BEFORE CIRCUIT BENCH A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT TIRUPATHI
F.A.No.92 OF 2011 AGAINST C.C.NO.68 OF 2010 DISTRICT FORUM-II TIRUPATHI
Between:
D.Krishna Reddy S/o D.Rami Reddy
aged about 37 years, Driver,
R/o A.Rangampet Village,
Chandragiri Mandal, Chittoor Dist.
Now R/o 6-64C M.R.Palle,
Tirupathi Urban, Chittoor Dist.
Appellant/complainant
A N D
1. M/s Future Generali India Insurance Co.,Ltd.,
rep. by its Chairman and Managing Director
Trade Plaza, 414, Veer Savarkar Marg
Prabhadevi, Mumbai-025
2. The General Manager (Motor Claims)
M/s Future Generali India Insurance Co.,Ltd.,
2nd, 3rd & 4h Floor BBR Towers, (Near) Telugu
Desam Party office, Hyderabad
3. The Branch Manager
M/s Future Generali India Insurance Co.,Ltd.,
1st Floor, Saket Lok, (near) Jagruthi Blood Bank
Rajahmundry
Respondents/opposite parties
Counsel for the Appellant Sri N.Anand Kumar
Counsel for the Respondents Sri Katta Lakshmi Prasad
QUORUM: HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWENTY EIGTH DAY OF DECEMBER
TWO THOUSAND ELEVEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The complaint is the appellant. He has filed the complaint seeking direction to Future Generali India Insurance Company Ltd for payment of a sum of `5,00,000/- towards the sum assured under the insurance policy along with interest @24%p and costs.
2. The factual matrix of the case as seen from the averments of the complaint is that the appellant is the owner of Tata Specie SAS bearing registration number AP03 W 3339 and he used to run the vehicle as taxi to eke his livelihood. The appellant obtained contract carriage south India permit which is valid till 16-07-2011. K.Krishna Kishore, the insurance broker of the respondent insurance company collected an amount of `13,922/- on 1-12-2009 from the appellant after making inspection of the vehicle and issued Future Secure Motor Insurance Cover Note No.A 4623003 with the office seal of the respondent insurance company . As per the cover note the insurance policy was valid from 1-12-2009 till 30-11-2010. The broker informed the appellant that the surveyor was out of station and he would inspect the vehicle and till such time not to move the vehicle. For five days the surveyor had not turned up and the broker was not available on phone.
3. The appellant kept the vehicle on the night of 6-12-2010 in front of SVB Channel Office near Alipiri Guest House, Thirupathi to send the vehicle on lease with the SVB Channel. His driver informed the appellant at 7.30 A.M. that some unknown persons had stolen the vehicle. The appellant’s driver and the appellant searched for the vehicle and having not found lodged complaint with the Police CCS, Thirupathi who registered a case in Cr.No.486 of 2009 under Section 379 of IPC. The appellant gave intimation to the RTA about the loss of the vehicle and to Krishna Kishore to arrange for claim from the respondent insurance company. Krishna Kishore requested the appellant to return the cover note stating that his job was in jeopardy and when the appellant refused to return the document, he threatened the appellant whereon the appellant requested one Rayalu to process the claim. The broker and the surveyor played fraud on the respondent insurance company with which the appellant has no concern and he got issued notice dated 12-03-2010 to the insurance company.
4. The respondent insurance company resisted the claim denying the averments of the complaint and stated that SMC Insurance Brokers(P)td is one of the agents of the respondent insurance company in whose favour the respondent insurance company issued certain cover notes . Krishna Kishore is the employee of M/s SMC Insurance Brokers(P)td and the appellant made believe him that the vehicle went to Kerala and it would be back within five days and he would produce the vehicle as soon as it returns from Kerala. Making Krishna Kishore believe his version , the appellant obtained the Cover Note basing on the Certificate of registration of the vehicle, for the period from 1-12-2009 to 30-11-2010. The validity of the cover note would expire after a period of 60 days from the date of its issue.
5. The appellant did not produce the vehicle for inspection and Krishna Kishore issued two letters dated 22-02-2010 and 4-03-2010 requesting the appellant to produce the vehicle for inspection else the cover note will lapse as the inspection report of the surveyor has to be sent to the insurance company for issue of the policy. The respondent insurance company cancelled the cover note vide letter dated 8-03-2010 and after receipt of the letter, the appellant got issued notice dated 12-03-2010 to the DIG of Police, Ananthpur, Superintendent of Police, Chittoor, Inspector of Police, CCS, Thirupathi and Krishna Kishore. The respondent insurance company issued reply on 19-03-2010 to the counsel for the appellant.
6. After the cover note was cancelled, the SMC Insurance Brokers(P)td refunded the premium of `8,740/- to the appellant. SVBC issued certificate and trip sheet stating that the vehicle was with them till 29-11-2009. The driver of the vehicle addressed letter dated 30-11-2009 to SMC Insurance Brokers(P)td that he parked the vehicle on 29-11-2009 in front of SVBC and he did not find the vehicle in the morning the next day and on his being informed the owner of the vehicle came there at 3P.M. whereon both of them searched for the vehicle. The respondent insurance company has not processed the claim since the appellant has not produced the final report from the police.
7 The appellant has filed his affidavit in support of his claim and he has also filed the documents marked as Exs.A1 to A9. On behalf of the opposite party insurance company its authorized signatory, Devarajulu, Deputy General Manager (Claims) of the opposite party no.2 has filed his affidavit and the documents Exs.B1 to B9.
8. The District Forum dismissed the complaint on the premise that the appellant obtained the cover note after the vehicle was stolen on 29-11-2009 and he made the employee of SMC Insurance Brokers(P)td believe that the vehicle had been to Kerala.
9. Aggrieved by the order of the District Forum, the complainant filed the appeal contending that the District Forum has not considered the matter in correct perspective and if at all the appellant has played any fraud the agent would have intimated the same to the insurance company and only after 3 months after the cover note was issued, the respondent insurance company addressed letter informing him that they have cancelled the cover note .It is contended that if really the cover note was cancelled the respondent insurance company could not have advised the appellant to submit the claim form. The District Forum did not consider the evidentiary value of the statement of the driver of the appellant and the agent of the respondent which was made after filing of the complaint. The trip sheet contains the date 11-3-2010 and if it was issued on the date, the respondent insurance company would have mentioned about it in their letter dated 19-03-2010. The District Forum has not considered the appellant’s plea that he kept the vehicle idle for 5 days for inspection by the surveyor and it has not discussed the decisions of the National Commission and the Hon’ble Supreme Court.
10. The point for consideration is whether the appellant is entitled to any amount from the respondent insurance company?
11. The ownership of the appellant of the vehicle, Tata-Spacio SA bearing registration number AP 03 W 3339 is not disputed. The respondent insurance company has raised objection for non settlement of the claim on two counts, the appellant fraudulently obtained the cover note from the employee of its agent, SMC Insurance Brokers(P)td and secondly, the police concerned has not filed the final report.
12. The agent of the respondent insurance company issued Cover Note bearing number A4623003 dated 12-09-2009 in respect of the vehicle bearing number AP 03 W 3339 pertaining to the appellant. The Cover Note indicates that the appellant has paid an amount of Rs.13,922/- and it is valid for a period of 60 days from the date of its issue. as also it contains the seal of the respondent insurance company. The respondent insurance company has not denied the issuance of the cover note. The circumstances under which the Cover Note was issued are different and not identical in the light of the respective contentions of the parties. The appellant contends that K.Krishna Kishore , employee of the respondent insurance company’s agent, M/s SMC Insurance Brokers(P)td inspected the vehicle on 1-12-2009 and after verifying the Engine Number and Chassis Number mentioned in the Registration Certificate with the one engrossed on the vehicle, he has raised the cover note and his vehicle was stolen on 6-12-2010 while it was hired by SVBC and parked in front of its office . Whereas the contention of the respondent insurance company is that the appellant played fraud on Krishna Kishore by stating that the vehicle had been Kerala which would be produced for inspection as soon as it returns and obtained the cover note .
13. The employee of M/s SMC Insurance Brokers(P)td, Krishna Kishore addressed letters dated 22-03-2010 and 4-03-2010 to the appellant requesting him to produce the vehicle for inspection and informed him that the insurance policy will not come into force until the vehicle is inspected by the surveyor and the validity period of the cover note would lapse after a period of 60 days from the date of its issue. The appellant challenged the letters in regard to the time they were issued in the back drop of the complaint he lodged with the CCS Police, Thirupathi on 10-12-2009 stating that the vehicle was stolen on 6-12-2009 need be proved on examination and cross examination of the witnesses.
14. Several other facts such as the respondent insurance company recording the statement of the appellant’s driver on 20-06-2010 after receipt of the notice dated 12-03-2010 of the appellant and even after advising the appellant on 19-03-2010, are of complex and complicated in nature. The driver of the appellant and the employee of M/s SMC Insurance Brokers(P)td are to be cross examined and the appellant’s claim that the employee of M/s SMC Insurance Brokers(P)td played fraud on the respondent insurance company and the respondent insurance company’s plea that the appellant played fraud on it and M/s SMC Insurance Brokers(P)td require elaborate evidence which is not possible in summary proceedings. Therefore, the complaint can be tried by Civil Court. As such the findings of the District Forum are liable to set aside to relegate the complaint to civil court.
In the result, the appeal is allowed. The order of the District Forum is set aside. The appellant is at liberty to approach the civil court. The office directed to return the material papers to the appellant. There shall be no order as to costs.
Sd/-
PRESIDENT
Sd/-
MEMBER
Dt.28.12.2011
KMK*
