CC.No.304 of 2007
Sri Gummadi Chandra Sekhar Rao,
Prakash Nagar, Narasaraopet,
Guntur district. … Complainant
The Branch Manager,
New India Assurance Company Limited,
@@@@hi Chowk, Main Road,
Narasaraopet, Guntur district. …Opposite Party
This complaint is coming up before us for hearing on 04.11.2009 Sri B. Sivaprasad, advocate for complainant and of Sri G. Srinivasu, Advocate for opposite party are having on record, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri T. Anjaneyulu, President:- This complaint is filed by the complainant against the opposite party for payment of Rs.2,50,000/- towards damages, interest thereon and compensation of Rs.10,000/- apart from legal expenses.
The brief facts of the case are that the complainant is owner of lorry bearing No.AP07 W 5028 and the same was insured with opposite party under policy No.620903/31/04/02197, valid from 02-02-05 to 01-02-06. The complainant has paid a sum of Rs.37,775/- towards premium and the policy was issued giving insurance coverage to 3rd party and also own damage (vehicle damage).
That on 7-10-05 at about 12.00 noon, the above said lorry was proceeding towards Thammarajupalli Ghat after crossing Kurnool with a load of iron coils from Baroda, Gujarath State to Ranipet, Tamilnadu State, another lorry came in opposite direction and dashed the lorry of complainant. As a result, the complainant’s lorry was badly damaged in the said accident. The matter is reported to Orkaval police station. The lorry was badly damaged and complainant sustained more than 2.5 laks loss. He has informed the same to opposite party and requested to settle the claim. Spot survey was done by Sri M. Kalimulla, Surveyor, Kurnool and M/s. Vijaya Durga Auto Mechanical and Engineering Works, Autonagar, Vijayawada. They have assessed the damage and estimated to a tune of Rs.1,98,917/-. The complainant has submitted all relevant papers to the opposite party and requested to settle the claim. But opposite party did not settle the claim.
Recently, the opposite party sent a letter dated 29-09-06 with all false and frivolous allegations stating that the complainant has not submitted required documents and closed the process on the following reason. As per version of the final surveyor, the complainant has not shown any interest in his claim and the vehicle is also not available for the final survey.
The complainant humbly submits that it is absolutely false to say that he has not shown any interest in settlement of claim and he has not submitted relevant documents and that the vehicle is also not available. He has already submitted all the documents/papers as required by the opposite party and the vehicle is also available. The opposite party has been postponing the settlement on one pretext or the other. The complainant submits that he has been facing lot of problems, due to non settlement of claim by the opposite party. The lorry is kept idle for a longtime and thereby the complainant has deprived of income from the lorry. He is put to financial loss besides mental agony. Complainant also got issued a reply notice dated 26-10-06 to the letter issued by the opposite party. They received same and kept quite without settling the claim and not issued any reply. Hence, there is deficiency in service on the part of the opposite party. Under these circumstances, the complainant is compelled to file this complaint for appropriate reliefs.
Opposite party filed its version in the following manner, it has denied all allegations made in the complaint and called upon complainant to prove all the allegations strictly. It is also alleged that the complaint is barred by limitation. However, it admitted that it has issued policy for the said vehicle covering period from 02-02-05 to 01-02-06.
The opposite party further submits that immediately after receiving intimation regarding accident from the insured they got appointed Sri M.Karimulla as spot surveyor who has conducted spot survey and submitted his report. The complainant informed the spot surveyor that he would shift the vehicle to garage at Vijayawada. After receiving the report of spot surveyor, the opposite party appointed Sri V.Balaji, Licensed Surveyor to conduct final survey. The said licensed surveyor visited damaged vehicle at mechanic shed of M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada and thoroughly verified the damaged vehicle and noticed the damages. Then immediately requested the repairer as well as insured to dismantle vehicle to further detailed inspection at earliest. After one week, surveyor contacted repairer and the insurer, but they have not dismantled the vehicle. Again after another 15 days the surveyor visited the garage, on that day also the vehicle was in as it is condition. The repairer informed the surveyor that the insured was not available for proceeding further steps. Then the surveyor requested the repairer to inform whenever the vehicle is dismantled. Though two months lapsed, there was no message. In the meantime the surveyor contacted the insurer over telephone, but his telephone was out of order. Then the surveyor had wrote one letter to the insured, but no response. Afterwards, the surveyor visited the garage and discussed the repairer, who in turn informed that the vehicle was ceased by its financiers and lifted the vehicle from the garage, even there after there was no response from the insured. Then the licensed surveyor assessed the loss on the basis of damages which he has sent at the time of inspection of vehicle in as it is condition. The net loss assessed by Sri V. Balaji, Licensed surveyor is Rs.53,705/-.
It is denied that they have appointed one M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada to assess damage and that they estimated the damage to a tune of Rs.1,98,917/- and submitted report to the opposite party. This opposite party is nothing to do with M/s Vijaya Durga Auto Mechanical Works. The insured himself shifted the vehicle for repairs. As per condition No.1 of the policy, the insured shall give all information and assistance as and when company required. But the insured has not submitted required documents and not co-operated and assisted the surveyor to conduct final survey, as the vehicle was not available for final survey. The insured has also to comply condition No.8 of the policy in giving true information.
On receipt of final survey report of Sri V. Balaji, closed the claim of the insurer as he has not submitted relevant documents and has not shown any interest in the claim and as the vehicle is also not available for final survey and the same is informed to him by letter dated 29-09-06. Thus there is no deficiency of service on their part and they have rightly closed the claim. The insured vehicle is under hypothecation agreement with City Corps Finance (India). As such, the insured is not the owner of the vehicle and City Corps Finance (India) is the owner at the time of accident as per Endorsement IMT No.7 of the policy and as such the insurer has no locus standi to claim compensation for the damages. Therefore, it is prayed to dismiss the complaint.
Both sides have filed their respective affidavits. On behalf of complainant Exs.A-1 to A-8 are marked and on behalf of opposite party Exs.B-1 to B-6 are marked.
Now the points for determination are that,
1. Whether the opposite party committed any deficiency of service in closing claim of the complainant and in non payment of estimated damages?
2. Whether complainant is entitled for the amounts as sought for?
POINT No. 1:- In this case coverage of insurance to the vehicle bearing No.AP07W 5028 is not in dispute, apart from involvement of vehicle in an accident that took place on 07-10-05. Thereafter, the vehicle was shifted to M/s Vijaya Durga Automobiles Mechanical and Engineering Works, Autonagar, Vijayawada for necessary repairs to the damaged vehicle. It is the claim of the opposite party that they appointed one Sri V. Balaji, Licensed Surveyor to conduct final survey at the said garage. The surveyor has requested the complainant for it’s dismantle to assess further loss if any, but the insured has not co-operated him despite waiting for sufficient time and giving intimation to both workshop people and the insured. Finally, the vehicle was lifted away from the said garage by its financiers as per information given by the garage people. Therefore, the surveyor assessed the net loss to a tune of Rs.53,705/- as it is in condition. The opposite party however denies that they appointed M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada to assess the damage. Because of non co-operation of the insured and not keeping the vehicle available in workshop they have closed the claim. It is also alleged that as the vehicle is not hypothecated with City Corps Finance (India), complainant has no locus standi to file this complaint.
The complainant has filed certificate of registration of the vehicle (vide Ex.A-1), copy of policy vide Ex.A-2 and certificate given by SI of Police, Orvakal Police Station this reads that “he visited the scene of offence and found the lorry b.no.AP 07W 5028 stationed at the scene. Due to hit by another lorry, cabin, steering, radiator, inter cooler were damaged. He also certified that the contents of the complaint are true and the damages noted are genuine. Since none sustained any injuries in the said accident, no case has been registered. The spot surveyor also gave receipt dated 08-10-05 for Rs.950/- for making spot survey (Ex.A4). The letter dated 29-09-06 issued by the opposite party (Ex.A-5) reads that ‘as per the version of the final surveyor, the complainant has not shown any interest in this regard and that he is also not available in the Garage for final survey and hence, the claim is closed as no claim’. On receipt of such letter the complainant got issued immediately legal notice on 26-10-06 making similar allegations as in the complaint. The opposite party also received and sent the acknowledgement vide Ex.A-7, but there was no further reply. The complainant also filed number of photos showing the damaged vehicle at the spot (scene of offence) and as well as its dismantled condition which are marked as Ex.A-8.
The spot survey conducted by Sri M. Karimullah has reported cause of nature of accident and the details of damage vide his report Ex.B-2. Sri V.Balaji the final surveyor has submitted his report on 27-09-06 vide Ex.B-3. He too has noted the cause of occurrence, the description of damages, and assessment of loss to a tune of Rs.53,705/-. He has visited M/s Vijaya Durga Auto Mechanical Works, Autonagar, Vijayawada on 28-10-05 along with Divisional Manager. They have thoroughly verified the damaged vehicle and noticed damages. Thereafter they have asked the repairer as well as insurer to dismantle the vehicle for further detailed inspection. After one week he has again contacted the insurer and the repairer. They have not dismantled the vehicle. Again after another 15 days he has visited the garage and on that day also it was in the same condition. The repairer informed him that insurer was not available for taking further steps. At that time he is said to have been requested the repairer to inform whenever vehicle is dismantled. But there was no message even after two months. He also telephoned to the insurer, but it was found out of order and he is said to have written one letter but no response. Again he visited the garage and he was told that financier lifted away the vehicle from the garage. Further, from all the above aspects on his thorough inspection of the damaged vehicle in as it is condition, the damages were assessed after deducting depreciation salvage value including labour charges to a tune of Rs.53,705/-. The letter dated 14-02-06 addressed to the complainant is also enclosed along with the report Ex.B-4 in which he requested to dismantle of the vehicle and about his non co-operation. The certificate of registration under Ex.B-6 filed to show that the vehicle in question is hypothecated with City Corps Finance (I) Limited.
Thus as seen from the above material on record, the claim process was closed on the ground that the vehicle was not dismantled to assess further loss and was not get it repaired though it was in the workshop for enough time and ultimately, it was taken away by the financier from garage. Therefore, the insurance company claims that they could not settle the claim as insurer did not co-operate with final surveyor in dismantling vehicle and did not submit relevant information as sought for, as such they have closed the file as ‘no claim’. During the course of arguments in this case the similar contentions raised by the learned counsel for the opposite party. The complainant counsel submitted that they have disputed the letter dated 29-09-06 issued by the opposite party and gave legal notice for which there was no reply from the opposite party. It is also submitted by the learned counsel for the complainant that his client got effected repairs and thereafter financier has taken away the vehicle from garage. In that context, the complainant was directed to produce proper evidence about effecting repairs to the vehicle and as to when the said vehicle was taken away by the financier from workshop. Despite giving these directions to the complainant he has not taken any steps to produce the bills issued by the garage in spite of the amount incurred for its repair nor any affidavit of the owner of the garage or its mechanic swearing to the facts that the complainant is in helpless condition as the vehicle was taken away by its financier for non payment of amount. In these circumstances, the Forum questioned the opposite party as to non payment of estimated damages by its surveyor as the vehicle was admittedly damaged to that extent. The learned counsel for the opposite party submitted that unless the vehicle is repaired by incurring expenditure the question of making good the loss and indemnification of the insurer does not arise. This appears to be true as per conditions of the policy, therefore, to that extent no deficiency in service on the part of the opposite party. In peculiar circumstances of the case facts, we dispose of this complaint in the following terms,
1. If the complainant is interested in making claim to the damaged vehicle, either himself or his financier shall get it repaired or in case it is already repaired, to produce proper documents in support of the same and thereafter the insurance company shall process the claim and settle it accordingly.
2. Each party shall bear their own costs.
Dictated to steno typist, transcribed by her, corrected by me and pronounced in the open Forum dated this the 7th day of November, 2009.