- (1.) THE complainant is the owner of a TATA lorry bearing Registration Number TDR 7777 which was insured with the opposite party under a comprehensive B policy. The policy commenced on 17.12.1993 to 11.12.1994. On 21.7.1994, the lorry met with an accident. The lorry driver immediately reported the accident to the police and a case has been registered in Crime No. 138/1994. On account of the accident, heavy and severe damages were sustained to the lorry. Lorry's cabin, chassis, wooden parts, bonnet and mudguard were all completely damaged. The lorry was left with M/s. Sankar Raja Body Builders at Madurai to dismantle the body of the lorry and for repairing the same with M/s. ABT Industries, Madurai. M/s. ABT Industries, Madurai gave a quotation for the repairs and replacement of parts at Rs. 70,000/ -. The opposite party deputed a Surveyor by name Mr. Manimuthu to inspect the vehicle and the said Surveyor filed his report. But the opposite party did not accept the report. They wrote a letter to te complainant on 17.8.1994 rejecting and repudiating the claim. The accident took place a month prior to the date of the complaint. On account of the delay in settlement, the complainant was put to monetary loss and was deprived of his daily income. He also suffered hardship and financial loss. Therefore, the complainant requests for a direction to the opposite party to pay a sum of Rs. 1 lakh as general damages, Rs. 30,000/ - towards loss of profit, Rs. 70,000/ - for cost of repairs, with interest at 12%.
(2.) THE opposite party filed their objections contending as hereinafter : The lorry is insured with the opposite party. It is not admitted that the lorry was involved in an accident and that it resulted in heavy damages to the vehicle. A Surveyor was deputed to the spot. The place of occurrence is very near to the complainant's brick chamber. The spot survey report which ought to have been submitted and available only with the respondent has been made available to the complainant. The opinion of the spot Surveyor is not binding on the opposite party. An independent Surveyor was required by the opposite party to inspect the vehicle. The vehicle was then moved to the repairer's workshop. It was inspected in the presence of the brother of the complainant. The Surveyor found that damages in the bumper and centre bonnet were relevant to the clauses stated in the claim form while, the cowl and cabin were not damaged. He found a crack at the start of the bumper and it proceeded upwards. The Surveyor is of the opinion that the crack was not due to the accident and that if there was a direct impact to the bumper, the crack of the type would not occur due to the direct impact on the chassis. The cost of the repairs and other items damaged was ascertained by the Surveyor. The policy is subject to compulsory excess of Rs. 1,500/ - and since it fell within the excess amount, no payment could be made and this had been conveyed to the complainant. The FIR had been reigstered at the instance of Jayaprakash who is alleged to have been driving the vehicle at the material point of time. Neither any third party was injured nor any property of third parties was damaged. Therefore, there was no statutory obligation for the driver to make a complaint. Even in the FIR, the crack in the chassis which is situated under the vehicle had been noted with care and made a mention therein. In the complaint form submitted by the complainant it has been stated that the complainant himself was driving the vehicle. It has been stated that the accident occurred when the vehicle was swerved to the right and hit the palmyrah tree on account of which the front portion of the vehicle dashed against the tree. The chassis is made of heavy duty metal while the front bumper is made of relatively thin metal and the front grill is of mesh type. The spot photographs reveal that the right head light had not suffered any damage. The lorry's bumper and bonnet were not damaged. The accident had occurred very close to the brick chamber of the complainant from where the vehicle had been started on a cutcha road. To cause a crack in the chassis, the impact of it should have been very heavy and such an impact would have caused heavy damage to the front portion of the vehicle. There was no damage to the spring assembly which is fitted very close to the site of the crack. Therefore, all these circumstances would go to show that the crack was not caused on account of the impact of the accident and the same was due to the wear and tear. These circumstances have given rise to the inference that the accident was a stage -managed one to enable the complainant to make a claim with the Insurer. This claim is a fraudulent one and it was rightly repudiated.
(3.) FURTHER , as per the policy conditions, the matter will have to be referred to arbitration and the award of the Arbitrator will have to be obtained before any action could be initiated against the opposite party. The complainant has failed to do so and, therefore, the complaint is not maintainable. The other claims made are illusory and excessive. The claim of Rs. 1 lakh as general damages and for the mental agony, the claim of Rs. 70,000/ - towards damage to the vehicle are unjustified. Aggrieved by the order of the lower Forum directing the opposite party to pay to the complainant the claim amount of Rs. 1 lakh with interest thereon, the United India Insurance Company, Madurai, has filed Appeal in A.P. No. 119/99.;