OF 2008 AGAINST C.C.NO.142 OF 2006 DISTRICT CONSUMER FORUM NELLORE

Between

M.Harinath S/o Venkaiah
Aged about 41 years Occ: Unemployee
R/o Pidurupalem Village, Manubolu
Mandal, Nellore District

                                                                Appellant/complainant                                         

        A N D

The New India Assurance Company Ltd.,
Rep., by its Branch Manager,
15-296, Brindavanam, Nellore.

Respondent/opposite party

Counsel for the Appellant                      Sri V.V.Ramana

Counsel for the Respondent                   Sri Naresh Byrapaneni

 QUORUM:                 SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                          TUESDAY THE TWENTY SEVENTH DAY OF JULY

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                            ***

        Dissatisfied with the order of the District Forum dated 24.1.2008 in C.C.No.142 of 2006, the complainant filed this appeal.

        The brief facts as set out in the complaint are that the complainant in order to eke out his livelihood purchased three wheeler goods Carrier Ape Cargo D.600 Pick up Van bearing No. AP 26W 3984 by obtaining loan of Rs.70,000/- from money lenders.  The said vehicle was insured with the opposite party by praying premium of Rs.3,225/- on 12.6.2004 for a sum of Rs.1,15,000/- and the period of insurance is from 12.6.2004 to 11.6.2006.  The vehicle bearing No.AP 26W 3984 was missing from 4.6.2006 along with its driver Kota Ramanaiah.  The complainant lodged complaint with the police Gudur Rural Police Station which was registered as FIR no.54 of 2005 for the offence u/s 406 IPC.  The complainant also intimated the missing of the vehicle to the opposite party.  It was found that the driver of the vehicle  was murdered at Sangam Village on 29.5.2005. Whereabouts of the vehicle was not traced.  The complainant submitted his claim for Rs.1,15,000/- along with all relevant documents.   Despite submission of claim, the opposite party failed to settle the same.  Hence, the complainant filed the complaint before the District Forum seeking direction to the opposite party to pay Rs.1,15,000/- together with damages of Rs.75,000/- and costs.

        The opposite party resisted the case  contending that the vehicle was purchased with the finance from Cholamandalam Investment Finance Limited and hypothecated with the same.  The vehicle was insured on 12.6.2004 with the opposite party and the date of expire of insurance was 11.6.2005.  The complainant is not the owner of the vehicle.  The finance company is the owner of the vehicle.  It is not correct that the complainant gave a complaint to Gudur P.S Rural that the insured vhielce AP 26W 3984 was missing from 4.6.2006 as also its driver,  Kota Ramanaiah.  As per the contents of the FIR dated 4.6.2005 the said truck auto was missing from 27.5.2005 so also its driver K.Ramanaiah.  No document was filed that the complainant employed K.Ramanaiah as driver for the vehicle.  No driving license particulars of the driver are produced. The contents of the FIR dated 29.5.2005 show that a male body was burnt on the northern road margin near Duvvuru canal.  As per the death certificate issued by Panchayat Secretary, Tarunavaya Vilalge, Sangam Mandal dated 28.5.2005 shows that the name of the deceased is Kottu Venkata Rao @ Ramanaiah.  The name of the driver is also doubtful. 

The complainant has not produced any substantial evidence to establish that there is a prima-facie case.    Entrustment is an essential element of the offence under section 406 of IPC.  The person who comes into possession of the movable property receives it legally but illegally retains it or converts it to his own use against the terms of the contract.  There is no section of law for loss of the property that is passengers carrying vehicle. The driver Kottu Venkata Ramaiah who took the vehicle before being murdered was not having valid driving license since he possessed only authorized to drive auto rickshaw non-transport category vehicle and hence the driver should possess driving license to driver AR (Transport) category vehicle.  The complainant insured has not obtained undetectable/untraced certificate from the police.  In spite of the above lapses, the opposite party sanctioned the claim for Rs.59,500/- as per the recommendations of surveyor who assessed the market value of the lost vehicle which the insured has not accepted.  Hence, the opposite party prays for dismissal of the complaint. 

The complainant has filed his affidavit and on his behalf Exs.A1 to A4 had been marked.

On behalf of the opposite party Sri C.J.R.J.Sastry, Divisional Manager filed his affidavit and documents Exs.B1 to B3

        The District Forum partly allowed the complaint directing the opposite party to pay Rs.60,000/- with interest @9% per annum from the date of filing of the complaint till payment together with costs of Rs.2,000/-.

        Feeling dissatisfied with the order of the District Forum, the complainant has filed the appeal, contending that the opposite party had issued insurance policy for sum of Rs.1,15,000/- and the surveyor’s report referred to by the  District Forum has not been filed before it as also that the  recommendations of the surveyor are not binding upon the District Forum. 

        The point for consideration is whether the complainant is entitled to the amount of Rs.1,15,000/- as sought for?

        The complainant has got insured his three wheel goods carrier, APE CARGO D600 pickup van with the opposite party for a sum of Rs.1,15,000/- for the period commencing from 12.6.2004 till 11.6.2005.  The complainant submits that the vehicle was missing from 4.6.2005 whereof its driver Kota Ramanaiah was also reported to have been missing.  The complainant lodged a complaint with the police Rural PS Gudur who registered a case in FIR 54 fo 2005 u/s 406 of IPC.  The complainant has submitted that he had reported the matter of missing of the vehicle to the opposite party.  While so, on 29.5.2005 the village secretary A.Ramesh lodged a complaint with the police that the driver of the van was brutally murdered whereupon the police registered a case in Crime No.36 of 2005 u/s 302 and 201 of IPC. 

        The opposite party contended that the complainant is not the owner of the vehicle.  Cholamandalam Investment of Finance Limited is the owner of the vehicle.  The policy expired on 11.6.2005.  As per the contents of the FIR dated 4.6.2005, the truck was missing from 27 .5.2005 and as per the FIR dated 29.5.2005 a dead body was burned on the northern road margin near Duvuru canal and the body was supposed to be fully burnt with hay and grass and could not be identified. 

        The copy of FIR dated 4.6.2005 shows that the complainant lodged a complaint with the police that his driver along with the vehicle was missing since 27.5.2005 and to the effect the FIR issued u/s 406 of IPC.  The panchayat Secretary of Tarunivayu village, Sangam Mandal lodged a complaint on 29.5.2005 with the police that he had come to know that a person was dead lying on the northern side of the road near Duvuru canal.  The police had taken to  the case for investigation.  The Panchayat Secretary who lodged the complaint earlier with the police, issued death certificate to the effect that Kotu Venkat Rao @ Ramanaiah was died on 29.5.2005 at Tarunivaya Village.  Hence, we do not see anything adverse to the fact that the vehicle of the complainant as also his driver was missing ever since 29.5.2005 and the driver of the complainant was found murdered by the  panchayat secretary and the villagers of Tarunivayu Village.  The opposite party attempted to state that the body of the person found murdered could not be that of the driver of the complainant.  The Panchayat Secretary who was discharging his duty at Tarunivayu Vilalge and identified the body of Kotu Venkat Rao @ Ramanaiah, the driver of the complainant.  These facts would consolidate and draw inference that the person who was found murdered was the driver of the complainant.

        The objection in regard to the driving license of Kotu Venkat Rao @ Ramanaiah as taken by the opposite party has no relevance to the circumstances nor was it established that the driver of the complainant was authorized only to drive autorikshaw (non-transport).  The driver, though for a moment presumed to be having only a driving license authorizing him to drive auto (non-transport), was not met with an accident wherein the auto was involved.  It is a case where unidentified person had murdered the driver and taken away the vehicle. 

        The vehicle, admittedly, is not found though missing since 29.5.2005 and the murder of the driver has supported the fact that the vehicle was not traced till the date of filing of the complaint.  The opposite party has deposited an amount of Rs.70,100/- which includes @ 9% per annum and costs of Rs.2,000/- before the District Forum in compliance of the order dated 24.1.2008.  Once the fact is proved that the vehicle was one year old APE CARGO D600 and was caused theft of, the opposite party necessarily, has to abide by the terms and conditions of the insurance policy to settle the claim of the complainant.  The opposite party has deposited the amount as awarded by the District Forum and has not chosen to challenge the finding of the District Forum as to the matter of theft of the vehicle and murder of its driver.  In the circumstances, we are inclined to award a sum of Rs.90,000/- of which the opposite party has already paid an amount of Rs.60,000/- as as also an amount of rs.8,100/- towards interest and Rs.2,000/- towards costs.  and thus the balance remains to be paid by the opposite party is Rs.30,000/-

        In the result the appeal is allowed by modifying the order dated 24.1.2008 of the District Forum.  The opposite party directed to pay a sum of Rs.30,000/- ( Rs.90,000/- - Rs.60,000/-).  There shall be no order as to costs.

                                                                        MEMBER

                                                                        MEMBER           

                                                                    Dt.27.07.2010

KMK*