Date of filing:17.8.2013

                                                                                                       Date of Disposal:6.3.2014

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 6^TH DAY OF MARCH, 2014.

C.C.No.148 OF 2013.

Between :

Chelikani Jyothi, W/o Sandeep, Hindu, 33 years, Properties and R/o Door No.5-162/1, Kothapeta, Nuzvid, Krishna District.

             ….. Complainant.

And

National Insurance Company Limited, Rep., by its Senior Divisional Manager, Vijayawada,Divisional Office-II, Post Box No.751, 3^rd Floor, Mithra Agencies Building, Opposite to All India Radio, M.G.Road, Vijayawada 520 010, Krishna District.

…..Opposite Party.

This complaint is coming before us for final hearing on 19.2.2014 in the presence of Sri G.Ram Babu, Counsel for complainant and Sri V.V.S.Sai Babu, Counsel for opposite party 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 party to pay Rs.3,58,051/- to the complainant together with interest at 12% from the date of complaint till the date of realization, for grant of costs and other reliefs.

1.         The brief averments of the complaint are as follows:

            The complainant owns a Goods carrying commercial vehicle lorry bearing No. AP 16 T W 6174 (Eicher) and she insured the same with opposite party vide policy bearing No.552500/31/11/6300004702, which is valid from 30.12.2011 to 29.12.2012.  It is submitted that one Shaik Chand Pasha was the driver of the said lorry who holds valid driving licence and that on 15.4.2012 the said lorry was hired by the owner of Mangoes to supply Mangoes from Edara village in Agiripalli Mandal, Krishna District to Boregoan in Madhya Pradesh.  The driver took the lorry from Nuzvid and reached Agiripalli village and there the owner of Mangoes engaged 13 coolies for the purpose of loading and after the said coolies boarded the lorry, the driver while taking the lorry from Agiripalli to Edara and when reached Koneru Center at 4.15 p.m, one cyclist suddenly came into opposite direction of lorry at curve and the driver of lorry turned his vehicle  to left side to save the life of cyclist, but the vehicle skidded and went left side of margin and fell into Koneru resulting injuries to some of collies and severe damage to lorry.  In this regard, a case in Cr.No.48/2012 of Agiripalli P.S was registered under Sec.337, 338 IPC.  Later the complainant brought the lorry to Auto Nagar, Vijayawada and the mechanic estimated the damage at Rs.4,98,450/-.  The complainant duly informed the same to opp.party who appointed Sri N.Mallikarjuna Rao, licenced surveyor and who estimated the damage at Rs.2,39,050/-.  Thereafter the complainant submitted claim form to the opp.party by enclosing the bills.  But the opp.party repudiated the claim on 3-9-2012 on the ground that the driver of vehicle was under the influence of alcohol at the time of accident.  It is further submitted that the Civil Assistant Surgeon, Nuzvid examined the driver and opined that the driver might have consumed alcohol but not under the influence of alcohol. As such there is deficiency of service on the part of opp.party in repudiating the claim.  Later the complainant went up to Insurance Ombudsman for redressal of her grievance, but not get any relief  As such she filed the present complaint.  Hence, the complaint.

2.         After registering the complaint, notices were sent to the opposite party.  The opposite party while admitting the insurance and accident to subject vehicle, denied the other allegations of the complaint.  It is stated that immediately after receiving the claim intimation from complainant, they deputed a spot surveyor who submitted the crime records to opposite party and on verification of same, they came to know that the driver was under intoxication of liquor at the time of accident and the police have also produced the driver of the said vehicle before the Govt. Area Hospital, Nuzvid for medical examination at 9.30 p.m who opined that the driver of said lorry might have consumed alcohol.  It is further contended that as per the FIR and Charge Sheet, the accident was occurred at 4 p.m and the driver was examined at 9.30 p.m and this gives an inference that the driver who consumed alcohol was under its influence.  It is further contended that as per the conditions of policy i.e., Section 1 Point No.2 (c), the company not liable to make any payment in respect of any accidental loss or damage suffered while the insured or any other person driving the vehicle under the influence of intoxicating liquor or drug, and therefore the claim is repudiated.  It is further contended that as per FIR, 13 passengers were travelling in the insured lorry at the time of accident, which is a clear violation of policy conditions as the prescribed limit is 3 persons in the cabin.  It is further contended that they appointed Final Surveyor N.Mallikarjuna Rao and he assessed the loss at Rs.1,75,000/- only and the complainant is not entitled for Rs.3,58,051/- as claimed and finally prayed to dismiss the complaint.

3.         During the course of enquiry, the complainant filed his affidavit and got marked Ex.A.1 to Ex.A6.  The Senior Divisional Manager of opposite party filed affidavit and Ex.B.1 to Ex.B.4 were marked on behalf of the opposite party.  When the matter is posted for arguments, the complainant filed I.A.No.38/2014 for reopening of case for examining the coolies who were traveling in the lorry at the time of accident.  The said petition is allowed and one Tadepalli Ramesh was examined as P.W.2 on behalf of complainant, receiving his affidavit.

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 party 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 party in respect of lorry bearing No.AP 16 TW 6174 to the complainant and the same is in force on the date of accident i.e., 15.4.2012.  Ex.A.1=Ex.B1 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 dated 15.4.2012 to the subject vehicle, which was registered as case in Cr.No.48/2012 of Agiripalli P.S. The Charge Sheet in Cr.No.48/2012 of Agiripalli P.S., which was laid against one Shaik Chand Pasha marked under Ex.B3 establishes the same.  The case of the complainant is that, in the said accident, the subject lorry was badly damaged and he spent Rs.3,58,051/- for repairs to make it roadworthy and that she laid a complaint with the opposite party for indemnifying the said loss. But the opposite party has repudiated the said claim under Ex.A2 to A4 letters on the ground that the driver was under intoxication at the time of accident and that 13 persons were traveling in the goods carriage vehicle, as per their surveyors report, FIR contents and medical examination certificate, 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 opp.party is admitting the existence of insurance and accident, the next aspects that are to be considered are that  whether the grounds taken by the opp.party for repudiating the claim are valid or not.

8.         The 1^st ground is that the driver is under the influence of intoxication at the time of accident.  In this regard, the contention of the complainant is that the Agiripalli Police have produced the driver of crime vehicle before Medical Officer, Area Hospital, Nuzvid on the date of accident itself at 9.30 p.m who conducted the medical examination and gave opinion under Ex.B2 Certificate of Drunkenness opining that “I am of the opinion that the above individual might have consumed, but he is not under the influence at the time of examination” and that the said certificate is not revealing that the alcohol in the blood of the driver of the complainant exceeded 30 ml per 100 ml of blood and as such it cannot be said that the driver is under the influence of alcohol at the time of accident.  In this regard, the contention of the opp.party is that the police have produced the driver of crime vehicle at 9.30 p.m and where as the accident has occurred at 4.30 p.m and it gives an inference that the driver who consumed alcohol was under its influence at the time of accident.

9.         In view of above rival contentions, a careful perusal of Section 2 (c ) of Ex.A1-B.1 policy schedule, the company shall not be liable to make any payment in respect of

            (c )    “any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs”.

As seen from Ex.B2 Certificate and Ex.B3 charge sheet, no doubt the driver has consumed alcohol on the date of accident.  Further as per the opinion of the doctor at the time of her examination the driver might have consumed alcohol, but he is not under influence at the time of her examination.  Admittedly the incident took place at 4.30 p.m on 15-4-2012 and he was examined at 9.30 p.m. 

             According to Section 185 of MV Act :

185 Driving by a drunken person or by a person under the influence of drugs:

            Whoever, while driving, or attempting to drive, a motor vehicle –

            (a) has, in his blood, alcohol exceeding 30 mg., per 100 ml. of blood detected in          

                a test by a breath analyzer, or

            (b) is under the influence of a drug to such an extent as to be incapable of

                 exercising proper control over the vehicle.

As per the above provision, when there is alcohol exceeding 30 mg per 100 ml of blood, in the blood of any person, he is said to be under the influence of alcohol and he is not capable to exercising proper control over the vehicle.  As discussed supra, the burden is on the part of opposite party to prove that the driver has consumed alcohol and to prove the percent of alcohol is present in the blood of driver as envisaged under Sec.185 of MV Act.  A careful perusal of Ex.B2 certificate, there is no mention about the percentage of alcohol in the blood.  It seems that the doctor who examined the driver basing on the General behaviour, speech, self control, memory and other factors during her examination would have come to conclusion that the driver might have consumed alcohol. Except placing reliance on the Ex.B2 certificate, the opp.party has not placed any such evidence basing on which they come to conclusion that the driver is under the influence of intoxication at the time of accident beyond the concentration of alcohol permitted.

10.       The Hon’ble A.P. State Consumer Disputes Redrsessal Commission in a case between M/s ICICI Lombard General Insurance Company and S.Jayalakshmi and another in FA No.1356/2008 observed that the insurance company shall not assume from the observations made in the record.  The insurance company has to investigate and determine the fact independently. The concentration of alcohol in blood and effects of different concentration of alcohol under which the drivers are able to drive or not are mentioned in Medical Jurisprudence and toxicology by HWV Cax, 7^th Edition in Table No.7.5.1.  For ready reference, the said table is reproduced below

            As per the above table, when there is concentration of 150 to 200 ml alcohol in 100 ml of blood, the driver may be dangerous in control the vehicle.  But as discussed supra, the opp.party failed to ascertain the concentration of alcohol in the blood of driver at the time of accident to prove that the driver is capable to drive the vehicle or not.

            Merely the certificate of Doctor who too also opined that the individual might have taken alcohol is not sufficient to show that he was under intoxication position and not able to drive.  The onus is on the part of opposite party to produce some evidence.  Driving under the influence of drink means under the influence of drink to such an extent as to be incapable of having proper control of the vehicle as defined in advanced law lexicon by P.Ramanatha Aiyer, 3^rd Edition, Apr. 07 page 1494. In this regard, the complainant relied on the decision of Hon'ble High Court of Andhra Pradesh, Hyderbad reported in 2011(1) ALD 340 wherein it was held that

            ''in the instant case, the learned Chief Judge except stating that the appellant      was under the influence of alcohol while driving the vehicle, did not mention         anything in his order as to what is the actual extent of alcohol in the blood and as            to whether it exceeded the permissible limit of 30 mg per 100 ml., of blood so as       to make the appellant incapable of exercising proper control over the vehicle as      contemplated under Sec.185 of MV Act and thereby remanded the matter to         Lower Court”

            The facts and circumstances of the case are applicable to the case on hand.  In the case on hand also, there is no mention of actual extent of alcohol in the blood in the certificate of doctor, basing on which the opp.party repudiated the claim.  Further  the complainant by examining P.W.2 on her behalf drawn our attention to the fact that the driver is not under the influence of alcohol at the time of accident. In view of the aforesaid discussion, we are of the opinion that the 1st ground on which the opposite party has repudiated the claim of complainant is not valid and we found deficiency in service on the part of the opposite party in repudiating the claim of complainant. 

11.       So far as the 2nd ground i.e. traveling of 13 persons in the lorry against the condition of policy is concerned,  the case of the complainant is that they are the coolies appointed by the owner of mangoes who took the lorry for transportation of mangoes and as such they are not unauthorized passengers.  On the other hand, the contention of the opp.party is that the lorry is goods vehicle and as per the conditions of policy, only three persons are allowed to sit in the cabin and the transporting of 13 persons is clear violation of policy conditions.  The complainant in this regard, relied on a decision of the Hon'ble Supreme Court reported in AIR 1996 SC 2054 wherein it is held that

            “Alleged breach of carrying humans in a goods' vehicle more than the number    permitted in terms of policy is not so fundamental a breach so as to afford to the            insurer to eschew liability”

            In the instant case, it is admitted fact that the driver of the lorry transporting 13 coolies in the lorry for loading the Mangoes as per the instructions of the owner of Mangoes who hired the lorry.  Admittedly the persons allowed in the cabin are three as per the opp.party.  As per the record, the driver is only in the cabin and the coolies are in the truck.  Even for the sake of argument, that 13 persons traveling in the truck of vehicle were passengers, it cannot be a ground for Insurance company to repudiate the contract as the fact of their being passengers or coolies 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 coolies who are traveling in the vehicle.  Further it is clear from the terms of the policy that the vehicle was entitled to carry three persons in the cabin.  If those three men were traveling in the vehicle, are assumed not have increased any risk from the point of view of opp.party. Further the cause of accident has no connection with the passengers traveling in the vehicle.  The facts and circumstances of the case mentioned supra are applicable to the case on hand. As such we are of the considered opinion that even the 2nd ground taken by opp.party for repudiation of claim is not valid.

12.       With regard to the amount spent by complainant is concerned, it is the case of complainant that she spent Rs.3,58,051/- for making the said lorry roadworthy and the opposite party has to pay the same.  In this regard, except the averments made in the complaint, the complainant has not filed any copies of bills to prove the same.  On the other hand, the opposite party has assessed the damage through the licenced surveyor to the tune of Rs.1,75,000/-, which is clear from Ex.B4.  In the absence of any proof from the complainant with regard to the amount spent by her, the complainant is entitled for Rs.175,000/- towards damages and repair amount as per surveyor appointed by opposite party .  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 party is directed to pay a sum of Rs.1,75,000/-  (One lakh and seventy five thousand rupees only) together with interest at the rate of 9% per annum from the date of repudiation of claim i.e., 03.09.2012 till realization besides costs of Rs.2,000/- (Two thousand rupees only).  The opposite party is 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 6^th day of March, 2014.

PRESIDENT                                                MEMBER                                             MEMBER

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the complainant:                                            For the opposite party:-

P.W.1 Chelikani Jyothi                                                       D.W.1 M.Ranga Rao,                                  Complainant                                                                                     Senior Divisional Manager

            (by affidavit)                                                     of the opposite party, (by affidavit)

P.W.2 T.Ramesh,

            Third Party

            (by affidavit)

DOCUMENTS MARKED

On behalf of the Complainant:

Ex.A.1               .    .             Insurance policy.

Ex.A.2            03.09.2012    Letter from the opposite party to the complainant.

Ex.A.3            05.12.2012    Letter from the Regional office of the opposite party to the

complainant.

Ex.A.4            07.12.2012    Letter from the opposite party to the complainant.

Ex.a.5             21.11.2012    Letter from the Insurance Ombudsman to the complainant.

Ex.A.6                            .    .              Order of the Insurance Ombudsman.

On behalf of the opposite part-

Ex.B.1                            .    .              Insurance policy.

Ex.B.2            15.04.2012    Photocopy of Certificate of Drunkenness issued by A.P.

Vaidya Vidhana Parishad Area Hospital, Nuzvid.

Ex.B.3                .    .              Photocopy of Charge sheet filed in Additional Judicial First

Class Magistrate,Nuzvid.

Ex.B.4                .    .              Survey report.

                                                                         PRESIDENT