State Consumer Disputes Redressal Commission
Ramalingam Kangayam, Erode District vs The Divisional Manager , & Another ... on 8 December, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.250/2007 (Against order in C.C.NO.34/2005 on the file of the DCDRF, Erode) DATED THIS THE 8th DAY OF DECEMBER 2010 Ramalingam S/o. Sengappa Chettiyar 1st Street, Kovai Road Kangayam, Erode District Appellant / Complainant Vs. 1.
The Divisional Manager The New India Assurance Co. Ltd., 11-19 & 20 II Floor Peoples Park Building Govt. Arts College Road, Coimbatore- 18
2. The Branch Manager The New India Assurance Co. Ltd., Parimalam Complex, Mettur Road Erode Respondents / Opposite parties The Appellant as complainant filed a complaint before the District Forum against the Respondents/ complainants praying for the direction to the opposite parties to pay a sum of Rs.175000/- towards compensation with 12% interest, alongwith compensation of Rs.1000/- and cost of Rs.2500/-. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.25.01.2007 in C.O.P.No.34/2005.
This appeal coming before us for hearing finally on 23.11.2010. Upon hearing the arguments of the counsels on either side, perusing the lower court records and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant: M/s.
V.S. Kesavan, Advocate Respondents/ Opposite parties: Called absent M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. The complainant/appellant, being the owner of a Maruthi Zen car, bearing Regn. No. TN 37 Q 4783, insured the vehicle, with the respondent, under comprehensive policy, by paying a premium of 4068/-, for the period 20.12.2001 to 19.12.2002. The vehicle met with an accident on 21.12.2002, for which claim was made, settled between parties, for Rs.75000/-. But unfortunately, the opposite parties have communicated, informing that the vehicle was fitted with LPG kit, at the time of accident, violating the policy condition, and therefore they are not liable to pay the amount. Despite the issuance of notice, the opposite party has not rectified the deficiency, in paying the amount of compensation of Rs.175000/-, thereby compelling, the complainant to file a case, for the said amount, in addition to compensation also.
3. The opposite party, admitting the policy, opposed the claim, interalia contending, that the complainant had fitted with LP kit, unauthorisedly, without getting any prior permission, from the RTO concerned, in the vehicle which is a gross violation of the conditions of the insurance policy, and on that basis, legally, the claim was repudiated, will not amount to deficiency in service, that the claim also barred by limitation, thereby prayed for the dismissal of the complaint.
4. The District Forum, recording finding, that there is no material to prove that the complainant had spent a sum of Rs.1,75,000/-, to repair the damaged vehicle, has further come to the conclusion, that the claim is barred by limitation. On these grounds, the complaint was dismissed, as per order dt.25.1.2007, which is under challenge.
5. The learned counsel for the appellant, urged before us, that the case is not barred by limitation, which was not properly considered by the District Forum, and that as per the policy, the opposite party is bound to reimburse the repair cost, in view of the fact, there is no material, that the complainant had violated the terms of the policy, or committed any breach of law.
6. Admittedly, the vehicle was insured, and the same also, met with an accident. As seen from Ex.A4, the opposite parties have claimed certain documents, which the complainant failed, resulting the claim is closed no claim, in addition for the reason the vehicle was fitted with LPG kit, at the time of accident.
Admittedly, accident had taken place on 21.10.2002, which date should be the date of cause of action, for claiming damage generally. The complaint was taken on file on 29.10.2004, i.e., after two years.
Therefore, the District Forum, though it is few days, delay the complaint has not been filed as mandated under Sec.24(A)(1) of the Consumer Protection Act, and in this view, it may appear as time barred, if we take the date of accident alone, as the cause of action. On the other hand, if the date of repudiation is to be construed, as date of cause of action the claim is in time.
In this view, we have to see, the correspondence between the parties, and the stand taken by the opposite party also. The claim was under process, and the complaint has no occasion to rush to the Forum, since, not denied. As seen from Ex.A4, the claim was closed, or refused or repudiated, only on 28.7.2003, thereby, informing that the complainants claim was rejected, which alone should give cause of action, to come to the District Forum, since the complainant was all along under the impression, that his claim is under consideration. Therefore, the dismissal of the complaint, on the ground of limitation, is not be correct.
7. A specific stand has been taken, to repudiate the claim, that the vehicle was fitted with LPG kit, for which we do not have any material. It appears, after the accident, the vehicle was inspected, and damage was assessed, on salvage loss basis, as seen from the notice issued, on behalf of the insurance company (Ex.A7). It is said, in the notice, at the time of accident, the car was fitted with LPG gas kit, for which there is no endorsement in the RC.
The surveyor report, not filed, and therefore, we are unable to accept, the contention of the opposite party, that the complainant had violated the terms and conditions of the policy, or committed any breach of law viz car was fitted with LPG kit, unlawfully, is unacceptable to us. If really LPG kit was fixed, the surveyor should have not, in this view, for not filing the surveyors report, we should draw adverse inference also.
8. As rightly held by the District Forum, no document has been produced, on behalf of the complainant, to prove the actual value, regarding the damage of the vehicle and in fact, it is not know, whether the vehicle was repaired or not. But the surveyor, had assessed, on the basis of the salvage loss at RS.75000/-. It is the case of the complainant, that the opposite party had agreed to pay the said amount, and finally rejected. Therefore, we can safely come to the conclusion, based upon the pleadings, in the complaint, as well as in averments in Ex.A7, damage to the vehicle was assessed at Rs.75000/-, even by the insurance company, which amount they are liable to pay, though not the amount, as claimed, since no particulars about the actual spending available. The District Forum, unfortunately not taking into account the date of rejection, taking the date of accident alone, is the date of cause of action, committed an error in rejecting the total claim, and in this view, we are inclined to allow the claim, to the above said extent, granting a compensation of Rs.10000/- also, for the deficiency committed, in rendering the service, viz. not honouring the commitment, as per the policy.
9. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.34/2005 dt.25.1.2007, and the complaint is allowed in part, directing the opposite party, to pay a sum of Rs.75000/-, towards repair charges (as agreed originally), as well a sum of Rs.10000/-, as compensation, for deficiency in service, with cost of Rs.1000/-. Time granted for the payment of the above said amount is two months, failing to comply, Rs.75000/-, will carry interest at 9% p.a., from the date of default, till realization. The parties are directed to bear their own cost in the appeal.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Insurance