BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt.C.Preethi, Hon’ble Lady Member
Wednesday the 6th day of December, 2006
C.C. No.130/2006
D. Dada Basha, S/o. Abdul Gafoor, Lorry Owner,
R/o. H.No.10/299, Buddekal Sreet, Adoni,
…Complainant
-Vs-
1. The Divisional Manager, M/S. United India Insurance Company Ltd.,
Subhash Road, Anantapur,
2. The Branch Manager,
M/S. United India Insurance Company Ltd, Adoni.
…opposite parties
This complaint coming on this day for orders in the presence of Sri. Y. Sreenivasulu Advocate, Kurnool for complainant, Sri. C.M.K. Ranjani, Advocate, Kurnool for Opposite Parties No.1 & 2 and stood over for consideration till this day, the Forum made the following:-
ORDER
As per Sri. K.V.H. Prasad, Hon’ble President
1. This case of the complainant is filed under section 12 of the Consumer Protection Act, seeking a direction on the opposite parties to pay him Rs.1,85,657/- with interest at 12% per annum from 20-02-2004 as compensation and Rs.5000/- as costs of this litigation alleging deficiency of service on the part of the opposite parties in not entertaining the claim of the complainant for the damage occurred on 20-02-2004 due to accident to his vehicle bearing No.AP21V 7682 insured with opposite party No.1 vide policy No.051005/31/03/01475.
2. The opposite parties who caused their appearance through their counsel, in pursuance of receipt of the notice of this forum as to this case of the complainant, inspite of several adjournments on and from 26-10-2006, 02-11-2006, 09-11-2006 and 15-11-2006 did not file their written version and ultimately remained exparte.
3. The complainant in substantiation of the complaint averments relied upon documentary record in Ex.A1 to A8 and his sworn affidavit in reiteration of his case.
4. Hence, the point for consideration is whether the complainant has made out the liability of the opposite parties to the complainant’s claim.
5. The Ex.A1- is the certified copy of F.I.R. the original of which was said to have been issued by State Police Kosigi, in Cr.No.8/2004 for the accident assured to the complainant’s vehicle bearing No.AP21 V 7682 on 20-02-2004 on Kosigi Adoni Road, 3Kms to kosigi while being driven by its driver Dudekula Farooq Basha.
6. The Ex.A2 is the certified copy of charge sheet the original of which was said to have been filed by the concerned police before the Judicial First Class Magistrate Adoni. It envisages the driver of the said vehicle was charge sheeted for affence U/S.279 I.P.C. for driving rashly and negligently the mini lorry bearing No.AP21 V 7682 in between 3.30 A.M. and 4 A.M of 20-02-2004 at 3Kms distance to Kosigi and damaged the said lorry.
7. The Ex.A3 is the xerox of driving license of said driver D.Farooq Basha licensing him to drive Heavy Motor Vehicles also and its validity up to 22-10-2004.
8.The above said material in Ex.A1 to A3 being not rebutted they are remaining proved as to the police registering the case for said accident and charge sheeting its driver as accused for his rash and negligent drive ending in damage to said vehicle bearing No.AP21 V 7682 and the said accused driver possessing a valid driving license on the date of said accident.
9. The Ex.A4 is the estimate of repairs for the said vehicle bearing No.AP21 V 7682 furnished by Sivani Automobiles Kurnool to the complainant for a value of Rs.22,930/- towards labour charges and Rs.1,85,657/- towards the costs of the spares required for attending the repairs of said complainant’s vehicle damaged in accident.
10. The Ex.A5 is the certified copy of the disposal register of the said case showing a conviction U/S 279 I.P.C to the driver of said accident vehicle, charged under Ex.A2, with a fine of Rs.1000/-. It being not rebutted other wise the Ex.A5 stands proved as to its contents.
11. While the Ex.A7 office copy of letter dated:26-09-2005 addressed by the complainant to the opposite party No.1 requiring the later to return of the bills for their resubmission after due verification and retaining its copies, the Ex.A8 is the office copy of legal notice dt:Nil addressed to opposite party No.1 says of denial of claim of Rs.1,85,657/- of the complainant by the opposite party and the Ex.A6 dated:15-06-2005 of the opposite party No.1 says of repudiation of the complainant’s claim on the ground of misrepresentation of facts as to accident and fabrication of bills and as the cause of accident is inconsistent with damages and nature of accident as observed from the spot survey report, the final survey report and investigation report and handling of the said vehicle by driver who is not possessing a driving license to drive goods vehicle and thereby violation of terms and conditions of the policy.
12. While the material in Ex.A1 to A5 not discredited, nothing is placed to substantiate the Ex.A6 and the repudiation made there under with any such material on which the said contentions therein were based to feel of its bonafidees.
13. Even though the Ex.A4 is the mere estimate for attending the repairs of the complainant’s insured vehicle which met with accident, but as the Ex.A7 is saying the submission of bills to the opposite party No.1 and the Ex.A6 also takes mention of the receipt of the bills-which of course it allege as fabricated and created by the complainant for the purpose of the claim, in the absence of placing of such bills for appreciation as to their alleged fabrication, it remains hard to feel any justifiability’s in the conduct of the opposite party in its rejection of the said bills of incurred cost of repairs of said vehicle especially when the said survey reports also were not placed for appreciation in support of its contentions.
14. In the light of Ex.A3-the driving license entries as the said driver was licensed to drive heavy vehicles also by the date of accident there appears any justifiability’s in the conduct of the opposite parties in holding the driver of said vehicle as not possessing a valid driving license and thereby taking it as basis for violation of terms and conditions of policy and on its ground the repudiation of claim. The non response of the opposite party to the Ex.A8 legal notice also casts any amount of doubt on the bonafidies of the repudiation.
15. Hence in sum up, of the above discussion the complaint is allowed directing the opposite party No.1 to pay to the complainant Rs.1,85,657/- with 9% interest from the date of repudiation towards the damage occurred to the insured vehicle during risk period and Rs.2,000/- as costs of this litigation for driving the complainant to the forum for redressal by its repudiation of the claim. The opposite party No.1 shall comply with the award with in a month of the receipt of this order. In default the complainant shall be liberty to proceed against to opposite party No.1 for enforcement of the order by resorting to appropriate legal remedies available under Consumer Protection Act.
16. The case against the opposite party No.2 is dismissed for want of proper cause of action and as the opposite No.2 from the record appears to be a mere proforma party to the case proceedings to gain territorial jurisdiction to this forum for entertaining the complaint.
Dictated to the Stenographer, transcribed by him, corrected and pronounced in the Open bench on this the 6th day of December, 2006.
MEMBER PRRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the Complainants: Nil For the Opposite Parties: Nil
List of Exhibits marked for the complainant:-
Ex.A1 Certified copy of First Information Report (F.I.R.) in 8/2004 of P.S.
Kosigi.
Ex.A2 C.C. Of Charge sheet in No.8/2004.
Ex.A3 Attested xerox copy of Driving License of the Driver D.Farik Basha.
Ex.A4 Estimate of repairs issued by Shivani Automobiles Kurnool to the
vehicle No.AP21/ V 7682.
Ex.A5 Certified copy of conviction U/S. 279 of I.P.C.
Ex.A6 Repudiation letter, Dt:15-06-2005.
Ex.A7 Office copy of letter Dt:26-09-05 of complainant addressed to United
India Insurance Company Ltd., Anantapur
Ex.A8 Office copy of Legal Notice, Dt:Nil of complainant, Advocate to
opposite party No.1.
List of Exhibits marked for the opposite parties:- Nil
MEMBER PRESIDENT
Copy to:
1. Sri. Y. Srinivasulu Advocate, Kurnool.
2. Sri. C.M.K. Ranjani, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
