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
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Monday the 28th day of November, 2011
C.C.No.68/11
BETWEEN:
B.Pushpanath, S/o B.Beechupalaiah,
H.No.41-473-H, Saibaba Sanjeeva Nagar, Kurnool-518 001.
…Complainant
-Vs-
National Insurance Company Limited,Represented by its Divisional Manager,
40-343/A, 1st Floor, Tula Complex, Gandhi Nagar,Kurnool-518 001.
…OPPOSITE PARTy
This complaint is coming on this day for orders in the presence of Sri M.Sivaji Rao, Advocate for complainant and Sri D.A.Anees Ahamed, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member)
C.C. No. 68/11
1. This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying:-
- To direct the opposite party to pay a sum Rs.2,36,000/- towards the amount spent for repairing the damaged vehicle with interest @ 24% per annum from the date of the damage.
(b) To pay a sum of Rs.25,000/- towards compensation for causing hardship and mental agony;
(c) To pay the costs of this complaint;
- To pass any other order or orders that are deems to be fit and proper in the circumstances of the case.
2. The case of the complainant in brief is as under:- The complainant is the owner of the vehicle Tavera bearing No.AP16 TV 9888. It was insured with opposite party under the policy No.551001-31-9-6300003324 for an assured amount of Rs.5,00,000/-. On 17-07-2010 while the complainant’s vehicle was coming back from Bhadrachalam to Kurnool, one milk van bearing No.AP21 V 9412 driven by one Mohd. Babu in a rash and negligent manner with a high speed dashed the complainant’s vehicle from back side resulting complainant’ vehicle Tavera turned turtle on NH – 7 Road near Boothpur, in Mahabood Nagar District. As a result the vehicle of the complainant was damaged. The Boothpur Police have investigated and registered a case against the milk van and its driver under section 304A, 337 of I.P.C. vid F.I.R. 112/2010. The complainant informed the same to the opposite party. Then the opposite party appointed a surveyor to inspect the vehicle and assess the loss. After estimation, the complainant got repaired his vehicle in Dheeraj Motors show room in Kurnool by spending Rs.2,36,000/- but the opposite party did not pay the amount. The opposite party requested the complainant by its letter dated 25-03-2011 to submit the documentary proof with regard to the driver of his vehicle who has driven at the time of accident. The complainant submitted the particulars of driver by his reply letter through counsel dated 02-04-2011. Despite of reply notice, the opposite party did not pay the amount and refused to settle the claim on the ground that the complainant failed to establish that Mr.U.Venkateswarlu drove the vehicle at the time of accident, as his name is not mentioned in police record either as passenger or driver in the said accident case. The claim is closed as no claim under Ex.A11 and Ex.B4 dated 03-05-2011. The opposite party refused to settle the claim on this ground. There is deficiency of service on the part of opposite party. Hence this complaint.
3. Opposite party filed written version stating that the complaint is not maintainable. It is admitted that opposite party issued insurance policy EX.A2 and Ex.B1 in respect of the complainant’s vehicle bearing No.AP16 TV 9888. It is also admitted that the vehicle of the complaint met with an accident on 17-07-2010. On intimation, the opposite party deputed a surveyor and surveyor inspected the vehicle and assessed the loss, which is payable by opposite party subject to the terms and conditions of the policy. On 25-03-2010 the opposite party requested the complainant by letter to submit the documentary proof with regard to the driver of his vehicle, who has driven the vehicle at the time of accident. As per the conditions of the policy, as to the person or class of persons entitle to drive, that the person driving the insured vehicle should hold an effective and valid driving licence to drive the category of insured vehicle. The opposite party has given sufficient time to comply with the requirement to the complainant. As the name of the driver of complainant’s vehicle is not mentioned in police record concerning to the said accident in Crime No.112/2010 the claim is closed as no claim under Ex.A11 and Ex.B4 dates 03-05-2011. There is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A12 are marked and sworn affidavit of the complainant and third party affidavits U.Venkateswarlu and M.V.Sudhakar are filed. On behalf of the opposite party Ex.B1 to B5 are marked and sworn affidavit of the opposite party is filed.
5. Both sides filed written arguments.
6. The points that arise for consideration are:-
- Whether there is deficiency of service on the part of the Opposite party?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS 1 and 2:- Admittedly the complainant is the owner of the vehicle Tarera bearing No.AP16 TV 9888. Ex.A1 is the registration Certificate of the said vehicle. The complainant insured his vehicle with opposite party under the policy Ex.A2 and Ex.B1 for the insured declared value of Rs.5,00,000/- for the period of commencing from 06-01-2010 to 05-01-2011 vide policy bearing No.551001-31-09-6300003324 and policy was in force on the date of the accident on 17-07-2010. Admittedly the vehicle of the complainant met with an accident Ex.A5 is the photo copy of F.I.R.No.112/2010 and Ex.A7 is the photo copy of charge sheet dated 20-07-2010. It is also admitted that opposite party appointed spot surveyor to inspect the vehicle and assess the damages caused to the vehicle of the complainant. Ex.B5 is the survey report. The said surveyor assessed the net loss of Rs.1,76,000/- as per the terms and conditions of the policy. Ex.A12 is the photo copy of retail invoice (cash) issued by Deeraj Motors, Kurnool dated 08-01-2011. The learned counsel for the complainant contended that though the complainant furnished the particulars of his driver under Ex.A9 dated 02-04-2011 as required by the opposite party, the opposite party did not pay the amount and refused to pay under Ex.A11 and Ex.B4 dated 03-05-2011 on the ground that the name of the driver of complainant’s vehicle is not mentioned in F.I.R., Charge Sheet in police record in the said accident in Crime No.112/2010. Generally the police will mention the injured persons names and offending vehicle driver’s name in F.I.R and Charge Sheet. The complainant’s driver neither committed any fault nor received any injuries in the said accident. So the non-mentioning of name of driver in police record is not a reasonable ground to refuse the claim. The opposite party deputed the surveyor and he submitted his report under Ex.B5. He clearly mentioned the name and full particulars of driving licence etc., in driver column in the said report. The complainant filed an affidavit of his driver and the affidavit of M.V.Sudhakar, who is the informant in the said accident in support of his contention. The learned counsel for the opposite party contended that the complainant failed to establish the identify of driver, who has driven the complainant’s vehicle at the time of accident, because there is no whispere about the complainant’s driver in police record in Crime No.112/2010 either as a passenger or driver, that as per the terms and conditions of policy in para IV of policy bond Ex.A2 and Ex.B1 the person and class of persons entitled to drive that the persons driving the insured vehicle should holds an effective and valid driving licence to drive the category of insured vehicle, but the complainant failed to comply the conditions, that the refusal of claim as no claim is reasonable and that there is no deficiency of service on the part of the opposite party.
8. It is admitted that an accident took place and it caused damage to the vehicle of the complainant and the surveyor was appointed by opposite party and the said surveyor submitted his report under Ex.B5. As seen from Ex.B5 it is clear that the surveyor examined the complainant and his driver and verified the documents submitted to him. Then only he has mentioned the name of the driver of complainant’s vehicle is as U.Venkateswarlu, S/o U.Venkataiah, H.No.41-51-5, Pata, Kurnool. The report of the surveyor is reliable and must be given due to weight. It is evident that U.Venkatswarlu has driven the vehicle at the time of accident and he has valid driving licence which is marked as Ex.A6. The complainant filed an affidavit of driver and also the affidavit of M.V.Sudhakar, who is an informant in the said accident to support his contention. The learned counsel for the complainant relied on decision II (2006) C.P.J. 333 NC National Insurance Company Limited and another Versus Sukhdev Singh Gill and others. It was held that affidavit of complainant, K.S. only travelling and not driving at relevant time, vehicle driven by duly licenced driver R.S. Affidavit relied upon insurer liable for loss to vehicle as assessed by surveyor. In this case on hand the facts are similar so in the light of above decision we are of firm opinion that there is no violation of terms and conditions of the policy. The complainant filed an affidavit of driver and an affidavit of M.V.Sudhakar so we relied upon the survey report. After considering all the material on record we are in a view that the said U.Venkateswarlu has driven the vehicle at the time of accident. Inspite of knowing that the particulars of driver under Ex.A9 and Ex.B5, the opposite party refused to settle the claim. There is deficiency of service on the part of the opposite party. So the complainant is awarded net loss amount assessed by the surveyor.
9. In the result, the complaint is partly allowed directing the opposite party to pay an amount of Rs.1,76,000/- (One lakh Seventy Six Thousand) within one month from the date of this order.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the day 28th of November, 2011.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Certificate of Registration of Vehicle
bearing No.AP16 TV 9888 dated 24-01-2007.
Ex.A2 Photo copy of policy No.551001/31/09/6300003324.
Ex.A3 Photo copy of Certificate of Fitness No.0750567
dated 03-02-2010.
Ex.A4 Photo copy of permit letter No.3254821
dated 05-02-2010.
Ex.A5 Photo copy of F.I.R. No.112/2010 Bhutpur Police Station dated 20-07-2010.
Ex.A6 Photo copy of Driving License No.DLRAP 02144652010
of U.Venkateswarlu dated 16-07-1985.
Ex.A7 Photo copy of Charge Sheet dated 20-07-2010.
Ex.A8 Letter of OP to complainant dated 25-03-2011
along with postal cover.
Ex.A9 Office copy of Legal notice dated 02-04-2011.
Ex.A10 Reply letter dated 03-05-2011.
Ex.A11 Letter of refusal by OP dated 03-05-2011.
Ex.A12 Photo copy of Retail Invoice (Cash) issued by Deeraj
Motors, Kurnool dated 08-01-2011.
List of exhibits marked for the opposite parties:-
Ex.B1 National Insurance policy
No.551001/31/09/6300003324 along with
terms and conditions.
Ex.B2 Photo copy of letter by opposite party to complainant
dated 25-03-2011.
Ex.B3 Photo copy of letter by opposite party to complainant’s
Advocate dated 03-05-2011.
Ex.B4 Photo copy of letter by opposite party to complainant
dated 03-05-2011.
Ex.B5 Survey report of V.M.Abu Engineer and Surveyor
dated 30-12-2010 along with Xerox photos.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// 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 :
