BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 13th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.388/2012
(Admitted on 15.12.2012)
Mr. M. Mohammed Kunhi,
Son of Abdul Kunhi,
Aged about 39 years,
Menala House,
Post Ajjavara and Village,
Sullia Taluk D.K. 574246.
….. COMPLAINANT
(Advocate for the Complainant: Sri TP)
VERSUS
The United India Insurance Co. Ltd,
Branch Office, Prabhu Building,
Main Raod, Puttur Taluk D.K.
…......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri DRK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant contends his vehicle Registration No. KA.21.A.1434 met with an accident on 2.5.2010 and case Crime No.111/2010 was registered. The vehicle was insured with opposite party for the period from 12.6.2009 to 11.6.2010. On filing the claim form with opposite party has deputed the Insurance Surveyor and Loss Assessor. He inspect the complainant’s vehicle and took photographs. After repair the complainant paid Rs.2,58,981/ and submitted the original bill to opposite party. Despite several request opposite party has not paid the expence of the bill and failed to release the amount claimed by the complainant. The opposite party went on giving false assurance in awarding the claim. After the legal notice was served on 16.10.2012 opposite party issued false reply alleging approved of Rs. 85,000/ and sent the claim voucher on 9.2.2010 for discharge. Opposite party has made false assurance on payment but were complying denied in the complaint. Hence seeks relief claimed in the complaint.
2. In fact complainant had filed an application on that section 24 A seeking to condone of delay in filling the claim petition under C P Act as opposite party was making false promises to make payment but never complied with those promises. Hence seeks to condone the delay.
II. In the written version opposite party contends the claim is barred by section 24 of C P Act issuance of the policy covering the risk of vehicle in question as in complaint is admitted by the complainant has not disclosed the real cause of accident. When opposite party investigated the cause of accident and estimated actual loss incurred by complainant by competent surveyor after verifying the documents opposite party concluded the complainant is entitled for Rs.85,000/ towards loss in the accident. Hence voucher was sent and the complainant refused to accept it. As such there is no deficiency in service as complainant never sent the voucher duly signed by complainant. Hence seeks dismissal of the complaint.
2. In support of the above complainant Mr. M. Mohammed Kunhi filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C8 as detailed in the annexure here below. On behalf of the opposite parties Mr. Amar Kumar Sinha (RW1) Divisional Manager, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R4 as detailed in the annexure here below.
In view of the above said facts, the points for consideration in the case are:
- Whether the complainant had made the ground to condone delay in filing the complaint.
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the notes/oral arguments of opposite party not addressed taken as nil 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): Affirmative
Point No (iii): Partly Affirmative
Point No (iv): As per the final order.
REASONS
IV. POINTS No. (i): In this case the accident occurred on 2.5.2010 and complaint was filed on 11.12.2012 when admittedly as seen from the complainant’s allegation opposite party went on seeking time to settle the matter when the bills were submitted of repairs carried out to the vehicle. As such the delay was caused in filing the complaint. However even as admitted by complainant in the complaint the cheque for Rs.85,000/ was given by opposite party as mentioned in the complaint was tendered to complainant sent on 9.2.2010 itself. Thus the claim of complainant that opposite party went on seeking time to settle the case at least from this 9.2.2010 the Rs.85000/ as offered to the complainant cannot be accepted.
2. The accident itself occurred on 2.5.2010. Hence the claim of opposite party that it had sent voucher cheque for Rs.85,000/ towards complainant’s claim on 9.2.2010 itself is completely false. Even if we consider the date mentioned as 9.2.2010 in the written version of opposite party as a typographical error we cannot accept opposite party the United India Insurance Company Ltd and its officers to repeat such mistake. If mistake is repeated it has to be considered as intentional. The affidavit evidence filed by one Mr. Amar Kumar Sinha the Divisional Manager of opposite party at Para 3 mentions: “the opposite party has sent claim voucher on 9.2.2010 for a sum of Rs.85,000 to the complainant in order to discharge settlement voucher and to accept the cheque for the aforesaid amount.”
3. Again in second page of the very same affidavit he mentions the following “the complainant has not met the opposite party after 9.2.2010 “. As seen from Ex.C8 dated 19.11.2012 an intimation signed by Sr. Branch Manager Seetharama K also mentions the date of sending the voucher for Rs.85,000/ to complainant for signature as 9.2.2010. This attitude on the part of the opponent and its officers shows utter neglect to the facts of the case.
4. As seen from the documents produced by opposite party Ex.R2 the Vat Invoice produced by complainant before opposite party is dated 7.6.2010 in respect of the repairs of the vehicle. Ex.R1 is Motor Survey report dated 21.10.2010. Other than intimation Ex.C8 referred earlier there are no documents produced by either side to show as to when opposite party communicated with complainant that it is willing to pay only 85,000/ towards its liability under the policy. In the absence of any document to substantiate the claim of opposite party stand as to the date of communication of sending the voucher for Rs.85,000/ to complainant we are of the view that it is a fit case to condone delay caused filing the complaint. Hence we answer point no.1 in the affirmative.
Point No (ii): The complainant had insured his vehicle lorry in question with opposite party is not disputed and during the period of accident in question the policy was current with coverage to the vehicle is not in dispute. Hence there is a relationship of consumer and the service provider between complainant and opposite party. The claim of complainant for payment of the amount claimed by him towards the repair charge was not paid and opposite party agreed to pay only part of the claim amount as mentioned at Ex.C8 of Rs.85,000/ shows there is a live dispute between the parties. Hence we answer point No.2 in the affirmative.
Point No (iii): The narrow point for consideration is whether opposite party was justified in assessing its liability only at Rs. 85,000/ of the total amount of Rs.2,18,004/ as mentioned at Ex.R2 . Ex.R3 the repair estimation mentions the total estimated charges at Rs.2,58,981/. But the amount to be considered is actual expenditure mention at Ex.R2 and not the estimation.
2. Ex.R1 is the Motor Survey Report (Final) issued by the General Insurance Surveyor & Loss Assessor Mr. Vishwanath Shetty it is dated 21.10.2010. At Ex.R1 the surveyor assesses the insurer’s approximate liability at Rs.1,47,003/ Apart from mentioning the Rs.1,47,003 in the general remark column of the Ex.R1 the surveyor by adding sl. no 8 as following “cargo body materials and cargo body reconstruction labour charge Rs.31,500 and 24,500 total Rs.56,000/ allowed subject to policy condition”
3. The complainant had produced Ex.C4 the copy of the insurance policy issued to him by opposite party covering the risk for the period from 12.6.2009 to midnight of 11.6.2010. As can be seen from the document Ex.C4 we find no specific conditions as to exclusion. Opposite party has also not produced any document much less the copy of the policy issued to complainant in covering the risk of the vehicle that met with accident. When no such terms and conditions were disclosed and the reasons for offering Rs.85,000/ by sending voucher for the said amount to complainant in our considered view cannot be accepted as justifiable. Hence considering that the expenditure namely the Surveyor appointed by opposite party as per Ex.R1 assessed liability at Rs.2,03,003/ shall be the liability to opposite party against the complainant. In the circumstance the complainant succeeded in establishing deficiency in service on the part of opposite party in not paying the amount due to him under the terms of the policy towards the repair charges of the insured vehicle. Hence answer Point No.3 partly in the affirmative.
4. Opposite party shall be directed to pay a sum of Rs.2,03,003/ to complainant with future interest at 9% per annum from the date of complaint till the date of payment. Opposite party shall also be directed to pay Rs.10,000/- as cost of litigation and legal expences.
POINTS No. (iv): Wherefore the following order
ORDER
The complaint is partly allowed. Opposite party is directed to pay Rs.2,03,003/ (Rupees Two lakh Three thousand and Three only) to complainant with interest at 9% per annum from the date of complaint till the date of payment.
2. Opposite party shall also pay Rs.10,000/- (Rupees Ten thousand only) to complainant towards cost of litigation and legal expences.
3. Payment shall be made within 30 days from the date of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 13th January 2017)
MEMBER PRESIDENT
( SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. M. Mohammed Kunhi
Documents marked on behalf of the Complainant:
Ex.C1: : Notarized copy of the R.C Elicher Lorry bearing Registration KA.21.A.1431
Ex.C2: 04.05.2010: Notarized copy of the Complaint filed before S.H.O Uppinangady Police Station
Ex.C3: 04.05.2010: First Information Report filed by S.H.O. Uppinangady Police before A.C.J (Jr.Dn) J.M.F.C Puttur
Ex.C4: 10.06.2009: Notarized copy of the Package Policy issued by the Opposite party
Ex.C5: 07.05.2010: Repair estimate issued by the Automotive Marketing P. Ltd. Adyar Mangalore D.K.
Ex.C6: 13.10.2012: Office copy of the legal Notice issued by the complainant to the O.P
Ex.C7: 16.10.2012: Original Postal Acknowledgement for having Served the legal notice to the O.P
Ex.C8: 19.11.2012: Original reply notice sent by O.P
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Amar Kumar Sinha, Divisional Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: Surveyor report submitted in the above Accident Case
Ex.R2: Total Bills submitted by the Complainant
Ex.R3: Original Estimate given by the Repair Automative Marketing P. Ltd. Adyar, Mangalore
Ex.R4: Payment Receipt
Dated: 13.01.2017 PRESIDENT
