This complaint coming up before us for hearing on 27-05-14                                in the presence of Sri V.Srinivasa Reddy, advocate for complainant;                         Sri S.A.Khadar, advocate for the opposite party; upon perusing the material on record, and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-    

The complainant filed this complaint seeking reimbursement of Rs.4,00,000/- together with interest @18@ from the date of claim till payment, Rs.15,000/- as damages towards mental agony and sufferings and for costs.

2.   In brief the averments of the complaint are these:

The complainant insured his lorry bearing No.AP 04 V 2143 with the opposite party who in turn issued the policy bearing No.FCV/10288075/A2/06/C1A21C.  The said policy  covered the period from 11-06-12 to 10-06-13.  The said lorry met with an accident on 26-02-13 at Bothapalem village of  Nalgonda District and sustained heavy damage.  The complainant informed regarding the accident to the opposite party.  The complainant shifted the said lorry to M/s. Sri Karthikeya Auto garriage, at Guntur for repairs as per  advice of the opposite party.  The opposite party appointed one Balaji as surveyor who in turn submitted his report.  The complainant submitted copy of policy, R.C., and driving license and police records to the opposite party and its surveyor.  The garage people estimated damage for Rs.4,00,000/-.  The complainant spent more than Rs.4,00,000/- towards repair of the said lorry.  The opposite party on 05-06-13 issued repudiating claim on flimsy grounds and on some conjectures and surmises .  The opposite party failed to supply surveyor report even though the complainant sent Rs.50/-.  The opposite party though received notice kept quite.  The complainant suffered a lot mentally and financially.  The complainant paid the premium amount at Guntur to one S.Manikanta, agent of the opposite party and thus this Forum got jurisdiction to entertain the claim.  By repudiating the claim on flimsy grounds the opposite party committed deficiency in service.  The complaint therefore be allowed.

3.   The contention of the opposite party in nutshell is hereunder:

The complainant’s lorry AP 04 V 2143 was covered by the insurance policy bearing No.FCV/10288075/A2/06/C1A21C.  The said policy covered the period from 11-06-12 to 10-06-13.  The complainant informed the opposite party regarding the said accident.  On 05-06-13 the opposite party informed the complainant about driver of the said vehicle allowed some unauthorized persons as passengers and carrying more than the permitted level in the said lorry and thereby violated terms and conditions of the policy.  The opposite party is therefore not liable to pay damages to the complainant.  The complainant suppressed the fact of giving reply.  As the complainant violated the terms and conditions of the policy the complaint is liable to be dismissed.  Rest of the allegations contra mentioned in the complaint are false and invented by the complainant to suit his claim.  The complaint therefore be dismissed.

4.  Exs.A-1 to A-30 and Exs.B-1 to B-7 were marked on behalf of the complainant and opposite party respectively.

5.   Now the points that arose for consideration in this complaint are:

1. Whether this Forum has got jurisdiction to entertain this complaint?
2. Whether the opposite party committed deficiency in service by repudiating the claim unjustly?
3. Whether the complainant is entitled to compensation?
4. To what relief?

6.      Admitted facts in this case are these:

1.  The complainant insured the lorry bearing No. AP 04 V 2143 with the opposite party covering the period from 11-06-12 to 10-06-13 (Ex.A-1).

2.   The complainant informed to the opposite party regarding accident.

3.   Exchange of notices between complainant and opposite party (Exs.A-2 to A-5, B-5, B-8).

4.   The opposite party appointed surveyor namely V.Balaji (Ex.B-7).

5.   The S.H.O. Wadapally P.S registered a complaint against driver of the lorry bearing No. AP 04 V 2143 on the complaint given by one Angireddy Kondal Reddy (Ex.B-2).

6.   The complainant is  owner of vehicle AP 04 V 2143 (Ex.B-3).

7.   POINT No.1:- 

          The complainant had shown the opposite party as resident of Vijayawada.  Under these circumstances the registry raised the objection regarding territorial jurisdiction of this Forum to entertain this complaint.  The complainant while rectifying defects in complaint mentioned that one Manikanta agent of the opposite party collected premium in Guntur.  The opposite party did not deny the said allegation in its version.  Under those circumstances we are of considered opinion that the said allegation of the complainant remained un controverted and therefore this Forum has got territorial jurisdiction to entertain the complaint.  We therefore answer this point infavour of complainant.

8.      POINT NO.2:- The opposite party in Ex.A-2 (=Ex.B-4) mentioned its inability to admit complainants claim as it was carrying passengers except employees other than driver not exceeding the number permitted in registration document and coming under purview of Workmen Compensation Act.

9.      The learned counsel for the opposite party relied on the decision reported in 2005, ACJ 72, and of NCDRC in RP No.3228/12 dated 03-09-13.  The learned counsel for the complaint on other than relied on the decision reported in 2013 (3) CPR 641 (=2010 SAR (civil) 405)

10.    The vehicle AP 04 V 2143 was registered as heavy goods vehicle as seen from Ex.A-9 =(Ex.B-3).  The report given to the S.H.O., Wadapally P.S. by one Angireddy Kondareddy, S/o. Gopi Reddy (ExA-8) = Ex.B-2 revealed that he sustained injuries to his body and motor cycle and cleaner of that lorry died in the cabin itself, two persons traveling in the lorry sustained injuries.  It is not the case of the complainant that the other persons traveling in the lorry were owner/representative of the goods which the lorry was carrying.  It can therefore be inferred that on the ill fated day the driver of the said lorry was carrying two passengers un authorizedly.

11.    In National Insurance Company Ltd., Vs.Bomithi Subbayamma and others , 2006 ACJ (SC) reiterated the decision reported in New India Assurance Company Ltd.,  v/s Asharani, 2003 ACJ 1 (SC) where in it was held

In view of the changes in the relevant provisions in the 1988 Act Vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words ‘any person’ must also be attributed having regard to the context in which they have been used, i.e., a ‘third party’.  Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, the insurers would not be liable therefor’. 

In Asha Rani, 2003 ACJ 1 (SC) , it has been noticed that  sub-clause (i) of clause (b) of sub-section (1) of section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of vehicle in a public place.  Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers traveling in the vehicle.  The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods for his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 

  It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same.  Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit to insurance to such category of people”. 

12.    The apex Court rendered the above decision U/s.147 clause (1) of the Motor Vehicle Act, 1988 while dealing with 3^rd party claims.  Under those circumstances the above decision in our considered opinion has no application to the facts of this case as the complainant filed claim under contact of insurance for vehicle damage.

13.    In Delhi Assam Road Ways corporation Limited Vs. United Indian Insurance company (R.P.No.3228 of 2012 dated 03-09-13) National Consumer Disputes Redressal Commission held that one cannot over look the fact that overloading of a vehicle beyond certain limit does have an impact on the control of the driver on the vehicle……………. as the truck was over loaded in excess by 80% of its weight carrying capacity which in our view had a nexus with the accident, therefore the Fora below were right in concluding that the opposite party was justified in repudiating the claim.  In the said decision National Consumer Disputes Redressal Commission distinguished the case of Amalendu Sahoo (2010 SAR (civil) 405)

14.    In Amalendu Sahoo Vs.Oriental Insurance Co.,Ltd., (2013 (3) C.P.R., 641 (S.C.)) the apex Court affirmed the guidelines enumerated by the National Consumer Disputes Redressal Commission (NCDRC) in New India Assurance Company Limited Vs. Narayan Prasad Appa Prasad Pathak (2006 C.P.J 144 (NC)) wherein the following guidelines were setout while granting claim on non standard basis.

15.    As the vehicle in question was a goods vehicle it cannot carry the passengers except owner of the goods or his agent.  It is not the case of the complainant that the persons injured in the accident represented  owner of the goods which the vehicle was carrying.  It can therefore be said that the vehicle in question was carrying unauthorised passengers.  It is not the case of the opposite party that the accident occurred on account of the subject vehicle carrying unauthorised passengers.  The ratio decedendi held in Amalendu Sahoo Vs.Oriental Insurance Co.,Ltd., (2013 (3) C.P.R., 641 (S.C.))  is squarely applicable to the facts of the case.  In view of the above discussion we opine that the opposite parties repudiating the claim is unjust and thereby amounted to deficiency in service.  We therefore answer this point infavour of the complainant.

16.   POINT No.3:- The complainant in his complaint and evidence affidavit stated that he spent more than Rs.4,00,000/- towards repairs of the lorry.  To substantiate his contention the complainant filed Ex.A-13 to A-29 bills.  The total amount covered by Exs.A-13 to A-29 is Rs.3,37,760/-.  The complainant obtained Exs.A-23 to A-29 during 02-05-2014 – 24-05-14 amounting to Rs.1,02,910/-. i.e. more than an year after the accident.  The learned counsel for the complainant contended that the complainant could not obtain Exs.A-23 to A-29 for want of VAT & TIN of concerned dealer.  The said explanation under any stretch of imagination cannot be accepted.

17.    The complainant obtained Exs.A-13 to A-22 amounting to Rs.2,34,850/- during 10-04-13 – 18-04-13.  The surveyor in his report dated 15-04-13 opined that the insured vehicle sustained major damages.  Taking a clue from the above decision reported In Amalendu Sahoo Vs.Oriental Insurance Co.,Ltd., (2013 (3) C.P.R., 641 (S.C.)) awarding Rs.1,75,000/- will meet ends of justice.

18.    The complainant also claimed Rs.15,000/- towards mental agony.  The conduct of the complainant in getting the bills inflated in our considered opinion disentitles him to the said amount.  In view of the above discussion we answer this point accordingly.

19.  POINT No.4:-   In view of above findings in the result the complaint is partly allowed as indicated below :

1.  The opposite party is directed to pay Rs.1,75,000/-(Rupees one lakh

      seventy five thousand only)  to the complainant together with interest @

      9% p.a. from the date of complaint till payment.

2.  The opposite party is directed to pay Rs.2,000/- (Rupees two thousand

      only) towards cost of the complaint.

3.   Rest of the claim is dismissed.

4.   The above order shall be complied within a period of six weeks from the date of receipt of the copy of order.  

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 31^st  day of May, 2014.

Sd/-XXX                                                                                            Sd/-XXX

MEMBER                                                                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

                                                                                                    Sd/-XXX

                                                                                               PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.