BEFORE THE DISTRICT CONSUMER FORUM AT NALGONDA

 

       PRESENT:  SRI D.SINGARA CHARY, B.A., LL.B.,

      PRESIDENT.

 

            SMT.CH.A.LATHA KUMARI, M.A.,M.Sc.,LL.M.,

      FEMALE MEMBER.

 

. . .

 

WEDNESDAY, THE SIXTH DAY OF NOVEMBER, 2013

 

CONSUMER COMPLAINT No. 63 OF 2013

 

Date of 1st appearance:   26-08-2013

Date of Disposal:   06-11-2013

 

Between:

 

 

    Devarashetty Bhaskar S/o Saidaiah, Aged: 34 years, 

    Occ: Owner of Indica Car bearing No.AP-24AN-2769,

    R/o Wadapally Village of Damaracherla Mandal,

    Nalgonda District.

 

 

       …COMPLAINANT.

 

 

 

AND

 

 

 

1. United India Insurance Company Limited, represented by its

Senior Branch Manager Sri P.Kanaka Ratnam, Branch Office,

Miryalguda, 18-121/6A, Ashok Nagar, Miryalguda of Nalgonda

District-508 207.

 

2. United India Insurance Company Limited, Registered Office,

24, Whites Road, Chennai-600 014.  Represented by its

Authorized Signatory.

           …OPPOSITE PARTIES.

 

 

This complaint  coming on before us for final disposal on this day, in the presence of Sri P.Narsimha, Advocate for the Complainant, and the Opposite Parties having been set ex-parte, and on perusing the material papers on record, and having stood over for consideration till this day,  the Forum passed the following:

 

 

 

ORDER OF THE FORUM DELIVERED

BY SRI D.SINGARA CHARY, PRESIDENT

 

 

1. The  Complainant  filed  this complaint Under Section 12 of the Consumer Protection Act, 1986  to direct the Opposite Parties to pay a sum of Rs.3,90,000/- towards damages of the car with interest and for other reliefs. 

Contd…2

- 2 -

 

2. The facts leading to the filing of this complaint are as follows:

 

 

The Complainant is the owner of Indica Car bearing No.AP-24AN-2769 and it was insured with the Opposite Party No.1 under the Insurance Policy bearing No.051402/31/11/01/00003248 which is valid from 10-11-2011 to 09-11-2012 and he declared the value of his car at a sum of Rs.4,53,000/-.  It was insured for own damages and third party too.  On 20-06-2012 with the permission of the Complainant, his driver was taking the car along with his friends to Damaracherla Village and when it reached near Veerabhadrapuram Village at about 11-30 p.m., a lorry bearing No.AP-03X-5169 came from Miryalguda side in a rash and negligent manner and dashed against the car, due to which it was completely damaged and four persons were killed and three persons were injured.  The Police, Wadapally registered a case in Crime No.84/2012, U/Ss 304-A and 337 IPC., investigated the matter and filed chargesheet.  The Complainant got estimated the loss caused to the car and it was to the tune of Rs.5,00,000/-.  On the instructions of the Opposite Party No.1, the Complainant moved the vehicle to a nearby crusher mill and the Service Engineers estimated the loss at Rs.5,00,000/-.  On the instructions of the Opposite Party No.1, the Complainant sold the damaged car to one Shankar, Hyderabad and got a sum of Rs.1,10,000/-.  When the claim was lodged intimating all the above facts, the Opposite Parties repudiated it on the ground that the car was transporting seven passengers as against the permissible capacity of five.  The amount for which the car was insured is Rs.4,53,000/- and after deducting a sum of Rs.1,10,000/- realized by way of sale of 

 

Contd…3

 

- 3 -

 

damaged car, the loss sustained comes to Rs.3,43,000/-.  Apart from it, the Complainant had spent a sum of Rs.40,000/- towards life tax of the car.  Therefore, the Complainant claimed a sum of Rs.3,90,000/-.

 

3. In spite of notice to the Opposite Parties, they remained exparte.

 

4. The Complainant filed his proof affidavit and marked Exs.A-1 to A-7.  Heard the learned counsel for the Complainant.

 

5. The point for consideration is:

Whether the Complainant is entitled to damages claimed?

 

 

6. POINT:

 

Ex.A-2, the copy of Insurance Policy shows that the Complainant is the owner of the vehicle in question and the value of the car as declared by the insured is Rs.4,53,000/-.  Ex.A-3 F.I.R. shows that the car was involved in the accident causing death of four persons and injuring three and the car was totally damaged.  Ex.A-6, the copy of R.C. shows that the seating capacity of the vehicle is five.  Ex.A-7 is the Driving Licence of the driver Bixam.  The Charge-Sheet Ex.A-5 shows that the said Bixam was driving the vehicle at the time of the accident and thus it was driven by a person duly licenced to drive the vehicle.  

 

7. The Chargesheet Ex.A-5 and the F.I.R. Ex.A-3 show that the vehicle was transporting seven passengers as against the permissible capacity of five.  

Contd…4

 

- 4 -

 

8. It was on account of transporting more than permissible passengers, the claim was repudiated as seen from Ex.A-1.  In Ex.A-1, the fact that the vehicle was insured with the Opposite Parties is not denied.  The other allegations in the complaint that the vehicle was totally damaged and on sale, the complainant could realize a sum of Rs.1,10,000/- is also not denied.  The vehicle was insured for a sum of Rs.4,53,000/-.  Since the Complainant realized a sum of Rs.1,10,000/- the remaining amount covered is Rs.3,43,000/-. 

 

9. It is to be seen as to whether the entire amount of Rs.3,43,000/- can be awarded.  This Forum in an order delivered in CC.No.34/2011 in similar situation, had awarded 100% of the IDV value of the damaged vehicle where the vehicle was totally damaged in spite of vehicle transporting three extra passengers, i.e. thirteen passengers as against the permissible capacity of ten.  In doing so, this Forum relied on a judgment reported in National Insurance Company Vs.Reena Devi ( 2005 ACJ 1306 ), wherein it was held that transport of excess passengers is no ground to repudiate the claim.  The insurance company carried the matter in an appeal vide F.A.No.521/2012.  The Hon’ble State Commission by its judgment dated 12-09-2013 allowed the appeal in part and awarded only 75% of damages.  The Hon’ble State Commission had deducted 25% of the claim since there was over load of the passengers by relying on a decision reported in Amalendu Sahoo Vs.Oriental Insurance Company Limited ( II (2010) CPJ 9 (SC) ), wherein the guidelines to be followed in such cases were incorporated.  This case is covered by the same situation and as such 25% out of Rs.4,53,000/-  of  the  value  is  to  

 

Contd…5

- 5 -

 

be  rejected  and  remaining 75% can be awarded.  The said amount comes to Rs.3,39,750/-.  Admittedly, the Complainant has realized a sum of Rs.1,10,000/- by sale of the damaged vehicle.  Therefore, the net amount to be awarded towards damages comes to Rs.2,29,750/- and it is rounded to Rs.2,30,000/-.  

 

10. The plea of the Complainant is that he spent a sum of Rs.40,000/- towards life tax and he prays that it should also be awarded.  The same appears to be reasonable.  Therefore, a sum of Rs.40,000/- is awarded towards the amount of life tax.  

 

11. The material shows that the Complainant has shifted the damaged vehicle from the place of the accident to a crusher mill on the instructions of the Insurance Company, as seen from the complaint.  In not settling the claim on the basis of the guidelines of the Hon’ble Supreme Court in the above referred case even on proportionate basis, the Opposite Parties are guilty of deficiency of services.  In CC.No.34/2011 referred to above also this Forum awarded a sum of Rs.25,000/- towards deficiency of services.  The award of Rs.25,000/- towards deficiency of services was confirmed by the Hon’ble State Commission.  Therefore, in this case also, a sum of Rs.25,000/- is to be awarded towards deficiency of services.  Apart from it, a sum of Rs.5,000/- can be awarded towards costs.  

 

In the result, the complaint is allowed in part and the Opposite Parties  are  directed to deposit in this Forum, a sum of Rs.2,70,000/- ( Rupees Two lakh and seventy thousand only )  towards the damages 

 

Contd…6

- 6 -

of the vehicle and life tax and  a sum of  Rs.25,000/- ( Rupees Twenty five thousand only ) towards deficiency of services with interest @ 9% p.a. from the date of the complaint till realization and also costs of Rs.5,000/- (Rupees Five thousand only).  Time for compliance one month.  

 

Dictated to Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum  on this 6th day of November, 2013. 

 

 

 

 

FEMALE MEMBER          PRESIDENT

 

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

For Complainant: For Opposite Parties:

Affidavit of the Complainant.         None.

 

 

EXHIBITS MARKED

 

 

For Complainant:

 

 

Ex.A-1 Dt.30-05-2013 Repudiation Letter.

Ex.A-2 Dt.10-11-2011 Xerox copy of Insurance Policy.

Ex.A-3 Dt.21-06-2012 Xerox copy of F.I.R. in Cr.No.84/2012 of

P.S.Wadapalli.

Ex.A-4 Dt.21-06-2012 Xerox copy of Scene of offence Panchanama.

Ex.A-5 Dt.30-08-2012 Xerox copy of Charge Sheet.

Ex.A-6 Dt.02-12-2011 Xerox copy of Certificate of Registration of

Tata Indica Car bearing No.AP-24AN-2769.

Ex.A-7 Dt.08-03-2011 Xerox copy of Driving Licence.

 

 

For Opposite Parties:

 

 

Nil.

 

 

          PRESIDENT

     DISTRICT CONSUMER FORUM

  NALGONDA

TO

 

 

 

1). Sri P.Narsimha,

     Advocate for the Complainant.

 

2). The Opposite Parties No.1 & 2.