State Consumer Disputes Redressal Commission
M/S.Qualitronics (Madras) Private ... vs The Oriental Insurance Company Ltd, ... on 27 November, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : THIRU.A.K.ANNAMALAI PRESIDING JUDICIAL MEMBER
THIRU.S.SAMBANDAM MEMBER C.C.NO.34/2010 DATED THIS THE 27th DAY OF NOVEMBER 2013 Date of complaint :30.06.2010 Date of order : 27.11.2013 M/s.Qualitronics ( Madras) Private Ltd, A company Incorporated Under the Companies Act, 1956, Having office at No.30, 18th Avenue, Ashok Nagar, Chennai 600 083. M/s.T.G.Ravichandran Rep by its authorized Signatory / Manager, Counsel for Complainant Shree K.L.Narayanan, S/o.V.Krishnamurthy.
-vs-
The Oriental Insurance Company Ltd, Divisional Office-5, No.770-A, Anna Salai, Post Box No.2447, M/s.N.Vijayaraghavan Chennai 600 002.
Counsel for opposite party.
Rep by is Senior Divisional Manager.
The complainant filed a complaint before this Commission against the opposite party praying for a direction to the opposite party to pay a sum of Rs.15,50,000/- with 18% interest from the date of accident , to pay a sum of Rs.5,00,000/- as compensation for mental agony due to deficiency of service and to pay costs.
This complaint coming before us for final hearing on 7.10.2013 and heard the arguments on either side this Commission made the following order A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER The Complaint filed under Sec.17 of the Consumer Protection Act.
1. The gist of the complaint is briefly stated as follows:
The complainant claiming direction to the opposite party for the payment of Rs.15,50,000/- with 18% interest from the date of accident and to -2- pay Rs.5,00,000/- as compensation for mental agony on account of deficiency of service and negligence and for costs for not settling the insurance claim for the damaged own car due to accident.
2. The complainant being a company purchased one Skoda car in the year 2007 with Registration No.TN 09 AV 7000 in the name of the company for which a valid insurance policy was obtained from the opposite party for the period from 18.7.2008 to 17.7.2009 and the car was used by the Managing Direction for his personal and for office use. On 19.10.2008 there was road traffic accident occurred and the case was registered in Cr.No.1195/2008 U/s.279 IPC. Due to the said accident thee was heavy damage to the Skoda car which was valued and estimated for Rs.15,50,000/- by the authorized service valuer for the repair and police inspected the spot investigation and Motor Vehicle Inspector investigation was also done and final report under Section 338 of IPC before the Judicial Magistrates Court was filed and the complainant made the claim for damages and submitted claim form dated 28.10.2008 claiming the amount as per the terms and conditions of the insurance policy and on 2.2.2010 the opposite party rejected the claim with untenable reasons and thereby after sending a legal notice on 7.3.2010, the complainant filed this complaint claiming the relief as stated above.
3. The opposite party denied the allegations of the complainant in the version except to admit the occurrence of the accident and contended that the complainant was belated in reporting the accident to the insurance company only -3- on 21.10.2008 and the opposite party appointed an individual surveyor to inspect the vehicle to survey and to assess the loss. Because of belated report depriving the insurer of the right to have a spot survey conducted to verify the bonafides of the claim and the insurer got the right to inspect the vehicle on the spot itself to very the bonafides of the claim. The claim of estimation for Rs.21,13,312.08/- was grossly exaggerated. The surveyor estimated the loss only for Rs.9,37,209.41 to conduct an investigation by Pedras Insurance Consultancy and Vasu associates to verify the bonafides of the claim it was found that the claim was bristling with too many infirmities and suppressed the injury caused to the driver at the wheel, it is claimed that no injury caused to the driver. But the driver Arvind was admitted in MIOT Hospital as inpatient for over a week till 28.10.2008 and underwent a surgery also. This was not revealed till this date by the complainant and a claim is clearly vitiated by lack of bonafides and complicated questions of fact also need to be resolved to decide on bonafides and thereby the consumer complaint would not be the proper remedy and the civil suit is for proper adjudication and thereby for the legal notice sent by the insured and a reply was sent on 20.4.2010 and the claim is false and fabricated and thereby there is no deficiency of service and the claim of Rs.20,50,000 and Rs.5,00,000/- are all imaginary and fanciful. Hence the complaint to be dismissed.
4. In the course of enquiry both sides filed their proof affidavits and on the side of the complainant documents Ex.A1 to A14 and on the side of the opposite party Ex.B1 to B7 were marked.
-4-5. The points for consideration are :
1.
Whether the claim of the complainant for the damages in the Skoda car involved in the accident and the claim made by the complainant on the basis of the insurance policy are all not genuine and suffered with infirmities and lack of bonafides?
2. Whether there is negligence and deficiency of service on the part of the opposite party ?
3. To what relief ?
6. POINT NOS 1 & 2 : In this complaint, it is admitted case of both sides that the complainant being the owner of the Skoda car bearing Regn.No.TN 09 AV 7000 having insurance coverage for the damages of accident etc during the period of policy was inforce insured by the opposite party and the car was involved in an accident and suffered with heavy damages on 19.10.2008 and this is proved by way of filing photographs under Ex.A5 and attached with Interim Survey Report with photographs under Ex.B3. Even though the opposite party claimed no registration number was found in the photographs in the photos attached under Ex.B3 itself in the photo of the car in front portion of the car revealed the registration number having number plate and thereby the car involved in the accident of the complainants car not in dispute. As far as the occurrence in the accident is concerned, on the side of the both sides copy of the FIR under Ex.A4 and B1 filed which revealed that the complaint was given by one -5- A.L.Narayanan, Manager of the complainants company, even on 19.10.2008 at about 14 00 hours for the accident taken place on the same day at 03.00 hours and as per the FIR the distance from the police station is mentioned as 4 kms away on the north. The gist of the complaint in Tamil detailed with the vehicle belonging to the complainants company Skoda driven by one R.Arvind from Mugalivakkam towards Sholinganallur on the way nearer to Tharamani SRP tools due to crossing of cattle when the brake was applied the vehicle gone into the left side ditch and become toppled and no injury was caused to the driver of the vehicle. This is disputed by the opposite party by contending that the driver Arvind who was on the wheels sustained grievous injury and got admitted in MIOT Hospital undergone surgery and stayed for more than a week as inpatient. This was not denied by the complainants side and infact he produced discharge summary as Ex.A14 contending that the driver of the vehicle Aravind was S/o Managing Director of the company and this was not disclosed to the police and relating to the insurance in the claim form under Ex.B2 in which against the column is anybody sustained injury reply is given as No in Sl.No.5 and relating to the details of accident in Serial No.7 relating to the insurance speed of the vehicle is mentioned as 60 to 80 kms at the time of accident on 19.10.2008 at about 2.30 a.m. As per the complaint it is alleged that the vehicle except the driver no other person said to have been traveled. But as per the private investigation report under Ex.B7 with the police report police had not taken the incident very seriously since no injury was caused to anybody and no 3rd party -6- was involved as per the complaint and filed charge sheet under Section 279 of IPC and closed the case after payment of fine by the driver. In the course of investigation it is found that the said Arvind being the final year Engineering student residing at Mugalivakkam and his friend one Sharath in the same area and another friend Giri is friend of the friend were all in the car during the accident and the version of the Arvind that they are all co-students gone for joint study are all false and the vehicle actually came from Sholinganallur direction to Mugalivakkam and in the FIR is wrongly mentioned as opposite direction and under Ex.B7 investigation report as mentioned the reasons for accident due to sudden entry of cattle in the road and the police had not given previous night enquiry report as part of their investigation initial hospital treatment paper not made available persons gathered are all different. Institution and version of group studies and the time to be allotted for studies is less than the time spent for travel that too in very late night and the reasons for the accident is differently due to very rash and negligent driving, circumstances, timing and the type of people, possible of drunken driving cannot be ruled.
To strengthen the case some of the areas were looks to be well covered to avoid any doubts over the issue. From these details and in view of the complainants after thought production of Discharge summary of medical treatment of Aravind under Ex.A14 and suppression of material facts while giving complaint before the police belatedly after nearly 12 hours from the time of occurrence when the police station itself is only 4 kms away from the occurrence spot and when the driver -7- Aravind said to have been sustained no injuries as per the FIR and the details in the claim form prevented him to approach the police station to give complaint when it is usual practice that the driver of the vehicle involving in the accident would be the first person to give police complaint and the failure of complainant immediately to inform the accident to the opposite party within few hours in order to make them to have spot investigation and thereby this are all makes us to accept the contentions of the opposite party that the complainant has not come forward with the clean hands in this case to claim the relief. The complainant relied upon the rulings for the purpose of invoking jurisdiction to entertain the claim reported in Accidents Claims Journal 2007 (Volume II) reported in 2007 ACJ 721 in which it is observed as follows : Motor Vehicles Act, 1988, Section 165 and Consumer Protection Act, 1986, Section 11-Claims Tribunal Consumer Forum-Jurisdiction-Own Damage claims Whether claim relating to damage suffered by the owner-insured against insurance company can be adjudicated upon by the claims Tribunal-Held: no; in these cases no third party is involved; such claims have to be decided by the Consumer Forums.
No doubts in this case the complainant claimed the relief for the own damages of his car and the complaint is thereby already entertained.
7. Regarding the credibility of surveyor report relied upon 2010 ACJ 2580 in the case of New India Assurance Co. Ltd vs- Protection manufacturers Pvt. Ltd in which it is observed as follows: On the other hand, they had gone -8- around creating confusion and controversies and to create an air of suspicion, which was a classic example of table-top investigation and thereby contended that in order to reject the claim of the complainant somehow the opposite party created such investigating records. But, the opposite party other then the surveyor report and investigation report also relied upon the FIR and details relating to the treatment given to the injured Aravind who was admitted in the MIOT Hospital. On perusal of the Discharge summary under Ex.A14 the Hospital records did not disclosed that how & when the injured person complained about the nature of injuries sustained due to road accident no intimation was sent to the police or the patient was verified with the same whether any police report was given and mode of accident was not recorded. The police have also not seriously viewed the case except to file charge sheet as per Ex.A13 in which the alleged driver Aravind dashed against the median which is in the centre of the road and charged for negligence driving. When the FIR alleged no injury caused to the driver, per contra when the said driver sustained grievous injury and had undergone surgery by staying as inpatient for several days as per Ex.A14, how the police had charged sheeted only for the offence of section 279 alone is creates the doubt as alleged in the surveyors final repot under Ex.B7 and also for the possibility of drunken drive along with other two persons and in order to avoid from the clutches of law for those violations it seems that the complainants side have appeared to have purposely suppressed the facts against the truth and thereby the contract of insurance is on the basis -9- of good faith of both parties act with bonafide. The opposite party has relied upon the following rulings on their side reported in I (2010) CPJ 228 (NC) in the case of Munshi Ram vs- New India Assurance Company Ltd & Anr it is observed as follows:
Concocted story formed by complainant- Small exercise undertaken to manufacture small quantity of Katha, to fabricate story of huge fire, destroying large quantity, which never existed Complainant tried to fabricate a claim which he failed to establish No relief entitled.
(2) another ruling reported in I (2005) CPJ 86 (NC) in the case of Padam Cotton Yarns Limited & Anr vs- National Insurance Company Ltd & Anr it is observed as follows:
Consumer Protection Act, 1986-Section 21 Jurisdiction-Goods destroyed in fire Dispute pertains to quantum of amount payable-Voluminous evidence to be recorded Paper book already runs into over 300 pages Oral and documentary evidence required Dispute not adjudicable in summary jurisdiction.
(3) and another ruling reported in I (2005) CPJ 88 (NC) in the case of Union of India & Ors vs- Vishav Nath Verma (HUF) regarding the contract between the parties it is observed as follows :
Contract Act, 1872-Sections 72 and 73 Compensation for failure to discharge obligation resembling those created by contract Directions given.-10-
From these rulings relied upon by the opposite party in this, case also since it is not in dispute relating to the accident n which the car involved regarding the actual occurrence detailed enquiry and evidence by way of oral and documentary proof are required and thereby this Consumer Fora not in a position to find out the truth of complaint averments except to rely upon by the opposite party s contentions supported by their documents we are of the view that the complaint is not entitled for any relief on the basis of claim made with the opposite party and by rejecting the claim by the opposite party in view of the infirmities lack of bonafides and suppression of material facts we are of the view that there are no negligence or deficiency of service on their part and these points are answered accordingly.
7. POINT NO.3 : In view of the findings above in points 1& 2 in favour of the opposite party, the complainant is not entitled for any relief and thereby the complaint is liable to be dismissed. Accordingly, In the result, the complaint is dismissed. However there will be no order as to costs.
S.SAMBANDAM A.K.ANNAMALAI MEMBER PRESIDING JUDICIAL MEMBER -11- ANNEXURE LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Sl.No. Date Description of Documents Ex.A1 14.11.2003 Copy of Driving License Ex.A2 10.08.2007 Copy of RC Book of the vehicle Ex.A3 17.07.2008 Copy of the Insurance Policy Ex.A4 19.10.2008 Copy of FIR Ex.A5 Original Photos of the damaged vehicle Ex.A6 06.08.2009 Copy of Service Center Performa Invoice Ex.A7 30.01.2010 Copy of Board of Resolution copy Ex.A8 02.02.2010 Copy of letter from the Insurance company Ex.A9 07.03.2010 Copy of Legal notice Ex.A10 20.04.2010 Copy of Reply notice Ex.A11 20.10.2008 Copy of Tow Bill Ex.A12 19.04.2008 Copy of Sketch Ex.A13 27.10.2008 Copy of Charge Sheet Ex.A14 28.10.2008 Copy of Discharge Summary LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:
Sl.No. Date Description of Documents Ex.B1 19.10.2008 Copy of FIR Ex.B2 28.10.2008 Copy of Claim Form Ex.B3 15.11.2008 Copy of Interim Survey Report with Photographs Ex.B4 05.08.2009 Copy of Final Survey Report with Photographs Ex.B5 05.08.2009 Copy of Re-inspection Report Ex.B6 Copy of Investigation Report of Pedras Ex.B7 16.10.2009 Copy of Investigation Report S.SAMBANDAM A.K.ANNAMALAI MEMBER PRESIDING JUDICIAL MEMBER INDEX ; YES / NO VL/D/PJM/ORDERS