This C.C. came up before this Forum for final hearing in the presence of Sri.P.Madhava Rao, Advocate for complainant and of Sri.B.Gangadhar, Advocate for opposite party; upon perusing the material papers on record; upon hearing arguments on both sides, and having stood over for consideration, this Forum passed the following:-
ORDER
(Per Sri.Vijay Kumar, President)
1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the case are that the complainant is the owner of Toyota qualis vehicle bearing No.AP-20-V-2968 and the complainant running the said vehicle as a taxi. The said vehicle was insured with opposite party, valid from 17-12-2003 to 16-1-2004 and its I.D. value of the vehicle is mentioned as Rs.4,76,400/-. The said vehicle met with an accident while it was returning from Shirdi and due to the said accident 7 passengers including the driver of the vehicle died and their vehicle was completely damaged. The damaged vehicle was sold on salvage basis for an amount of Rs.1,30,000/- only and the remaining I.D. value of the vehicle is Rs.3,46,300/- and the complainant submitted his claim due under the policy to the opposite party. But the claim was repudiated by the opposite party on the ground that the complainant violated the terms and conditions of the policy. In the counter, the opposite party has contended that the complainant is not entitled to any claim as there are 14 persons travelling in the Qualis at the time of accident and as per the terms and conditions of the policy, 9+1 have to travel in the vehicle, hence the claim has been repudiated. Based on the evidence by respective parties and also oral evidence, Ex.A.1 and Exs.B.1 to B.3, this Forum has passed an order on 20-2-2007, directing the opposite party to pay the I.D. value of Rs.3,46,400/- to the complainant due under the policy together with interest at 7.5% P.A. from the date of repudiation i.e. 2-3-2005 within a period of one month from the date of this order.
Aggrieved by the said order, the opposite party preferred an appeal in F.A.No.755/2007 and also filed some additional documents before the State Commission, which were not filed before the District Forum. The Hon’ble State Commission was pleased to remand the matter again to District Forum by giving an opportunity to the appellant and to conduct denovo enquiry and dispose of the case within 3 months from the date of this order.
A notice has been issued to the parties concerned and also to their advocates, to appear before this Forum on 7-1-2008. After remanding the case, the opposite party has examined one S.Sheshagiri, Senior Assistant as R.W.2 and got marked Exs.B.4 to B.7. Ex.B.4 is the Certified copy of Final result, Ex.B.5 is certified copy of deposition of A.Naga Malleswari in O.P.29/2005, Ex.B.6 is the certified copy of deposition of M.Prabhu in O.P.29/2005 and Ex.B.7 is investigation report dt.12-1-2005.
Apart from examining R.W.2, the opposite party has filed I.A.No.4/2009 under Order 16 Rule 7 r/w.151 C.P.C. praying the Forum to issue summons to Circle Inspector of Police, Ibrahimpatnam, to adduce his evidence. A notice is given to the counsel for the complainant who endorsed on the petition that the complainant concedes Ex.B.4 and Ex.B.4 being a certified copy and it prevails over Ex.A.1, which is a carbon copy and also filed a memo stating that since Ex.B.4 is certified copy and hence it prevails over Ex.A.1, as it is only a carbon copy and the complainant admits the contents of Ex.B.4 and also claims that Ex.B.4 is genuine document as compared with Ex.A.1, which is carbon copy and prayed to close the petition, accordingly the petition is closed. It is not out of place to mention here that Ex.A.1 is carbon copy of final report issued by Inspector of police, Ibrahimpatnam. In Ex.A.1 it is mentioned that at the time of accident the Qualis bearing No.AP-20-V-2968 was carrying 10 persons including driver, whereas in Ex.B.4, the same do not find place. In order to find out the variance, the learned counsel for the opposite party wanted to examine the C.I. of police, who issued Ex.A.1 and B.4, but the learned counsel for the complainant fairly concedes that Ex.B.4 being certified copy of the Final Report prevails over Ex.A.1, which is carbon copy.
The learned counsel for the opposite party refers to Ex.B.5, which is a certified copy of deposition of one A.Naga Malleswari, who was an eye witness to the accident. In her chief-affidavit she has stated that there are 10 adults and 4 children apart from the driver present in the Qualis vehicle at the time of accident. The learned counsel for the opposite party also refers to Ex.B.6, another deposition of M.Prabhu, wherein he stated that the Quails in which he was travelling was overloaded. The learned counsel for the opposite party also refers to Ex.B.7, which is an investigation report, wherein the investigator has recorded the statements of 14 persons apart from the driver, in order to show that the Qualis vehicle was carrying 14 passengers apart from the driver at the time of accident.
A much exercise has been done by the counsel for opposite party and his endeavor is to prove that at the time of accident the vehicle was carrying 15 persons including driver and not 10 persons as alleged by the complainant. On this aspect of the case, the learned counsel for the opposite party has succeeded in proving the fact that at the time of accident, the Qualis vehicle was carrying 15 persons including the driver. A much stress is taken by the counsel for opposite party is urging that carrying 15 persons in Qualis vehicle is violation of terms and conditions of the policy. As per the terms and conditions of the policy, the Qualis vehicle is permitted to carry only 9+1 persons, as against this the Qualis vehicle was carrying 14+1 persons at the time of accident and due to the overloading of the vehicle, the accident occurred and therefore his company has rightly repudiated the claim of the complainant.
After hearing the arguments from respective sides and perusing the additional evidence that was adduced by the opposite party, now the point for consideration is,
Whether the carrying of more persons than the capacity contributed to the cause of accident?
P o i n t:
The learned counsel for opposite party has successfully proved that at the time of accident, the Qualis vehicle was carrying 15 persons including the driver. Therefore, it can safely believed that at the time of accident in all 15 persons were travelling in the Qualis vehicle as against the capacity of 9+1, that is to say 5 persons in excess of seating capacity. Now the question before us is whether the extra persons, who were travelling in the Qualis, are responsible for causing accident. On this aspect of the case, the learned counsel for the complainant vehemently argued and submitted that the cause of accident is not attributable to excess passengers carried in the Qualis. The documents relied upon by the opposite party clinchingly establish that the accident took place because of rash and negligent driving of driver of the Qualis vehicle. Therefore the repudiation of the claim by the opposite party is unjust because the cause of accident was totally unrelated to carrying of excess passengers. For example, if the bus was struck by lightening and destroyed, could the insurance company refuse to pay on the ground of over loading? Surely not. Therefore, the insurance company cannot refuse to pay on the ground of overloading when it did not have any connection at all with the alleged accident. It is for the opposite party to establish that the accident occurred due to the carrying of excess passengers than the seating capacity. There is no contributory negligence on the part of driver of Qualis vehicle in causing accident. The learned counsel for the complainant rightly argued that nowhere either in the final report or anywhere it was uttered that the exces seating capacity had attributed for causing the accident. Therefore, we are of the opinion that the opposite party cannot escape from its liability.
In view of the above facts and circumstances, the complaint is fit to be allowed.
In the result, the complaint is allowed, directing the opposite party to pay the remaining I.D.Value of Rs.3,46,400/-(Rupees three lakhs, fourty six thousand and four hundred only) to the complainant due under the policy together with interest at 7.5% P.A. from the date of repudiation i.e. 2-3-2005 within one month from the date of receipt of this order. No costs.
Dictated to the steno, transcribed by her, corrected and pronounced by me in the open forum on this the 30th day of January, 2009.
PRESIDENT MEMBER MEMEBR
DISTRICT CONSUMERS FORUM
KHAMMAM
Appendix of evidence
Witnesses examined for complainant:
P.W.1 – K.Yadagiri Reddy
Witnesses examined for the opposite party:
R.W.1 – K.Ramachandra Murthy
R.W.2 – S.Seshagiri
Exhibits marked for complainant:
Ex.A.1 – Final Result dt.13-9-2004
Exhibits marked for opposite party:
Ex.B.1is the Signature of the complainant on the claim form
Ex.B.2is the Claim Form
Ex.B.3is the policy copy
Ex.B.4 is the Certified copy of Final result,
Ex.B.5 is certified copy of deposition of A.Naga Malleswari in O.P.29/2005,
Ex.B.6 is the certified copy of deposition of M.Prabhu in O.P.29/2005
Ex.B.7 is investigation report dt.12-1-2005.
PRESIDENT MEMBER MEMEBR
DISTRICT CONSUMERS FORUM
KHAMMAM
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