Date of filing:11.3.2013
Date of Disposal:10.4.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N.TRIPURA SUNDARI, B. COM., B. L., MEMBER
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
THURSDAY, THE 10TH DAY OF APRIL, 2014.
C.C.No.126 OF 2013.
Between :
Byreddy Krishna Reddy, S/o Gangi Reddy, Hindu, Owner of Lorry Bearing No.AP 16 TC 0549, R/o Goodavalli Vari Street, Governorpet, Vijayawada 520 002.
….. Complainant.
And
1. M/s Shriram General Insurance Company Ltd., Upstairs of Hero Honda Showroom, Rep., by its Divisional Manager, 3rd Floor, Besides Venkateswara Petrol Bunk, Renugunta Road, Tirupathi.
2. The Branch Manager, M/s Shriram General Insurance Company Limited, Branch Office at Vijayawada.
…..Opposite Parties.
This complaint is coming before us for final hearing on 1.4.2014 in the presence of Sri R.V.Rama Krishna, Counsel for complainant and Sri T.Veerabhadra Rao, Counsel for opposite parties and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S.Sreeram)
This Complaint is filed by the complainant under Section 12 of the Consumer Protection Act, 1986 for a direction to the opposite parties to pay Rs.1,00,000/- to the complainant together with interest at 24% per annum, to pay Rs.1,00,000/- towards mental agony, for grant of costs and other reliefs.
1. The brief averments of the complaint are as follows:
The complainant is the absolute owner of lorry bearing No. AP 16 TC 0549 model EICHER and the said vehicle is insured by opposite parties 1 and 2 who issued comprehensive policy vide No.417053/31/12/006077. It is further submitted that the above said vehicle was met with accident on 18.2.2012 near Maytas Company, Pulivendula-parnapalli Main Road, Lingala Mandal, YSR District at 15.20 Hrs and as a result of which the complainant lorry was totally damaged. The complainant immediately informed the same to opposite parties 1 and 2 and as per their instructions, the complainant shifted the vehicle from scene of offence to Tirupthi Shed and the opposite parties conducted survey by their authorized surveyor. The complainant spent Rs.1,00,000/- towards repairs of lorry and rebuilt the entire portion, cabin and replaced parts and requested the opposite parties to settle his claim for Rs.1,00,000/-. But the opposite parties repudiated the claim through their letter dated 9.5.2012 on the ground that ‘at the material time of accident, there were five persons travelling in the insured vehicle including the driver, when the permitted seating capacity of the vehicle as per registration certificate is only three’, which is serious violation of policy conditions. According to complainant the ground on which the opposite parties repudiated the claim is not valid and as such there is deficiency of service on the part of opposite parties. The complainant got issued a legal notice dated 14.7.2012 to the 1st opposite party and the 1st opposite party received the notice, but not issued any reply notice. As such he filed the present complaint. Hence, the complaint.
2. After registering the complaint, notices were sent to the opposite parties. The 2nd opposite party filed version on its behalf, which was adopted by the 1st opposite party. The 2nd opposite party through its version while admitting the insurance and accident to subject vehicle, denied the other allegations of the complaint. It is submitted that the opposite party after receipt of claim intimation from complainant on 20.2.2012 appointed M/s Libra Surveyors Pvt., Ltd., Chennai on 20.2.2012 to conduct spot inspection who in turn appointed Mr.M.Modeem Baig as surveyor and the said Surveyor visited the place of accident on 20.2.2012 and sent motor spot survey report dated 21.2.2012 to M/s Libra Surveyors Pvt., Ltd., Chennai and the opposite parties received the same on 5.3.2012 and as per the findings of surveyor, at the time of accident, there are five persons travelling in the vehicle including driver and where as the seating capacity is only three in all and that the complainant committed willful breach of conditions of policy. It is further submitted that the complainant did not approach the opposite party on and after 20.2.2012 and that the opposite party wrote a letter on 29.2.2012 requesting the complainant to inform the name of garage to enable the Final surveyor to assess the loss of vehicle. It is further submitted that despite the delay in disclosing the place and name of garage by complainant, the opposite party was able to allot final survey to Mr.Sreedhar on 23.2.2012 who assessed the loss at Rs.43,000/- and further submitted that there is no deficiency on the part of opposite parties in repudiating the claim and finally prayed to dismiss the complaint.
3. During course of enquiry, the complainant filed his affidavit and got marked Ex.A.1 to Ex.A.7. The Manager of the 2nd opposite party filed affidavit and Ex.B.1 to Ex.B.11 were marked on behalf of the opposite party.
4. Heard both sides and perused the record.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of the opposite parties 1 and 2 in repudiating the damage claim of complainant?
2. If so is the complainant entitled for the reliefs as prayed for?
POINT No.1:-
6. On perusing the material on hand (complaint, affidavits and documents), the admitted and undisputed facts are that the policy was issued by opposite parties in respect of lorry bearing No. AP 16 TC 0549 to the complainant and the same was in force on the date of accident i.e., 18.2.2012. Ex.A.7 copy of Motor Vehicle cover note/Ex.B.11 copy of policy proves the same. Further there is no dispute between both the parties with regard to ownership of complainant and about the accident date 18.2.2012 to the subject vehicle, which was registered as case in Cr.No.13/2012 of Lingala P.S. The FIR in Cr.No.13/2012 of Lingala P.S., marked under Ex.A.1 establishes the same. The case of the complainant is that, in the said accident, the subject lorry was badly damaged and he spent Rs.1,00,000/- for repairs to make it roadworthy and that he laid a complaint with the opposite parties for indemnifying the said loss. But the opposite parties have repudiated the said claim under Ex.A.3 letter on the ground that ‘at the material time of accident, there were five persons travelling in the insured vehicle including the driver, when the permitted seating capacity is only three’, which is clear violation of conditions of policy. Further there is no dispute with regard to the driver of crime vehicle at the time of accident.
7. As the opposite parties are admitting the existence of insurance and accident, now the next aspects that are to be considered are that whether the grounds taken by the opposite parties for repudiating the claim are valid or not.
8. So far as the ground i.e., travelling of 5 persons in the lorry against the condition of policy is concerned, the case of the complainant is that the complainant never violated any terms of the policy and the driver was having valid driving license at the time of accident. On the other hand, the contention of the opposite party is that as per certificate of registration of lorry, the seating capacity is only three, but at the time of accident, there are five persons in the lorry, which is clear violation of policy conditions. Admittedly as seen from Ex.B.6 certificate of registration in the column No.19 – seating capacity is mentioned as ‘3’. But according to opposite parties there are five persons in the lorry at the time of accident. The complainant has not denied the said fact and it is only stated that the complainant never violated any of the policy conditions. Even for the sake of argument, that 5 persons were travelling in the lorry at the time of accident, it cannot be a ground for insurance company to repudiate the contract as the fact of their being traveling in the lorry does not make any difference to the risk involved. They were in no way concerned with the cause of accident nor they have contributed to the risk in respect of the loss caused to the vehicle. Further the complainant has not laid the complaint seeking compensation for the injuries sustained by persons who are travelling in the vehicle. Further it is clear from the terms of the policy that the vehicle was entitled to carry three persons including driver. Two more persons travelling in the vehicle, cannot be assumed not have increased any risk. Further the cause of accident has no connection with the passengers travelling in the vehicle. In this regard, we would like to rely on a decision of the Hon’ble Supreme Court reported in AIR 1996 SC 2054 B.V.Nagaraj Vs Oriental Insurance wherein it is held that
“Alleged breach of carrying humans in a vehicle more than the permitted in terms of policy is not so fundamental a breach so as to afford the insurer to eschew liability”.
The complainant relied on two decisions (1) Cholamandalam Ms General Insurance Co., Ltd., and another Vs. Sri M.Srinivasa Rao, in F.A.835 of 2012 against C.C. No.235 of 2011 District Forum-II Vijayawada Krishna District before the A.P.State Consumer Disputes Redressal Commission at Hyderabad.
(2) The Hon’ble Supreme Court of India in a case between Amalendu Sahu Vs. Oriental insurance Co., Ltd., in Civil Appeal No.2703/2010 made reference to the decision of National Commission in the case of New India Assurance Co., Ltd., Vs. Narayan Prasad Appaprasad Pathak (reported in 2006 CPJ 144 NC). In that case also the question was, whether the insurance company can repudiate the claims in case where the vehicle carrying passengers met with accident. The National Commission set out in its judgement, the guidelines issued by the company about settling all such claims on non standard basis, which guidelines are reproduced below.
S.No. | Description | Percentage of settlement. |
1 | Under declaration of licensed carrying capacity | Deduct three years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher |
2. | Over loading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claim |
3 | Any other breach of warranty/condition of policy including limitation as to use | Pay up to 75% of admissible claim |
In the instant case, the stand of insurance company is that there are five passengers travelling in the lorry and in the course of that there has been an accident. Following the aforesaid guidelines and the discussion in foregoing paragraph, this Forum is of the opinion that the insurance company cannot repudiate the claim in toto and the insurance company has to settle the claim on non-standard basis.
9. With regard to the amount spent by complainant, it is the case of complainant that he spent Rs.1,00,000/- for making the said lorry roadworthy and the opposite party has to pay the same. In this regard, the complainant got marked Ex.A.2 bills which amount to Rs.88,259/- only. On the other hand, the contention of opposite parties is that the complainant is entitled to only Rs.43,000/- as per their final surveyor report Ex.B.5. A perusal of Ex.A.2 bills, the first bill does not contain the date on which it was issued and the 2nd bill does not contain the rubber stamp of the company and the person who received the amount. Further the complainant also not filed the original bills mentioned above. Further Ex.B.5 is authenticated document which was issued by the final surveyor. In the absence of any substantive proof from the complainant with regard to the amount spent by him, the complainant is entitled for Rs.43,000/- towards damage and repair amount and in view of the above guidelines, the complainant is entitled to Rs.32,250/- (Rs.43,000 x 75/100). Accordingly these points are answered in favour of the complainant and against the opposite parties.
POINT No.2:-
13. In the result, the complaint is allowed partly and the opposite parties are directed to pay a sum of Rs.32,250/- (Thirty two thousand two hundred and fifty rupees only) together with interest at the rate of 9% per annum from the date of repudiation of claim i.e., 9.5.2012 till realization besides costs of Rs.2,000/- (Two thousand rupees only). The opposite parties are directed to comply with the order within one month from the date of receiving copy of this order. The other claims of complainant if any are hereby dismissed.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 10th day of April, 2014.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 B.Krishna Reddy D.W.1 B.Satish Kumar,
Complainant Branch Manager of the
(by affidavit) 2nd opposite party
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:
Ex.A.1 19.02.2012 True copy of First Information Report.
Ex.A.2 . . Photocopy of Cash/credit bill issued by Sri Venkateswara Motors, Tirupathi along with estimation issued by Sri Moorthi Motors Works, Tirupathi.
Ex.A.3 09.05.2012 Letter from the opposite party office at Jaipur Rajasthan to the complainant.
Ex.A.4 14.07.2012 Office copy of legal notice.
Ex.A.5 14.07.2012 Postal receipt.
Ex.A.6 . . Postal acknowledgement.
Ex.A.7 13.10.2011 Photocopy of Motor vehicle cover note along with certificate cum policy schedule. .
On behalf of the opposite parties:-
Ex.B.1 18.02.2012 Attested True copy of Motor insurance Claim form.
Ex.B.2 19.02.2012 Attested True copy of Insurance Claim intimation slip.
Ex.B.3 20.02.2012 Attested true copy of letter from the opposite party to the Libra Surveyors Pvt., Ltd.,
Ex.B.4 21.02.2012 Attested true copy of Motor spot survey report issued by Libra Surveyors Pvt., Ltd., Chennai.
Ex.B.5 02.04.2012 Attested true copy of Private & Confidential Motor Final Survey Report issued by Sreedhar.V.V. Surveyor & Loss Assessor Tiruathi.
Ex.B.6 28.10.2010 Attested true copy of Certificate of registration.
Ex.B.7 03.10.2011 Attested true copy of Authorization Certificate of N.P.(Goods) issued by A.P. Transport Department.
Ex.B.8 30.10.2010 Attested true copy of permit issued by RTA Vijayawada.
Ex.B.9 . . Attested true copy of Claim Processing cum Assessment Opinion Report.
Ex.B.10 29.02.2012 Attested true copy of letter from opposite party office at Rajasthan to the complainant.
Ex.B.11 14.10.2011 Attested true copy of Certificate cum policy schedule.
PRESIDENT
