BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.112  OF 2013 AGAINST C.C.NO.23 OF 2012 DISTRICT FORUM NALGONDA

Between:

M/s Shriram General Insurance Co.,Ltd.,
H.No.3-6-517, Fourth Floor, Sai Datta Arcade
Plot Nos.401 to 403, VI Street, Himayathnagar
Hyderabad-029, rep. by its Authorized Person/Manager

                                                        Appellant/opposite party No.2

                A N D

1.   Smt Velidineni Seetha W/o late Rambabu @ Rama Murthy
age 43 years, Occ: Housewife

2.   Velidineni Sai Baba S/o late Rambabu @ Rama Murthy
age 22 years, Occ: Student

3.   Velidineni Nagendra Kumar S/o late Rambabu @ Rama Murthy
age 23 years, Occ: Business

4.   Smt Dekonda Jaya Lakshmi D/o late Rambabu @ Rama Murthy
W/o Ashok, age 24 yrs, Occ: Housewife,
All are r/o H.No.12-143/5/1/B, at Teja Talent School Bazar
Kodad Town  & District, Nalgonda District

                                                Respondents/complainants

5.   Shriram Transport Finance Co.Ltd.,
NBR Complex, 3^rd floor, Huzurnagar Road
Kodad Town, Nalgonda District-206
rep. by its Authorized Person/Manager

                                                Respondent/opposite party no.1                                                            

Counsel for the Appellants             M/s S.N.Padmini

Counsel for the Respondent           M/s V.Gourisankara Rao (R1toR4)

                                                M/s V.Narasimha Rao (R5)

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

&

S.BHUJANGA RAO, HON’BLE MEMBER

  TUESDAY THE   TENTH DAY OF DECEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The second opposite party-insurance company is the appellant. The respondents filed complaint claiming the sum assured under the insurance policy along with compensation and costs.

2.             The respondents no. 1 to 4 are the wife and children of  Veldineni Ramababu,  the owner of lorry bearing number AP-31T-5272. The first respondent’s husband during his life time obtained insurance policy bearing number 10003/31/11/059676 for a sum assured of Rs.2,00,000/-in respect of his lorry for the period from 26.5.2010  to 25.5.2011 covering the risk on him as the owner-cum-driver of the lorry. The first respondent’s husband was proceeding in his lorry on 03.05.2011 from Vijayawaa towards Kodad with load of bran  and he parked the lorry near the church at Kethankonda village on National High Way No.9  within the limits of Ibrahimpatnam police station to check the air pressure  in the tyres of the lorry  at the time a van  came at high speed and dashed against him as a result of which the insured died sustained injuries in the accident and died on 4.05.2011. The Police, Ibrahimpatnam registered a case in crime number 174 of 2011 under section 304-A IPC and the respondents submitted claim through the fifth  respondent to the appellant-insurance company and the respondents had not settled the claim, the first respondent got issued notice to the appellant and fifth respondent and on their failure to draw response to the notice, the respondents no.1 to 4 had filed the complaint.

3.             The fifth respondent contended that it is a financier and it financed a sum of `2,24,589/- to the first respondent’s husband for purchase of lorry bearing number AP-31T-5272 and after his death, on payment of  `94,000/-  the fifth respondent issued ‘No objection certificate for releasing the hypothecation. The deceased obtained insurance policy from the appellant-insurance company and there is no priviity of contract between the deceased and the fifth respondent. Hence, the fifth respondent prayed for dismissal of the complaint.

4.             The appellant resisted the claim on the premise that the terms of the insurance policy do not cover the claim as the deceased was not driving the vehicle at the time the accident occurred and that the accident is a result of hit and run case involving some other vehicle. It is contended that the appellant requested the respondents no.1 to 4 to produce relevant documents for the purpose of processing the claim and the claim was kept pending owing to the first respondent’s failure to produce the documents. It is contended that the death of the deceased is not covered by the exclusionary clauses of the insurance policy.

5.             The first respondent filed her affidavit and the documents, Exs.A1 to A11.  On behalf of the appellant and the respondents no.5, Senior Executive Operations and the Recovery Executive filed their affidavits and filed Ex.B1 which is Terms and conditions of Commercial Vehicles Package Policy. 

6.             The District Forum allowed the complaint on the premise of occurrence of the accident and death of the insured in direct connection with the vehicle.

7.             The opposite party no.2 filed appeal contending that the District Forum erred in holding that the vehicle was loaded with husk and it as proceeding from Vijayawada to Kodada and that the insured unloaded bran at Vijayawada and while returning to Kodada he stopped the lorry at Kethankonda village to check air pressure in the tyres of the lorry. The terms and conditions of the insurance policy do not cover the death of the insured which should be in direct connection with the vehicle insured or whilst mounting into/dismounting from or travelling in the insured vehicle as co-driver.

8.             The point for consideration is whether the death of the insured is covered by the terms of the insurance policy?

9.             The ownership of the lorry bearing number AP-31T-5272 of the first respondent’s husband and insurance cover of the lorry issued by the appellant through the fifth respondent as also the occurrence of the accident on 3.05.2011which resulted in death of the insured are not disputed . The appellant has not come forward to settle the claim on the premise of the death of the insured outside the scope of the terms of the insurance policy.

10.            Section IV of the terms of the insurance policy covers risk on the owner of the insured lorry in case he sustained bodily injury sustained or death occurred while the he is driving the vehicle or while mounting into, dismounting from or travelling in the lorry. Section IV of the terms of the policy reads as under:

“Subject otherwise to the terms exceptions conditions and limitations of this policy, the company undertakes to pay compensation as per the following scale for bodily injury death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in

Provided always that

1)      The compensation shall be payable under only one of the items (i) to (iv) above in respet of theowner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.1 lakh during any one period of insurance.

2)      No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs

3)      Such compensation shall be payable directly to the insured or to his/her legal representatives who receipt shall be the full discharge in respect of the injury to the insured. 

11.            Section IV provides for coverage of risk on the owner of the vehicle while he is driving the vehicle or mounting into or dismounting from or in direct connection with the vehicle or in the circumstances where he is travelling as a co-driver. The learned counsel for the appellant has contended that the load was downloaded at Vijayawada and as such it cannot be said that the deceased was travelling in the lorry in connection with the loaded lorry. The police records would indicate the unloading of the lorry at Vijayawada.

12.            The question of the insured travelling with the loaded lorry would arise in case the deceased travelled as co-driver of the lorry. The deceased was driver of the lorry and he was travelling in the lorry as its driver. At the time he was checking the air pressure in the rear tyres of the lorry, a van came from behind and dashed against him resulting his sustaining injuries to which he succumbed the next day while undergoing treatment at Srilatha Hospital, Vijayawada. The District Forum elaborately dealt with the aspect of use of the vehicle, travel undertaken by the insured which covered the checking the air pressure in the tyres of the lorry etc. as sunder:

“ 8.      As the deceased was attending to the checking of air in the vehicle in question during the course of travel, such an act of attending to the checking of air is to be treated as part of travel in the insured vehicle in which case it is to be held that the deceased had accidental death while he was traveling in or driving the vehicle.  Therefore, the contention of the Opposite Party No.2 and its learned counsel based on hyper technical objection that the time spent by the deceased (owner-cum-driver) in checking the air is to be treated as outside the actual traveling in the vehicle, cannot be accepted. 

9.         In a decision reported in Shivaji Dayanu Patil and another Vs.Smt.Vatschala Uttam More ( AIR (1991) Supreme Court 1769 ), the Hon’ble Supreme Court while considering the nature of use of the vehicle held that the word ‘used’ in the contest of motor vehicles has to be construed in a wider sense to include the period when the vehicle is not moving and in stationary being either parked on account of the road and when it is not in a position to move due to some brake down or mechanical defect.  The said decision was followed by the Hon’ble National Commission in United India Insurance Co.Ltd. Vs.K.Kannusamy ( I (2012) CPJ 19 (NC) ) and held similarly.  Therefore and as the air in the tyre of the vehicle in this case was to be checked, it was stationary and, therefore, the said situation also comes within the definition of using the vehicle on the road.  In the circumstances, by following the above two decisions, we hold that the risk of the vehicle involved in this case is covered when the deceased was checking the air in the tyres.  This Forum holds accordingly under this point.

13.            The deceased was not starting from his village to consider that the lorry was not in motion or that the deceased was not kept himself away from the lorry at the time the accident occurred. He was checking the air pressure in the rear tyres of the lorry when the accident occurred. As such it can be said that he was in direct connection with the lorry at the time of occurrence of the lorry. The terms of the insurance policy cover risk on the lorry and on its owner as well.  The risk on the owner of the lorry is the subject of the claim and the District Forum has rightly concluded that the deceased sustained injuries while he was in direct connection with the lorry. We find no reason to interfere with the well-reasoned order of the District Forum.

14.            In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no separate order as to costs. Time for compliance four weeks.

                                                                                  Sd/-

I/C  PRESIDENT

        Sd/-

                                                                             MEMBER

                                                                                Sd/-

                                                                            MEMBER
                                                                        Dt.10.12.2013

కె.ఎం.కె.*