FA 612/2012 against CC No 153/2010  on the file of the District Consumer Forum, Prakasam District at Ongole.

Between :

Mallarapu Srinivasa Rao,

s/o Late Peda Venkataiah

aged 47 years, Hindu,

Uppugundur Village,

NG Padu Mandal,

Prakasam District                                                     .. Appellant/complainant

And

Oriental Insurance Company Limited

Represented by its Manager,

Kamasastry road, Ongole

Prakasam District                                                     .. Respondent/opposite party

Counsel for the Appellant              :           M/s. K Manmadha Rao

Counsel for the Respondent         :           M/s. Bhaskar Poluri

Coram           ;          

                              Sri R. Lakshminarasimha Rao…      Hon’ble Member

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

Thursday, the Twenty Eighth Day of March

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

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       1.        This appeal is preferred by the unsuccessful complainant as against the  order dated 03.10.2011  in CC 153/2010 passed by the District Consumer Forum, Prakasam District at Ongole. For convenience sake, the parties as arrayed in the complaint are referred to as under :

2.            The gist of the complaint is that the complainant is the owner of Lorry bearing No. AP 27 V 7119. It was insured with the opposite party under Policy Bearing No. 4329003/31/2009/2070 and it was in force from  00.00 hours on 27.11.2008 to Mid-night of  26.11.2009. While the things thus stood,  on 07.08,.2009, one Emissetty Suresh Babu, the driver of the complainant was proceeding with the said lorry  with Deccan Cement Bags to Uppugundutgure village and by the time the Lorry reached a place in between Parchoor and Nuthlapadu village at about 03.00  AM the said driver caused an accident in a negligent manner  by hitting a tree to avoid major accident with another lorry which was coming from opposite side and  the said driver jumped from the lorry  while the cleaner was unable to escape from the accident died on the spot.  Subsequently,  the driver of the said lorry was shifted to Chirala Hospital and the concerned police obtained statement from the Nuthalapdu, VRO and registered a case  in Crime No. 136/2009 at P.S. Parchoor.  The sub-inspector of the said P.s. without referring  the statement of the driver of the lorry submitted his final report to the 1^st Class Magistrate, Parchoor as the crime abated which is incorrect.  The complainant further alleged that the said lorry was damaged and that he spent Rs.2,24,640/- and that even though he submitted the claim for the reimbursement  of the said amount it was repudiated by the opposite party illegally  and  it amounts to deficiency in service  and hence the complaint.

3.                    Opposite party resisted the complaint by filing  counter denying   the allegations made in the complaint and  mainly contended that as on the date and time  of the accident the cleaner was driving the insured vehicle and that the said cleaner was not having a valid driving licence during the relevant time and that for wrongful gain from the opposite party  the present complaint was fabricated  by manipulating the documents with the support of VRO  and that after clear investigation  the police concerned  submitted final report as action abated  and  the crime was closed and thus prayed to dismiss the complaint contending that there is no deficiency in service on its part in repudiating the claim.

4.            Both side filed evidence affidavits reiterating their respective stands aforesaid and Ex. A1 to A11 and Ex B1 were marked on their behalf. Ex. C1 to C5 were produced by S. I. of Police, Parchoor in compliance of the order in Ia 98/2011.

5.    Having heard both sides and considering the evidence on record, the District Forum vide impugned order dismissed the complaint.  

6.   Aggrieved with the said dismissal the complainant filed the present appeal and mainly contended that the District Forum did not given credence to the only eye witness i.e., lorry driver and that statement of the driver  recorded by Swamulu, Head Constable 924 of Chirala PS was not shown by S. I. of Police in his report and that  erroneously closed the crime and thus prayed to allow the appeal, set aside the impugned order and consequently to allow the complaint as prayed for.

7.    Heard both side with reference to their respective contentions.

8.    Now the point for consideration is whether the order of the District Forum is vitiated  either in law or on facts ?

9.    There is no dispute that the complainant i.e, the driver of the lorry bearing No. AP 27 U 7119 and that it was insured with the OP  and that while the policy was in force the said lorry met with an accident and that  the lorry was damaged  and the cleaner died.  

10. The contention of the complainant is that his driver Emisetty Suresh Babu  was driving the lorry on the date and at the time of accident and there was no violation of policy condition.  Whereas the opposite party’s plea is that the cleaner who was not holding  valid licence was driving the vehicle at the time of the accident and therefore,   rightly the claim was repudiated.  Ex. A4 inquest report which was filed and marked by the complainant  himself discloses that cleaner was driving the said lorry and that he caused the accident, the complainant did not impeach the credit of the said document by any convincing material .  The driver  of the lorry did not file evidence affidavit supporting the case of the complainant.  The said HC 924 of PS , Chirala  also did not file affidavit  stating that the driver stated before him at the time of accident he was driving the lorry. Ex A1 FIR which was issued basing on Ex. A2 report of the VRO discloses that cleaner was driving the lorry during relevant time and that he caused the accident.  Ex. A4 Inquest apart from the fact that the cleaner was driving the vehicle also clarifies that driver was sitting by the side of the driver’s seat and that he received injuries.   The said Inquest was recorded in the presence of blood relatives and Panchayatdars.  During the investigation, SHO, Purchur found that there is no truth in the statement made by the driver to HC 924 of Chirala out post police station.  Ex. A1 to A7 filed by the complainant himself disclose that during relevant time the cleaner was driving  the lorry.  It is not the case of the complainant that the cleaner was holding valid driving licence.  The District Forum discussed all the said aspects correctly and dismissed the complaint. The appeal is devoid of merit and liable to be dismissed.

11. In the result, the appeal is dismissed confirming the order of the District Forum. No costs.

                                                                                    MEMBER

                                                                                    MEMBER

                                                                                    DATED   28.03.2013