Andhra Pradesh

Nellore

CC/53/2014

M/S Guru Raghavendra Infrastructures Rep by its Prop.D.V.Krishnareddy - Complainant(s)

Versus

1.The Manager, Bajaj Allianz General Insurance Company Limited. - Opp.Party(s)

D.Dhamareswar, Sk.Abdul Samth

21 Aug 2017

ORDER

 

Date of Filing     :21-07-2014

                                                                                                Date of Disposal:21-08-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 21^st  day of   AUGUST, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                    Sri K. Umamaheswara Rao, M.A., B.L., Member

                            Sri M. Subbarayudu Naidu, B.Com., B.L., LL.M., Member

 

C.C.No.53/2014

 

Guru Raghavendra Infrastructures,

Represented by it’s Proprietor:D.V.Krishna Reddy,

Hindu, Aged about 47 years,

Navalakula Gardens, Near N.H.5,

Nellore, S.P.S.R.Nellore District.                                                       ..… Complainant

                                                                           Vs.

 

1.	The Manager, Bajaj Allianz General Insurance Company Limited, Ist floor, Opposite  Chinni International Hotel, Indirabhavan Road, Nellore, S.P.S.R.Nellore District.
2.	The Manager, Bajaj Allianz General Insurance  Company Limited,  D.No.40-1-9, M.C.Road, Vijayawada-520010.                                                              ..…Opposite parties

                                                              .  

            This complaint coming on 11-08-2017 before us for hearing in the presence of                Sri D. Dhamareswar and Sri Sk. Abdul Samth, advocates for the complainant and                                                       Sri P.V. Mallikarjuna Reddy,   advocate for the opposite parties  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

            The complainant filed this complaint under Section-12 of  Consumer  Protection Act, 1986 for awarding damages of Rs.12,87,566/- with interest at 12% p.a. from the date of the accident i.e., 03-09-2013 till the payment  towards damages caused to the vehicle and  concrete mixer, to award damages of Rs.50,000/- towards causing mental agony and to award costs of Rs.5,000/-  and submits  to allow the  complaint with costs.

 

            2.         The brief averments of the complaint are as follows:

                        The  complainant is the registered owner of the  Goods  Carriage Vehicle  bearing registration No.A.P-26-TA-8608 and the said   vehicle and  concrete mixer  are duly insured with the opposite parties under valid insurance policy bearing No.OG-13-1515-1811-00000168  for the period  from 13-12-2012 to 12-12-2013.  The complainant submits that when the said policy was inforce on the night of   03-09-2013 at about              2-00 p.m. near Tada and the driver of the  carriage goods vehicle bearing No.A.P.-26-TA-8608  was proceeding from  Naidupet   to Tada Mandalam for the  supply of   concrete to  Sri City Concrete Mixture,  the driver lost control over the said  vehicle and due to his accident, the vehicle  was turned turtle  due to which the vehicle  and concrete mixer were badly damaged and immediately the same was informed to the opposite party and one Sri Sridhar   conducted spot survey and submitted his report to the opposite parties.  The complainant submits that he took the said damaged vehicle from the accident place to Sri Venkata Ramana Lorry Mechanical Works,  Auto Nagar, Nellore   and concrete  mixer  to Schwing Stetter .  The complainant further submits that  the Sri Venkata Ramana Lorry Mechanical Works given estimation ofRs.2,38,700/-   and Schwing Stetter given estimation for concrete mixer a sum of Rs.10,48,866/-  and total for Rs.12,87,566/- and got affected the repaired  of the said vehicle and concrete mixer by spending a sum of Rs.12,87,566/- by the complainant.

 

 3.     The complainant further submits  that the claim form to the opposite party for payment of Rs.12,87,566/- as per the invoice issued by the said Sri Venkata  Ramana Lorry Mechanical Works, AutoNagar, Nellore and  concrete mixer to Schwing Stetter.  The complainant further submits that after submitting  claim to the opposite parties  and then both i.e., complainant and opposite parties are reached for a sum of  Rs.6,00,000/- as mutually  negotiated full and final settlement excluding the value of damaged vehicle and which will be retained by the complainant.  But the opposite party    repudiated the claim by his letter dated 21-12-2013 on the ground that the driver of the said Goods Carriage Vehicle bearing registration  No.A.P.-26-TA-8608, who drove the  vehicle at the time of  the accident was not holding valid driving license and the driving license produced before them is a fake one.  The complainant of the vehicle   and concrete mixer has no knowledge whether the driver has faked driving  license or  approval license.  The complainant further submits that on seeing the license, he came to know that it is original and given vehicle to the driver to test for driving and he drive the vehicle  properly.

 

4.         The complainant submits  that at the time of the accident, the driver was holding  a valid driving license   and as per the terms  of the policy, the opposite party has to pay a sum of Rs.12,87,566/-  and as the opposite party did not pay the said amount.  The complainant filed this complaint against the opposite parties for grant of damages of Rs.12,87,566/-  with interest   at the rate of 12% p.a., and  Rs.50,000/- for causing mental agony and Rs.5,000/- towards costs of the complaint and submits to allow the complaint with costs.

 

5.         The 1^st  opposite party  filed written version with the following  averments:

                        It is submitted that  after receipt of claim intimation, opposite parties   have deputed the IRDA licensed surveyor to assess the loss,  said surveyor has inspected the insured vehicle physically and submitted the survey report and thereby assessed the loss to the  tune  of Rs.7,83,408/-  subject  to terms   and conditions of the policy after considering the depreciation as per terms and conditions of the policy.

 

                 The opposite party submits that as per the  documents filed by the opposite party which reveals that the  driver of the said vehicle bearing registration                 No.A.P.-26-TA-8608 is not having valid driving  license at the time of accident and that the said driver by name S. Madhu, S/o.Bhagavan was possessing  driving license bearing No.DLEAP024122442012  issued by RTA Nandayal, Kurnool District.  This opposite party  got issued registered letter to the RTA, Nandyal for verification  of DL.  The concern RTO authority   confirmed that no driving license with bearing No.DLEAP024122442012  by name S. Madhu, S/o.Bhagavan issued by RTO Nandyal.  After receipt of information from concern RTA, this opposite party  came to know   that the driver having fake  driving  license as on date of accident.  Hence same is violation of Section-3  of Motor Vehicles Act and terms and conditions of the policy.  Therefore complaint is deserved to be dismissed with costs.  As the driver of the vehicle is not valid and effective driving license at the time of the accident, the complainant is not entitled for damages and submits for dismissal of the complaint against the opposite parties 1 and 2.

 

6.         The opposite party No.2 did not file any written version.

 

7.         On behalf of the  complainant, chief affidavit of  complainant as P.W.1  received in evidence  and Exs.A1 to A7 marked.

 

8.         On behalf of the opposite party No.1, R.W.1  was examined   and Exs.B1 to B6 were marked.   The affidavit   of the surveyor is received  as the evidence of R.W.2.

 

9.         Ex.A1 is photo copy of  insurance policy, Ex.A2 is the photo copy of registration certificate, Ex.A3 is the notice issued to the  complainant, Ex.A4   are the estimation bills, Ex.A5 is the letter, Ex.A6 is the photo copy of the driving license  of driver and Ex.A7 is blank consent paper.  ExB1 is policy copy, Ex.B2 is surveyor report, Ex.B3 is photo copy of driving license,  Ex.B4 is letter cum RTO, Nandyala, Ex.B5 is letter   from the opposite parties dated 21-12-2013 addressed  to the complainant and Ex.B6 is served postal acknowledgement.

 

10.       Arguments on behalf of learned counsels for  both parties heard.

 

11.       Written Arguments on behalf of both parties  filed.

 

12.       Now the points  for consideration are:

1.    Whether the complainant is a Consumer of opposite parties 1 and 2?
2.     Whether the complainant is entitled for  compensation / damages as   

     prayed for?

 

3.      To what relief,  the complainant is entitled?

           

             13.      POINT No.1: The learned counsel  for complainant submits by relying   upon the evidence  of P.W.1  and Exs.A1 to A7 that  the lorry was  insured  with the opposite parties  and Ex.A1 and B1 policy was inforce as on the date of the accident and hence  as the opposite parties failed to pay the damages caused to  lorry bearing No.A.P.-26-TA-8608 and inspite of  issuing of legal notice as the opposite parties failed to pay damages, the complainant filed this complaint against  the opposite parties and submits to allow the complaint by awarding damages in  favour of  complainant and submits to allow the complaint with costs.

 

14.       On the other  hand, the learned counsel for the opposite party submits that there is no relationship of Consumer  between  complainant  and  the opposite parties and hence he submits that the complaint  filed by the complainant against the opposite parties is not maintainable and submits for  dismissal of the complaint against the opposite parties.

 

            15.       In view of the arguments submitted by the learned counsels   for  both parties and as seen from the records, there is no dispute about the issuing of Ex.A1 and Ex.B1 policy in favour of the complainant for the goods carriage vehicle  bearing registration No.A.P.-26-TA-8608.  The complainant  by paying  the premium amount hired and  availed the services  of the opposite parties under Ex.A1.  In

 

(1)	Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, AIR 2000 SC 331

 

 

Wherein the  Hon’ble Apex  Court held as follows that  Beneficiary for  whose benefit the services are hired or availed of, is a Consumer within the meaning of Section   2 (1) (d) (ii),

 

(2)	In 1991(2) CPR 144 (N.C.), the Hon’ble National Commission held  that  insurance policy holder are held to be Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
(3)	In  Cholamandalam  Investment and Finance Company Limited Vs. Kamal Singh reported in I (2011) C.P.J. 146 (H.P.)

Wherein,  it is held  that when  the complainant purchased vehicle for self employment as there is no commercial purpose,  complainant is  a Consumer. 

 

In   Snow View Automobiles Private Limited Vs.  Harpreet Singh reported in I (2012) CPJ 141 (H.P.)

 

Wherein, it is held that when no evidence was adduced  that the complainant purchased the vehicle for commercial purpose,  the contention of the  opposite party  cannot be  accepted. 

 

16.       Following the above decisions as the  complainant purchased  vehicle for self employment and as there is no evidence on behalf of  the opposite party  that the vehicle  was used for commercial purpose,  the contention of  opposite party that complainant is not the consumer cannot be accepted.  By relying upon the above decisions and discussions made above, we are of the view  that the complainant is the Consumer and the opposite parties did not  extend any way  and  the  act of the  opposite parties  is amounts to deficiency in service.   In view of the above said discussion, we answer this point in favour of the complainant and against the opposite parties.

 

            17.       POINT No.2:  The learned counsel for  complainant submits by relying  upon a decision reported in  Lal chand Vs. Oriental Insurance Company Limited reported in 2007 (1) ALD 16 (S.C.) that  as the opposite parties  failed to prove  that the complainant  has not taken any due care  and failed to exercise  reasonable care in the matter of fulfilling  condition of policy regarding  use of  vehicle by a  duly licensed

 

 

 

driver or one who was not disqualified to drive at relevant time and hence the complainant is entitled  for damages and submits   to allow the complaint.

                                                                                                                                               

                        On the other hand, the learned counsel for the opposite party submits  by relying upon Ex.B3 and Ex.B4 that the driver of the vehicle is not having driving license and hence as there is violation of policy.  The complainant is not entitled for any damages from the opposite parties and submits  for dismissal of the complaint  against the opposite parties. 

 

            In view of the arguments submitted by the  learned counsels for both parties as  there is no dispute about the policy  and as the policy is in force   as on the date of the accident, the opposite parties are  liable to pay damages to the complainant.

 

.	In National  Insurance Company Limited Vs. Swaran Singh and others reported in 2004 (2) ALD 36 (SC),

 

Wherein, the  Hon’ble Apex Court held that mere absence, fake or  invalid  driving license or disqualifications of the driver for driving   at the relevant time, are not in themselves  defenses available to the insurer against either  the insured  or their parties. In

Lal chand Vs. Oriental Insurance Company Limited reported in 2007 (1) ALD 16 (S.C.)

 

Wherein the  Apex Court held that, to  avoid it’s liability  towards insured, insurer has to prove that insured was  guilty of negligence and failed to  exercise  reasonable care in matter of  fulfilling condition of policy regarding   use of  vehicle by a duly licensed driver or one who was not disqualified  to drive at relevant time. 

 

In   National Insurance  Company Limited, Represented by it’s  Divisional Manager, Ongole Vs.  Parital Venkateswarlu and another reported in 2008 (4) ALT 521(A.P.)

 

Wherein, the  Hon’ble High Court of Andhra Pradesh, the insurer  can absolve its liability only when it was   an admitted case  that the driver did not hold any license at all and the  owner allowed consciously, the  said driver to drive the vehicle. 

 

 

 

              By  relying upon the above decisions,  we are of the opinion that there is no evidence on record to say that the complainant , who is the owner of the vehicle consciously allowed the driver to drive the vehicle,  having known that the  driver is not having any driving license.

 

  By relying upon the  above decisions as the complainant has no knowledge about the driving license of the driver,  we are of the opinion that  rejecting the claim of the  complainant is not correct and hence the complainant is entitled for damages.  Though complainant submits that he is entitled for damages of Rs.12,87,566/- but as per the evidence of R.W.2 surveyor, there was  damage of Rs.8,21,801.00.  Hence by relying evidence of R.W.2  Surveyor, we are of the opinion that the complainant is entitled to damages of Rs.8,21,801/-.  By relying upon the abov decisions   and the discussion made  above, we answer this point  in favour of the complainant and against the opposite parties 1 and 2.

 

18.       POINT NO.3:   In view   of our answering on points 1 and 2 in favour of  complainant and against the opposite parties 1 and 2, the complaint filed by the complainant has to be allowed partly.

 

            In the result,  the complaint is allowed partly awarding damages of Rs.8,21,801/- (Rupees eight lakhs twenty one thousand eight hundred and one only) by awarding interest  12percent p.a. on Rs.8,21,801/-   from the date of the accident i.e., from 03-09-2013 till the payment and the opposite parties are directed to pay amount within 30 days (one month) after the communication of the order.

                     The complainant is awarded damages of Rs.10,000/- (Rupees ten thousand only)  for causing mental agony  by the opposite parties 1 and 2.

        The complainant is also awarded costs of Rs.5,000/- (Rupees five  thousand only). 

         The opposite parties are directed to comply the order within 30 days (one month) on receipt of the communication of the order.

                     Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the 21^st   day of  AUGUST, 2017.

 

 

        Sd/-                                               Sd/-                                           Sd/-

      MEMBER                                MEMBER                                PRESIDENT

           

APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

10-03-2015

Sri D.V. Krishna Reddy, S/o.Lakshmi Reddy, Guru Raghavendra Infrastructures, S.P.S.R. Nellore  District. (Affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -	21-10-2015             and  08-07-2015	Sri Chandra Sekhar, S/o.Rama Rao, Working as Executive Legal in Bajaj Allianz General Insurance Company Limited.(Proof Affidavit and Additional Proof filed)
R.W.2  -	02-12-2015	Sri M. Sreekhar, S/o.Venkaiah,  Independent Licensed Surveyor cum Loss Assessor approved by I.R.D.A., Nellore District. (Affidavit filed)

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -		Photostat copy of Certificate cum Policy Schedule  in No.OG-13-1515-1811-00000168 and in registration No.AP26TA8608 in favour of complainant issued by the opposite party.
Ex.A2  -	23-12-2011	Photostat copy of Registration Certificate  in favour of complainant issued by the Regional Transport Authority, Nellore.
Ex.A3  -	21-12-2013	Photostat copy of  letter from opposite party to the complainant.
Ex.A4  -	06-09-2013	Three Estimation Bills.
Ex.A5  -	06-09-2013	Photostat copy of  letter from  Schwing  Stetter to the complainant.
Ex.A6  -		Photostat copy of the driving license No.DLEAP024122442012  of Madhu.
Ex.A7  -		Copy of Consent Letter-Cash  Loss Excluding Damaged Vehicle.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -		Certificate cum Police Schedule in policy No.OG-13-1515-1811-00000168 and in registration No.AP26TA8608 in favour of complainant issued by the opposite party.
Ex.B2  -	24-09-2013	Private and Confidential Motor Survey Report SPOT  in favour of complainant issued by  Sri M. Sreekhar, Surveyor cum Loss Assessor, Nellore-524 002 (A.P.)

 

Ex.B3  -		Photostat copy of the driving license No.DLEAP024122442012  of Madhu.
Ex.B4  -	29-11-2013	Letter from Regional Transport Officer, Nandyala to the Branch Manger, Bajaj Allianz General Insurance Company, Hyderabad.
Ex.B5  -	21-12-2013	Letter from the opposite parties to the complainant alongwith one registered post receipt.
Ex.B6  -		Served postal acknowledgement received from the complainant sent by the opposite party No.2.

 

 

                                                                                                                                                                                                                                       

                                                        Id/-

                                                                                                                     PRESIDENT

 

Copies to:

 

1.	Sri D. Dhamareswar and Sri Sk. Abdul Samath, Advocates, Nellore.
2.	Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Military Colony, 1st Line, Dargamita, Nellore-524 004.

Date when free copy was issued: