Telangana

Mahbubnagar

CC/08/22

S. Purushotham Goud S/o Ramchandram Goud - Complainant(s)

Versus

Divisional Manager, United India Insurance Co. Ltd., - Opp.Party(s)

Sri B. Sudhakar Reddy

12 Sep 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Thursday the 11th day of September, 2008

 

                                                                             Present:- Sri M.Rama Rao, B.A.,LL.B., President

     Sri P.Venkateshwara Rao, B.com., LL.B., Member

       Smt.B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

 

 

                                                                                    C.C.NO. 22  Of   2008

 

Between:-

 

S. Purushotham Goud, S/o Ramchandram Goud, Aged: 42 years,  Occ: Owner of the Auto No.AP 22 U.7374 and Agriculture,   R/o H.No.3/100, Goureddypally Village, Telkapally Mandal,

Mahabubnagar District.

                                                                                              … Complainant.

 

And

The United India Insurance Company Ltd., rep. by its Divisional Manager, Divisional Office, Railway Station Road, Kurnool.

 

                                                                                         … Opposite Party

 

 This C.C. coming on before us for final hearing on 29-08-2008,in the presence of Sri B.Sudhakar Reddy, Advocate, Mahabubnagar for the complainant and of Sri A.Rajender Reddy, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:

O R D E R

 

(Sri M.Rama Rao, President)

 

1.        This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay an amount of Rs.50,170/- incurred by the complainant  for the repairs of the Auto and also towards loss sustained during the said period together with accrued interest  at 18% p.a. from the date of complaint till realization and pay Rs.10,000/- towards compensation and also to award costs of the proceedings.
2.      The complaint averments are as follows:-   The complainant is the owner of the Auto bearing No. AP 22 U 7374, and the opposite party is the insurer of the said Auto.  On 24-10-2005, the Auto bearing No.AP 22 U 7374, was returning from Laknaram village to Telkapally village along with passengers.  When the said Auto reached in the limits of Telkapally village after crossing Kammareddipally village gate, the Auto turned turtle and the inmates of the Auto sustained injuries and the Auto was damaged.  The Police Telkapally, registered a case in Crime No.72 of 2005 U/s 337 IPC, investigated into the matter and filed charge sheet U/s 337 and 338 IPC.   At the time of accident, the Auto was in good condition, road worthy to ply and the driver of the Auto was having valid, subsisting and enforceable driving license to drive the Auto.   After the Auto was damaged in the accident, the complainant took the Auto for its repair to M/s Bhavani Motors, Hyderabad.  The complainant incurred an amount of Rs.2,000/- towards toeing charges from Telkapally to Hyderabad.   The complainant incurred an expenditure of Rs.27,404/- towards spare parts and it’s repairs.   The complainant has to visit Hyderabad several times to look after the progress of the repair of the Auto and incurred an amount of Rs.5,000/- towards travelling allowances and towards other expenditure (T.A.&D.A.) during the period of its repair.   The complainant used to earn Rs.500/- per day by plying the said Auto.  The workshop authorities have taken about 23 days for its repairs from 28.11.2005 to 21.12.2005 and the complainant has suffered a loss of Rs.11,500/- at Rs.500/- per day.   The complainant has also paid an amount of Rs.2,000/- to the surveyor to assess the damage caused to the Auto and to give estimation of its repairs.  Thus, in all the complainant has incurred expenses and sustained a loss of Rs.47,904/- till the date of accident to the date of its repair and made ready for use. The complainant has obtained a hand loan of Rs.34,404/- agreeing to repay the same as soon as the claim is received from the insurance company, the insurer of the Auto together with interest at  24% p.a.   The complainant has filed the claim before the opposite party   for refund of the expenditure incurred for the repair of Auto.  But the opposite party has refused to refund the claim and repudiated the claim.   The opposite party has failed to make the payments to the complainant intentionally to cause loss and harass him.  Furthermore, since the opposite party has failed to pay the claim amount to the complainant, the complainant has subsequently repaid the loan amount and incurred an amount of Rs.2,266/- towards interest on the loan amount at 24% p.a. for three months ten days.    Thus, the complainant has sustained a loss of Rs.50,170/- in all.   The complainant has no other option except to approach the Hon’ble Forum for the redressal of the claim from the opposite party as the opposite party rendered services in deficit by repudiating the claim arbitrarily.    Due to the failure of the opposite party in making the payments to the complainant, the complainant faced much financial troubles, mental agony and other sufferings and hence the opposite party is liable to pay a sum of Rs.10,000/- as compensation and the complainant is entitled to claim and receive the said amount.  The complainant is a consumer and the Hon”ble Forum is having jurisdiction to pass orders and the complaint is also within the limitation.   Therefore the opposite party is liable to pay an amount of Rs.50,170/- incurred by the complainant for the repairs of the Auto and also loss sustained during the period together with accrued interest  @ 18% p.a. and also liable to pay Rs.10,000/- towards compensation for the sufferings and also costs of the proceedings to the complainant.  Hence the complaint. 

 

3.     The opposite party filed counter with the following averments:- It is true that the complainant is the owner of the subject Auto and insured with the opposite party.   It is false to aver that his vehicle damaged due to the motor accident occurred on 24.10.2005.   The accident took place due to the entire negligence of the driver of the said Auto bearing No. AP 22 U 7374 as the driver of the Auto was not possessing valid and effective driving license to drive such vehicle and moreover it is very clear from the criminal record that seven passengers were proceeding in the said Auto at the time of alleged accident as against six passengers as per permit, which is a clear violation of the terms and conditions of the policy and as such the complaint is liable to be dismissed on this score alone against the opposite party.   The vehicle was not in road worthy condition at the time of accident and the driver was also not possessing any valid and effective driving license to drive such vehicle and it is false to aver that the complainant incurred expenditure and sustained monetary loss to the total sum of Rs.50,170/- under different heads as mentioned in the complaint.   The claim of the complainant was repudiated as there is clear violation of the terms and conditions of the policy i.e., the Auto was carrying more than the permitted capacity of passengers.  The opposite party has already given its reply explaining the facts to the complainant on what ground the claim was repudiated.  There is no mental agony and other sufferings caused to the complainant and hence the complainant is not at all entitled for any compensation under above heads.  Hence this Forum has no jurisdiction to try the complaint and the complaint is liable to be dismissed with costs. 

 

4.  The complainant filed his affidavit and got marked Exs.A-1 to A-10.

 

5. The opposite party filed affidavit and got marked Exs.B-1 to B-3 on his behalf. 

 

6. The complainant filed his written arguments.  Heard arguments of the counsel for both parties at length. 

 

7. The point which falls for consideration is whether the complainant is entitled to the reliefs as prayed for?

 

8.      Facts which are not in dispute:- The complainant is the registered owner of the Auto bearing No. AP 22 U 7374 and insured with the opposite party.  During the subsistence of the policy the vehicle met with an accident on 24.10.2005.  The complainant submitted claim to the opposite party along with estimates and bills.  The opposite party appointed independent surveyor.  The said surveyor inspected the Auto and assessed the loss.   The claim was repudiated by the opposite party on 3.3.2006 on the ground that the complainant has violated the terms and conditions of the policy by carrying seven passengers whereas the Auto is permitted to carry six passengers only. 

 

9.      We have gone through the documents on record.  Admittedly the opposite party repudiated the claim vide its letter dated 3.3.2006.  This letter is marked as Ex.A-2.  In this letter the opposite party stated that “As per the FIR No.72/2005, dated 25.10.2005 issued by Telkapally Police Station, No. of passengers carried in the Auto at the time of accident is seven whereas it is permitted to carry six passengers only.   Thus the insured who is owner-cum-driver of the insured vehicle has violated the terms and conditions of the policy and also conditions of the permit which attracts punitive provisions of the M.V. Act Section 192(4)”.  Subsequently in the counter the opposite party has taken a new plea that the driver of the subject Auto was not holding valid and effective driving license at the time of accident.  The contention of the opposite party is that due to above two reasons the complainant is not entitled for any amount as such the claim is rightly repudiated. 

 

 Firstly, it has to be seen whether the driver was holding valid and effective driving license at the time of accident.   There is no dispute on the fact that the complainant is the registered owner of the said Auto and he himself was driving the Auto at the time of accident.  The complainant filed xerox copy of his driving license.   The said license is marked as Ex.A-5.  The said driving license clearly proves that the complainant is having valid and subsisting license to drive the Auto Riksha of transport and non-transport.  Therefore we hold that the contention of the opposite party that the driver was not possessing valid and existing driving license to drive the Auto as on the date and time of the accident holds no water. 

 

10. Now it has to be seen whether the complainant has violated the terms of the policy by carrying excess passengers in the subject Auto at the time of the accident.    The learned counsel for OP vehemently contended that as per the Registration Certificate of RTA the subject Auto is permitted to carry six passengers whereas against the said ceiling the complainant was carrying seven passengers in the said Auto at the time of accident.   Therefore it is a clear violation of the terms of the policy and hence the opposite party repudiated the claim.    The Ex.A-1 and A-3 prove the contention of the opposite party.   The learned counsel for the complainant while advancing his arguments admitted that though the said Auto was permitted to carry six passengers there were seven passengers in the Auto at the time of the accident.   However the learned counsel for the complainant argued that seven persons travelling in the Auto were passengers.   It cannot be a ground for the opposite party to repudiate the claim as the said persons were in no way concerned with the cause of the accident nor have they contributed to the risk in respect of the loss caused in the accident nor have they contributed to the risk in respect of the loss caused to the Auto.   At this juncture we feel it is proper to see the cause of the accident.   The Surveyor who has been appointed by the opposite party, in his report i.e., Ex.B-1 categorically mentioned about the cause of the accident as under.  “As per the claim form and the findings of spot surveyor, it is given to understand that the steering wheel moved freely towards LHS while the I.V. was negotiating the turning.   Further it is said that as the I.V. driver tried to steer it back to original position (RHS), the I.V. fell down.   The I.V. was captioned on to its RHS”.   In view of the above opinion it is clear that the accident was occurred on account of the fact that the steering wheel moved freely towards LHS and the I.V. fell down.   Therefore we hold that the accident was occurred due to mechanical problem but not on account of carrying excess passengers.  

 

     The learned counsel for the complainant relied upon the decisions of the Hon’ble National Commission reported in 2002 (5) ALT 27 (CPA) (NC) and the Hon’ble Supreme Court reported in 1996 ALJ 1178.  The Hon’ble Supreme Court on carrying excess passengers held that “The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract unless some factors existed which, by themselves, had gone to contribute to the causing of the accident”.  There is no evidence on record to show that the accident occurred on account of excess passengers.   In another decision reported in Land Mark Judgments on Consumer Protection by Justice M.B. Shah in National Insurance Co. Ltd. Vs. Nabin Chandra Naik case (reported at page No.63) the Hon’ble N.C. held that “We do not think that the reasoning adopted by the State Commission is in any way erroneous.  Taking one or two extra passengers cannot be held to be a cause for accident so as to entitle the insurance company to repudiate or reduce the compensation”.  This is in conformity with the decision rendered by the Apex Court in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. (1196) 4 SCC 647, wherein the court has observed that “In case where six persons were permissible and nine persons were carried in the vehicle, irrespective of their being employees or not, had not attributed in any manner to the occurring of the accident, and therefore, the insurance company was liable to indemnify the damage caused to the vehicle.  Therefore, impugned order does not call for any interference”.    

 

     In the light of the above decisions and facts and circumstances of the case in hand we are of the considered opinion that mere carrying one or two excess passengers is not so fundamental breach so as to afford ground to the insurer to eschew it’s liability under policy.   The opposite party has failed to prove that the excess passengers have contributed for the accident and the accident occurred purely on account of carrying excess passengers.  Therefore we hold that the opposite party is liable to compensate the loss occurred to the Auto due to accident.  

 

11. Now the question before us is what quantum of amount the complainant is entitled for?  According to the version of complainant the complainant incurred an expenditure of Rs.27,404/- towards Auto spare parts and its repairs and incurred an amount of Rs.2,000/- towards toeing charges of Auto and Rs.5,000/- towards Travelling allowances and other expenditure (T.A. & D.A.) during the period of its repair.  Further he used to earn Rs.500/- per day by plying the said vehicle.  The workshop mechanics have taken about 23 days for its repair from       28.11.2005 to 21.12.2005 and he suffered a loss of Rs.11,500/- at Rs.500/- per day.  He has also paid an amount of Rs.2,000/- to the surveyor to assess the damage caused to the vehicle and to give estimation of its repairs.  Thus, in all he incurred expenses and sustained a loss of Rs.47,904/-.  Out of the amount he obtained hand loan for Rs.34,404/- and paid interest on it at Rs.2,266/- from the date of accident to the date of its repair and made ready for use.  Hence he is entitled for Rs.50,170/- in all.  According to the opposite party they have appointed an independent Surveyor to assess the loss.  His report is marked as Ex.B-1.  According to this report, the surveyor assessed the loss at Rs.16,792-91Ps. towards repairs of the vehicle.  Whereas the opposite party company assessed the loss under Ex.B-3 for Rs.12,880/- apart from the Surveyor report. 

 

12. The question now arose is as to what would have been the just and proper amount to award towards vehicle repairs and incidentals and compensation?  The complainant is claiming Rs.27,404/- towards spare parts and repairs and Rs.22,766/- towards expenditure incurred on  other monetary loss and incidentals etc.  The surveyor is a technical man to asses the actual loss.  Since the surveyor has given the detail of parts and labour work in the report, the assessment of loss at Rs.16,793/- can safely be taken as just and proper.  Particularly, when there is no reliable material and documents to record any finding to the contra; moreover, report of the surveyor in an insurance claim is an important document and should not be ignored without sufficient reasons.  The complainant not filed any document contra to the surveyor report and also not chosen to examine the surveyor and prove his contention and claim.  Further the Hon’ble NC in the Judgment reported in CPR 2003 (3) P 136 held that; “The Report of Surveyor appointed under the provision of Insurance Act has to be given greater importance”.  The Hon’ble Uttarkhand SCDRC in Premchand Sadana Vs. N.I.A Co. Ltd., case which is reported in CPJ 2008 (1) P 229 opined that mere submitting the estimates of the repairs would not prove that the amount as per estimates had in fact been spent in the repairs of the vehicle. Therefore, we hold that the loss as assessed by the surveyor is genuine, reliable and is liable to be paid by the insurer.  The assessment of loss at Rs.16,793/- towards repairs of the vehicle made by the surveyor was the best criterion in the case for granting relief to the insurer. The opposite party has not decided the issue even after receiving the report from the surveyor. The opposite party repudiated the claim on the invalid grounds.  Therefore, in our considered opinion, the opposite party is liable to pay the amount of Rs.16,793/- together with interest @ 9% p.a. from the date of submission of claim i.e., 29.10.2005 (as per Ex.B-2) till date of payment. 

 

     Now with regard to the incidentals, the complainant is claiming incidentals to the tune of Rs.22,766/- on different heads.  He relied     upon the decision of the Hon’ble A.P. High Court reported in 2004 (2) TAC 433 (A.P) wherein it is held that: 

 

“If the vehicle is insured with the Insurance Company, it is liable to pay damages which inclusive of incidental loss of income due to non-availability of the vehicle.  The incidental loss of income differs from business loss.  The business loss has to be arrived at after taking into consideration of non-availability of the vehicle on the particular period and its availability after repairs.  We are of considered view that just compensation has to be arrived at by calculating the compensation towards damages including the incidental loss occasioned during the period of non-availability of the vehicle.  On a consideration of the entire law, we are of the view that the owner of the vehicle is entitled to claim incidental loss of income under the head Damages caused to the vehicle before the Tribunal and the Civil Court has no jurisdiction.  We also state that the Insurance Company is liable to pay compensation towards damages caused to the vehicle, which includes the incidental loss of income being part by business loss”.

 

    Apart from the incidentals the complainant is also claiming separate lumpsum as compensation to the tune of Rs.10,000/- towards his mental agony and other sufferance.  No doubt the complainant has suffered monetary loss as the opposite party failed to settle the claim for all these years.  In view of the above decision and circumstances of the case, we feel, it is just and proper to award compensation in the case on hand towards damages, incidentals and other sufferance sustained by the complainant for the deficiency of service of the opposite party.   However the claim of the complainant at Rs.32,766/- is higher side.  In our opinion Rs.5,000/- is the reasonable amount to award as compensation for all the damages and sufferances of the complainant.    No doubt the acts of the opposite party also led the complainant to approach the Forum.  Therefore, we hold that the complainant is also entitled an amount of Rs.500/- towards costs of the proceedings. 

 

13. In the result, the complaint is allowed.  The opposite party is directed to pay Rs.16,793/- to the complainant towards damages sustained to the vehicle together with interest @ 9% p.a. from 29-10-2005 till date of payment and also an amount of Rs.5,000/- towards compensation and Rs.500/- towards costs of the proceedings within one month from the date of receipt of this order.

 

Typed to dictation, corrected and pronounced by us in the open Forum on this the 11th day of September, 2008.           

 

        

 MEMBER                                MEMBER                              PRESIDENT 

 

Appendix of evidence

Witness examined

 

For complainant: Nil                                                For opposite party:  Nil

 

Exhibits marked for complainant:-

 

Ex.A-1         Xerox copy of FIR, dt.25.10.2005.

Ex.A-2         Repudiation letter of OP, dt.3.3.2006. 

Ex.A-3         Xerox copy of R.C., dt.31.12.2003.

Ex.A-4         Xerox copy of Certificate of Insurance, dt.24.11.2004.

Ex.A-5         Xerox copy of Driving License.

Ex.A-6         Xerox copy of Estimation Cash Bill, dt.28.10.2005.

Ex.A-7         Xerox copy of Labour Estimation Cash Bill, dt.28.10.2005.

Ex.A-8         Xerox copy of Cash Bill, dt.21.11.2005.

Ex.A-9         Xerox copy of Credit Labour Bill, dt.21.11.2005.

Ex.A-10       Xerox copy of Receipt, dt.21.11.2005.

Exhibits marked for OP:-

Ex.B-1         Survey Report.

Ex.B-2         Insurance Claim Form.

Ex.B-3         Insurance Office Assessment.

 

By the Forum:

     - Nil-

                                                                                                                                                                                                                            PRESIDENT

Copy to:-

1. Sri B.Sudhakar Reddy, Advocate, Mahabubnagar for the complainant.
2. 2.Sri A.Rajender Reddy, Advocate, Mahabubnagar for the opposite party