OFFICE OF THE DISTRICT CONSUMER FORUM :: WARANGAL Present : Sri D. Chiranjeevi Babu,
President.
And
Sri N.J. Mohan Rao,
Member.
Smt. V.J. Praveena,
Member. Thursday, the 3rd day of November, 2009 CONSUMER COMPLAINT NO.163/2008 Between: Matcha Soubhagya, W/o.Late Sammaiah,
Age: 37 years, Occu:Housewife,
R/o.H.No.11-20-535,
Padmanagar,
Kashibugga,
Warangal District. … Complainant And 1. M.Manohar, S/o.Simhadri,
Aged:35 years,
Occu:Auto Owner-cum-Driver,
R/o.H.No.17-7-148,
Kareemabad, Warangal.
2. IFFCO TOKYO General Insurance Co. Ltd.,
II nd Floor, Uma Chambers,
Banjara Hills Road,
Panjagutta,
Hyderabad – 500 082.
… Opposite Parties
Counsel for the Complainant :: Sri T. Shyam Sunder Reddy, Advocate.
Counsel for the Opposite Party No.1 :: Sri R. Ananda Rao, Advocate.
Counsel for the Opposite Party No.2 :: Sri Ch.Linga Murthy, Advocate.
This complaint is coming for final hearing before this Forum, the Forum pronounced the following order.
CC 163/2008 --2--
ORDER
Sri D. Chiranjeevi Babu, President. This complaint is filed by the complainant Matcha Soubhagya against the Opposite Parties under section 12 of Consumer Protection Act, 1986 for a direction to pay the claim amount of Rs.2,00,000/-, to pay interest @ 24% p.a. from 27-09-2006 till full realization of the claim amount, to pay Rs.1,00,000/- towards compensation and damages and to award Rs.2,000/- towards costs. The brief averments contained in the complaint filed by the complainant are as follows: The case of the complainant is that she is legally wedded wife of Matcha Sammaiah who died on 27-09-2006 in an accident while in duty as a driver of Auto bearing No.AP36V 0881 of Opposite Party No.1. The said Auto was insured with Opposite Party No.2. Police, Inthejargunj, Warangal registered a case in Crime No.239/2006 U/sec.304-A, 337 of IPC. The Auto was insured with Opposite Party No.2 vide policy cover note No.00111100 valid from 25-09-2006 to 24-09-2007, which was Personal Accident Benefit Policy. Being legally wedded wife of the deceased, the complainant is entitled to receive personal accident benefit amount of Rs.2,00,000/- from Opposite Party No.2. The complainant informed the death of the deceased to Opposite Party No.2 and requested to send the claim forms through legal notice dated 09-01-2008, for which the Opposite Party No.2 did not respond. Again the complainant issued another legal notice on 26-06-2008 demanding the Opposite Party No.2 to pay the personal accident benefit amount, for which no reply is received. The act of Opposite Party No.2 amounts to deficiency of service. Hence filed this complaint praying to direct the Opposite Party No.2 to pay Rs.2,00,000/- with interest, compensation and damages of Rs.1,00,000/- and costs. The opposite party No.1 filed the written version stating that the deceased worked as a Driver on the vehicle of this opposite party and on 27-09-2006, the deceased while driving the said Auto met with an accident
and he died while on the way to hospital. The Police, Inthegarunj registered a case. The deceased has insured his auto with opposite party No.2 for a period from 25-09-2006 to 24-09-2007 by paying the total premium of Rs.1,439/- to the opposite party No.2. The opposite party No.1 submitted a proposal form. After verifying the proposal form the officials of opposite party No.2 calculated the premium as basic premium Rs.300/-, Legal liability
CC 163/2008 --3-- to paid driver is Rs.25/-, PA to passengers Rs.550/-, PA to paid driver is Rs.100/- and basic premium of Rs.452/- collected the same from opposite party No.1 and issued cover note by mentioning all the figures with cover Note No.3377786. Hence, the premium of Rs.100/- is paid by opposite party No.1 to opposite party No.2 covering the PA benefit of Rs.1,00,000/- to paid driver. Further stated that the deceased was not holding driving license to run the passenger auto and he does not know how to drive the vehicle. Hence, the payment of premium of Rs.100/- towards PA to owner cum driver does not arise and requested this Forum to dismiss this case. The opposite party No.2 filed the Written Version stating that the complaint is not maintainable either on facts or under the law, and is liable to be dismissed. The complainant has no right to claim any amount from this Opposite Party under the Insurance Policy since the owner of the vehicle did not pay premium to the paid driver and this Opposite Party is not under obligation to entertain any claim. This Opposite Party does not admit the employer and employee relationship between the Opposite Party No.1 and the deceased and there is no relationship of customer between the deceased or for that matter the complainants and any dispute in this regard could not be brought under the ambit of Consumer Protection Act. When there is no relationship of customer, between this Opposite Party and Matcha Sammaiah as on the date of his death, there is no deficiency of service on the part of this Opposite Parties and as such the complaint is not maintainable and it is liable to be dismissed. The complainant in support of her claim, filed the Affidavit in the form of chief examination and also marked Exs.A-1 to A-10. On behalf of opposite parties D.Gunashekar filed his Affidavit in the form of chief examination and also marked Exs.B-1 and B-2. Now the point for consideration is: 1) Whether there is any deficiency of service on the part of the opposite parties? 2) If so, to what Relief?
CC 163/2008 --4--
Point No.1:- After arguments of both side counsels our reasons are like this:
Now this Forum has to see whether the hired driver and owner-cum-driver comes under one and the same or different. If the owner of the auto paid the premium for owner-cum-driver it is applicable to private driver or not this forum has to decide. After arguments of both side counsels we are of the opinion that the owner-cum-driver and hired driver they are one and the same. If the owner of the vehicle paid the premium to the owner-cum-driver suppose if the owner is not the driver and the driver is the other person, if any risk happened to the driver certainly the insurance is liable to pay compensation to the driver only not for the owner. The owner has to pay the premium for the owner-cum-driver. The arguments of Opposite Party No.2’s Advocate is that the owner of the Auto paid premium only for the owner-cum-driver but not the Driver of the auto. It is an admitted fact that this vehicle is commercial vehicle, even though the owner of the Auto drove the auto or any one of the hired driver drove the vehicle certainly the premium has to be paid by the owner of the auto. It is one and the same. PA coverage is applicable to the driver of the auto also, because the evidence of RW1 i.e. from opposite party side, he has admitted in his cross examination that as per IMT 17 of Ex.B-2 the paid driver will be covered for PA benefit for all class of vehicles. Further he stated that there is an option that it has to be given by the owner i.e. payment of additional premium. But in this case as per Ex.B-1 premium was there it does not show on page No.3 of the P.A. to driver – IMT6 .00, LL to drivers – IMT19 25.00 and P.A. to passengers – IMTS .00. But surprisingly the opposite party filed Ex.B-2. It shows that premium paid to the driver 25 i.e.legal liability to employees IMT 29 and also other amounts are also mentioned. So LL paid driver i.e.. Rs.25/- by the owner as Per Ex.B-2. This clearly goes to show the owner of the vehicle already paid the premium to the owner cum driver. The driver and owner cum driver is the one and the same. If the owner drove the vehicle, accident occurs certainly the owner-cum-driver i.e. owner of the vehicle is one aspect and another thing the owner hired one driver at the time of occurrence of the accident the driver of the vehicle drove the vehicle and accident occurs, if he died certainly the policy amount paid by the owner of the vehicle is covered to the driver. So here, already as per Ex.B-2 the owner of the vehicle paid
CC 163/2008 --5-- premium an amount of Rs.100/-. So when he already paid amount of Rs.100/- certainly it is applicable to the driver of the vehicle. In this case at the time of accident the driver of the vehicle drove the same and died in the said accident. So the premium collected by the opposite party No.2 from the owner of the vehicle is applicable to the driver or not. But here compulsorily the same premium applicable to the driver. When the premium applicable to the hired driver certainly the opposite party No.2 is liable to pay compensation to the complainant i.e, wife of the deceased. The opposite parties counsel cited a citation in 2004 (1) CPR 68 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI. Satya Deo Malviya Complainant
Vs
Life Insurance Corporation of India Ltd. Opposite Party Consumer Protection Act, 1986 – section 21 – Claim under Life Insurance Policy – Endowment policy with one time premium of Rs.104,975 taken – Insured died in 1994 after Policy was taken in 1989 – claim for policy amount Rs.25 Lakhs – Defence contention that policy was for Rs.2,50,000/- & not for Rs.25 lakhs which was mistakenly mentioned in bond
– Policy stipulated that if insured died before expiry of policy period then premium amount was to be refunded with interest at 2-1. The above cited judgment is not applicable to the case of the Opposite Party NO.2. Because the present case is whether the premium paid by the owner of the auto is applicable to the hired driver of the vehicle or not. But the above cited judgment is only for Endowment Policy with one time premium of Rs.104,975 taken and the Insured died in 1994 after policy was taken in 1989, Claim for policy amount of Rs.25 lakhs, Defence contention that policy was for Rs.2,50,000 and not for Rs.25,00,000/- which was mistakenly mentioned in bond, so the amount is mentioned mistakenly. So the above cited judgment is not applicable to the case of the Opposite Party. Further another citation filed by the Opposite Party No.2 in 2009 (3) T.A.C. 985 (Ker.), Kerala High Court.
United India Insurance Co.Ltd. Appellant
Vs.
Vijayarajan Respondents CC 163/2008 --6-- Motor Vehicles Act, 1988, Section 163-A – scope of Section – Maintainability of claim petition – Deceased using motor cycle with permission of its registered owner and by his own negligence hitting an electric post – Deceased not employee of owner but stepped into shoes of owner of motorbike – Claimants cannot maintain application under section 163-A of the Act. Claim petition under Section 163-A held not maintainable. This facts of the judgment also different from the facts of this case. Because in the above cited judgment the vehicle is motor bike. But in the present case the vehicle is Auto. So certainly if any driver drove the vehicle and cause accident if he died certainly the premium is covered to the hired driver. So it is not applicable to the case of Opposite Parties. As per Ex.B-2 the owner cum driver CCS only premium paid an amount of Rs.100/-. When already he collected an amount of Rs.100/- for P.A. owner/Driver CSI certainly the driver and the owner are one and the same and driver of the vehicle is entitled to get compensation for his death. As per IMT 17 personal accident covered to paid drivers, cleaners and conductors. It is also mentioned in Ex.B-2. The driver is also entitled to get the same compensation for his death. Certainly the complainant is entitled to get the compensation for the death of her husband i.e, driver of Auto. It is mandatory application to mention all the details of the proposal under different heads in Ex.A-7. But unfortunately in Ex.A-7 they are not mentioned anything by the insurance.
The counsel for Opposite Party No.2 argued that already the complainant filed Workmen Compensation in workman’s compensation Court. When already she filed the same case how she is entitled to get the same amount from this Court. For this our answer is that she filed the case in workman compensation court only under Workman Compensation Act but not other Act. That Act is different and there is no bar to file this case before this Forum. So the complainant is entitled to get the amount from Opposite Parties. Because we already stated supra that the owner/driver they are one and the same. Because in this case already the owner of the vehicle paid premium an amount of Rs.100/- as per Ex.B-2. When Ex.B-2 clearly goes to show that the owner of the vehicle paid the premium to driver of the vehicle, certainly the complainant is entitled to get the amount/compensation from Opposite Parties.
CC 163/2008 --7-- For the foregoing reasons given by us, we come to the conclusion that the complainant is entitled to get the amount from Opposite Party No.2. Hence we answered this point accordingly in favour of complainant against the Opposite Party No.2. Point No.2: To what Relief:- The first point is decided in favour of complainant against the Opposite Party No.2 this point is also decided in favour of complainant against the Opposite Party No.2. In the result, this complaint is allowed and we direct the Opposite Party No.2 to pay an amount of Rs.1,00,000/- (Rs.One Lakh only) to the complainant along with interest @ 7.5% p.a. from the date of filing of the complaint i.e. 26-09-2008 till the date of deposit. The Opposite Party No.2 is also directed to pay an amount of Rs.500/- towards costs. A month’s time is granted to Opposite Party No.2 for the compliance of the order. The claim against the Opposite Party No.1 is dismissed. (Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum today, the 03rd November, 2009).
President Lady Member Male Member
District Consumer Forum, Warangal
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainant On behalf of Opposite Parties
Affidavit of complainant filed. Affidavit of opposite party filed. EXHIBITS MARKED
ON BEHALF OF COMPLAINANT 1. Ex.A-1 is the Xerox copy of First Information Report (FIR) of deceased person i.e. Matcha Sammaiah.
2. Ex.A-2 is the Xerox copy of Inquest Report of deceased person i.e. Matcha Sammaiah.
3. Ex.A-3 is the Xerox copy of Post Mortem Examination Report of deceased person i.e. Matcha Sammaiah.
4. Ex.A-4 is the Xerox copy of Report from the Motor Vehicles Inspector.
5. Ex.A-5 is the Xerox copy of Final Report. CC 163/2008 --8-- 6. Ex.A-6 is the Xerox copy of Driving License issued by RTA, Warangal.
7. Ex.A-7 is the Xerox copy of Insurance Policy.
8. Ex.A-8 is the office copy of Legal Notice issued to opposite party, dated:09-01-2008.
9. Ex.A-9 is the Postal Receipt.
10. Ex.A-10 is the Postal Acknowledgment. ON BEHALF OF OPPOSITE PARTY
1. Ex.B-1 is the Copy of the Policy.
2. Ex.B-2 is the Policy certificate. PRESIDENT
| 
