BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:

HYDERABAD.

FA.NO.572 OF 2005 AGAINST C.D.NO.57 OF 2004  District  Forum, ADILABAD.   

Between:

Smt.T.Anuradha, W/o.Venkat Ram Reddy,

Aged 25 years, Occ:Owner of TATA Sumo

Bearing No.AP 1C-5577

R/o.H.No.1-3-125, Shastrinagar, Nirmal,

Adialabad.                                                                                                     Appellant/

                                                                                                                       Complainant

           And

The New India Assurance Company Ltd.,

Rep. by its Branch Manager,

Branch Office:Nirmal,

Adilabad.                                                                                                 ..Respondent/

                                                                                                                    Opp.party

Counsel for the Appellant  :Mr.K.Sudershan.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

Counsel for the Respondent: Respondent served.

      CORAM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

  SMT.M.SHREESHA,  MEMBER

                                                            AND

                         SRI G.BHOOPATHI REDDY, MEMBER

TUESDAY, THE TWENTY SECOND DAY OF JULY,

TWO THOUSAND EIGHT

Oral Order :  (Per Smt.M.Shreesha, Hon’ble Member)

                                                                        ***

            Aggrieved by the order in C.D.No.57/2004 on the file of District Forum, Adilabad, the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant is the owner of TATA sumo bearing No.AP1C-5577 and with her permission, her friends and relatives took the vehicle to Tirupathi and while returning to their village on 17-1-2001 at about 11.30  from Tirupathi at Bakrapet, the driver of the said vehicle could not control the steering, went off the road and turned turtle, due to which the vehicle got completely damaged and the occupants received injuries.  A case was registered against the driver of the vehicle by the Police, Bakrapet U/s.337 IPC vide crime No.6/2001.  The complainant submitted that she got repaired the damaged vehicle at Auto Chenoy Work shop, Secunderabad by spending Rs.1,54,000/-.  The complainant submitted that she could not use the vehicle for 3 months for which she had to engage another vehicle on rent for which she incurred an amount of Rs.26,000/-.  The complainant approached the opposite party and claimed the above amount for which she is entitled under policy No.316160428496 dated 10-3-2000 but the opposite party repudiated the claim through their letter dated 28-9-2001 on the ground that the vehicle was illegally given on hire at the time of accident.  Alleging that the act of the opposite party in repudiating the claim constitutes negligence and deficiency in service, the complaint filed the complaint claiming an amount of Rs.2,00,000/- with interest and costs.

Opposite party filed counter and admitted the fact that the vehicle was insured with them and that the policy was in force from 10-3-2000 to 9-3-2001.  They submitted that as per their investigation, it revealed that the vehicle was carrying passengers on hire at the time of accident, which is against the conditions of the policy and also against the provisions of M.V.Act.  They submitted that the violation of provisions of M.V. Act is also violation of policy condition and therefore they were justified in repudiating the claim.

Based on the evidence adduced i.e. Exs.A1 to A14 and B1 to B5 and the pleadings put forward, the District Forum dismissed the complaint.

Aggrieved by the said order, the complainant preferred this appeal.

The learned counsel for the appellant/complainant submitted that the District Forum ought to have believed the oral and documentary evidence produced by the appellant in support of her claim and allowed the complaint.  He also submitted that the District Forum erred in dismissing the complaint on the ground that the complainant violated the conditions of the policy by using the vehicle on hire purchase.  He submitted that the appellant’s case was that her relatives and friends have taken the vehicle and that she had not given the vehicle on hire and that in the complaint given by Sri D.Srinivas to the Bakrapet P.S. about the accident of the vehicle, he never stated  that they have taken the vehicle on hire from the complainant.  He also drew our attention to the conditions specified in Ex.A2, policy certificate, as to who are entitled to drive the vehicle and as per the said condition, any other person can drive the vehicle on the insured’s order or with her permission. He also submitted that the statements said to have been given by the passengers in Ex.B3 are obtained by the Police by using force when there was no whisper about taking of the vehicle on hire in F.I.R.  He submitted that the appellant had not violated any conditions of the policy and prayed to allow the appeal.

We have perused the material on record.  The facts not in dispute are that the complainant’s vehicle with 10 passengers left for Sabarimala and on returning to their village at Tirupathi on 17-1-2001 at about 11.30 p.m. in the night, the said vehicle turned turtle and the inmates received injuries.  It is also not in dispute that the complainant’s vehicle is covered by policy bearing No. 316160428496 dated 10-3-2000.  When the complainant made a claim to opposite party, it repudiated the same on the ground that the vehicle was used for hire by the 10 villagers and as per Ex.B1 policy under the heading

 ‘LIMITATION AS TO USE’:

Use only for social domestic and pleasure purposes and for the insured’s

own business;

 The policy does not cover the use for hire or reward or for organized racing, pacemaking, reliability trails, speed testing, the carriage of goods (other than samples) in connection with any trade or business or use for any purpose in connection with Motor Trade’ .

It is the complainant’s case that her relatives and friends have taken the vehicle and she had not given the vehicle on hire and that the same is also reflected in the complaint given by one Sri D.Srinivas to the Bakrapet Police Station.  The learned counsel for the appellant/complainant also drew our attention to the conditions specified in Ex.A2, policy certificate which reads as follows:

‘Any other person who is driving on the insured’s order or with his

permission .  Provided that the person driving holds or had held & has

not been disqualified from holding an effective driving licence with

all the required endorsements thereon as per the Motor Vehicles

Act, 1988 and the rules made thereunder for the time being in force.

It is the respondent’s case that in Ex.B3, which is a copy of the statement given to the police in Crime No.6/2001, the passengers have submitted that they have taken the Tata Sumo for hire.  We observe from the record that the affidavit of the said passengers has not been filed and respondent has also not led any evidence in support of its contention, specially in the light of F.I.R. i.e. Ex.A1 in which there is no whisper about the vehicle being taken on hire.  The F.I.R only states that the vehicle was carrying 10 passengers and the accident took place on 17-1-2001 at about 11.30 p.m. and that the inmates received injuries and were taken to S.V.R.R.Hospital, Tirupathi.  Taking into consideration that the First Information Report does not state anything about the passengers having taken the vehicle on hire, we are of the considered opinion that the respondent failed to establish that the vehicle has been taken on hire.  When the policy and the period of coverage are not in dispute, the respondent has failed to establish that the vehicle was taken on hire, we are of the view that the repudiation is unjustified.  We also observe from the record that no surveyor has been appointed and Exs.A4 to A12 are the copies of receipts and bills issued by Auto Chenoy Work shop, Secunderabad.  Ex.A4 is a receipt issued in the name of complainant for Rs.50,000/-, Ex.A6 for Rs.60,000/- and Ex.A8 for Rs.53,890/- and Ex.A10 is the copy of Auto Chenoy Workshop bill for Rs.1,63,890/-. 

The respondent in their counter stated that depreciation at 50% is to be deducted on rubber and plastic parts and that glass parts does not attract any depreciation and that the machinery attracts depreciation according to the year and age of the vehicle.  The complainant submitted in her complaint that the vehicle is of the year 2000 make and the accident occurred on 17-1-2001, therefore the vehicle is less than one year old.  The contention of the respondent with respect to 50% depreciation on rubber and plastic parts has not been substantiated by any documentary evidence and they have not chosen to file any survey report.  We have gone through Ex.A10, which is the invoice issued by Auto Chenoy Workshop in the name of the complainant and clearly details the parts which have been replaced together with their value which amounts to Rs.1,63,890/-.  Taking into consideration that the vehicle is less than a year old and even if we deduct depreciation amount, it would still be more than the insured amount of Rs.1,20,000/-.  Keeping in view Ex.A2 which is the policy copy and the insured amount being Rs.1,20,000/-, we feel it justified to award this amount to the complainant with interest at 9% p.a. from the date of filing of complaint till the date of realization together with costs of Rs.3,000/-.

In the result this appeal is allowed and the order of the District Forum is set aside directing the respondent/opposite party to pay to the appellant/complainant a sum of Rs.1,20,000/- with interest at 9% p.a. from the date of filing of complaint till the date of realization together with costs of Rs.3,000/- within a period of four weeks from the date of receipt of this order.

                                                            PRESIDENT.   LADY MEMBER.    MALE MEMBER.

JM                                                                                           Dated 22-7-2008