BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Tuesday the 19th day of June, 2012
C.C.No.119/2011
Between:
V.Soma Sekar, S/o V.Ayyanna,
R/o H.No.2-91, Ulindakonda Village - 518 218, Kallur Mandal,
Kurnool District.
…Complainant
-Vs-
1. Baja Allianz General Insurance Company Limited,Rep. by its Branch Manager,
S.V. Complex, R.S. Road, Kurnool - 518 001.
2. Baja Allianz General Insurance Company Limited,Rep. by its Deputy Manager,
4A, Sreeman Rama Towers, 5th Floor, Opp. To Kala Mandir,Dilsuk Nagar, Hyderabad - 500 060.
...Opposite ParTies
This complaint is coming on this day for orders in the presence of Sri M.L.Srinivasa Reddy, Advocate for complainant and Sri L.Hari Hara Natha Reddy, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President) C.C. No.119/2011
1. This complaint is filed under section 12 of C.P. Act, 1986 praying:-
- To direct the opposite parties to pay a sum of Rs.2,60,000/- towards the damages caused to the TATA Magic Vehicle of complainant with interest at 12% per annum from the date of damages caused in accident;
- To award compensation of Rs.5,000/- for causing mental agony and inconvenience suffered by the complainant at the deficient conduct of the opposite parties;
And
- To award costs of Rs.2,000/-;
And
- To pass such other reliefs as the Honourable Forum may deem fit and proper in the circumstance of the case.
2. The case of the complainant in brief is as under:- The complainant was the owner of the TATA Magic Vehicle bearing No.AP21 TV 0501. On 07-04-2010 at 3.15 P.M. when the said vehicle was going on the left side of the road a lorry bearing No.AP37 X 3438 driven by its driver in rash and negligent manner, dashed against the vehicle of the complainant near Tikkatata Swami Temple on N.H-7 Road. As a result the TATA Magic Vehicle of the complainant was completely damaged. The accident was occurred due to rash and negligent driving of the driver of the lorry bearing No.AP37 X 3438. The driver of the TATA Magic Vehicle or the inmates of the vehicle were not responsible in any way for casing the accident. A case was registered against the driver of the lorry. The driver of the lorry was also charge sheeted in C.C.No.268/2010 on the file of JMFC, Dhone. The complainant submitted the claim form to the opposite parties. The surveyor appointed by the opposite parties assessed the loss. The opposite party No.2 informed the complainant that there was violation of policy terms by allowing more persons and the claim was closed. The complainant got issued legal notice to send the surveyors report to the complainant. The opposite parties having received the said notice did not furnish the surveyor’s report nor settled the claim. The reasons given for repudiating the claim is not tenable. The repudiation of the claim of the complainant is arbitrary. Hence the complaint.
3. Opposite party No.2 filed written version and same is adopted by opposite party No.1. It is stated in the written version of opposite party No.2 that the complaint is not maintainable. A policy bearing No.OG-10-1806-1812-00000888 was issued in favour of the complainant. The said policy was valid from 20-11-2009 to 19-11-2010. There is no deficiency of service on the part of the opposite parties. The independent surveyor assessed the loss at Rs.1,36,700/-. The seating capacity of the complainant’s vehicle is six in all. At the time of the accident 13 persons were travelling in the said vehicle. The owner of the vehicle there by violated the terms and conditions of the policy. There is no cause of action to file the complaint. The opposite parties rightly repudiated the claim of the complainant. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A7 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties 1 and 2 Ex.B1 to B5 are marked and sworn affidavit of opposite party No.2 is filed.
5. Both sides filed written arguments.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of Opposite Parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i and ii:- Admittedly the complainant was the owner of the TATA Magic vehicle bearing No.AP21 TV 0501. The said vehicle was insured with the opposite parties under Ex.B1 policy bearing No.OG-10-1806-1812-00000888. The said policy was in force from 20-11-2009 to 19-11-2010. It is the case of the complainant that his vehicle was damaged in the accident that took place at 3.15 P.M. on 07-04-2010 near Tikkatata Swami Temple on N.H – 7 Road. The complainant in his sworn affidavit clearly stated about the damage caused to his vehicle in the accident that took place on 07-04-2010. The complainant also filed Ex.A1 copy of F.I.R. in Crime No.40/2010 of Veldurthi P.S. and Ex.A2 copy of charge sheet in C.C.No.268/2010 on the file of Judicial First Class Magistrate, Dhone. In Exs.A1 and A2 it is clearly mentioned that on 07-04-2010 at about 3.15 P.M. the lorry bearing No.AP37 X 3438 driven by its driver in rash and negligent manner, dashed against the vehicle of the complainant and some of the persons who were travelling in the vehicle of the complainant died. There is no mention in Ex.A2 charge sheet that the accident took place due to the contributory negligence of the driver of the complainant and the driver of the lorry bearing No.AP37 X 3438.
8. Admittedly after the accident the complainant informed about the damage of his vehicle to the opposite parties and the opposite parties appointed an independent surveyor. The surveyor submitted Ex.B4 survey report dated 12-04-2010. Admittedly the complainant submitted the claim form to the opposite parties. Opposite party No.2 sent repudiation letter dated 19-05-2010 to the complainant stating that he violated the terms and conditions of the policy by allowing 13 persons in the vehicle instead of Six persons and that the driver of the Auto also contributed to the accident. As already stated there is no mention in Ex.A2 copy of charge sheet that the driver of Auto of the complainant contributed to the accident. There is satisfactory evidence on record to show that the accident took place due to the rash and negligent driving of the lorry bearing No.AP37 X 3438 by its driver. Ex.B1 is the copy of the policy issued by the opposite parties in favour of the complainant. It is clearly mentioned in Ex.B1 that the seating capacity of vehicle of the complainant is Six. Admittedly at the time of the accident 13 persons were there in the vehicle of the complainant. It is submitted by the learned counsel appearing for opposite parties that at the time of the accident 13 persons were there in the auto, that the driver and owner of the said vehicle violated the terms and conditions of the policy and that the opposite parties are not liable to pay any amount to the complainant. On the other hand it is submitted by the learned counsel appearing for the complainant that the cause of accident is not attributable to excess passengers carried by the Auto and that the insurance company is liable to pay compensation to the complainant. In support of his contention he relied on a decision reported in 2000 CCJ 444, where in Honourable National Consumer Disputes Redressal Commission, New Delhi held that there is nothing to show that the cause of action was attributable to excess passengers and that the insurance company was deficient in its service in repudiating the claim. In the present case also there is ample evidence on record to show that the accident took place due to rash and negligent driving of the lorry bearing No.AP37 X 3438 by its driver. The lorry came in opposite direction and dashed against the Auto of the complainant on 07-04-2010 and as a result the vehicle of the complainant was damaged. No doubt there were excess passengers at the time of the accident, but the cause of accident was not due to excess passengers in the Auto.
9. The learned counsel appearing for the opposite parties cited the following the decisions:
1. S.G.Shivamurtheppa – Vs- Reliance General Insurance Company Limited I (2012) CPJ 175 (NC) in Revision Petition No.3176/2011 decided on 28-11-2011.
2. National Insurance Company Limited APMC Yard Branch through Manager –Vs- Suresh Babu Agriculturist and Karnataka State Financial Corporation through its Branch Office I (2007) CPJ 23 (NC).
The facts of the present case are entirely different from the facts of the cases cited above by the learned counsel appearing for the opposite parties. In the said decision the accident occurred not due to the negligent driving of opposite coming vehicle. In the present on the hand the vehicle of the complainant was damaged in the accident caused due to the negligent driving of the lorry by its driver. Merely because there were 13 passengers in the vehicle of the complainant at the time of the accident, the opposite parties cannot escape their liability. The accident took place for no fault of the complainant and his driver. The opposite parties did not place any document evidence to show that the driver of the complainant also contributed to the accident. As the accident took place due to the negligent driving of the lorry, the repudiation of the claim of the complainant by the opposite parties is not just and reasonable. There is deficiency of service on the part of opposite parties. The surveyor appointed by the opposite parties assessed the net loss at Rs.1,36,700/. The opposite parties are liable to pay said amount to the complainant.
10. In the result, the complaint is partly allowed directing the opposite parties 1 and 2 jointly and severally to pay Rs.1,36,700/- with interest at 9% from the date of repudiation of the claim i.e., 19-05-2010 till the date of payment along with costs of Rs.500/-.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 19th day of June, 2012.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of F.I.R. in Crime No.40/2010 Veldurthi P.S.
Dhone Mandal Kurnool District dated 07-04-2010.
Ex.A2. Photo copy of Charge Sheet filed on behalf of Judicial
First Class Magistrate Dhone dated 22-06-2010.
Ex.A3 Certificate Cum Policy bearing
No.OG-10-1806-1812-00000888.
Ex.A4 Repudiation Letter dated 19-05-2010.
Ex.A5 Legal Notice issued by complainant to opposite parties
dated 14-11-2010.
Ex.A6 Postal Acknowledgement.
Ex.A7 Postal Acknowledgement.
List of exhibits marked for the opposite parties:-
Ex.B1 Photo copy of Policy bearing
No.OG-10-1806-1812-00000888 along with
terms and conditions.
Ex.B2 Photo copy of RC and Permit of the vehicle
No.AP 21 TV 0501.
Ex.B3 Motor Insurance Claim Form submitted by the
complainant.
Ex.B4 Photo copy of Preliminary Survey Report
dated 12-04-2010.
Ex.B5 Photo copy of Repudiation Letter dated 19-05-2010.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
