Date of filing: 18.02.2013.
Date of disposal: 31.10.2013.
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 31st day of October, 2013
C.C.No.54 of 2013
Between:
S. Rajasekhar @ Babji, S/o Ramaiah, Hindu, Aged 42 years, R/o.D.No.6/928-1, Nunevaripalli, Near Everest School, Rajampet, Y.S.R. District.
And
1. M/s Bajaj Allianz General Insurance Co., Ltd., Rep: by its Managing Director, Regd. Office, GE Plaza, Air Port Road, Yerwada, Pune – 411006 (India).
2. M/s Bajaj Allianz General Insurance Co., Ltd., Rep: by its Authorized Signatory/Assistant Manager – Claims, Door No.40-1-10, Upstairs of Kusalava Hyundai Show – Room, 2nd Floor, M.G. Road, Labbipet, Vijayawada – 520010.
…. Opposite parties.
This complaint coming on before the Forum for final hearing on 29.10.2013, in the presence of Sri K. Satyanarayana Rao, advocate for complainant; opposite party no.1 remained absent; Sri. T. Veerabhadra Rao, advocate for opposite party no.2 and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President Sri A. M. L. Narasimha Rao)
1. This complaint is filed under Section 12 of Consumer Protection Act, 1986 for a direction to the opposite parties 1 and 2 to pay a sum of Rs.2,21,400/- policy amount in respect of vehicle damage in an accident, to pay interest, to pay Rs.50,000/- towards deficiency in service and to pay Rs.25,000/- towards compensation for mental agony.
2. The averments of the complaint in brief are as follows:
The complainant’s vehicle a truck bearing No. AP 16 TU 7377 was insured with the 1st opposite party for a period up to 21.4.2011 and the complainant paid the premium for commercial vehicle package and also third party risk coverage. The complainant’s vehicle met with an accident on 25.6.2010 at 5 pm near Darga on Rajampet – Kadapa highway due to rash and negligent driving of the vehicle. The petitioner informed the incident to the insurance company and the insurance company deputed a surveyor who inspected the vehicle at the spot and assessed the loss caused to the vehicle. The complainant’s vehicle suffered major damage and he got the vehicle repaired incurring an expenditure to a tune of Rs.2,21,400/-. The petitioner submitted bills worth Rs.1,92,400/- to the respondents. He also filed estimation issued by mechanic of Sri Kiran Automobile Works, Vijayawada for a sum of Rs.2,21,400/-. The petitioner raised claim with the respondent for reimbursement of repairing charges. The 2nd opposite party sent a notice to the complainant stating that at the time of accident the vehicle was carrying five persons though the seating capacity was three and that the policy terms and conditions were violated. The petitioner sent a legal notice dated 12.7.2010. When it was returned he sent another notice on 3.8.2010 which was served on the respondents on 6.8.2010. There was no reply. The petitioner sent another notice dated 21.4.2011. There is no reply from the respondents. According to the policy the seating capacity of lorry is 3+1 and premium was paid for three persons as the vehicle is goods vehicle. Workmen Compensation Act, permits six persons to travel in the vehicle. The claim does not relate to injury to any person travelling in the vehicle. The persons travelling in the vehicle are in no way concerned with the cause of accident and they have not contributed to the accident or to the risk inrespect of loss caused to the vehicle as there is no violation of terms of policy. The complainant is entitled to the policy amount. Therefore the present complaint is filed.
3. This complaint was initially filed in District Consumer Forum, Kadapa. It was registered as C.C.No.102/20011 on the file of District Consumer Forum, Kadapa. Later it was returned on the point of jurisdiction. There after this complaint is filed in this Forum.
4. The opposite parties were served with notice. 1st opposite party remained absent and 2nd opposite party appeared through counsel and Vakalat was filed on 21.5.2013. Time was given for filing version and the 2nd opposite party. He did not file version inspite of imposing costs. Complainant filed his affidavit. As the opposite parties has not filed version no further time is given for evidence of opposite parties. The matter is proceeded exparte.
5. The affidavit of the complainant is received as evidence of PW.1 and Exs.A1 to A14 are marked. Heard the complainant.
6. The point for determination is: Whether the complainant is entitled to the amounts claimed under the policy?
7. The complainant’s affidavit and documents filed by the complainant would show that the complainant’s vehicle was insured with the 1st opposite party insurance company for the period from 22.4.2010 to 21.4.2011. The seating capacity of the vehicle is noted as two in the certificate cum policy schedule Ex.A4. Basic liability coverage was Own damage, basic third party liability, PA coverage for owner-driver and legal liability (LL) for operation/maintenance for three persons. The vehicle insured is a lorry. The copies FIR and Charge Sheets would show that the complainant’s vehicle bearing No. AP 16 TU 7377 met with an accident on 24.6.2010 near Darga in Nanduluru PS limits of Kadapa District. One of the insured persons had given statement to police and on recording his statement the FIR is registered. According to the statement of injured person some persons got into lorry in the evening on 24.6.2010 for coming home from the place of their work. They have not stated that they were travelling as workers in the lorry. The learned counsel for the complainant argues that there were no passengers in the vehicle and the persons injured were on the road and suffered injuries due to accident. There is no material to support this contention. Even in the charge sheet it is not mentioned that the vehicle caused injuries to the persons on the road or standing by the side of the road. Therefore the statement given by the injured persons to the police for FIR shall be given weight and it must be taken from that statement that some persons were travelling in the body of the vehicle at the time of accident.
8. The complainant filed estimate and also some bills showing expenditure incurred to get the vehicle repaired. The estimate under Ex.A6 is for Rs.2,21,400/-. The bills are filed to an extent of Rs.1,92,121/- under Ex.A12.
9. The complainant made a claim for the amount of Rs.2,21,400/-. Though the opposite party appears to have appointed a surveyor, according to the complainant, copy of surveyor’s report was not furnished to him. The 2nd opposite party sent a notice dated 29.6.2010 under Ex.A7 to the complainant to show cause within 7 days as to why the claim should not be repudiated on the ground that there were five persons travelling in the vehicle as against the permitting seating capacity of three persons at the time of accident and the complainant had failed to take reasonable care and directly contributed to the loss. Subsequent to this letter the complainant sent notices dated 12.7.2010, 3.8.2010 and 21.4.2011. The 2nd opposite party had received notice dated 3.8.2010. There is no further reply. There is no mention made as to why the reply of the complainant was not considered when the 2nd opposite party asked the complainant to let know why the claim should not be repudiated. Then it is necessary for this Forum to see if the repudiation on that ground is proper.
10. The FIR and Charge-Sheet would reveal that there were only two persons in the cabin of the vehicle and there were some persons in the body and those persons in the body seem to have suffered injuries. A few persons travelling in the body would never contribute to the accident. It is not mentioned anywhere in the FIR and Charge-sheet that the vehicle was overloaded i.e., having material load beyond its capacity. Three persons seated in the body of a lorry would in no way interfere with the driving of the vehicle. Therefore it is absurd to say that three persons travelling in the body of the lorry had contributed to the accident. The accident occurred when the lorry went out of control and overturned. Therefore the ground on which the opposite party had repudiated the claim is baseless. Consequently the complainant is entitled to the policy amount. However when there is some violation of terms of the policy it would be appropriate to limit the insurance amount to 75% of the amount payable for entire damage. The complainant had filed receipts for a sum of Rs.1,92,121/- and the complainant is therefore is entitled to 75% of this amount which comes to Rs.1,44,090/-. He is also entitled to interest on that amount at the rate of 9% p.a., from the date of complaint originally filed before District Consumer Forum – Kadapa i.e., on 13.1.2012. The complainant shall also be entitled to costs assessed at Rs.2,000/-.
11. In the result this complaint is allowed in part and the opposite parties 1 and 2 are directed to pay jointly and severally a sum Rs.1,44,090/- (Rupees one lakh forty four thousand and ninety only) with interest there on at the rate of 9% p.a., from 13.1.2012 the date of complaint till payment or realization and to pay costs of Rs.2,000/- (Rupees two thousand only) to the complainant. The amounts shall be paid within one month from the date of receiving copy of the order. Complaint for rest of the reliefs is dismissed.
Dictated to Steno N. Hazarathaiah, transcribed by him corrected by me and pronounced by us in the open Forum, this the 31st day of October, 2013.
PRESIDENT MEMBER MEMBER
Appendix of evidence
Witnesses examined
For the complainant: For the opposite parties:
S. Rajasekhar @ Babji, - None -
PW-1,(by Affidavit)
Documents marked
On behalf of the complainant:
Ex.A1 25.06.2013 FIR.
Ex.A2 25.06.2013 Copy of charge-sheet.
Ex.A3 Copy of accident’s place rough sketch.
Ex.A4 Attested copy of certificate cum policy schedule.
Ex.A5 Attested copy of authorization for tourist permit.
Ex.A6 Attested copy of estimation.
Ex.A7 29.06.2010 Photocopy of letter issued by OP to complainant.
Ex.A8 12.07.2010 Copy of legal notice got issued by complainant to OP.
Ex.A9 03.08.2010 Remainder got issued by complainant to OP.
Ex.A10 21.04.2011 Copy of another legal notice got issued by complainant to OP.
Ex.A11 Original photos and CD.
Ex.A12 Original bills (12).
Ex.A13 Attested copy of driving license.
Ex.A14 Attested copy of household card.
On behalf of the opposite parties: - Nil-
PRESIDENT
