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M/S Guru Raghavendra Infrastructures Rep by its Prop.D.V.Krishnareddy filed a consumer case on 21 Aug 2017 against 1.The Manager, Bajaj Allianz General Insurance Company Limited. in the Nellore Consumer Court. The case no is CC/53/2014 and the judgment uploaded on 22 Aug 2017.
Date of Filing :21-07-2014
Date of Disposal:21-08-2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE
Monday, this the 21st 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
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.
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2. | The Manager, Bajaj Allianz General Insurance Company Limited, D.No.40-1-9, M.C.Road, Vijayawada-520010. ..…Opposite parties |
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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 1st 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:
prayed for?
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.
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(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 21st 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)
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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.
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Ex.A2 - | 23-12-2011 | Photostat copy of Registration Certificate in favour of complainant issued by the Regional Transport Authority, Nellore.
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Ex.A3 - | 21-12-2013 | Photostat copy of letter from opposite party to the complainant.
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Ex.A4 - | 06-09-2013 | Three Estimation Bills.
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Ex.A5 - | 06-09-2013 | Photostat copy of letter from Schwing Stetter to the complainant.
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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.
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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.)
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Ex.B3 - |
| Photostat copy of the driving license No.DLEAP024122442012 of Madhu.
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Ex.B4 - | 29-11-2013 | Letter from Regional Transport Officer, Nandyala to the Branch Manger, Bajaj Allianz General Insurance Company, Hyderabad.
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Ex.B5 - | 21-12-2013 | Letter from the opposite parties to the complainant alongwith one registered post receipt.
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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.
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2. | Sri P.V. Mallikarjuna Reddy, Advocate, 24/2/1456, Military Colony, 1st Line, Dargamita, Nellore-524 004.
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Date when free copy was issued:
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