under section 337 IPC vide Cr. No. 34/2011.
28. The complainant informed about the accident with insured vehicle to the O.P.2 personally and that the surveyor of O.P.2 came to the scene of offence and made survey upon the said vehicle and assessed the loss that since the policy inforce. He will be reimbursed of the expenses incurred for repairs on the promise of the person of O.P.2. after that the complainant got repaired the vehicle with the Standard Automotive, Proddatur and incurred expenses to a tune of Rs. 5,82,586/- and he submitted claim for an amount of Rs. 5,82,586/- along with original bills including FIR and all relevant records to the O.P.2. But there is no response from O.P.2. Finally he got issued legal notices on 16-8-2012 and 01-10-2012 and also 15-11-2012 as per Ex. A4, Ex. A6 and Ex. A8 and the O.P’s are acknowledged the said legal notices.
29. The contention of the O.P.2 that O.P.2 company appointed a spot surveyor immediately after receiving the claim form from the complainant and as seen Ex. A3 processed the claim of complainant and the O.P. company also appointed one K. Rudra Pratap Kumar, Guntur for investigation, after investigation, he submitted his report i.e. Ex. B4 and the O.P. company appointed another surveyor for final survey by name Gangadhara Prasad. As seen Ex. B5 the O.P.2 sent a letter to the complainant on 5-9-2011 requesting him to produce repairing bills as the vehicle was already repaired and he did not responded. Again the O.P.2 sent remanding letter to the complainant on 10-10-2011 under Ex. B6, requesting to produce the repair bills for settlement of the claim but he did not provided, without repairing bills the claim could not be settled as such finally the O.P’s company closed the claim of the complainant. In this regard the complainant not proved, he submitted of the vehicle repair bills to the O.P.2.
30. The another contention of the O.P.2 the complainant is not a consumer as defined under section 2 (d) of C.P. Act 1986, as such the complainant does not comes under the purview of consumer dispute as envisaged in section 2 (e) of C.P. Act. Hence, this forum has no jurisdiction and also contended that the complainant insured his vehicle with O.P’s under “commercial vehicle policy” and he using the vehicle for transporting of goods on commercial activities at the time of accident. Hence, the complainant would not come under purview of the definition under section 2 (d) (ii) of C.P. Act 1986 and the contract of insurance does not comes under purview of the sale of goods act as defined under section 2 (i). In this regard as seen Ex. A1 the complainant registered his vehicle as “goods carriage” and as seen Ex. A2 and B1 he insured his vehicle “goods carrying package policy” as per Ex. B4 the report of the K. Pratap Rudra Kumar, Investigator, the complainant stated that the vehicle was using for commercial purpose. As such, the contention of the O.P.2 is tenable under the section of 2 (d) and 2 (d) (ii) and 2 (e) of the C.P. Act 1986 the complainant did not stated anywhere that the vehicle using for his livelihood. Hence, the complaint is not maintainable.
31. As per above discussion the complainant did not proved the deficiency in service of O.P’s as such the answer is against the complainant.
32. 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 31st July, 2014
MEMBER PRESIDENT FAC
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant NIL For Respondents : NIL
Exhibits marked for Complainant: -
Ex. A1 P/c of Goods carriage permit No. PPC : AP204/941/PPC/2010 of Saleem
Chinna Subba Reddy.
Ex. A2 P/c of policy of the vehicle bearing No. AP 04 X : 9934.
Ex. A3 P/c of FIR in Cr.No. 34 of Gospadu P.S. Kurnool District.
Ex. A4 Office copy of the legal notice dt. 16-8-2012 issued to the respondents.
Ex. A5 Postal acknowledgements 3 No. signed by the respondents.
Ex. A6 O/c of the legal notice dt. 01-10-2012 issued to the R1 to 3 along with
Postal receipts.
Ex. A7 Postal acknowledgements 3 No. signed by the respondents.
Ex. A8 O/c of the legal notice dt. 15-11-2012 issued to the R1 to 5 along with
Postal receipts.
Ex. A9 P/c of the R.C. for the vehicle AP 04 X ; 9934.
Ex. A10 P/c of tax paid receipt of an amount of Rs. 6,110/- at A.P. Online.
Ex. A11 P/c of form 38 certificate of fitness issued by the M.V. Inspector,
Proddatur.
Exhibits marked for Opposite party No. 4. : -
Ex. B1 P/c policy No. 3003/60656023/00/000 issued by the ICICI Lombard Motor
Insurance.
Ex. B2 P/c of claim intimation letter dt. 8-7-2011.
Ex. B3 P/c of claim intimation sheet dt. 7-6-2011.
Ex. B4 P/c of investighation report dt. 10-7-2011.
Ex. B5 P/c letter issued by the ICICI Lombard General Insurance Co. Ltd.,
Secunderabad to Petitioner i.e. S. Chinna Subba Reddy dt. 5-9-2011.
Ex. B6 P/c of letter issued by the ICICI Lombard General Insurance Co. Ltd.,
Secunderabd to petitioner i.e. S. Chinna Subba Reddy, dt. 10-10-2011.
Exhibits marked for Opposite party No. 5. : -
Ex. B7 P/c of power of attorney (Authorization).
Ex. B8 P/c of application and loan agreement of the complainant.
MEMBER PRESIDENT FAC
Copy to :-
1) Sri V.A. Vara Prasad, Advocate for complainant.
2) Sri D. Rajasekhar Reddy, Advocate for O.P.4 & 5.
3) The Unit Head, M/s ICICI Lombard General Insurance Co. Ltd., Interface Building, No. 11, 401/1 402 4th floor, New Links Road, Mala (W) Mumbai – 400 064.
4) The Claims Manager, M/s ICICI Lombard General Insurance
Co. Ltd.,15/343, 2nd floor, KVR Enclaves, Kanaka Mahalakshmi Circle, Subedarpeta, Nellore – 524 001.
5) The Regional Claim Manager, M/s ICICI Lombard General
Insurance Co. Ltd., 39-1-82-A, 4th floor, Anjaneya Gold House, Labbipeta, M.G. Road, Vijayawada, Krishna District – 520001.
B.V.P.
