Andhra Pradesh

Nellore

CC/20/2014

Vidavaluru Seenaiah - Complainant(s)

Versus

United India Insurance Co.Ltd. Rep By its Senior Branch Manager, - Opp.Party(s)

Sk,Abdul Samadh

30 Sep 2015

ORDER

                                                               Date of filing       :  03-04-2014

                                                               Date of disposal  :  30-09-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::      

 

Wednesday, this the 30th day of SEPTEMBER, 2015.

         

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                                      

                               C.C.No.20/2014

 

Vidavaluru Seenaiah,

S/o.Subbaiah,

Hindu, SC by caste, aged about 32 years,

Allipuram Village,

Nellore Rural MAndal,

SPSR Nellore District.                                                          …  Complainant

                 

           Vs.                                                                          

United India Insurance Co.Ltd.,

Rep. by its Senior Branch Manager,

Branch Office –II,

Dargamitta,

Nellore-524003.                                                                  … Opposite party

 

This matter coming on 23-09-2015 before us for final hearing in the presence of Sri  Sk.Abdul Samad, Advocate for the complainant  and  Sri T.Kumar, Advocate for the opposite party and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

      This consumer case is filed by the complainant against the opposite party to direct him to pay Rs.80,000/- towards insurance amount of the vehicle with interest @24%p.a., from the date of theft i.e., 15-02-2010 till the date of realization, Rs.50,000/- towards compensation to the complainant for his mental agony, distress and financial  loss etc., and to grant costs of Rs.5,000/- to him and the Hon’ble Consumer Forum may please to pass such other relief or reliefs as deemed  fit and proper  in the interests of justice.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a) It is the case of the complainant that he had purchased one auto which bearing no.AP 26 Y 0727 for eaking out his livelihood by obtaining a loan from State Bank of India, Nellore.  The said auto was insured with the opposite party under passenger carrying commercial vehicle package policy which bearing no.151204/31/9/01/0000707097 for insured value is Rs.80,000/-, which was inforce from 30-01-2010 to 29-01-2011.  The above said vehicle was also having valid route permit till 12-12-2012 as per Form P.C. which bearing no.AP026/4898/PC 2007 dt.13-12-2007.

(b) It is also further submitted by the complainant at page no.1 of his complaint that as usual after playing the said auto, he had parked and kept said vehicle infront of his house on 14-02-2010 night.  While so, on 15-02-2010 early morning, he wake up at 4-30 a.m., and found that his auto was not in his house and so searched for it and came to know that the said auto was stolen by unknown thieves.  So, he had immediately reported the same to the police authorities and also to the opposite party.  After making the enquiries, the said police authorities had registered the case under FIR no.54/2010 dt.4-3-2010 on the file of Nellore Rural police station and found that finally, the vehicle was not traced out.  So, the complainant had submitted a claim along with all the documents to the opposite party.  After his several approaches and requests to the said opposite party, the said opposite party had sent a letter dt.06-12-2010 stating that they are unable to entertain the claim and closing it, since the said vehicle’s fitness certificate which was already expired by 10-12-2009.

( c ) It is also further submitted by the complainant that at page no.2 of his complaint that he is a poor man and eaking out his livelihood only the said auto which was purchased through loan from State Bank of India, Nellore.  So, the complainant had again submitted letters to opposite party on 21-02-2011 and 05-04-2012 requesting the opposite party to pay claim amount.  As there was no response from the opposite party, he had against sent another letter dt.21-11-2013 to the opposite party and others stating his pathetic condition and requested to pay the said claim amount.  He had again sent letter to the opposite party and its vehicle fitness certificate was expired on 10-12-2009 and it was not renewed and the opposite party was unable to process the said claim which was baseless and not a material fact and the opposite party is only to evade genuine claim of the complaint.

(d) It is also further submitted by the complainant that at page no.2 of his complaint that the opposite party had never asked him for fitness certificate at the time of renewal of insurance policy.  It is the legal and bounden duty of the opposite party to pay the said insurance amount when the said vehicle is under insurance period.  But the opposite party had closed the said claim on flimsy grounds only to evade genuine claim of the complainant.  The acts of opposite party is not in paying the said claim of the complainant constitutes gross-negligence and deficiency in service.  Because of that he had suffering of a lot of mental agony, distress and also incurred financial loss.

(e) It is also further submitted by the complainant that at page no.3 of his complaint that there are causes of action to file the complaint.  So, the opposite party is not only liable to pay the insurance amount of Rs.80,000/- with interest, but also liable to pay damages to him.  Hence, the complaint.

II.  DEFENCE:

      The opposite party was resisted the complaint by filing a written version/counter dt.30-06-2014 and denying the allegations of the complainant.  Those allegations are false and the complaint is not maintainable either in law on facts.  The main objection is raised by the opposite party is that since the said vehicle’s fitness certificate was already expired by 10-12-2009 and it was not renewed and that the opposite party was unable to process the claim.  The theft of the vehicle was occurred on 14-02-2010 whereas the case was registered on 04-03-2010.  There is abnormal delay of 20 days in giving the report to the police.  Hence, there is a suspicion about the theft of the said auto as alleged by the complainant.  The complainant had not intimated the theft of the said vehicle to the opposite party in time.  So, the opposite party is not liable to pay any amount to the complainant.  There is no deficiency in service on the part of the opposite party towards the complainant.   So, the Hon’ble Forum may pleased to dismiss the complaint with exemplary costs.

III.  The complainant had filed an affidavit dtd.01-06-2015 as PW1 and he had also filed their written arguments on 11-08-2015 before this Forum and the documents are marked on his behalf as Exs.A1 to A6 , the opposite party had filed an affidavit dtd.29-06-2015 as RW1 and also filed written arguments on 20-08-2015 and marked on its behalf as Exs.B1 to B3 in support of its case.

IV. Basing on the material available on the record, the points that arise for determination are namely:-

1.  Is there any deficiency in service on the part of the opposite

      party towards the complainant?

 

2.  Whether the complainant is entitled to get the reliefs as

       prayed for, if it is so, to what extent?

 

           (c)  To what relief?

 

V.  POINTS 1 AND 2:

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint, affidavit, documents and written arguments of the case filed herein.   It is nothing but repetition of them once again in his complaint.

Oral Submissions by the learned counsel for the complainant:

         Sri Sk.Abdul Samad, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also argued that there is no dispute about the facts of the case.  The contentions of the said learned counsel for the complainant that the only objection had taken by the opposite party that the fitness certificate was expired on 10-12-2009 and it is only bald allegations of the opposite party to evade the claim of the complainant.

About the description of the documents:

   The said learned counsel for the complainant urged that the said insurance policy issued by the opposite party had clearly proves that the vehicle was insured with the insured value of Rs.80,000/- (Ex.A1); Ex.A2 is the copy of permit issued by  RTA, Nellore dated 13-12-2007 had clearly proves that the said vehicle was under valid permit till 12-12-2012 ; Ex.A3 is the copy of the letter addressed by the opposite party dt.06-12-2010 proves that the opposite party  had repudiated the claim basing on the allegations that fitness certificate was expired and Ex.A6 also proves that the same alleged facts by the opposite party.  It is the contention of the said counsel for the complainant that the opposite party had filed written version without any documentary proof and with all false and baseless allegations.  The another allegation of the opposite party is that there is a delay of 20 days in intimating about the theft of the said vehicle to the police.  Finally, the said learned counsel for the complainant has prayed that the Hon’ble Consumer Forum may please to allow the complaint as prayed for.

Oral Submissions by the learned counsel for the opposite party:

  On the other hand, the learned counsel of the opposite party Sri T.Kumar has also vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that at the time of alleged theft of the insured vehicle and the fitness certificate was expired on 10-12-2009 and there is no valid fitness certificate and it was confirmed by RTA, Nellore.

 

 

About the description of the documents filed by the opposite party:

  His further contention is that Ex.B1 is the policy with the terms and conditions of it; Ex.B2 is the copy of FIR under crime no.54/2010 of Nellore rural P.S. and the R.C. extracts of the copy relating to the said vehicle.  During the course of his arguments, he has cited the decisions of Hon’ble National Commission, New Delhi and Maharastra State Commission, Mumbai, for applicability of the ratio of the cases to the case on hand.  Finally, the said learned counsel for the opposite party has prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence.  One who seeks equity must come to the Consumer Forum/Court with clean hands. 

      Basing on the complaint, written version, affidavits of both parties and written arguments of the both of them, the only question that falls for consideration is whether the opposite party has committed deficiency in service and the acts of the negligence towards complainant? 

    At the time of hearing of the case, both the learned counsels appearing for the parties took us through relevant documents and appreciating the contentions raised by the complainant.  The question of non-filing of fitness certificate issued by the RTA, Nellore to the complainant, is not a material fact to repudiate his claim.   It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary.  The order is required to be passed in accordance with justice and equity on the basis of the evidence available on record.  The C.P.Act, 1986 is for the protection of the consumers and matters that are required to be decided by having rationale approach and not technical one.  This is made clear by the Hon’ble Supreme Court of India in the case of India Photographic Company, Limited Vs.H.D.Shourie, 1996(6) S.C.C.428.  It is also clear from the decision of the Hon’ble National Commission reported in 2006(1) CPR 219 (NC) in the case of Deepak Jaiswal Vs. The Oriental Insurance Company.

      The basic facts of the case are not disputed and hence repudiation of the same once again is avoided here.  Basically, insurance is meant to protect men against uncertain events. Primarily, contract of insurance falls in the category of contract of uberrimae fidei meaning a contract of utmost good faith on the part of the assured 2011(2) CPR 190(NC).  A complaint can be filed under the Consumer Protection Act, 1986 in respect of unsatisfactory services. 

  The complainant is entitled to his insurance claim on non-standard basis in view of law laid down by the Supreme Court in the matter of Amalendu Sahoo Vs. oriental Insurance Company Ltd., II(2010 CPJ 9 (SC).  Similar question came up for consideration before the National Commission in the case of United India Insurance Company Ltd., Vs.Gian Singh (2006) 2 CPJ 83 (NC), wherein it has been held that in case of violation of conditions of the policy so as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis.

Burden of proof:-

   In the case of Hukum chand  Vs. United India Insurance Co.Ltd.1(2014) CPJ 193(NC), the Hon’ble National Commission, New Delhi, it was held that petitioner is entitled to 75% of IDV value on non-standard basis, along with 9% p.a. interest from the date of filing of complaint  till realization and it was decided on 07-10-2013.  It is also held in the case of National Insurance Company Ltd.,Vs.Nitin Khandelwal IV (2008)  CPJ 1(SC) in which the Hon’ble Apex Court has held that in case of theft of the vehicle breach of conditions is not germane.  In that case also vehicle was insured for personal use and it was being used by complainant as taxi, even then, the order of the State Commission allowing 75% claim   on non-standard basis which was upheld  by the National Commission, and it was upheld also by the Hon’ble Apex Court.  The facts of the case, is very much suitable to the case on hand.  In view of above said decisions, it can be said that   the complainant is entitled to 75% of the IDV Value on non-stand basis along with 9% interest per annum from the date of the complaint till date of realization.

    It is settled law that it is for the insured to establish its claim for indemnification of the insured loss.  The Hon’ble Supreme of India in United Insurance Co.Ltd. Vs. M.K.J.Corporation (1996)6 SCC 428 has held that it is a fundamental principle of Insurance law that utmost faith must be observed by the contracting parties. 

1. Complainant must prove his claim by reliable evidence – 2011 (3) CPR 449 (NC).

2.  One  who makes an allegation is required to prove it beyond doubt – 2011 (2) CPR 46 (NC).

3.  Consumer For a can award  compensation as deemed proper, reasonable   and not as per   asking of complainant – 2011 (2) CPR 282 (NC).

4.  Complaint is based on deficiency in service  must establish the same by leading cogent evidence  - 2011 (2) CPR 68 (NC).

5. In the case of consumer disputes redressal Forums, the judgments must set out the points in dispute and a decision on those points supported by some reasons – 1995 (I) CPR 832 (NC).

 

6. Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it which is reported in  2010 C.T.J. (N.C.) 1159.

 

7.  A quasi – judicial authority must record reasons in support of its conclusions  - 2011 CTJ (SC) (CP) 128.

 

Compensation:-

 The Hon’ble Supreme Court’s and Hon’ble A.P.State Commission’s decisions on the topic of compensation:-  The Hon’ble Supreme Court in State of Gujarath Vs.Shantilal Mangaladas, AIR 1969 SC 634 discussed about award of compensation.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of  Chansingh Vs.Healing Touch Hospital and others III(2000) CPJ1 (SC) and also stressed the need of balancing between the compensation awarded recompensing the Consumer and the change it brings in the attitude of the service provider.

     These decisions are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.  Gannavaram Technical Training centre and another which is reported in I (2015) CPJ page 1 (AP), which awarding compensation to Appellant/complainant. Compensation or damages can be  awarded only, if complainant has suffered loss or  damages due to negligence of manufacturer or service provider  - 2011 (2) CPR 101     (NC).

     In view of the facts and circumstances of the case on hand and with regard to points of fact and law, we are of the opinion that the said learned counsel for the complainant has convinced us with his oral arguments of the case.  We have considered the rival submission of the said learned counsel for the parties. There is a lot of deficiency in service on the part of the opposite party towards complainant.  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

 

POINT NO.3:  In the result, the complaint is allowed in part, ordering the opposite party to pay 75% of insured declared value of the vehicle in question towards insurance amount of Rs.80,000/- (Rupees eighty thousand only) with interest @9% p.a., from the date of the complaint i.e., 3-4-2014 till the realization to pay Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony, distress and financial loss to the complainant and also granting costs of Rs.3,000/- (Rupees three thousand only) to this complaint, accordingly in the interest  of justice.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 30^th day of SEPTEMBER, 2015.    

                                                           

              Sd/-                                                                                 Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

01-06-2015

:

Vidavaluru Seenaiah, S/o.Subbaiah, Hindu, Sc, aged about 33 years, R/o.Allipuram, Nellore Rural Mandal, SPSR Nellore District.

WITNESSES EXAMINED FOR OPPOSITE PARTY:

RW1

29-06-2015

:

Abdul Mahaboob, S/o.Abdul Salam, Hindu, aged about 52 years, working as Divisional In-charge, residing at Nellore.

                                     

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	30-01-2010	:	Copy of insurance policy bearing No.151204/31/09/ 01/00007097, vehicle bearing No.AP-26-Y-0727 issued by the opposite party in favour of the complainant.
Ex.A2	13-12-2007	:	Photostat copy of permit in favaour of the complainant, vehicle bearing No.AP26Y0727 issued by the Govt. of Andhra Pradesh, Transport Department (RTA), Nellore.
Ex.A3	06-12-2010	:	Photostat copy of letter addressed by opposite party to the complainant regarding repudiation of the claim.
Ex.A4	21-02-2011	:	Photostat copy of representation addressed by the complainant to the opposite party regarding the settlement of the claim.
Ex.A5     Ex.A6	04-04-2012     25-11-2013	:     :	Photostat copy of representation addressed by the complainant to the opposite party regarding the settlement of the claim.   Letter addressed by the opposite party to the complainant regarding unable to process of the claim.

EXHIBITS MARKED FOR OPPOSITE PARTY:                

Ex.B1	30-01-2010	:	Attested true copy of the policy with terms and conditions policy bearing No.151204/31/09/01/ 00007097 of vehicle no.AP-26-Y-0727.
Ex.B2   Ex.B3	04-03-2010   10-12-2007	:   :	Attested photocopy of the FIR in Cr.No.54/2010 of Nellore Rural P.S. under sec.379 IPC. The R.C. extracts copy relating to the vehicle AP 26Y0727 issued by the Govt. of Andhra Pradesh, Transport Department in favour of the complainant.

         Id/-                                                                                    PRESIDENT(FAC)

 

opies to:

1)   Sri Sk.Abdul Samadth, Advocate, Nellore.

2)   Sri T.Kumar, Advocates, 17-1-615, Chakali street, Nellore.

          

Date when order copies are issued: