SRI G.APPALA NAIDU, MEMBER

O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act, 1986 seeking the reliefs directing the O.Ps. 1 to 4 jointly and severally to pay an amount of Rs.6,63,775/- together with interest at 24% p.a., from the date of filing the complaint till the date of realization, to pay an amount of Rs.3,00,000/- towards the loss, pain, suffering, mental agony sustained by the complainant for the acts and deeds of the O.Ps. 1 to 3, to pay an amount of Rs.60,000/- towards the loss of income to the complainant, to pay costs of the complaint and to grant any other relief or reliefs, which the Hon’ble Forum deems fit and proper in the circumstances and facts of the complaint on the following averments:

            The complainant and O.P.No.4 are the residents of Salur and the O.P.No.1 is the Head Office of Bajaj Allianze General Insurance Company, the O.P.No.2 is the policy serving office and the O.P.No.3 is the office of the said company in Salur.  The complainant submits that he is the absolute owner of the lorry bearing Registration No.AP 35 V 9927 which was purchased by the complainant to eke out his livelihood and also that of his family members.  Based on the request of the O.P.No. 1 to 3 personnel and on the confidence inspired by them, the complainant inclined to insure the aforesaid vehicle by paying the insurance premium with the        assurance, undertaking, promise from the personnel of the said O.Ps that best possible services like attending the claims if any or indemnifying the loss of the complainant sustained if any for the said lorry in all the ways.  The O.P.No.3 issued the Insurance Policy bearing No. G-13-1819-1803-00000342 which is in force from 5^th day of July, 2012 to 4^th day of July 2013.

            While it is so the complainant engaged a driver i.e., O.P.No.4 for the said vehicle.  When the said lorry was coming from Raipur to Visakhapatnam on 10^th day of January, 2013, unfortunately it met with an accident at Bhanpur Village within the limits of Bhanpur Police Station who registered a crime for the same bearing Crime No.6 /2013 Under Section 279, 337 IPC.  Immediately the said untoward incident was informed to the personnel of the O.P.No.1 to 3 based on which surveyor of O.Ps. 1 to 3 visited the aforesaid lorry for assessment of the loss and later on as per their instructions the said vehicle was shifted to Vijayawada for getting the same repaired in the best possible manner which was also informed to the personnel of O.P.No.1 to 3 and as such again, the surveyor of the O.P.No.1 to 3 visited the said lorry and obtained photographs and received the estimation of the repairs and the bills for getting the said vehicle repaired by promising the complainant to indemnify the entire claim pertaining to the said vehicle based on repairs.  Inspite of repeated demands and requests made by the complainant there is no response from the side of O.Ps.1 to 3 which is nothing but deficiency in service on their part.   However after repeated demands and requests from the complainant, the personnel of O.Ps.1 to 3 requested and also informed the  complainant to pay the amounts required for getting the lorry repaired so that the said bill amount paid by the complainant will be reimbursed to the complainant within a short period as the process will take some more time.

            Believing the words of O.Ps. 1 to 3 and their personnel, the complainant got the said vehicle repaired by spending an amount of Rs.6,26,275/- by borrowing amounts from public and private financiers and submitted all the records, bills, reports, photographs and other necessary information as per the instructions of the O.Ps. 1 to 3 in order to get the claim amount.  However, the O.Ps failed to settle the claim, though they are liable to pay the entire claim amount together with interest.  Due to non-settlement of the said claim the complainant sustained heavy loss, suffering, mental agony, pain and so on, which cannot be compensated in any manner whatsoever due to the clear deficiency of service on the part of O.Ps.  Further the said lorry was stationed for about 3 months and the complainant could not cope-up with his livelihood and also that of his family. Further the complainant was forced to borrow huge amounts to sustain his living apart from the borrowings to meet the repair amount of aforesaid vehicle and as such the O.Ps are also liable to pay an amount of Rs.60,000/- to the complainant.  Hence, the complaint filed seeking the said reliefs from the O.Ps.

Counter filed by the O.Ps. 1 to 3 denying the allegations leveled by the complainant except those which are specifically admitted therein and puts the complainant to strict proof of the same. 

It is stated that as seen from the documents submitted by the complainant it was observed that the vehicle was met with an accident on 10-1-2013 and as per FIR the complainant gave complaint to Bhanpur Police Station.  However, the seating capacity of the said vehicle is 3 only as per the policy issued to the insured / complainant, whereas 4 persons were travelling in the said vehicle at the material time of accident with the consent of complainant and thus the conditions of the policy have been violated by the complainant / insured.  Further as seen from the Criminal Case records there are 4 passengers travelling in the said lorry against the seating capacity hampering the efficiency of driver which ultimately contributed to the accident.  It is further submitted that the said vehicle is designed for carrying of maximum 3 persons legally as well as by the manufacturer but the complainant deliberately subjected the vehicle to over loading beyond its seating capacity and therefore the complainant failed to take reasonable care and directly contributed to the loss and hence the O.Ps are in no way liable for the deliberate violations of conditions of the policy committed by the complainant and for that reason the O.Ps repudiated the claim of the complainant.

It is further submitted that since the driver of the crime vehicle drove the said vehicle without having any sort of driving license by the time of the alleged accident and the complainant knowingly and wilfully handed over the possession of the insured vehicle to his driver who was not having any sort of driving license and hence the complainant thereby violated the terms and conditions of the insurance policy and the M.V.Act and Rules framed thereon.  Therefore, the case against these O.Ps insurance company is not maintainable and is liable to be dismissed in limini.

            It is also stated that on intimation, the respondent Insurance Company appointed an IRDA approved surveyor who assessed damages to the tune of Rs.3,95,000/- and in no way the respondents are liable to pay such exemplary amounts as asked by the insured.

            Further the O.P is the custodian of public money and it is under obligation to distribute this money as per the genuine requirement obeying the policy conditions.  In this case there has been a clear breach of policy conditions for which this insurance company cannot be held liable to pay.  It is further submitted that the insurance is based on a contract of good faith and trust but the conduct of the complainant is in utter violation of insurance policy.  The complainant deliberately deprived the O.P to establish the facts relating to the reported loss needed to establish the admissibility of the claim.  Since there is no cause of action and the complaint is a false, frivolous and vexations, the case against the O.Ps  is liable to be dismissed with exemplary costs in the interest of justice.

Ex.A.1 to A.4 are marked on behalf of the complainant and Ex.B.1 to Ex.B.6 are marked on behalf of O.Ps.  O.P.No.4 was called absent. Heard arguments. Posted for orders.  The orders are as follows:

              The counsel for both the parties advanced their arguments vehemently by reiterating what they have stated in the complaint, counter, evidence affidavits and brief written arguments respectively.   In addition to the above, evidence affidavit of P.W.1 and P.W.2 are also filed and evidence affidavit of R.Ws 1 and 2 filed.

            The contention by the O.P’s that the driver of the crime vehicle over loaded the vehicle is denied by the complainant.  The complainant also stated that the allegations of the O.Ps are totally false and not correct, since the driver was proceeding with limited speed and permitted persons only, while at the time of occurrence of the accident.  It is his further contention that the criminal case filed against the 4^th O.P. i.e., driver of the said crime vehicle is also ended with acquittal holding that nothing is established against the accused driver and hence the accused was acquitted  as per the benefit of doubt by the concerned court.  The complainant also further contended that he obtained the insurance policy from the respondent which was in force by the time of the accident and the surveyor appointed by the insurance company as per IRDA regulations visited the vehicle and assessed the damage / loss to the extent of Rs.3,95,000/- even though the complainant incurred an amount of Rs.6,26,275/-  for the repairs undertaken for the vehicle and hence they are liable to pay the amount incurred for the repairs with interest from the date of complaint till the date of realisation and also pay further amount of Rs.3 Lakhs towards loss, pain, suffering and mental agony sustained by the complainant in addition to an amount of Rs.60,000/- towards loss of income as the vehicle was kept idle for about 3 months.

            The main contention of the O.Ps.1 to 3 is that 4^th O.P. was called absent the driver of the vehicle overloaded the vehicle with 4 persons instead of permitted 3 persons at the time of accident which hampered the efficiency of the driving and also that the driver is not having valid driving license, which contributed to the said accident since the complainant deliberately violated the terms and conditions of the policy, which is based on faith and trust.

 In support of their contention, the O.P’s submitted the following

Citations:-   (1)   MAHARASHTRA STATE COMMISSION in the first appeal No.93 of 1999 in Consumer Complaint No.92 of 1997 between S.G.Desai KothawaleChawl Vs. The Branch Manager, New India Assurance Co.Ltd and Another held on 20-7-2009.

( 2 )  NATIONAL COMMISSION, NEW DELHI IN THE REVISION PETITION NO.469 OF 2010 (FROM ORDER DT.19-11-2009 IN APPEAL NO.305 OF 2009 OF THE SATE COMMISSION, RAJASTHAN)  BETWEEN NEW INDIA ASSURANCE CO.LTD VS. SMT. MOHANBAI HELD ON 9-8-2011. 

(3)  NATIONAL COMMISSION IN THE FIRST APPEAL NO.288 OF 2005 AGAINST THE ORDER DT.15-4-2005 IN COMPLAINT NO.12/2004 OF UTTARANCHAL STATE COMMISSION, DEHRADUN BETWEEN NEW INDIA ASSURANCE CO.LTD., VS. SRI PAWAN KUMAR TAKKAR, PRONOUNCED ON 29-1-2010 BY REFERRING TO THE CASE OF NATIONAL INSURANCE CO.LTD AND ANOTHER Vs. SURESH BABU AND ANOTHER                         [ I (2007) CPJ 23 (NC) WHICH WAS ALSO DECIDED BY THE NATIONAL COMMISSION.

 (4) NATIONAL COMMISSION IN R.P.NO.2656 OF 2006 (FROM ORDER DATED 31-5-2006 IN APPEAL / COMPLAINT NO.1607 OF 2004 OF KARNATAKA STATE COMMISSION) BETWEEN ORIENTAL INSURANCE COMPANY LIMITED VS. B.A.NAGESH pronounced on 18-8-2010.

(5)  TAMIL NADU STATE COMMISSION IN ITS ORDER DT.25-4-2007 IN A.P.NO.13 OF 2004 CPJ ((MAY) (2009) II, 350 BETWEEN THE UNITED INDIA INSURANCE COMPANY LTD., Vs. S.N.GARAJAN.

(6)  NATIONAL COMMISSION IN THE R.P.NO.762 OF 2012 [ AGAINST THE ORDER DT.                29-11-2011 IN APPEAL NO.362 OF 2010 OF TAMIL NADU STATE COMMISSION] BETWEEN S.R.MURALIDHARAN Vs.NEW INDIA ASSURANCE CO.LTD., PRONOUNCED ON 6-7-2012

(7) NATIONAL COMMISSION IN R.P.No.3176 OF 2011 [ FROM THE ORDER DT.17-3-2011 IN APPEAL No.2925 OF 2010 OF KARNATAKA STATE COMMISSION] BETWEEN S.G.SHIVAMURTHEPPA Vs. RELIANCE GENERAL INSURANCE CO.LTD., PRONOUNCED ON 28-11-2011.

(8)  NATIONAL COMMISSION IN THE R.P.No.2636 OF 2010 [ FROM THE ORDER DATED  16-4-2010 IN APPEALNO.71 OF 2007 OF A.P.STATE COMMISSION ] BETWEEN NATIONAL INSURANCE CO.LTD., Vs. Ms.Usha Devi pronounced on 13-7-2011.

(9)  NATIONAL COMMISSION – MANU/CF/0320/2006 – EQUIVALENT CITATION: I (2007) CPJ 23 (NC) IN THE 1^ST APPEAL No.166 of 2003 between National Insurance Co.Ltd., Vs.Suresh Babu, Agriculturist and Karnataka State Financial Corporation decided on 3-11-2006: 

            However the principles laid down in the above citations are not applicable in the case on hand due to the following reasons.

          Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for ?

As seen from the principles laid down in the decisions cited supra if there is ample evidence to prove that accident occurred due to over loading then only insurer gets right to repudiate the contract and to disentitle the insured from making claim of compensation.  But coming to case on hand there is no cogent evidence produced to believe that the vehicle was overloaded and the accident was occurred due to such overloading.  The material placed on record clearly reveals that a surveyor was appointed by the O.Ps to visit the place of accident and to know the cause for accident and to assess damages.  One Sri A.V.S.C. Bose was appointed as Surveyor who visited the place of accident and submitted his report which is Ex.B.4.  Since the O.Ps themselves have appointed the above surveyor, his report is binding on them.  As per his report while the insured vehicle was proceeding towards Vizag from Raipur and reached the place of accident, a vehicle was found coming in the opposite direction being driven by its driver in a rash and negligent manner at a high speed in wrong route from left and as such by noticing and to avoid collision, insured driver applied brakes and steered towards right and as he lost control of the vehicle, the vehicle skidded and rushed to right and dashed a road side tree.   But the above said report does not disclose that due to overloading the said accident was occurred.  As per the report of the above surveyor the seating capacity of accident vehicle is 3 in all.  But as seen from the above said report driver, cleaner and two other passengers were in the said vehicle at the time of accident.  No evidence is forthcoming to believe that as the driver of the said vehicle allowed one more person to sit in the cabin along with them when the said accident was occurred.  Allowing one more person to be in the cabin is not the cause for the accident.  Hence, in above said facts and circumstances we are of the considered opinion that the O.Ps are not entitled to repudiate the contract and to disentitle the complainant to make claim of compensation.

            Further Points:-  1 )   Perusal of the material placed on record reveals that the complainant obtained a valid insurance policy which was in force at the time of accident and the 4^th respondent i.e., Boni Naga Raju, driver was issued the driving licence for LMV, HGV for the first time on 27-11-97 which was subsequently renewed and valid upto 26-11-2017 as per Ex.A.8. 

2)    As per the chief affidavit filed by P.W.2 i.e., Sri Lenka Rajesh S/o Narsing resident of Similiguda, Gandhinagar, Koraput it is evident that the police registered the crime and found that at the time of the said accident there are only 2 persons including the driver in the said lorry. 

3)     Perusal of the crime No.6/2013 in C.C.92/2013 before the Hon’ble Additional Judicial First Class Magistrate, Basthar, Jagadalpur which was ordered dated             14-2-2013, it is established that (as per the 3 witnesses examined) when the driver of the vehicle was trying to save the cow on the road / National highway at Bhanupur Village, dashed against a mango tree on the road side and caused accident and also further found in the enquiry that the driver was driving slowly and attentively and the accident was not due to his mistake. 

4)   As nothing was told in connection with the driver’s carelessness by the witnesses when questioned by the court also, it was opined that the accused      cannot be convicted.  Therefore as per the available evidence on record and nothing was established against the accused, the accused was acquitted as per benefit of doubt by the Hon’ble Addl.Judicial First Class Magistrate Court.

5)        Sri A.V.S.C.Bose S/o Ramakrishna Rao, Surveyor and loss assessor in his affidavit filed on behalf of the 2^nd O.P. stated that he is the deponent and independent IRDA licensed surveyor and conducted the survey in the claim reported to the O.P insurance company based on his appointment and as per the instructions received from the O.P’s insurance company, he attended the insured vehicle and assessed the loss and confirmed the same by way of Motor Surveyor Report (FINAL) dated 8-2-2013 and accordingly recommended that the insured may be paid Rs.3,95,000/- towards loss to his vehicle in the above said accident, since the salvage value of Rs.25,756/- was already deducted with his further observation that as per the instructions he had been to the same workshop (for  inspection) and inspected the above said accident vehicle after repairs.  All the required repairs and replacements except tanker were carried out as per his recommendations and produced salvage for his inspection.  Hence he recommended that the same may be considered for further action in this claim.  His further observation is that engine and chassis  numbers were physically verified and noted.   All the original records were verified and found in order.  It is further stated by him that the said cause of accident is corroborating with the damages sustained by the vehicle and hence his final report is issued without prejudice.

            From all the above material placed on record, the arguments advanced by both the parties and critical points mentioned supra,  It can be concluded that the O.Ps are not entitled to repudiate the claim, as the material available on record supports that the complainant is entitled to the reliefs prayed for in part only since the complainant could not appoint another surveyor to contradict  the estimate of loss / damage made by the surveyor appointed by the insurance company.   As a result, the complainant has forfeited his right to produce a report from another surveyor and hence we are of the considered opinion that the complaint deserves to be allowed in part.

            In the result, the complaint is partly allowed directing the O.Ps.1 to 3 jointly and severally to pay Rs.3,95,000/- with interest at 9% p.a., from the date of filing the complaint till the date of realization, to the complainant.  The O.Ps. 1 to 3 are further directed to pay Rs.10,000/- towards damages / compensation for mental agony sustained by the complainant in addition to Rs.2,000/- towards costs of the complaint which includes advocate fee of Rs.1,000/-.  Since no fault is established against the 4^th respondent i.e., driver of the vehicle who was also acquitted by the Hon’ble Additional Judicial First Class Magistrate Court at Basthar, Jagadalpur as per benefit of doubt, the complaint against the 4^th O.P is dismissed but under the circumstances without costs.  This order shall be complied by O.Ps.1 to 3 within 2 months from today.   

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 19^th day of December, 2014.

Member                                                           President

CC. 64 of 2013

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1                                                                               

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Copy of Certificate cum Policy schedule
2. Ex.A.2 Cash Bill dt.8-2-2013
3. Ex.A.3 Photograph
4. Ex.A.4 Regd.Lawyer notice dt.25-4-2013
5. Ex.A.5 Ack.,
6. Ex.A.6 Judgment copy in (Hindi)
7. Ex.A.7 copy of judgement dt.25-2-2014 in CC.92/2013
8. Ex.A.8 copy of Driving Licence

For O.P:-   

1. Ex.B.1 Insurance policy attested copy
2. Ex.B.2 Letter addressed by the O.P. dt.27-3-2013
3. Ex.B.3 letter to complainant with postal receipt dt.23-2-13
4. Ex.B.4 Surveyor report dt.8-2-13.
5. ExB.5 letter by O.P. to complainant dt.19-3-2013
6. Ex.B.6 Registration Certificate to the insured vehicle.   

                                                                                                                                                                                                                            President