Andhra Pradesh

Nellore

CC/110/2013

Duggisetty Venugopal Rao - Complainant(s)

Versus

1.Baja Allianz General Insurance Company Ltd.Rep By its Manager - Opp.Party(s)

O.Abbireddy

31 Aug 2015

ORDER

 

Date of Filing     :30-09-2013

                                                                                                Date of Disposal:31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 31^st day of  August, 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.No110/2013.

 

Duggisetty Venugopal Rao,

S/o.Krishnaiah, Hindu, Aged about 53 years,

Vijay Stores, Main Road, Podalakur Village and Mandal,

S.P.S.R.Nellore District.                                                                            ..… Complainant          

 

                                                                           Vs.

 

1.	Bajaj Allianz General Insurance Company Limited, Represented by it’s Branch Manger, Nellore.
2.	Bajaj Allianz General Insurance Company Limited,. Represented by it’s Manager, 1/82-2, Nanjammas Complex, 1st floor, Vishwanathapuram, Thudiyalur, Coimbatore-641034, State of Tamilnadu.
3.	Bajaj Allianz General Insurance Company Limited,. Represented by it’s Manager, GE Plaza, Airport Road, Yerawada, Pune-111006, State of Maharastra.
4.	Bajaj Allianz General Insurance Company Limited,. Represented by it’s Branch Manager, D.No.40-1-9, M.G.Road, Labbipeta, Vijayawada-520010, Krishna District.                                                                           .…Opposite parties

                                                              .  

            This complaint coming on 21-08-2015 before us for hearing in the presence of                Sri O. Abbai Reddy, advocate for the complainant and                                                               Sri P.V. Mallikarjuna Reddy, advocate for the opposite parties 1 to 4  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

 

            This complaint is filed under Section-12 of Consumer Protection Act, 1986 prays to direct the opposite parties to pay the estimation bill amount of Rs.1,56,569/- alongwith interest @ 24% p.a. from the date of accident i.e., 21-07-2013 till the date of it’s realisation , Rs.1,00,000/- towards damages for using the private car, Rs.50,000/- towards mental agony and  costs of the complaint and notice charges and further reliefs.

 

 

            The brief averments of the complaint  are that he is the  absolute owner of Chevrolet  Spark LS LPG car  bearing No.AP 26 AF 1882, having driving license No.DLRAPO26219822009.  He has taken insurance policy bearing No.0G-13-1004-1801-00001189 for his car  valid from 17-11-2012 to 16-11-2013  by paying premium an amount of Rs.6,100/- .  The said policy also covers own damage of the said vehicle  if any accident took place.  Whileso, on 21-07-2013, he went to Gangamma Temple in his car bearing No.AP26AF1882 alongwith his family members and while returning from Gangapatnam to Podalakur at about 18 hours  met with an accident due to sudden breaks applied when the cattle crossed the road  and as a result of which the car was badly damaged.  Immediately, the complainant informed the  said accident to the 2^nd opposite party and also lodged a complaint to the Sub-Inspector of Police, Indukurpet P.S.  On the next day, the 1^st and 2^nd opposite parties sent their surveyor and he inspected the complainant’s accident car in the show room and issued the estimation repair bill based on the certificate issued by the said police and forwarded the same to the 3^rd opposite party by intimating to him to arrange  the estimated amount  at an early date.   Further alleged that inspite of several oral requests made by him, the opposite parties 1 and 2 have not arranged the said estimation bill amount and postponed the same  and due to the opposite parties adamant attitude his car was not repaired  and he is unable to attend his business work in the absence of his car and he sustained severe loss.  The complainant got issued registered legal notice dated 27-08-2013 stating that the above said facts to the opposite parties 1 to 3.  But the opposite parties 2 and 3 eventhough received the same, did not chosen to  issue any reply notice.  Meanwhile, 4^th opposite party issued registered notice to the complainant dated 08-08-2013 which was served to him  and after notice, the claim was repudiated.  Hence, the complainant  filed this case for payment of Rs.1,56,569/- as estimation amount and compensation of Rs.50,000/- towards mental agony as well as damages of Rs.1,00,000/- towards using the private car for deficiency in service against the opposite parties.

 

            2.         The opposite parties 2 to 4 filed adoption memo adopting the written version filed by the  1^st opposite party in all particular matters.

 

            3.         The opposite parties  resisted the complaint entire averments made by the  complainant and  stated that usual procedure  is that the complainant has to inform about the accident to the opposite party and then on intimation, one surveyor will be appointed  and inspect the  accidental car for submission of  estimation report.  Further contended that after estimating the original work value  the same will be deducted from the insured  declared value for settling the claim.  Further, the opposite parties contended that after receipt of the claim form and relevant documents  from the complainant, the opposite party can appoint licensed independent surveyor to conduct the survey of the said vehicle but  the complainant has not followed  the above said procedure  for taking proper steps.  Further, the opposite parties contended that the complainant willfully and intentionally suppressed  the material fact of previous claim for damages with the previous policy, which was obtained 35% benefit by way of no claim bonus at the time of taking the policy. 

 

            4.         Opposite parties further contended that  as per the terms and conditions of the policy, the insured must disclose all material information including previous claims but intentionally the complainant suppressed the material fact  of his previous claim while submitting the proposal form.  As such, the policy issued in favour of the complainant is null and void from its inception.

 

            5.         Further, the opposite party contended that insurance policy between the insurer and insured  represents a contract between the parties.  Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the term of  the agreement have to be strictly constitute  to determine the extent of liability of the insurer.  The insured cannot claim anything more than  what is covered as per the terms and conditions of the insurance policy.  The insured shall also  act strictly in accordance with the statutory limitations and terms of the policy expressly setout therein.

 

            6.         Since, the complainant has not  followed  the procedure as per the contract between the  insurer and insured, the claim made by the complainant is unjustified and as there is no deficiency of service on the part of the opposite parties, the complaint may be dismissed with exemplary costs.

 

            7.         On behalf of  the complainant, chief affidavit of the complainant is filed as P.W.1 and documents Exs.A1 to A10 marked.  On behalf of the opposite parties, proof affidavit filed by 1^st opposite party as R.W.1 and marked Ex.B1.   Written Arguments filed by the both parties. Heard on both sides, perused  material papers on record.

 

            8.         The point for determination would be for consideration is :

 

1. Whether there  is deficiency in the service committed by the opposite parties, if so and whether the complainant is entitled  for the claim made in the complaint?”

2)          To what result?

 

9.       POINT No.1: In the present case the opposite parties  have emphatically denied the ownership of the vehicle in question with the complainant about the claimant holding driving license to drive a light motor vehicle and about the factum of  accident taking place.  The material placed by the claimant such as registration certificate, driving license would amply  establish that the claimant is the owner of the car bearing registration No.AP 26 AF=1882 Chevrolet Spark L.S. L.P.J. and that the claimant holds driving license issued by the R.T.A. Nellore issued on 03-12-2004 and the driving license was valid till 04-11-2014.  The accident is alleged to have taken place 21-07-2013 as on the date of accident, the claimant was holding valid driving license.  The factum of accident taking place on 21-07-2013 is also established by the certificate issued by the S.I., of Police, Indukurpet of Nellore District.  The accident is said to have occurred Jagadevipet coming within the limits of Indukurpet P.S. limits. Thus it is established beyond any doubt that the complainant is the  absolute owner of the car involved in the accident, that the complainant holds valid license  as on the date of accident and the  accident has taken place on 21-07-2013, the complainant has entered into a policy of insurance with the opposite parties as seen from the copy of the insurance policy marked as Ex.A3.  The said policy relates to the vehicle  bearing registered No.AP 26 1882 Chevrolet Spark.  The said policy was entered into on 22-11-2012 and the period of validity of the said policy  is from 17-11-2012 to 16-11-2013 midnight.  The accident in question has taken place 21-07-2013 as on the date of the policy insurance  is inforce.  The complaint has also placed before this Forum estimates with regard to the expenditure for repairing the said vehicle.  The said vehicle even as per the certificate issued by the S.I. of Police, Indukurpet was badly damaged.  According to the claimant on being informed by the complainant, the opposite parties sent surveyor and the surveyor inspected the vehicle regarding the extent of damage, the vehicle suffered and the estimates of damages.  According to the claimant and estimate produced by him, the expenditure to be incurred for getting the vehicle repaired comes to Rs.1,56,569/-.  The claimant is seeking for a direction to the opposite parties for payment of Rs.1,56,569/-  with interest at 24% p.a. from the date of the accident i.e., 21-07-2013, Rs.1,00,000/- towards damages for using private car and Rs.50,000/- towards mental agony and suffering of the claimant.

 

10.       The opposite parties are repudiating the claim of the complainant on the following grounds:  Firstly according to them, the claimant has not sent any claim form.   The insured is  bound to send a claim form immediately after the accident furnishing the details of the accident, extent of damages suffered by the vehicle, F.I.R. relating to the accident on such claim form being sent  a surveyor will be appointed and he will inspected the vehicle and  he will be submitting a report after estimating the original work value will be deducted from the insured declared value and settling the claim. The 2^nd ground on which the opposite parties repudiating the claim of the claimant is that  the complainant willfully and intentionally suppressed the material fact of previous claim for damages  with the previous policy and obtained 35% benefit  by way of no claim bonus  and as such the complainant intentionally with held material information to the opposite parties at the time of  taking the policy.  As per the terms and conditions of the policy, the claimant must disclose all information including the previous claim but the complainant intentionally suppressed the material fact of previous claim while  submitting proposal form.  As such the policy issued  in favour of claimant is null and void from it’s inception.

 

11.       Coming to the 1^st ground on which the claim is repudiated for the alleged failure of the claimant to send  the claim form, the  vehicle in question was inspected by the surveyor Pradeep Kumar  marked as Ex.A6.  Unless the claim form was sent  there was no question of deputing a surveyor.  The very fact that the surveyor Pradeep Kumar inspected the vehicle would clearly go to show that the claimant sent a  claim form and based on the same, the surveyor was deputed to prepare and estimate of damages caused to the car in question.  Therefore the 1^st ground for repudiation of the claim is not tenable. 

 

12.       So far as the 2^nd ground for rejection of the said claim is concerned  according to the opposite parties the claimant obtained 35%  benefit by way of no claim bonus and as such the claimant intentionally withhold the material information to the opposite parties at the time of taking the policy.  As such according to the policy issued in favour of the complainant is null and void from the inception.  For this ground relied on by the opposite parties for repudiating the claim of the complainant..  It is not the version of the complainant that he has not obtained 35% benefit by way of no claim bonus from the opposite parties under the earlier policy and as such he has not suppressed the said fact at the time  he obtained the policy for the period from 17-11-2012  to 16-11-2013.

 

13.       Insurance policy is a contract entered into between the insurer and the insured.  Certain rights and obligations are contained as per the terms of the policy of the insurance.  It is a  bilateral contract and not unilateral.  The parties to the said insurance policy are bound to comply with the terms and conditions of the policy .  The insurer is bound to comply with the conditions of the policy, he was bound to furnish the details of the benefits by way of no claim bonus under the earlier policy in the proposal submitted by the  complainant at the time, he obtained policy  for the period from 17-11-2012 to           16-11-2013.  The complainant was duty bound to furnish the same in the proposal for obtaining renewal of the policy of the insurance.  Had the complainant not furnished the benefit  already obtained  under the previous policy in the proposal form for obtaining fresh policy, the same amounts to  suppression of material information entitling the insurance company to disown any claim arising out of the policy of insurance on the basis of which the claim is made as the said policy issued in favour of the complainant becomes null and void from it’s inception .

 

14.       The O.Ps. are organs of insurance company constituted under  Insurance Act.  They are quasi public services, they bound to abide by the terms and conditions of the policy of insurance if the claims are made in accordance with the terms of the policy.  If there are any violations of the terms of the policy, the insurance company is entitled to disown its liability under the terms of the policy of insurance.

 

15.       In the instant case, the opposite party have not produced earlier policy or copy of it to establish that  under the earlier policy the complainant made a claim for payment of 35% bonus on no claim basis.  A duty was casts  on the parts of opposite parties  to produce the particulars of the benefit availed by the complainant under the earlier policy.  In the absence of the same, they are not entitled  to disown their liability on the ground that the policy in question becoming unenforceable.

 

16.       Though in the evidence on affidavit, there  is mention about the filing of documents viz., 1) Attested copy of policy terms and conditions pertaining to the claimant 2)  Proposal Form  3) Confirmation of the  previous claim taken by the insured (to prove NCB declaration)  4)  Surveyor Report  5)  Repudiation letter 6) Correspondence letters no: with postal receipts and postal acknowledgements,  the same were not filed for establishing their case.  For reasons better known, the opposite parties withheld the filing of the material documents.  Therefore, their contentions cannot be countenanced.

 

17.       The opposite parties relied upon the decisions namely 1) Ravneet Singh Bagga Vs. K.L.M. Royal Dutch Air Lines and another  2)Life Insurance Corporation of India and Others Vs.  Nirmla Sharma – 2010 CJ 309 (H.P.) Insurance  3) M/s.Bajaj Allianz General Insurance Company Limited Vs. K. Eswara Prasad, 2013 (3) C.P.R. 341 (N.C.).

18.       The above decisions placed by the opposite parties are not related to the instant case  as the opposite parties failed to produce  any documentary proof as per their counter for establishing their case.  Hence, the repudiation of the claim is unjustified.  Accordingly, the claim is allowed partly in favour of complainant. So far as the complainant for a direction to pay the repairing chares of Rs.1,56,569/- with interest at 24% p.a. is concerned, the complainant  is entitled the payment of estimation charges only after deducting from Rs.2,55,000/- i.e., the sum assured i.e.,the insured amount Rs.2,55,000/- - the estimate of repairs amount of Rs.1,56,569/- which is equallent to Rs.98,431/- as per the terms and conditions of the policy.  Hence, he is entitled only Rs.98,431/-. 

 

19.       With regard to the claim for payment of Rs.1,00,000/- towards damages for using a private car is concerned no documentary proof is placed before this Forum.  Whenever the services of hired vehicles are taken necessary vouchers for payment of higher charges has to be obtained from the owner of the vehicle  and such a voucher should contain the details regarding dates of journey, vehicles hired and the amount of hire charges paid.  In the present case, the complainant  has not placed any material by way of documentary proof as to the dates on which he engaged hired vehicles, what is the amount of hire charges he has paid.  In the absence of the same, it cannot be accepted for a moment about the complainant utilizing the services of hired vehicles.   Further the claim for Rs.1,00,000/- is exorbitant, fabulous and not evidenced by any documentary proof.  Therefore, the complainant is not entitled for payment of Rs.1,00,000/- claimed towards compensation for using the  private vehicles.

 

20.       The complainant has also claimed of Rs.50,000/- towards mental agony.  Due to the unfortunate accident and the vehicle  sustained heavy damages, the claimant must have suffered mental agony.  Since, it is clearly established the accident  and evading to pay the required amounts by the opposite parties, the opposite parties are liable to pay of Rs.25,000/- towards mental agony,  with costs of Rs.3,000/-.

 

 

21.       This Forum is not convinced with the contention of the opposite parties that the complainant is not a Consumer within the definition of Section-2(d) of  Consumer Protection Act.  By virtue of the policy of the insurance, the complainant has to be treated as a Consumer  and the complainant is entitled  to approach this Forum. Accordingly, point No.1 is answered.

 

22.   POINT No.2: In the result, the complaint  is partly allowed directing the opposite parties 1 to 4 jointly and severally liable to pay  a sum of Rs.98,431/- (Rupees ninety eight thousand four hundred and thirty one only) towards the payment of  estimation bill together with interest at 9% p.a. from the date of complaint i.e.,                    30-09-2013  till the date of payment to the complainant and  also the opposite parties further directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards mental agony besides the  costs of Rs.3,000/- (Rupees three thousand only) within one month from the date of receipt of this order.

 

Typed to the dictation to the Stenographer, corrected  and pronounced by us in the open  Forum, this the 31^st  day of  August, 2015.

 

                    Sd/-                                                                                         Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

 

                                                APPENDIX OF EVIDENCE

Witnesses Examined for the complainant

P.W.1  -

21-07-2014

Sri Duggisetty Venugopal Rao, S/o.Krishnaiah,  S.P.S.R.Nellore District (Evidence Affidavit filed)

Witnesses Examined for the opposite parties

R.W.1  -

10-02-2015

Sri G. Chandra Sekhar, S/o.Rama Rao, Working as Executive Legal in Bajaj Allianz General Insurance Company Limited (opposite party No.1 company) Vijyawada.

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

Ex.A1  -	11-11-2009	Photocopy of Certificate of Registration No.AP26AF1882  in favour of complainant issued by Addl. Registering Authority, RTA-Nellore.
Ex.A2  -	05-11-2009	Photocopy of  Driving License No.DLRAP026219822009  issued by Licencing Authority, RTA-Nellore.
Ex.A3  -	-	Photocopy of Certificate Cum Policy Schedule in policy No.OG-13-1004-1801-00001189  in favour of complainant issued by the opposite party.
Ex.A4  -	-	Six photos.
Ex.A5  -	-	Photocopy of Certificate in favour of complainant issued by Sub-Inspector of Police, Indukurpet P.S. S.P.S.R.Nellore District.
Ex.A6  -	05-08-2013	Photocopy of  the Estimation bill of the complainant’s car issued by the Mahindra First Choice, Multibrand Car Workshop, Nellore.
Ex.A7  -	27-08-2013	Legal notice from complainant’s advocate to the  opposite parties 1 to 3 alongwith three registered post receipts.
Ex.A8  -	-	Two served postal acknowledgements received from opposite parties 2 and 3 sent by the complainant’s advocate.
Ex.A9  -	08-08-2013	Letter from opposite party to the complainant.
Ex.A10  -	-	Proforma Invoice in favour of complainant issued by  Mahindra  First Choice Service Limited (seven pages)

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

Ex.B1  -

-

Private Car Package Policy Schedule in favour of complainant issued by the opposite party alongwith Private Car Package Policy  document

                                                                                                  

                                                                                                                 Id/-

                                                                                                      PRESIDENT(F.A.C.)

 

Copies to:

1.	Sri O. Abbai Reddy, Advocate, 23-1-962, Wahabpet, Nellore-524 003.
2.	Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Military Colony, 1st line, Dargamitta, Nellore-524 004 (A.P.)

 

Date when free copy was issued: