BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT:THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 32 / 2005 MONDAY THE 27TH DAY OF SEPTEMEBR 2010. Padmasekar, S/o. Jotheeswaran, No.178, B Sector, V.G. Rao Nagar, Katpadi, Vellore 632 007. … Complainant. - Vs – - The Divisional Manager, United India Insurance Company Ltd., TKM Complex, Vellore … Opposite party. This petition coming on for final hearing before us on 14.6.2010, in the presence of Thiru. J. Venkatramani, Advocate for the complainant and Thiru. P.K. Ramamurthy, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is the owner of the lorry Regn.No.TN23-F-6574 and said complainant has taken policy with the opposite party for the lorry as per the policy No.012100/31/04/01002 and the said policy is valid from 23.7.04 to 22.7.05 and as per the policy at the time of premium amount was received by the opposite party. The opposite party has entered into contract by way of issuing of policy to indemnify the complainant in case of any accident during the policy period. The said lorry Regn.No.TN-23-F-6574 was met an accident on 5.8.04 at Sunnambupettai Village near Deagadarthi Mandal, Nellur District and a case was registered by the Dagadarthi P.S. in Cr.No.72/2004 U/S 337, 338 I.P.C and thereby in the alleged accident the complainant’s lorry was sustained damages as per the claim detailed hereunder. The complainant is herewith filed the copy of FIR in Telugu and as well as the translated copy of the FIR to show the cause of action and to prove the vehicle particulars the complainant is filing herewith the copy of R.C. book together with permit Trip sheet and copy of the driving license of the driver who was incharge at the time of accident and as well as the copy of Insurance Policy for the Hon’ble Courts perusal. Due to the accident caused on 5.8.04 the complainant estimate the damage as follows: 1. VSR Service Station bill to the sum of Rs.3,08,469.31 2. Sri Balambigai Traders Rs, 7,070.00 3. Allyar Steel Trader Rs. 15,100.00 4. Chandra Timber & Traders Rs. 7,836.00. 5. Chandra Timber & Traders Rs. 8,662,00 6. R.Sekar body works Rs. 15,000.00 7. Toying lorry hire Rs. 3,500.00 8. Freight charges for 60 days Rs. 60,000.00 ------------------------ Total Rs.4,25,637.71 ------------------------ As per the policy condition the opposite party failed and refused to pay the vehicle damages after accepting the claim form and survey. the complainant given the notice to the opposite party and acknowledged by the opposite party as well as the reply notice issued by the counsel for the opposite party. The complainant has prayed for the directing the opposite party to pay the sum of Rs.4,25,637.71 together with costs and counsels fee to the sum of Rs.15,000/- and also to pay interest at the rate of 18% per annum from the date of refusal of claim till the date of payment and please to pass much other suitable orders as this Hon’ble Forum deems fit and proper in the circumstances of the case. 2. The averment in the counter filed the by the opposite party are as follows; The opposite party do not admit any of the allegations in the complaint and puts the complainant to the strict proof of the same. The allegations that the complainant is the owner of the Lorry bearing Regn. No.TN-23-F-6574 and that the said Lorry had been insured with the opposite party for the period 23.7.04 to 22.7.05 are all correct. The further allegations that the opposite party has entered into a contract by way of issuing the policy to indemnify the complainant in case of any accident during the policy period are no doubt true. However the same is subject to the conditions stipulated in the policy which should not be violated and in case of violation, the Insurance Company is entitled to avoid the policy. In case of violation of any of the conditions mentioned in the policy the company is entitled to avoid the policy. It is no doubt true that the complainant submitted a claim form on 9.8.04 to the opposite party. In that claim form he had deliberately marked Nil in para-7 which requires information regarding 3rd party injuries, property damage. A reading of the FIR will show 3rd parties who were passengers were traveling in the vehicle which is a clear violation of the policy condition. The policy prohibits taking of passengers in the Goods vehicle. The driver and the cleaner are entitled to travel in it. No passenger can travel in it. There is a deliberate suppression of this fact in the claim submitted by the complainant. Hence the opposite party had rejected the claim. The complainant sent a legal notice on 11.6.05 demanding the recall of the repudiation letter sent by the opposite party and demanding the payment of the amount. Hence a reply was sent on 17.6.05 pointing out the fact of the unauthorized passengers traveling in the goods vehicle. 3. The FIR clearly disclose that one Kumba Srinivasa Rao doing coolly work traveled in the said vehicle along with his wife Ramulu and his brother-in-law Venkat Rao. They traveled in the said lorry to Renigunda. They did not travel with any goods at all. In the light of these facts the complainant in order to mislead the company gave a claim as if no 3rd parties traveled in it. This is a deliberate suppression of facts to mislead the court. Even in the present complaint no reference is made about it though it was pointed out in the reply notice dt.17.6.05. The FIR is clear that 3 person (unauthorized) traveled. They were injured because of the accident. Kumba Srinivasa Rao who was also injured gave the FIR to the Police. Therefore prayed that the complaint may be dismissed with costs. 3. Now the points for consideration are: a) Whether there is any deficiency in service on the part of the opposite party ? b) Whether the complainant is entitled to the reliefs asked for?. 4. Ex.A1 to Ex.A13 were marked on the side of the complainant and Ex.B1 to Ex.B12 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 5. POINT NO. (a): It is admitted case of the parties that the complainant is the owner of the lorry Regn.No.TN23-F6574 and said complainant has taken policy with the opposite party for the lorry as per the policy No.012100/31/04/01002 and the said policy is valid from 23.7.04 to 22.7.05. The opposite party has entered into contract by way of issuing of policy to indemnity the complainant in case of any accident during the policy period. 6. The complainant contended that the said lorry Regn No.TN-23-F-6574 was met an accident on 5.8.04 at Sunnambupettai Village near Dagadarthi Mandal, Nellure District and a case was registered by the Dagadarthi Police Station in Cr.No.72/2004, U/s 337, 338 I.P.C. and thereby in the alleged accident the complainant’s lorry was sustained damages. Due to the accident the complainant estimate the damages as per the bills is about Rs.4,25,637.71. It is further contended that as per the policy condition the opposite party refused to pay the vehicle damages after accepting the claim form and survey. 7. The opposite party contended that in case of violation of any of the conditions mentioned in the policy the company is entitled to avoid the policy. The policy prohibits taking of passengers in the goods vehicle. A reading of the FIR will show 3rd parties who were passengers were traveling in the vehicle which is a clear violation of the policy condition. No passenger can travel in it. When perusing the FIR it is clear reveals that the three unauthorized passengers were traveling the vehicle which is a clear violation of the policy condition. The complainant deliberately suppressed the above facts in the claim Ex.B2. Hence the opposite party had rejected the claim. Therefore there is no deficiency in service on the part of the opposite party. 8. It is admitted facts of the parties that the insured lorry registration No. TN-23-F-6574 was met an accident on 5.8.04 at Sunnambupettai Village near Dagadarthi Mandal, Nellur District , Andhra Pradesh State and a case was registered by the Dagadarthi Police Station in Cr.No.72/2004 U/S 337, 338 I.P.C. The complainant had filed Ex.A1 which is in Telgu along with Ex.A2 FIR a true translation in English. From the perusal of Ex.A2, FIR (English Version) in Dagadarthi Police Station Cr.No.72/2004 U/S 337, 338 I.P.C. it is mentioned that “one Kumba Srinivasa Rao lodged the complaint before the said Police Station on 5.8.04 stating that Kumba Srinivasa Rao, his wife, and his brother-in-law Venkatrao boarded in the lorry TN-23-F-6574 to proceed to Regnigunta with Tarpaline padatha used for paddy crushing at about night 2. 0’clock. At that time the lorry in which we are traveling driven by the lorry driver at a high speed and negligent manner and dashed against a parked lorry on its rear side near Sunnambibatti Village on GNT Road. Due to the impact of the two lorries his left leg was caught in between the lorries. Cleaner also caught in between the lorries. The lorry workers near by who are passing on the road taken the lorry backwards and pulled the cleaner and himself. His leg below the knee was twisted, I sustained bleeding injuries on both of his foot, forehead, and thigh. His brother-in-law and his wife sent me and the cleaner to Nellore by Auto and admitted in to Govt. Hospital, Nellore. Doctor attended and given treatment. Informed the matter to police on enquiry.” Further, from the perusal of Ex.B11 the claims petition No.895/2004 filed by the Kumar Srinivasa Rao before the Motor Vehicles Accidnet Claims Tribunal, Guntur against the complainant and the opposite party the United India Insurance Company Limited it is mentioned that in the page No.4 that “The 1st respondent is owner of the Lorry No.TN23F 6574 and 2nd respondent is its insurer. On 4/5.08.2004 at about 2 A.M. while the petitioner was traveling in 1st respondent’s lorry along with his load of palithin tarpaulin sheets, after paying fare for himself and for his load from Kondamodu Village to reach Renigunta on NH5 road when they reached near Lime Kilan in between Kavali and Kovuru, the driver of the 1st respondent drove the 1st respondent’s lorry at high speed in rash and negligent manner without taking proper care and caution and dashed against the stationed lorry from his behind. As a result, the petitioner and cleaner of the lorry received grievous injuries. “ Therefore it is clear that some passengers were allowed to travel in the said lorry at the time of accident and had suffered injuries also, but in the M.C.O.P. 895/2004 filed before the Tribunal, Guntur mentioned that Kumba Srinivasa Rao traveled with goods in the lorry at the time of accident. But in the FIR Kumba Srinivasa Rao not stated that the traveled along with the goods in the vehicle. A reading of the FIR will show that Kumba Srinivasa Rao his wife and his brother-in-law Venkatrao who were traveling in the vehicle as a coolly which is a clear violation of the policy condition. The vehicle is when only to carry goods the policy prohibit in taking of goods vehicle. The complainant suppressed the above fact in the claims petition. After receiving the claim petition the opposite party had sent a letter Ex.B12, dt. 30.3.05 to the complainant stating that at the material time of accident i.e. on 5.8.04 the complainant have carried three un-authorized persons in his vehicle which is a violation of Motor Vehicle Act and also Limitation as to use and hence the claim is repudiated. Therefore there is no deficiency in service on the part of the opposite party. 9. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A13 and Ex.B1 to B12, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 10. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 10. In this result this complaint is dismissed. No Costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 27 day of September 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- -- - X-copy of FIR in Telugu. Ex.A2- -- - X-copy of the Translate copy of FIR. Ex.A3- -- - X-copy of the Policy. Ex.A4- -- - X-copy of the R.C. Book of the Lorry. Ex.A5- -- - X-copy of the permit of the lorry. Ex.A6- -- - X-copy of the Driving License of the lorry driver. Ex.A7- -- - X-copy of bills of the lorry damaged in 7 Nos. Ex.A8- -- - X-copy of the Trip sheet of the lorry. Ex.A9- -- - X-copy of the claim form. Ex.A10- 11.6.05 - X-copy of the Lawyer’s notice. Ex.A11- -- - Postal Receipt. Ex.A12- -- - Ack. Card. Ex.A13- 17.6.05 - X-copy of the reply notice. Opposite party’s Exhibits: Ex.B1- -- - Policy Form Ex.B2- -- - Claim Form. Ex.B3- -- - x-copy of FIR in Telugu. Ex.B4- -- - x-copy of FIR in English Ex.B5- 11.6.05 - X-copy of lawyer’s notice. Ex.B6- 17.5.05 - X-copy of reply notice. Ex.B7- -- - Ack. Card. Ex.B8- 22.11.04 - Sput Survey Report. Ex.B9- 28.10.04 - Survey Report. Ex.B10-8.11.04 - RE-inspection Report. Ex.B11- -- - X-copy of MCOP Petition. Ex.B12- 30.3.05 - X-copy of the letter by the opp party. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
