BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::

KADAPA Y.S.R DISTRICT

PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT

                                                                              SMT. K. SIREESHA, LADY MEMBER

                                                                              SRI M.V.R. SHARMA, MEMBER

Friday, 9^th September 2016

CONSUMER COMPLAINT No. 20 / 2016

Talari Venkatakrishna, S/o T. Kullayappa, Hindu,

aged 46 years, Residing at D.No. 1-601-4,

Nandyal Road, Tadipatri Town, Anantapur District,

Now Residing at Ankireddypalli (V), Kolimigundla (M),

Kurnool District.                                                                          ….. Complainant.

Vs.

1)  The Manager, New India Assurance Co. Ltd.,

     D.No. 2-789, 1^st floor, Sairam Towers, Nagarajupet,

     Kadapa, Andhra Pradesh.

2)  The Regional Manager, New India Assurance Co. Ltd.,

     6^th Floor, F Block, Surya Towers, S.P. Road,

     Secunderabad – 500003.                                                 ………Opposite parties.

This complaint coming on this day for final hearing on 31-8-2016 in the presence of Sri N.P. Srinivasulu, Advocate for Complainant and Sri D. Rajasekhar Reddy, Advocate for Opposite parties and upon perusing the material papers on record, the Forum made the following:-

O R D E R

(Per Smt. K. Sireesha, Member),

1.                Complaint filed under section 12  of C.P. Act 1986.

2.                The brief facts of the complaint are as follows:- It is humbly submitted that the Complainant has purchase the lorry bearing No. AP 02 TA : 7755 from showroom with financial assistance of Mahindra and Mahindra Finance Services Ltd., Bellary road, Anantapur.  The vehicle has been registered with transport department of Andhra Pradesh in certificate of registration No. AP 02TA : 7755 on 23-2-2012.  The Complainant also obtained National Permit to the said vehicle from the Govt. of Andhra Pradesh in NPPUC No. AP 002/507/NPPUC/2012  on 25-2-2012 by paying consolidated fee for National permit amount of Rs. 16,500/- through chalan from State Bank of India, Tadipatri (USECBSSCREEN No. 8888).  The vehicle has been duly checked by pollution control centre and issued computerized pollution certificate for the same on 10-6-2014.  Further the Complainant has insured his vehicle AP 02 TA : 7755 with the O.P.1 for individual covers for Rs. 19,00,000/- in policy No. 61120031130100007084 on 31-1-2014.  As per the said policy the period of cover is from 9-2-2014 12.00.01 a.m to 8-2-2015 11.59:59 p.m.

3.                The Complainant humbly submits that he got an assignment of transporting of polished stones from Ankireddypalli to Vijayawada and got way bill for the same on 29-7-2014 from concerned authorities.  He states that the lorry was loaded with polished stones weighting about 25 MTS on 29-7-2014 the driver took the vehicle on 30-7-2014 and started as about 6.00 p.m at Ankireddypalli and reached the Nandyal checkpost and got receipt for the same.  Thereupon, the driver stopped the vehicle as it gave some trouble.  There is no mechanic shop after the Nandyal check post and a passing lorry driver supported and helped to get the mechanic and they did some small minor problem.  It has done for the late night so the driver spent completely on the road.  On the next day morning the driver started at about 10.00 a.m to go to Vijayawada through Nallamalla ghat road.  While the lorry was going on ghat road at Nallammala Ghat suddenly the vehicle met with an accident and fell into a deep ghat pit on 31-7-2014 in the ghat area Nallamalla ghat section near Diguvameta village, giddaluru Mandal, Prakasam District.  The same was attended by A.P. fire Service Department and fire was mitigated.  The driver was somehow saved with minor injuries.  This accident was reported to Giddaluru Police station and FIR was booked vide FIR No. 180/2014 dt. 31-7-2014.  Thereupon the driver immediately informed about the accident to the owner of the lorry.  The lorry owner i.e. the Complainant reached the accident place and informed the same to insurance company by phone about the accident of the vehicle No. AP 02 TA : 7755 which took place in Nallamalla Ghat road.

4.                The Complainant humbly states that the following day insurance surveyor came and visited the accident spot he took the photographs of the accident vehicle in the vicinity.  He reported the company the place was very dangerous and the damaged vehicle cannot be brought to plain ground by simple means.  Moreover, the Complainant says that nobody is coming forward to be a watchman to watch the damaged vehicle at the accident spot as it is a very thick forest area and dangerous place.  By observing all the conditions i.e. the damage vehicle, the place where it is fallen and the surroundings therein, the surveyor asked the Complainant to get prepare estimates of damaged vehicle through a authorized garage owner or mechanic and submit the same estimates along with insurance claim of the vehicle.  It is said on                18-8-2014 the forest officer gave report of the accident to that effect.  As per the letters dt. 24-10-2014 & 2-12-2014 from the insurance company, the Complainant tried to remove the damaged vehicle from the accident spot by using proclainers and other equipment but it was not possible and so as per the direction of the insurance company the vehicle was dismantled by using gas cutters and parts of the vehicle were removed from accident spot and deposited in the garage.  Thereafter Complainant submitted insurance claim application along with relevant documents to the Opposite parties for their consideration and payment.

5.                 The Complainant humbly submits that, the Opposite parties are not at all interested to settle the insurance claim of the accident vehicle No. AP 02 TA : 7755, the same fact will be understood by perusing the contents of their letters dt. 28-2-2015, 13-3-2015, 24-3-2015 and 16-4-2015.  The Complainant with all his sincerity replied all those letters dt. 4-3-2015, 18-3-2015 and 01-4-2015.   The Opposite parties even though they have received above said letters they repudiated the insurance claim of the Complainant on five points noted in the repudiation letter dt. 16-4-2015. The points are vague and one sided without appreciating the circumstances under which the accident took place.  The points raised in the repudiation letter are once again clarified as follows.  

          a)      It is a fact that the accident vehicle as underwent minor repairs from                12-7-2014 to 26-7-2014 and after that the vehicle was released as road worthy and RTA has never placed any sort of restrictions about the playing of the vehicle on ghat roads

          b)      The insurance surveyor Mr. Mahaboob Hussain, Nandyal has went to the accident spot, he also took the photographs of the accident vehicle and the place of accident.  On his report only the Opposite parties have given permission to dismantle the vehicle.  The place of the accident is very dangerous where no one can try to stay over there and watch the vehicle.  Therefore, the loss of some parts of the vehicle beyond the preview of the Complainant and it cannot be attributed that Complainant has violated the policy terms and conditions.

          c)       It is a fact that the vehicle bearing No. AP 02 TA : 7755 entered the Nallamalla forest from Nandyal on 30-7-2014 at 3.40 hrs but for reasons not known police people recorded in FIR that the vehicle entered Nallamalla forest on 31-7-2014.  There is no mechanic shop after the nandyal check post and passing lorry driver supported and helped the accident vehicle driver in repairing the heated engine and thus he spent on road the interim period from 3.40 to 10.00 a.m on 31-7-2014 and after words the accident took place.  The same fact has been stated in the Complainant’s letter dt. 4-3-2015 the pre conceived mind of Opposite parties has not appreciated this naked fact.

          d)      As per drivers statement he lost control over the vehicle and as a result the vehicle fell in to the valley.  While falling down the driver jumped from the cabin to outside the saved himself with minor injurious.  At the critical time how the human will act is an unexplained action.  If the time is spared he will be survived.

          e)      As per FIR No. 180/2014, dt. 31-7-2014 issued by Giddalur police station, prakasam district the driver at the time of accident was B. Chandrasekhar and he got entered the vehicle number in check post register and he came out without signing in the register.  The same fact has been stated in police station by vehicle driver i.e. B. Chandrasekhar, further if we put 4 tons extra load the vehicle want get any mechanical repair.  This fact is well aware by all the motor vehicle engineers.

6.                It is humbly submitted that insurance is a contract. Complainant has fulfilled his part of contract by paying the insurance premium regularly.  But the Opposite parties have flouted their contract by repudiating the claim without valid reasons.  Particulars of the claim of the Complainant furnished as follows.

But claim is restricted to Rs. 19,00,000/- at the insurance policy is  for Rs. 19,00,000/- only and claimed future interest @ 18% on Rs. 19,00,000/- i.e. the policy amount.

7.                Therefore, humbly prayed that the Hon’ble forum may kindly be pleased to direct the Opposite parties 1 & 2 (a) to direct to pay insurance amount of                           Rs. 19,00,000/- for the accident vehicle No. AP 02 TA : 7755, (b) to direct the O.P.1 & 2 to pay further interest @ 18% p.a. on the insurance amount of Rs. 19,00,000/-, (c) to direct to pay a sum of Rs. 1,00,000/- for mental agony and suffering and (d) any other reliefs or reliefs which the Hon’ble forum deems fit and proper in the interest of justice. 

8.                Counter filed by the Respondents.  The Complainant is not maintainable either in law or on facts of the case.  The Complainant is put to strict proof of all the allegations made in the complaint, except those which are expressly admitted hereunder by this Respondent.   It is submitted that the Respondents 1 & 2 are one and the same the Complainant added Respondent 1 & 2 by showing different rank and addresses to the proceedings due to lack of knowledge.

9.                The allegations made in paras 1 to 7 of the complaint is false and invented the same for the purpose of complaint.  The interest of  Complainant in vehicle No. AP 02 TA : 7755 covered at the material time under the policy of insurance issued by the subject to its terms conditions, exceptions and limitations thereof and the confirmation of the compliance of section 64 VB of the insurance act 1938.  The insurance policy issued by the respondent in favour of the Complainant bears 61120031130100007084 for the period from 9-2-2014 to 8-2-2015 is in the possession of the insured.

10.              The Complainant entered into hypothecation agreement with Mahindra and Mahindra finance services Ltd., and his vehicle is hypothecated in favour of the Mahindra and Mahindra Finance Services Ltd., and the same is mentioned in Registration certificate and as well as in the policy insurance.  Hence, the Mahindra and Mahindra finance services Ltd., is the financier of the Complainant vehicle and the same is admitted by the Complainant.  As such, the financier M/s Mahindra and Mahindra Finance services Ltd., is the proper and necessary party to the proceedings.  Therefore, the complaint is liable to be dismissed against this respondent company as non joinder of the financier Mahindra and Mahindra Finance Services Ltd., as necessary party to the proceedings.  The Complainant is not consumer as defined under section 2 (d) of C.P. Act as such the complaint does not comes under the purview of consumer dispute as envisaged under section 2 (e) of the act.   Hence, the complaint is not maintainable before august forum, as the Complainant is insured his vehicle with this respondent under commercial vehicle package policy.  Para – 2 of the complaint clearly disclosed that the Complainant is doing transport business and in the course of this business he purchased the vehicle.  As per averments of the complaint, the Complainant was transported Kadapa slabs from Ankireddypalli to Vijayawada.  The Complainant used his vehicle for transporting of goods on commercial activities at the time of the alleged accident.   

11.              This Respondent denied and not admitted that the Complainant got assignment of transporting of polished stones from Ankireddypalli to Vijayawada and got way bill on 29-7-2014 and the lorry was loaded with polished stones weighing about 25 metric tons on 29-7-2014 the driver took the vehicle on 30-7-2014 and started at about 6.00 p.m at Ankireddypalli and reached Nandyal check post and got receipt for the same.  Thereupon the driver stopped the vehicle as it gave some trouble.  There is no mechanic shop after the Nandyala checkpost and a passing lorry driver supported and helped to get mechanic and they did some small minor problem.  It was done for the late night so the driver spent completely on the road.  On the next day morning the driver started at about 10. A.m to go to vijayawda through Nallammalla ghat  road.  While the lorry was going on ghat road Nallammla ghat road the vehicle met with an accident and fell into a deep pit on 31-7-2014 in the ghat area Nallamala ghat section near Diguvametta village, Giddalur Mandal, Prakasam district.  The same was attended by the A.P. Forest Department and fire was mitigated.  The driver was somehow saved with minor injuries.  This accident was reported to Giddalur police station and FIR was booked vide FIR No. 180/2014 dt. 31-7-2014.  There upon the driver immediately informed about the accident to the owner of the lorry.  The lorry owner i.e. the Complainant reached the accident place and informed the same to the insurance company by phone about the accident of the vehicle No. AP 02 TA : 7755 which took place in Nallamalla ghat road.

12.              The Complainant stated that the following day insurance surveyor came and visited the accident spot he took photographs of the accident vehicle in the vicinity.   The Respondent received claim intimation letter dt. 31-7-2014 and 27-8-2014 the Complainant submitted motor vehicle claim form to the Respondent.  Immediately, after the claim intimation the claim of the Complainant registered his claim under motor own damage claim No. 611200031140190000106 under policy No. 61120031130100007084 for the vehicle bearing No. AP 04 TA : 7755.  Immediately this Respondent appointed one P.S. Mahaboob hussain licensed surveyor and loss assessor Nandyal of Kurnool District.  The said surveyor inspected the vehicle and noted the damages to the vehicle of the Complainant and submitted his report to this respondent on 22-8-2014.  He found that the insured vehicle lost the brakes due to leakage of vacuum pipe.  After receiving the spot survey report, this Respondent company appointed one VKG engineer’s and surveyors sole proprietor Vijaya Kumar Gradre of Secunderabad for preliminary investigation. He carried investigation and submitted a report to this respondent company on 19-9-2014, he observed his report that the alleged cause of accident seems to be unrealistic as the statement of the driver and the Complainant differs from each other with regard to the happening of the alleged accident and there was a doubt the driver was alone or clear accompanied him with the lorry and also observed if the vehicle thus fallen after touching the road side wall of the ghat it should fall on its right and further roll in the same position but in this case the driver statement differ that he hit the wall straight and after sliding the road side gradient inside the ghat jumped at the 20 meters location and also observed the no one injured.  As such there was a doubt in the mind of the respondent company happening of the alleged accident.  The preliminary investigation report of the VKG engineers and surveyors after receiving the preliminary investigation report from VKG engineers and surveyors, this respondent company appointed one M.S. Prasad investigator loss assessment and investigation services, formerly technical person Indian Railways SLA No. 37057 IRDA appointed as investigation on 20-9-2014.  He investigated thoroughly and submitted his report on 8-1-2015 and concluded that                  1) physical appearance of the insured vehicle at the scene of the offence is indicated that pushed down from the top down and did not fell accidentally from the top. 2) There was no point in keeping the vehicle for nearly 30 hours in ghat section and reporting to police as entered only few hours before the accident.  3) The entry of the vehicle into ghat section is documented through the forest check post register at Ayyaaluru that the vehicle entered into the forest road by 3.40 a.m on 30-7-2014 which is the previous day of the alleged accident to the Complainant lorry.  4) keeping the fact like this, the concerned driver and owner submitted to the police that the driver slept at Nandyala the previous day and on the next day morning by 8 am started at Nandyala and reached the accident spot at 10.00 a.m on 31-7-2014 this is no doubt false information with false content of the subject matter misleading the fact registered vide FIR 180/2014. 5) under these circumstances, like the false complain given to the police and the scene of offence there is no positive evidence available to con-conclude that the lorry fell accidentally and the lorry got damaged.  As the matter was of the criminal nature and already the police investigation is being continued, I may not stress the owner of the vehicle or the driver; allegedly drive the same to come out with the truth.  6) the basic information of the insured vehicle entry into the forest road itself is false and the reasons for submitting such information was known his own or to his concern.  He clearly observed in his report that it is clear information thorough FIR and forest check post register that the subject claim was prepared supported with false information in respect of the in the damage occurred to the insured vehicle and the person drove the vehicle in the forest before it was damaged.  The claim appeared preferred with false information on vital aspects.

13.              This Respondent company further submits, that the investigator further observed in his investigation, that the lorry was carrying unpolished stones, which shall be used for houses flooring in villages and along with this load the lorry fell at the ghat.  Though minutely observed, there appeared no stones fell over the trees or available in or around the lorry.   The investigator checking the road movement of insured vehicle from Nandyala and found at Nallamalla forest checkpost, as per their records the insured vehicle passed into the forest ghat section on 30-7-2014 at 3.40 a.m and signed by Venkatesh.  The movement serial No. 6265 and load was indicated as stones the investigator also observed as per FIR the name of the driver is D. Chandra Sekhar, where as the person who signed in the forest road check post was Mr. Venkatesh this aspect speaks that somebody drove the insured vehicle at the forest area and not Mr. Chandra sekhar as reported to police and through the insurer through FIR and claim intimation as well as motor vehicle claim from as submitted by the Complainant. The investigator further observes in his observation the checkpost register indicates driver as Mr. Venkatesh where as there is no mention of such name in the FIR or information submitted by the Complainant  to this respondent.  He also obtained stamped copy of check post register Thanndar, Ayyaluru confirming the movement of IV on 30-7-2014 at 3.40 a.m this information is contradicting the information submitted by the vehicle driver in the FIR the FIR speaks that the IV vehicle entered the forest area on 31-7-2014 and met with accident at 10.00 a.m there was hardly 30 km from the forest checkpost to the place of the accident which shall be covered by the vehicles within 45 minutes to 1 hour time span.  There were no side roads in the ghat section for any vehicle to move in any other direction except the available road leading to giddalur and inside forest gravel katcha roads.  He also checked at Giddalur side forest check post were there appeared no entry of the insured vehicle so, it is evidenced that the insured vehicle entered into the forest ghat section not on 31-7-2014 but on 30-7-2014 early hours.  There was  time gap of nearly 30 hours in between the entry of vehicle inside and the alleged accidental fall.  The investigator also tried to contact the owner and his driver and he did not receive any proper reply form them. 

14.              Further submitted that the said VKG engineers and surveyors also conducted final survey over the vehicle of the Complainant, he noted all the damages in his report and rates of the spares and he suspected some damages in his report and he submitted his report to this respondent on 30-3-2015, he quantified the net loss assessed for Rs. 1,610,810/- only after deducting salvage value of Rs. 1,50,000/-.   There is discrepancy in the records with the date of the accident either on 30-7-2014 or on 31-7-2014.  There was no such accident happened as alleged by the Complainant and the scene was created one and the same was invented for the purpose of getting unlawful gain with the collusion of the police of Giddalur.  This Respondent issued a registered notice to the Complainant on 6-2-2015 that the circumstances mentioned in the notice as there was no accident.  In view of the above mentioned circumstances and some of the questions were un-answered, it is construed that the occurrence of the accident was suspicious and the claim is not tenable.   The Complainant issued a letter dt. 11-12-2104 categorically written in his letter that his lorry bearing No. AP 02 TA : 7755 was proceeding towards Vijayawada for engine repair, when it reached near Giddalur forest area the break of the lorry failed and lost control over the same and fell into a valley and got fired.   There was no deficiency of service on the part of this Respondent. Therefore, the complaint is liable to dismiss against his respondent company with exemplary costs in the interest of justice.

15.              On the basis of the above pleadings the following points are settled for determination. 

1. Whether the complainant is eligible for compensation as        prayed by him or not?

                            ii.  Whether there is negligence or deficiency of service on the               part of the opposite parties or not?

        iii.    To what relief?

16.              On behalf of complainant Exs. A1 to A18 were marked and on behalf Respondent Exs. B1 to B19 were marked.       

17.              Point Nos. 1 & 2. As seen from Ex. A1 the Complainant had purchased a vehicle bearing No. AP 02 TA : 7755 and it had national permit as per Ex. A2 and A3.  Ex. A4 is pollution certificate and Ex. A5 clearly shows that the Complainant had taken insurance policy with the Respondents bearing policy No. 61120031130100007084 on 31-1-2014 for Rs. 19,00,000/-.  The policy also covers from 9-2-2014 to 8-2-2015. Ex. B1 shows the same.  Ex. A6 clearly shows that there was accident as per FIR No. 180/2014 of Giddaluru Police station.  After the accident the Complainant had correspondence with the Respondents 1 & 2. Exs. A9 to A13 proves the same.  Ex. A7 is the estimation of damaged vehicle.  Ex. A8 supports the accident of the vehicle.  The policy was inforce at the time of accident.  As per Ex. B8 accidental loss was                        Rs. 19,00,000/-.  Ex. B8 filed by VKG engineers and surveyor appointed by the Respondents.  So as seen from documents on records it is very clear that the vehicle met with an accident and damages occurred.  So the Complainant is eligible for compensation as prayed by the him at the same there is deficiency of service on the part of the Respondents 1 & 2. 

18.              Point No. 3. In the result the complaint is allowed, directing the Respondents 1 & 2 to pay Rs. 19,00,000/- (Rupees Nineteen lakhs only) towards policy amount to the Complainant, to pay Rs. 20,000/- (Rupees twenty thousand only) towards mental agony to the Complainant, within 45 days of date of receipt of orders. 

                   Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 8^th  September 2016.

MEMBER                                       MEMBER                                                PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant :   NIL                                        For Respondents :            NIL

Exhibits marked for Complainant: -

Ex: A1         Certificate of Registration of Vehicle No.AP02 TA 7755.

Ex: A2         National Permit Chalan, Dt. 6-2-2014.

Ex: A3         Authorization letter of National Permit Dt. 21-2-2014.

Ex: A4         Pollution Certificate of Vehicle NO.AP02 TA  7755, Dt. 10-6-2014.

Ex: A5         Insurance policy issued by New India Assurance company Ltd., Dt. 9-2-14.

Ex: A6         Photocopy of   FIR issued by Giddaluru Police Station.

Ex: A7         Estimation of damaged vehicle issued by eagle Auto Garage, Nandyal.

Ex: A8         Certificate issued by the Fire Officer, Dt. 18-8-2014.

Ex: A9         Letter from opposite party no.2 to complainant, dt. 24-10-2014.

Ex: A10       Letter from opposite party no.2 to complainant, dt. 26-2-2015

Ex: A11       Letter from opposite party no.2 to complainant to Dt. 26-2-2015.

Ex: A12       Letter from opposite party no.2 to complainant to Dt. 13-3-2015.

Ex: A13       Letter from opposite party no.2 to complainant to Dt. 24-3-2015.

Ex: A14       Repudiation letter from opposite party no.2 Dt. 16-4-2015.

Ex: A15       Letter from complainant to opposite party no.2, Dt. 1-4-2015.

Ex: A16       Driving License of owner of vehicle Talari Venkatakrishna.

Ex: A17       Driving License of Driver of the Lorry bearing No.AP02 TA7755.

Ex: A18       Damaged Lorry bearing No.AP02 TA7755 photos with CD.

Exhibits marked on behalf of the Opposite parties: -  

Ex:B1          P/c of the policy.

Ex:B2          Copy of the claim intimation letter dated 31-7-2014.

Ex:B3          Copy of the claim form dated 31-7-2014.

Ex:B4          Copy of the spot survey report by P.S. Mahaboob Hussaian. 

Ex:B5          Copy of the Appointment Letter Dated 16-10-2014 for investigation.

Ex:B6          Copy of the preliminary enquiry on the damages dated 19-9-2014 by

                   V.K.G. Engineers and Surveyors.

Ex:B7          Copy of the investigation Report dated 18-1-2015 by M.S. Prasad.

Ex:B8          Copy of the Motor Final Survey Report dated 23-2-2015 by V.K.G. Engineers and Surveyors.

Ex:B9          C/o of certificate dated 31-3-2015 issued by Karnataka Agro Enterprises.

Ex:B10        Copy of the letter dated 11-12-2014 issued by complainant to Respondent.

Ex:B11        Copy of the letter dated 28-1-2015 issued by Respondent to complainant.

Ex:B12        Copy of the Repudiation letter dated 26-2-2015. 

Ex:B13        Copy of the letter dated 13-3-2015 to complainant by Respondent.

Ex:B14        Copy of the letter dated 23-3-2015 to complainant by Respondent.

Ex:B15        Copy of the letter dated 24-3-2015.

Ex:B16        Copy of the Repudiation order dated 16-4-2015.

Ex:B17        Copy of the letter dated 23-1-2015 to Respondent by M.S. Prasad,

                   Loss Assessment & Investigation Services.

Ex:B18        Photographs 6 in number.

Ex. B19        P/c of list of the vehicles recorded in the check post,dt.27-7-14 to 30-7-14

MEMBER                                           MEMBER                              PRESIDENT                                  

Copy to :-

1. Sri N.P. Srinivasulu, Advocate for Complainant
2. Sri D. Rajasekhar Reddy, Advocate for Opposite parties

B.V.P.