‘/BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Monday the 10th day of January, 2011
C.C.No 57/10
Between:
K. Mohan, S/o. Maddilety,
H.No.8/62, Near Sri Rama Talkies, Peapally Post and Mandal, Kurnool District.
……Complainant
-Vs-
1. M/s. Iffco-Tokio General Insurance Co., Ltd.,Rep., by its General Manager cum authorized signatory,
IFFCO Sadan, C1, Datt Centre, Saket Centre, New Delhi - 110017.
2. Zonal Manager, M/s. Iffco-Tokio General Insurance co., Ltd.
2nd Floor, Uma Chambers, Banjara Hills Road,
Punjagutta,Hyderabad - 500082.
3. Branch Manager, M/s. Iffco - Tokio General Insurance Co., Ltd.,
MRB Trade Centre, Kurnool - 518001.
…OPPOSITE PARTIES
This complaint is coming on this day for orders in the presence of Sri. P.Sivasudarshan, Advocate, for complainant, and opposite party No.1 is called absent set ex-parte and Sri. P.Ramanjaneyulu, Advocate for opposite party No.2 & 3 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As Per Sri, T.Sundara Ramaiah, President)
CC No.57/2010
The Compliant is filed under section 11 and 12 of C.P. Act, 1986 praying to direct the Opposite parties.
(a) To pay Rs.1,81,200/- towards damages with interest at the rate of 24% from the date of accident i.e. 26-2-2008 till the date of realization.
(b) Grant a sum of Rs. 50,000/- towards mental agony.
(c) Grant the cost of the complaint.
(d) Grant any other relief as the Hon’ble Forum deems fit and proper in the circumstance of the case.
2. The case of the complainant in brief is as under:- The complainant insured his vehicle bearing NO.AP21 X 5348 with the opposite parties. The Opposite parties issued policy bearing NO. 37641091 covering vehicle own damage also. The policy was in force from 19-7-2007 to 18-10-2008. On 26-2-2008 the vehicle of the complainant was damaged in the accident near Chirumanudoddi bus stop Aspari Police station limits. Aspari Police registered a case under section 338 IPC in Cr.13/2008. The complainant submitted his claim for Rs. 1,81,200/- along with relevant documents. The opposite parties repudiated the claim of the complainant on the ground that excess number of persons traveled in the vehicle at the time of the accident. There was no violation of condition of policy. The opposite parties are liable to settle the claim of the complainant on non standard basis. The complainant is entitle to receive 75% of the estimated amount. Hence the compliant.
3. OP No.1 set exparte. Opposite party No.2 filed counter and same was adopted by OP No.3 It is stated in the written version of OP No2 that the complainant is not maintainable. It is admitted that the vehicle of the complainant was insured by the opposite parties under the policy bearing No.37641091. After receiving the information about the accident a surveyor was appointed. The vehicle of the complainant is a goods carriage LMV. It is commercial vehicle. It does not cover the risk of the passengers. It covers the risk of driver only. The complainant was not authorized to carry the passengers in the goods vehicle. Carrying of passengers in goods carriage vehicle amounts to violation of condition of the policy. As there was violation of the condition of the policy, the OP’s repudiated the claim on 18-12-2008. The surveyor assed the net loss of damages at Rs.61,000/-. The complainant suppressed the material facts and filed the false complaint. The occupants of the vehicle who sustained injuries filed OP’s claiming compensation before the motor accident tribunal Adoni. There was no deficiency of service on the part of the op s and the complainant is liable to be dismissed.
4. On behalf of the complainant Ex. A1 to A7 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B6 are marked and sworn affidavit of OP No2 is filed.
5. Both parties filed written arguments.
6. The points that arise for consideration are
(i) Whether there is deficiency of service on the part of the Opposite parties?
(ii) Whether the complainant is entitled to the reliefs as prayed for?
(iii) To what relief?
7. Points I. & 2. Admittedly the complainant was the owner of the vehicle bearing NO. AP 21X 5348 and it was insured with OP’s under policy bearing NO.37641091. Ex B1 is the policy. The said policy was in force from 19-10-2007 to 18-10-2008. It is also admitted that the vehicle of the complainant met with on accident on 26-2-2008 when the policy was in force. Ex.A1 is the copy of FIR in Cr.No.13/2008 of Aspari Police Station and Ex.A2 is copy of charge sheet in CC No.154/2008 on the file of JFCM, Aluru. It is also admitted that on information given by the complainant about the damage of his vehicle in the accident, the OP appointed surveyor. The surveyor filed his report Ex.B2.
8. The complainant submitted his claim and it was repudiated by the OP on the ground that the complainant violated the terms and conditions of the policy. Admittedly the crime vehicle is a goods carrying LMV and the complainant was carrying passengers in the said vehicle at the time of the accident. It is submitted by the learned counsel appearing for the complainant that the insurance company is liable to settle the claim on a non standard basis even though there is violation of condition of the policy. In support of his contention he relied on a decision reported II (2006) CPJ 83 (NC) where the National Commission held that “in a case of violation of condition of the policy as to the nature of use of the vehicle the claim ought to be settled on a non-standard basis”. In the present case on hand it is proved that there was violation of condition of policy. Passengers were there in the vehicle at the time of the accident though the vehicle is a goods vehicle. In view of the finding of the National Commission in the decision cited about we have no hesitation to hold that the claim of the complainant should be settled on a non-standard basis. The repudiation of the claim by OP is not justified. There was deficiency of service on the part of opposite parties.
9. The complainant claimed damages of Rs. 1,81,200/- basing on Ex.A7 estimation. In Ex.A7 it is mentioned that an amount of Rs.1,81,200/- is required. Except the Affidavit evidence of complainant there is no independent evidence to show that the complainant spent on amount of Rs.1,81,200/-. Admittedly surveyor who inspected the vehicle after the accident filed his report Ex.B2. The surveyor assessed the net loss at Rs. 61,000/-. The report of the surveyor must be given due weight by both parties. In II (2006) CPJ 144 (NC) it is observed that in case of over loading of vehicle beyond licensed carrying capacity the claim should not exceed 75% of admissible claim. As already stated the survey assed the loss in this case at Rs. 61,000/- only. Seventy percent of it comes to Rs.45750 (61,000 X 75/100). The complainant is entitled to the said amount as damages on non standard basis.
In the result the complaint is partly allowed directing the OP’s jointly and severally to pay damages of Rs.45,750/- to the complainant with interest 9% p.a. from date of repudiation of the claim i.e. 18-12-2008 till the date of payment along with costs of Rs. 500/-.
Dictated to the Typist, transcribed by him, corrected and pronounced by us in the open bench on this the 10th day of January, 2011.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nill For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of FIR in Cr.No.13/08 of Aspari,
P.S. dt. 27-2-2008.
Ex.A2. Photo copy of charge sheet in Cr.No.13/08.
Ex.A3. Photo copy of IFFCO-TOKIO General Insurance policy
No.37641091.
Ex.A4. Photo copy of Motor vehicle Insurance cover note.
Ex.A5. Repudiation letter dt. 18-12-2008.
Ex.A6 Photo copy of Registration certificate No.A.P.21X-5348.
Ex.A7 Photo copy of Registration certificate No.A.P.21X-5348.
List of exhibits marked for the opposite parties:
Ex.B1. IFFCO-TOKIO General Insurance policy No.37641091.
Ex.B2. Motor survey report of E.Mukund dt.14-6-2008.
Ex.B3. Photo copy of letter dt. 2-10-2008 issued by OP to the
Complainant.
Ex.B4. Photo copy of Compensation petition in MVOP NO.
27/2009 on the file of the IInd Additional District Judge, Adoni.
Ex.B5. Photo copy of Compensation petition in MVOP NO. 10/2010
on the file of the IInd Additional District Judge, Adoni.
Ex.B6. Photo copy of Repudiation letter dt. 18-12-2008.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
