Tamil Nadu

South Chennai

CC/285/2017

G.Vinodh, Partner V.V.Enterprises - Complainant(s)

Versus

The Regional Manager, The United India Insurance Company Ltd., - Opp.Party(s)

M.Poornachandrika

08 May 2023

ORDER

                                                                                                                                        Date of Complaint Filed : 17.08.2017

                                                                                                                                        Date of Reservation      : 19.04.2023

                                                                                                                                          Date of Order               : 08.05.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                       : PRESIDENT

                   THIRU. T.R. SIVAKUMHAR, B.A., B.L.,          :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

               

CONSUMER COMPLAINT No.285/2017

MONDAY, THE 8^th DAY OF MAY 2023

G. Vinodh, Partner V.V. Enterprises,

Having office at Survey No.390/3A and 3B,

Om Shakthi Chamber Road,

Konganancherry Village,

Palur post, Chengalpattu Taluk,

Chennai – 603 101.                                                                                                                …Complainant.

..Vs..

1.The Regional Manager,

   The United India Insurance Company Ltd,

   Silingi Buildings, 134, Greams Road,

   Chennai – 600 006.

 

2.The Branch Manager,

   Unted India Insurance Company Ltd,

   Vedachalam Nagar,

   Chengalpattu.                                                                                                                                             .. Opposite parties.                                  

                                                                                                  * * * * *

Counsel for the Complainant   :   M/s. M. Poorna Chandrika,

                                                         N. Sridevi, V. Joyce

Counsel for Opposite parties   :  M/s. Nageswaran & Narichania

 

On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, this Commission delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

(i)  The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to settle all the claims i.e., total repair parts charges of Rs.3,48,056/- labour charges of Rs.47,289/- and the halting charges of Rs.44,250/- and to pay a sum of Rs.5,00,000/- as damages to the Complainant towards his mental agony, pain and sufferings sustained on account of wrong repudiation of his claim by the Opposite Party along  with cost.

I.  The averments of Complaint in brief are as follows:-

1.     The Complainant submits that his company owns a load van of TATA Make XENON PICKUP bearing Registration No TN.19K 7851. While in regular course of business, the above said vehicle was carrying, packing boxes for Parker Hannifin India Private Ltd and Accudyne Industries India Pvt Ltd., (Formerly Milton Roy India Private Ltd), Mahindra City, left his company at 2 PM on 22.1.2016. They successfully completed a delivery of consignment at 3.45 PM at Accudyne Industries and 5.55 PM at Parker Hannifin India Pvt Itd., after unloading the van was returning to his company at Konganancherry, Palur. Since S.P.Koil railway gate was locked and there was heavy traffic Jam in railway gate road and it could not wait at G.S.T Road, they came through next available railway gate (Samiyar Gate). At about 7.00PM on 22.01.2016, near Thellimedu junction another vehicle came behind his vehicle and tried to overtake it. Hence his driver immediately turned the vehicle to the left and suddenly he applied brake but unfortunately the vehicle lost its balance turned upside down by 90. The driver escaped with minor injuries but the vehicle was badly damaged. For his said vehicle, he had taken an Insurance Policy with the Opposite Party vide Policy No. 010702311SP102947205 and the said policy is valid till 21.07.2016. The surveyors of the Opposite Party inspected the vehicle and had given the detailed report on 28.04.2016. Though the Complainant had reported the accident on 23.01.2016 and made a claim on 03.02.2016 to Opposite Party claiming the amount assured under the insurance policy detailed above but Opposite Party had not responded nearly for 5 months. Then again on 27.06.2016 & 01.07.2016 he sent E-mails of demand to the Opposite Party once again setting forth all the facts and made a claim but to this also the Opposite Party turned deaf ears.

2. He had towed his vehicle from accident spot to Palur Police station on 22.01.2016 and then to RTO office near Chengalpattu for RTO inspection on 27.01.2016. After completion of Inspection, the vehicle was towed to service station- Popular Mega Motors Pvt Ltd.,Iyyappanathangal. He had incurred towing charges for Rs.9500/- and he had also paid the fine amount of Rs.5000/- imposed by the RTO. In the service station, the surveyor had estimated the repairing parts charges of the vehicle to the tune of Rs.3,48,056/- and the labour charges Rs.47,289/- all totalling Rs.3,95,345/-. The proprietor of service station also claiming the halting charges at Rs.250/- per day for the above said vehicle from 03.03.2016 to till date.

3.     He had made a valid claim to the Opposite Party claiming charges based on the policy detailed above, right from the date of purchase of policy he is very regular and prompt in payment of premium to the Opposite Party. Even after the accident he had paid premium charges to the opposite parties for which the Opposite Party has duly collected the premium charges and also acknowledged the same. The premium charges paid by him is towards the service charge and hence the Opposite Party is duty bound to pay the assured amount under the policy but the Opposite Party has not honoured his lawful claim and he had also made a representation before the Ombudsman of insurance. But till date the Opposite Party has not discharged its committed and assured service under the policy. The Act of the Opposite Party amounts to deficiency of service. He is running his Company for his lively hood. He had sustained mental agony and financial loss owing to the negligence, dilatory tactics and deficiency in service on the part of the Opposite Party. He had sent a legal notice on 12.08.2016  calling upon the Opposite Party to honour his lawful claim under the policy towards the total repair parts charges of Rs.3,48,050/-, labour charges of Rs.47,289/-, and the halting charges of Rs.3,95,345/- along with a compensation for a sum of Rs.5,00,000/- for the pain and mental agony which he was made to suffer by the Opposite Party. The Opposite Party had sent a reply notice dated 13.09,2016 with a delay of one month, with false allegations and without any merits.

4.     The Complainant submits that he exhausted all his remedies, to reconsider his claim reputed by the claim cell of the Opposite Party insurance company before the appropriate appellate authorities of the Opposite Party. The reasons assigned by the Opposite Party are not true and maintainable in law. The repudiation of his lawful claim by the Opposite Party is arbitrary and is also wrong. He had sustained severe mental agony pain and suffering because of the wrong repudiation by the Opposite Party which cannot be measured in terms of money. The wrong repudiation of his right claim by the Opposite Party insurance company is deficiency in service in settling the claim arose under the said insurance policy. Hence the complaint.

II. Written Version filed by the Opposite Parties 1 & 2 in brief:

5.     The complaint is filed based on the OCV Price Carrier other than three wheeler package policy bearing no 0107023115P102947205 for a period between 22/07/2015 to 21/07/2016 by the branch office of the Opposite Party situated at No.134, Silingi Buildings, First Floor, Greams Road, Chennai-600006. Hence there is no jural or contractual relationship between the first, second Opposite Party and the Complainant. The first Opposite Party is the regional office situated at Chennai. The second Opposite Party which is described as branch office and the address given therein does not give the correct factual position. There is no branch office at the given address. It is only the Divisional Office:28, No.7A, Varadhanar Street, Vedachalam Nagar, Chengalpattu -603001, which is carrying business at the address given in the complaint. There is no averment in the complaint which alleges any negligence, deficiency or failure on the part of the regional office and the divisional office towards the Complainant for making them a party to the proceedings. On these grounds, it is submitted that this Honourable Forum may be pleased to dismiss the complaint as against the opposite parties who are made as parties to the proceedings.

6.     The Opposite Party is a service provider in as much as they are General Insurance Company as set out in the Complaint, whereas the Complainant is not a 'consumer' as defined under Section 2(d) (ii) of the Consumer Protection Act, 1986, as nowhere in the Complaint it was made out that the Complainant is a consumer under the enactment and that they suffered any deficiency in service from the Opposite Parties, thereby an actionable complaint/claim arose under the Consumer Protection Act, 1986. The Complainant is representing a partnership firm as partner of the firm, whether a partnership firm can file and maintain a complaint before this Forum has not been properly stated.

7.     The service from the branch office of the Opposite Party was availed by the Complainant for commercial purpose, as it has been categorically stated in para 3 of the complaint by the Complainant that the insured vehicle was used during their regular course of business and the vehicle was carrying packing material for their clients. Further, the Complainant has admitted that they suffered loss during the course of their business endeavor. Hence, the business of the Complainant was a commercial act under trade and commerce which results in distribution for sale and for profit. During the course of such commercial transaction, for their benefit, they availed the service of the Opposite Party to cover risks under the policy of insurance.

8.     The Complainant do not come under the definition of the word 'Consumer' in as much as they availed services provided by the Opposite Party was for commercial purpose, particularly when the service provider dealt with by the Complainant as a private entity for profit. The service was not availed exclusively for the purpose of caring its livelihood by means of self employment. Complainant is an entity carrying on business with the capital being one of the Factors for plying their trade which cannot be construed as one in self employment for the purpose of caring its livelihood. Further, 'trade" is also defined under the Act under Section 2(g) of the Act as per which a trader in relation to any goods means a person who sells or distributes any goods for sale which includes the present activity of the Complainant. The Complainant is associated with service which is an important commercial activity. By virtue of this fact, it is established that the Complainant is a trader for gain, directly attracting the exclusion as provided under the definition of a Consumer under Section 2(d)(ii) of the Act. Hence, it is submitted that the Complainant is not at liberty to avail the alternate remedy available under Section 3 of the Consumer Protection Act, 1986. It is therefore prayed that the Complainant be directed to avail remedy, if any, under any other law governing contracts, if so advised.

9.     This forum does not have territorial jurisdiction to try the compliant. Admittedly, the complaint is filed based on the GCV Private Carrier other than three wheeler package policy bearing no. 0107023115P102947205 for a period between 22/07/2015 to 21/07/2016 by the branch office of the Opposite Party situated at No.134, Silingi Buildings, First Floor, Greams Road, Chennai-600006. The branch office of this Opposite Party is carrying on business outside the jurisdiction of this honourable forum. Therefore, this forum has no territorial jurisdiction to decide the complaint and hence the issue of territorial jurisdiction may be tried as a preliminary issue.

10.    Without prejudice to the above contentions, the various averments in the complaint were not correct other than those specifically admitted. It is true that a GCV Private Carrier Other than 3Wheeler Package policy bearing no.0107023115P102947205 insuring vehicle bearing no. TN-19-K-, for a period from 22.07.2015 to 21.08.2016. The said policy of insurance is strictly governed by the various policy terms and conditions forming part of the policy. Any claim is subject to and in compliance with the policy terms and conditions.

11.    The Opposite Party states that a claim was lodged for damage to the insured vehicle on 03.02.2016 due to an alleged accident to the insured vehicle on 22.01.2016. The vehicle a Xenon pick up vehicle (goods carrying vehicle) met with an alleged accident due to the rash and negligent driving by the driver of the insured vehicle. Further, the vehicle was carrying more passengers in contravention of the Motor Vehicles act. Under the act, the said goods carrying vehicle is permitted to carry on person other than the driver. On the date of alleged accident, two more employees of the insured were in the vehicle. The employees suffered fatal injuries and died due to the injury suffered during the accident. The act of carrying passengers other than those permitted under law is clear breach of policy terms and conditions. The said factual position is proved from the details found in the FIR bearing No.13 of 2016.

12.    They have appointed M/s.LS. Surveyors who are licensed surveyors and loss assessors to conduct a detailed survey of the damage suffered by the insured vehicle. The said surveyor issued their report dated LSS/MOT/MAR/2016 dated 18.07.2016. The said survey report was filed and the forum may construe the report as part of the version, refer to and rely upon the same while deciding the issue.

13.    As the Complainant had breached the law relating to motor vehicle as well as the policy terms and condition when they carried more persons than permitted under law, therefore, the claim was repudiated through the letter dated 20.07.2016 for violation of the motor vehicles act. Further, the policy categorically states that the insured will not be indemnified if the vehicle is used or driven otherwise than in accordance with the law. This position was re-iterated in the reply notice dated 13.09.2016 to the legal notice of the Complainant dated 12.08.2016.

14.    M/s. V.V. Enterprises, the Complainant insured is a partnership firm, whether a partnership firm can suffer mental agony due to repudiation and estimate a sum of Rs 5,00,000/- towards mental agony, pain and suffering is beyond imagination. Therefore, the contention that the Complainant suffered mental agony, pain and suffering is denied as baseless, not maintainable. They deny that they caused any hardship or mental agony by way of repudiation of a baseless claim. They are not liable to pay any compensation. The allegations regarding deficiency in service are specifically denied. It is submitted that processing of claim and repudiation of the same cannot be at any stretch of imagination be interpreted to be deficiency in service.

15.    They deny the claim for compensation as the very loss suffered by the Complainant is due to breach of the motor vehicle act and in contravention of the rules as well as the policy terms and condition.

16.    The cause of action pleaded in the complaint is no cause of action. Further no cause of action took place within the jurisdiction of this Honourable Forum and for the said reason, the complaint is liable to be dismissed.

17.    The claim for repair charges, labour charges as well as halting charges as claimed by the Complainant is not payable as the same is not properly proved by way of any documentary evidence or the same is admissible for the simple reason, the policy does not cover repair charges and the claim for labour charges and halting charges. As the claim is not properly substantiated the same is liable to be dismissed.

III.    The Complainant has filed his proof affidavit, in support of his claim in the complaint and has filed documents which are marked as Ex.A1 to A6. The opposite parties had submitted their proof affidavit and no documents was marked on their side.  Both side written arguments filed.

IV.  Points for Consideration:-

1.   Whether the Complainant is a consumer as defined under Section 2 (d) of Consumer Protection Act, 1986 and the Complaint filed by the Complainant is maintainable?

2.     Whether this Commission has got jurisdiction to entertain the complaint?

3.   Whether there is deficiency of service on the part of the Opposite Parties?

4.   Whether the Complainant is entitled for the reliefs claimed in the Complainant and/or for any other relief/s?

Point No.1 and 2:

18.    It is an undisputed fact that the Complainant had availed motor insurance policy for his vehicle, load van of TATA Make XENON PICKUP bearing Registration No TN.19K 7851 under policy bearing no.0107023115P102947205, for a period from 22.07.2015 to 21.08.2016.

19.  It is also not in dispute that the above said vehicle of the Complainant had met with an accident on 22.01.2016 and the claim was made on 03.02.2016 to the Opposite Parties.

20.    The disputed fact is that the claim of the Complainant was not settled by the Opposite Parties and the same was repudiated arbitrarily and wrongly, by the Opposite Parties.

21. The Contentions of the Opposite Parties are that the Complainant had availed the said policy with the branch office situated at Chengalpattu, which does not fall under the Jurisdiction of this Commission and there is no consumer relationship between the Complainant and the Opposite Parties when the insurance was taken for the commercial purpose, as the Complainant M/s.V V Enterprises is a partnership firm running for profit and not for livelihood.

22.    On perusal of records, the Complaint which was originally filed before the District Consumer Disputes Redressal Forum, arraying the Regional Manager, United India Insurance Company Ltd, Silingi Buildings, 134, Greams road, Chennai – 600 006 and its branch Manager at Chengalpattu address and the same was numbered as CC.No.90 of 2016 and thereafter in CMP No.35 of 2017 on 27.07.2017 the above CC has been ordered to be presented before the appropriate forum having territorial jurisdiction, in fact the Opposite Parties had filed their written version in CC.No.90 of 2016 and thereafter the said CC was renumbered as CC No.285 of 2017 and the further proceedings has been continued before this Commission. Hence the issue of territorial jurisdiction raised by the Opposite Parties is not sustainable.

23.    The Opposite Parties had relied upon two judgments passed by the Hon’ble National Consumer Disputes Redressal Commission, reported in IV (2016) CPJ 67 (NC) in Sri Sai Industries & Others Vs- Mahindra & Mahindra Ltd & Others and II (2017) CPJ 52 (NC) in Bank of India Vs- Punjab Hide Co & Others, both the judgments dealt with whether the Partnership firm is a Consumer and had held that the question of Partner earning for his livelihood by means of self employment does not arise, does not apply to the instant case, as there are catena of judgments that held hiring of insurance policy is clearly an act for indemnifying risk of loss/damages and there is no element of profit generation as well as when the services availed from the service provider are used in activity not directly intended to generate profit, the same would not amount to commercial purpose.

24.    Further the dispute arises out of contract of insurance, the Complainant though being a partnership firm running for commercial purpose earning profit can very well maintain the complaint as a Consumer, as the services availed from the Opposite Party are used in activity not directly intended to generate profit and the same would not amount to commercial purpose, further hiring of insurance policy is clearly an act for indemnifying risk of loss/damages and there is no element of profit generation. Therefore this Commission is of considered view that the Complainant is a Consumer and this Commission has got jurisdiction to entertain the Complaint. Accordingly Point Nos. 1 and 2 are answered.

Point No.3:

25.    It is clear that Registration Certificate and the Insurance Policy stands in the name of the Complainant, M/s.V.V.Enterprises, as found in Ex.A-2 and Ex.A-3. From Ex.A-1 FIR dated 22.01.2016 the subject vehicle of the Complainant had met with an accident and the insurance policy was in validity, but the contents of the FIR clearly states that the driver of the subject vehicle of the Complainant drove the vehicle rashly and negligently and caused accident of the subject vehicle. On which ground the claim made by the Complainant was repudiated by the Opposite Parties.

26.    The contention of the Complainant is that as the insurance policy was issued subject to IMT-28 endorsement and his claim should have been settled by the Opposite Parties, whereas IMT -28 (Indian Motor Tariff -28) deals with “Legal liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of Insured Vehicle, whereas the present complaint has been filed seeking total repair parts charges, labour charges and halting charges of the subject vehicle that met with an accident occurred due to rash and negligent driving of the driver”. Even as per the endorsement made in the subject policy with regard to IMT (Indian Motor Tariff) -21 that deals on “Special Exclusions and Compulsory Deductible (applicable to all commercial vehicles excluding taxis and motorised two wheelers carrying passengers for hire or reward), under  sub clause (a) Special exclusions, except in the case of Total loss of the vheilce insured, the insurer shall not be liable under Scetion I of the policy for loss of or damage to lamps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint works”. In the instant case, the accident had occurred due to rash and negligent drive of the insured vehicle by the driver as found in Ex.A-1 and the Complainant had not produced any authenticated material evidence to substantiate his claim made in the complaint. Hence, the repudiation made by the Opposite Parties is legally sustainable. Therefore, this Commission is of the considered view that there is no deficiency of service on the part of the Opposite Parties. Accordingly Point No.3 is answered.

 

Point No.4 :-

27.    As discussed and decided in Point No.3 in favour of the Opposite Parties, that there is no deficiency of service on the part of the Opposite Parties, the Complainant is not entitled for the reliefs claimed in the complaint and also not entitled for any other relief/s. Accordingly, Point No.4 is answered.

          In the result, the complaint is dismissed. No costs.

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	21.01.2016	FIR
Ex.A2	-	RC Book
Ex.A3	-	Insurance Policy
Ex.A4	01.07.2016	Copy of E-Mail
Ex.A5	12.08.2016	Legal Notice
Ex.A6	13.09.2016	Reply Notice

 

List of documents filed on the side of the Opposite Parties:-

-NIL-

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT