Before the District Forum: Kurnool
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra reddy, B.Com., LL.B., Member
Thursday the 4th day of November, 2004
C.D.No.32/2004
G.P.Maddilety alias Maddaiah, S/o. Pedda Yerraiah, Driver cum Owner of Auto bearing No.A.P 21U 9139,
R/o. A.Kodur (V), Bandiatmakur (M), Kurnool Dist.
. . . Complainant represented by his counsel
Sri T. Thulasi Reddy.
-Vs-
M/s. New India Assurance Co. Ltd,
Rep by its Divisional Manager, Kurnool.
. . . Opposite party represented by his counsel
Smt V. Nagalakshmi Devi
O R D E R
(As per Smt C.Preethi, Member)
1. This Consumer dispute case of the complainant is filed under section 12 of C.P. Act, 1986 seeking a direction on opposite party to pay insured amount of Rs,1,00,000/- with 16% interest per annum from the date of accident for the loss in curred in the accident, Rs.5,000/- as compensation for mental agony, costs of the complaint and any such other relief or reliefs which the complainant is entitle in the circumstances of the case.
2. The brief facts of the complaint of the complainant are that the complainant is the owner cum drive of Auto bearing No.Ap21U 9139, insured the said Auto with opposite party under policy bearing No.611502/31/03/00146 for the period for 21.4.2003 to 20.4.2004. In addition to the policy, premium was collected for covering the risk of one employee. On 7.5.2003 the complainant was driving the said Auto, met with accident at about 9.30 P.M the, complainant received injuries all over the body and fractured right clavicle and auto was also badly damaged. The accident was informed to the opposite party by the complainant and there was no reply response. The complainant incurred about Rs.10,000/- towards medical and attendance expenditure and was permanently disabled by about 20%. As there was no response from the opposite party the complainant got issued legal notice dt 4.10.2003 demanding reimbursement of loss of Rs.1,00,0000/- and the opposite party replied that the risk of owner cum driver of the vehicle is not covered. The complainant submits that premium was paid covering the
risk of one employee, hence the opposite party is liable to pay insured amount. Therefore the delay in non-payment of Insured amount is amounting to deficiency of service to the complainant.
3. The complainant in support of his complaint filed the following documents Viz (1) certified copy of FIR No.72 dt 7.5.2003 of Nandyal Talug Police Station (2) certified copy of charge sheet/case disposal report under FIR No.72 dt 7.5.2003 (3) wound certificate certified copy issued by Civil Assistant Surgeon, District Hospital, Nandyal (4) Attested copy of policy bearing No.611502/31/03/00146 of complainant’s vehicle (5) legal notice dt 4.10.2004 issued by complainant’s counsel to opposite party and (6) reply notice given by the opposite party’s counsel to the complainant’s counsel, besides to his sworn affidavit in reiteration of complaint averments and the above documents are marked as Ex A.1 to A.6 for its appreciation in this case.
4. In pursuance to the notice of this Forum as to this case of the complainant, the opposite party made its appearance through their standing counsel and contested the case by filling denial written version alleging the complaints case as not maintainable either in law or on facts.
- The written version of opposite party admits the complainants Auto was insured with it under the policy bearing No.611502/31/03/00146 for the period from 21.4.2003 to 20.4.2004 and the policy was in force at the time of the accident. It submits that premium paid under the policy covers the risk of the driver who is paid employee under the owner and it will not cover the risk of the owner and personal accident and no additional premium was paid to over the risk of owner and personal accident. Apart from that the complainant was not possessing valid driving licence to drive Auto non-transport and the Auto involved in accident was registered as auto rickshaw for carrying passengers (transport). As per M.V Rules, effective driving license required for driving the passenger carrying Auto is Auto rickshaw (transport). Thus the complainant violated terms and conditions of the policy without having valid driving license to drive Auto rickshaw (transport). Therefore, the complainant is not remaining entitle to claim amount of Rs. 1,00,000/- as compensation and Rs.5,000/- for mental agony and seeks for the dismissal of complaint with costs.
6. In substantiation of its case the opposite party filed the following documents Viz (1) attested copy of policy bearing No.611502/31/03/00146 of the complainant’s vehicle and (2) terms and conditions of the said policy besides to its sworn affidavit in reiteration of his written version and the above documents are marked as Ex B.1 and B.2 for its appreciation in this case.
7. Hence the point for consideration is whether the complainant has made out his case alleging deficiency of service on the side of the opposite party?:-
8. The complainant alleges that he holds an insurance policy of passengers carrying commercial vehicle policy B package of the opposite party for his Auto covering his risk and the passengers traveling in the said Auto and paid premium for the period commencing from 21.4.2003 to 20.4.2004 and the said Auto met with an accident on
7.5.2003. But as against to it, the written version of the opposite party in its averment denies the complainant’s policy covering owner cum driver risk, but accepts the policy covering the risk of other persons traveling in the said Auto and brought on record the policy bond and got it marked as Ex B.1. Which envisages the complainant paying premium for covering risk of three passengers, third party property damages, W C to employee 1, but no premium is paid covering driver cum owner risk. Therefore what follows is that the complainant did not pay premium for covering driver cum owners risk.
9. The only point in controversy for adjudication is whether the complainant paid premium covering owner cum drivers risk or not, the Ex A.4/B.1 policy of the complainant has no entry to the fact that the premium for owner cum driver’s risk is covered. Whether this amounts to deficiency of service inspite of the fact that the complainant did not pay any premium to cover owner cum drivers risk. The complainants contention is that he is covered under the risk of W C to employee 1, but the opposite party rebutted the said contention of the complainant stating that WC to employee 1 is for paid employee and the owner of the Auto under any circumstances can be termed as employee, as submitted in the written version averments of the opposite party, which was not disputed by the complainant nor any circumstances placed by the complainant as to the payment of premium covering driver cum owners risk. Hence the said contention of the complainant is rejected. Therefore, in the absence of any such material as to the payment of premium covering owners cum drivers risk, it is very hard to believe the complainant’s entitleness to the claims made by him in his complaint averments. Hence, there appears no justification in the claim of the complainant for compensation of Rs.1,00,000/- and Rs.5,000/- for mental agony.
10. Further, the fact of furnishing the policy bond to the complainant showing the premium particulars paid in separate entries and the allegation of opposite party of non payment of premium covering driver cum owners risk in the written version of the opposite party, their being not denied by the complainant and the complainant has not placed any such circumstances as to the payment of premium covering driver cum owners risk, their remains hardly any material to believe any deficiency of service on part of the opposite party.
11. Therefore, in the above circumstances, as their being any element of deficiency of service on part of the opposite party nor their being any entitleness to the complainant from the opposite party for the said amount, the case of the complainant remains devoid of merit and force.
12. Consequently, the complainant’s case is dismissed for want of merit and force.
Dictated to the Stenographer, Typed to the dictation corrected by us pronounced in the open court this the 4th day of November, 2004.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex A.1 Certified copy of FIR No. 72 dt 7.5.2003 of Nandyal Taluk Police Station.
Ex A.2 Certified copy of Charge sheet/ Case disposal report under FIR No. 72 dt
7.5.2003.
Ex A.3 Wound Certificate Certified copy issued by Civil Asst. Surgeon District
Hospital, Nandyal.
Ex A.4 Attested copy of policy bearing No. 611502/31/03/00146 of complainant’s
Vehicle.
Ex A.5 Legal notice dt 4.10.04 issued by complainant’s counsel to opposite party.
Ex A.6 Reply notice given by the opposite party’s counsel to the complainant’s
Counsel.
List of exhibits marked for the opposite party:-
Ex B.1 Attested copy of policy bearing No. 611502/31/03/00146 of the
complainant’s vehicle.
Ex B.2 Terms and conditions of the said policy.
PRESIDENT
MEMBER MEMBER
