Date of Filing:14-02-2017
Date of Order:11 -9-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Wednesday, the 11th day of September, 2019
C.C.No.133 /2017
Between
Mr. Shanthimay Tiwari
S/o.Late Bhawan Prasad Tiwari,
Age: 53 years, Occ: Self-employed
R/o.C/o. Bihar UP road Carrier, Shop No.15
N.H.7, Medchal, Hyderabad,
R.R.District – 501401 ……Complainant
And
M/s. SBI General Insurance CompanyLtd.,
AND Policy Service office at:
3rd floor, Ozone Commercial Complex,
6-3-669/1, Panjagutta Main Road, Punjagutta,
Above Bajaj Electronics, Hyderabad – 500082
Rep. by its Managing Director …. Opposite Party
Counsel for the complainant : Mr. Vijender Singh
Counsel for the opposite Party : Mr. Katta Laxmi Prasad
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act 1986 alleging repudiation of the claim by the opposite party amounts to unfair trade practice and deficiency of service hence to award the compensation and other claims made in the complaint.
- Complaint averments in brief are that the complainant is the owner of the vehicle bearing No. AP28TA8073 and he got it insured with opposite party for a sum of Rs.7,00,000/- under the policy bearing No.000000001052583 covering the period from 21-6-2015 to 20-06-2016. On 22-4-2016 the said vehicle was proceeding in laden condition from Hyderabad to Mirzapur and at 4.00P.M when it was in the limits of Paharwa Village near Jabalpur, Madhya Pradesh State one of its tyre was burst accidently and it resulted bursting of diesel tank and the entire vehicle was burnt with goods. The vehicle was being driven by the complainant’s brother Mr.Rakesh Kumar Tiwari having license No. UP70 19800023800. In the accident the said driver as a reflex action jumped from the vehicle and escaped safely.
Soon after the accident it was informed to the nearby police station but there was no registration of the crime as no one sustained injury or loss of life to anyone. The complainant lodged a claim with opposite party in claim No.258712. Opposite party had dodged the issue to dispose the claim. The complainant rigorously pursued with the opposite party to settle the claim. On the advice of officials of opposite party the complainant brought the vehicle in the available condition to Hyderabad at his own cost in order to mitigate the loss. The opposite party willfully rejected the claim without a reasonable cause and citing omnibus, elusive, misleading and frivolous reasons without application of mind.
The grounds mentioned in the rejection letter dated 29-11-2016 did not warrant for rejection of the claim hence the complainant got issued a legal notice on 20-12-2016 calling upon the opposite party to pay claim amount of Rs.7,00,000/- and transportation charges of Rs.25,000/-. Having received the said notice opposite party neither paid any amount nor gave a reply. Complainant suffered loss of livelihood of Rs.20,000/- per month from 22-4-2016 and it comes to Rs.1,80,000/- and opposite party is liable to compensate the same. The vehicle is under the hypothecation with HDFC bank the complainant has been continuously paying the EMI of Rs.16,210/- to the bank and incurred a loss of Rs. 1,45,890/- from the date of accident for a period of 9 months and opposite party is liable to pay the same. Thus the total claim entitled by complainant is Rs.12,25,890/- and opposite party is liable to pay the same. Hence the present complaint.
- Opposite party filed a detailed written version admitting issuance of policy for the complainant’s vehicle in question but denied the rest of the complainant’s case. The defence set out in the written version is that the opposite party complied with the mandatory procedures of appointing an insurance surveyor and loss assessor and considered the entire claim and same was brought to the notice of the complainant . The surveyor report along with investigation report were served on the complainant. The entire claim submitted by the complainant is fraudulent and he did not challenge the report of the insurance surveyor and repudiation of the claim. Date of loss reported is 22-4-2016 there are series of discrepancies which were noted and informed to the complainant and same are not challenged by him.
Cause of loss is not matching and is not consistent as per the claim form by the complainant. As per the information available from the spot of the accident and statement of eye witnesses vehicle was suspected to be in parked condition at the time of accident. As per the claim of the complainant cause of fire was due to damage sustained to fuel tank but fuel tank found intact in spot photos. As per the spot photos the cabin was found badly damaged. But as per the complainant’s contention the vehicle was in motion. These facts were not challenged by the complainant.
As per the complainant’s version the vehicle was in physical custody and control of the person driving it during the course of his employment. But as per the information collected the vehicle was in parked condition at the time of accident. Having considered these aspects and basing of the report of the insurance surveyor claim was rejected and intimated to the complainant by a letter dated 29-11-2016 and same has not been challenge by the complainant before filing of the present complaint. The insurance surveyor and loss investigator was licensed by IRDA. The non intimation of the claim and non issuing of FIR are fatal and conduct of the complainant in giving contradictory statement and not answering to the questionnaire itself are sufficient to disentitle the claim of the complainant.
The vehicle is hypothecated with a financier who is not made as a party to the present complaint. The complaint is devoid of merits and liable to be dismissed.
In the enquiry the complainant filed evidence affidavit’s of himself and one Rakesh Kumar Tiwari stated to be driver of the vehicle and got exhibited twelve (12) documents. Similarly for the Opposite Party evidence affidavit of its authorized person is got filed and through her four (4) documents are exhibited. The evidence affidavit of complainant and authorized representative of the opposite party are in line with the respective contentions raised with the complainant and written version respectively. The documents placed on record both sides are not in dispute.
On a consideration of material available on the record the following points have emerged for consideration .
- Whether the rejection of the claim and the repudiation of the claim of the complainant by opposite party amounts to either unfair trade practice or deficiency of service ?
- Whether the complainant is entitled for the amounts claimed in the complaint?
- To what relief?
Point No.1: Issuance of the policy to the subject vehicle of the complainant by opposite party under Ex.B4 is not in dispute. Similarly submitting of the claim by complainant alleging fire accident to the vehicle with opposite party is not in dispute. The essence of the complainant’s version is the subject vehicle was playing with a laden condition from Hyderabad to Mirzapur on 22-04-2016 and when the said vehicle reached the limits of Paharwa Village near Jabalpur in State of Madhya Pradesh on the evening of 22-4-2016 suddenly one of its tyre was burst and it resulting causing accident and diesel tank was burst resulting flames and in the said flames entire goods were burnt. So as per the complainant’s version when the fire accident occurred the vehicle was in motion condition. PW2 Mr.Rakesh Kumar Tiwari stated to be driver of the vehicle at the time of alleged accident and he too in his evidence affidavit narrated the accident in the same fashion as complainant did it. The complainant had categorically stated that soon after the fire accident it was intimated in the nearby police station but as there was no loss of life or even an injury to anyone FIR was not issued by the said police. In the evidence affidavit of PW2 Mr.Rakesh Kumar Tiwari there is a mention that he informed the incident to the local police but there is no clarity whether alleged information to police was oral or written.
The complainant has filed a hand written letter in Hindi Language but to whom this letter was submitted and on what date it was submitted are not mentioned in it. There is another hand written letter in Ex.A3 with English translation and it appears to have been given to police. As per this Ex.A3 report the truck suddenly caught fire due to this the vehicle and the goods caught fire and got burnt. Because Ex. A3 letter is prior in time the content therein have was an importance. If really the incident had happened on account of bursting of tyre and subsequent bursting of diesel tank the same should have been mentioned in Ex.A3 letter. Another important aspect is the so called Ex.A3 letter was given by complainant himself on 23-4-2016 i.e, on the very next day of accident. But it is not the case of the complainant that on the very next day of incident he could reach the concerned police station for submitting the report.
The reason mentioned by the complainant for not registering by FIR by police despite a report is as there was no injury to any one and no loss of life. Either the police manual or the criminal procedure code or Indian Penal Code mandates an injury or loss of life for registering of a crime. On reporting of accident under Section 279 IPC even for a rash driving FIR will be issued as rash driving itself is an offence. That apart the complainant having said that the reason for not issuing FIR was on account of no injury to anyone and no loss of life filed the copy of FIR as Ex.A4. What made the police to register the FIR subsequently is not explained by the complainant .
As per the complaint averments the driver of the vehicle in a reflex action jumped from the moving lorry when accident occurred on account of bursting of tyre. If really same is true certainly the driver should have sustained injuries. It is impossible to think that a person jumps from a lorry plying on highway do not sustain any injury. This is one of the major reason to disbelieve the version of the complainant.
The opposite party has filed detailed report given by the insurance surveyor and loss assessor as Ex.B3. As per this report the vehicle was parked in front of welding shop at the time of accident and as per daily newspaper and information collected from the spot location the fire caught during the welding works and cabin was found in open position which shows that some repair work was in progress. This report further revealed that till the surveyor inspected the vehicle after the accident there was no report to the police. The observation of the surveyor does not discloses bursting of diesel tank. This itself falsifies the complainant’s version that on account of bursting of diesel tank flames engulfed the lorry. So it is evident from the surveyor report that the narration of accident by the complainant while submitting the claim for settling the claim were totally wrong and for the same reason the opposite party repudiated the claim and there is no illegality or irregularity in rejecting the claim. Hence, repudiation of the claim by opposite party neither unfair trade practice nor deficiency of service. Accordingly point is answered.
Point No.2: As there was no unfair trade practice or deficiency of service on the part of the opposite party the complainant is not entitled for the claims made in the complaint.
Point No.3: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 11th day of September , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1- copy of rejection letter written by opposite party dt.29-11-2016
Ex.A2- copy of letter to opposite party (along with English translation)
Ex.A3-copy of vehicle handing over letter( along with English translation) dt.23-04-2016
Ex.A4- copy of report to police along with copy of fire brigade letter dated 23-04-2016 (along with English translation)
Ex.A5- copy of lorry receipt dt.01-05-2016
Ex.A6- copy of letter written by complainant dt.5-10-2016
Ex.A7- copy of insurance policy schedule
Ex.A8- copy of letter written by complainant (along with English translation) dt.17-09-2016
Ex.A9-copy of duplicate certificate of registration dt.24-6-2016
Ex.A10- legal notice along with two nos. RPAD receipts dt..20-12-2016
Ex.A11- online postal tracking report dt.23-12-2016
Ex.A12- online postal tracking report dt.21-12-2016
Exs. filed on behalf of the Opposite party
Ex.B1 repudiation letter issued by opposite party to complainant dt.29-11-2016
Ex.B2- first remainder letter for submission of documents dt.12-09-2016
Ex.B3- Motor Spot survey report issued by Asim Khaira dt.01-08-2016
Ex.B4- Policy document along with terms and conditions.
MEMBER PRESIDENT
