State Consumer Disputes Redressal Commission
The Branch Manager, United India ... vs R.Natarajan, S/O.Ramasamy, 7/108-A, ... on 18 October, 2011
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI (BENCH II) Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Judicial Member, Thiru.S.Sambandam, B.Sc., Member. F.A.No.128/2009 [Against order in C.C.No.15/2008 on the file of the DCDRF, Salem] TUESDAY, THE 18th DAY OF OCTOBER 2011. 1. The Branch Manager, United India Insurance Co. Ltd., 10/19, Salem Road, Attur. 2. The Managing Director, United India Insurance Co. Ltd., Registered Office, 24, Whites Road, Chennai-14. .. Appellants/opposite parties /Vs/ R.Natarajan, S/o.Ramasamy, 7/108-A, Bharathi Nagar, Sothoorai Thottam, Siruvachiyur Village & Post, Attur Taluk, Salem District. .. Respondent/Complainant The appeal coming before us for hearing finally on 13.09.2011, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for the Appellants/ opposite parties : M/s. S.Arunkumar, Advocate. Counsel for Respondent/Complainant : M/s.P.Thamilavel, Advocates. ORDER
A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER
1. Opposite parties are the appellants.
2. Complainant filed a complaint against the opposite parties claiming for direction to pay a sum of Rs.9,30,000/- towards total loss caused to the vehicle due to fire and Rs.1,00,000/- for mental agony and to pay Rs.5,00,000/- towards the deficiency of service and for costs.
3. The complainant purchased the vehicle tractor bearing registration No.TN-30-T-1507 and insured with the 1st opposite party for the period from 20.1.07 to 19.1.08. On 1.4.2007 the complainants vehicle touched with the electric wire and due to that the tractor machine was started to burn. The complainants driver got down from the vehicle and others tried to put off fire along with one Sakthivel. But Tractor was completely burnt. The case was registered with the police and the complainant intimated the opposite parties on 2.4.07. On behalf of the opposite parties surveyor inspected the spot and assessed the situation. As per the direction of opposite party the complainant took the vehicle and parked before the shop where he has purchased and he has submitted necessary details for the claim and in spite of that he was not responded and a legal notice was issued on 21.11.07 and after that the complainant has come forward with this consumer complaint.
4. The opposite parties denied the allegations of the complainant in their written version and contended that both the drivers of the tractor were not having valid driving license on the date of occurrence which are against the policy condition and the vehicle was not covered for use of hire or for reward. The vehicle was used for hire in the field of one Sivashanmugam of Neduncheri Village in Papanasam Taluk for harwest which is the violation policy conditions. As per R.C.book the seating capacity includes driver one only this was also violated and for the purpose of claim the complaint before the police was delayed in order to substitute the driver holding valid license for driving and thereby one Ramesh was mentioned as driver and thereby the claim was repudiated on 10.6.2007 and there is no deficiency of service and the claim was barred by limitation.
5. On the basis of both side averments and materials and after an enquiry the District Forum allowed the complaint by directing the opposite parties to pay Rs.7,44,000/- towards the loss to the complainants vehicle Rs.2,50,000/- towards compensation for mental agony and Rs.5,000/- as costs.
6. Aggrieved by the order of the District Forum the opposite parties come forward with this appeal and in the grounds of appeal among other things it is contended that the District Forum failed to consider the documents relied upon by the opposite parties and the violations committed by the complainant and necessity for substituting one Mr.Ramesh as driver of the tractor.
7. The opposite parties also relied upon the rulings reported in 2005 (1) Law weekly 595 in which it is stated as follows :-
The Surveyors report produced by the 1st defendant/1st respondent cannot be so easily ignored, since it is a piece of evidence, that too when no motive is alleged, attributing any favoritism. By saying that the documents produced by the plaintiff are undependable, in our considered opinion, ignoring the surveyors report is not possible and the same being the document produced by the 1st respondent the further fact being that the report was submitted by an independent surveyor, who is licensed by the Government at the instance of the first respondent. In this view, we are inclined to accept the Surveyors report, in order to fix the quantum of cotton gutted in fire, as well as its value.
relating to the importance of survey report page 598 and 608 and 1 (2010) CPJ 141 National Commission and another judgment II (2010) CPJ 1 (SC) in which it is stated as follows :- Insurance Consecutive Surveyors Appointment of Surveyors appointed under provisions of Insurance Act Their reports to be given due importance Sufficient grounds to be given to disagree with assessment made Which are all reiterates to the importance of surveyors report.
In this case the opposite parties filed the surveyors report as Exhibit B4 in which the surveyor relied upon various documents and in the findings that one Sakthivel is not driver of the vehicle and as only one driver was alone permitted to drive the vehicle and insured was one Suresh and the allegations that one Sakthivel was another driver was not correct and as per the FIR copy it was mentioned while traveling on the vehicle got fire due to fire in the diesel tank and sustained injuries and the inserted name was mentioned as Sakthivel and he was not mentioned as the driver of the vehicle and as per the paper publication news also the vehicle was said to be driven by Sakthivel who sustained burn injuries due to the accident.
The complainant side relied upon the ruling reported in II (2011) CPJ page 162 in which it is stated as follows :-
Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d), 15 Insurance Accident Claim repudiated Breach of policy conditions Vehicle used for purpose other than insured Deficiency in service alleged Forum directed settlement on non-standard basis with compensation Hence appeal Vehicle used as Taxi instead of private vehicle Apex Court held in case breach of condition is not germane and Insurance Company liable to reimburse the insured for loss suffered by him Forums order upheld.
And AIR 1997 (SC) page 2485 in which it is stated as follows :- Criminal P.C.(2 of 1974), S.401 Revision against acquittal Murder case Trial Court acquitting accused solely on basis of result of investigation Judgment of trial Court patently wrong and causing miscarriage of justice Order of High Court setting aside acquittal in exercise of its revisional power Is proper.
8. While considering both sides rulings relied upon the appellants/ opposite parties mostly relied on the basis of the surveyors report the claim was repudiated as the actual driver having valid license alleged to have driven the vehicle of the complainant was not established and for the purpose of claim amount falsely it is alleged by the appellant that the complainant set up some other person having valid driving license as the driver of the vehicle was present at the time of accident was not having license and manipulating the same in the FIR for the purpose of claiming insurance amount by substituting name of the person having valid license. But the respondent/complainant contended since the FIR was lodged immediately and the name of the driver was also clearly mentioned as Ramesh and having claimed the insurance in a lawful manner the repudiation by the opposite parties not justifiable. The District Forum after considering the same allowed the complaint. In this regard as the complainant got the vehicle insured for Rs.9,30,000/- as per Exhibit A1 by paying premium of Rs.7,990/- and in the circumstances when the claim is made as per the terms and conditions of the policy the claim to be entertained and in Exhibit B1 regarding the terms and conditions of the policy under the covers of policy it is stated if the vehicle is used for hire or reward the policy does not cover for the same and any person driving holds an effective driving license at the time of accident and as not disqualified from holding or obtaining such a license, then only entitled for claim of the policy. In our case these two things are doubtful in nature and the complainant cannot be considered as proved the same without any doubt as the appellant contended that the vehicle was taken to one Sivashanmugams land at Nedunchery Agraharam for the purpose of harvest on hire basis and the very same Sivashanmugam has given the complaint as per Exhibit A2 in which it is stated that the vehicle came for the purpose of harvesting the crops and at the time, occurrence was taken place and one Ramesh was the driver on the vehicle. The occurrence said to have taken place on 1.4.07 at 12 hours. But the FIR was registered on 2.4.07 at 11.00 am and thereby the allegation of the opposite party that for the purpose of manipulating the name of the driver having valid license in order to claim insurance amount the FIR was delayed and this contention cannot be brushed aside as the FIR was lodged only on next day of occurrence and in view of the detailed investigation report filed by the surveyor of opposite parties as Exhibit B4 which substantiates the contentions of the opposite party. The complainant or the opposite parties have not filed any of the other criminal court records relating to the charge sheet regarding the offence committed by the driver whose details of name driving license etc., and in those circumstances we are of the view that those things are to be proved only before the proper form by adducing oral and documentary evidence and which are not capable to be decided by the Consumer Forum and in those circumstances we are of the view that the repudiation of the opposite party regarding the claim on the basis of investigation report Exhibit B4 and as per repudiation letter Exhibit B7 that there cannot be any negligence or deficiency in service on the part of the opposite parties and the District Forum without going in to the deep of materials erroneously allowed the complaint which is liable to be set aside, in view of the reasons adduced and the discussions made as above.
9. In the result, the appeal is allowed by setting aside the order of the District Forum, Salem in C.C.No.15/2008 dated 27.11.2008 and the complaint is dismissed. No order as to costs in this appeal.
10. The Registry is directed to hand over the Fixed Deposit Receipt made by way of mandatory deposit, to the appellants, duly discharged.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING JUDICIAL MEMBER INDEX : YES / NO sg/B-II/aka/ United In.Ins.