BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION :HYDERABAD
F.A.No.1440/2007 against C.D.No.69/2004, Dist.Forum,Srikakulam.
Between:
The Divisional Manager,
The New India Assurance Co.Ltd.,
Divisional Office, G.T.Road, Opp:Surya
Mahal, Srikakulam Town. … Appellant/
Opp.party
And
Palli Chinnavadu, S/o.late Asiranna,
Patrunivalasa village, Srikakulam Mandal,
Sriakakulam District. … Respondent/
Complainant
Counsel for the Appellant : Mr.Kota Suba Rao
Counsel for the Respondent : Mr.M.Venkata Ramana Reddy
CORAM: SMT. M.SHREESHA, HON’BLE MEMBER,
AND
SRI SYED ABDULLAH, HON’BLE MEMBER.
FRIDAY, THE NINETEENTH DAY OF FEBRUARY,
TWO THOUSAND TEN.
Oral Order (Per Smt M.Shreesha, Hon’ble Member)
****
Aggrieved by the order in C.D.No.69/2004 on the file of District Forum, Srikakulam, the opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant is the owner of Tractor-cum-trailer bearing no.AP 30/T26 and AP 30/T28 for agricultural purposes and insured the same with the opposite party on 17.11.2001 by paying premium amount of Rs.5,205/- covering the period from 17.11.2001 to 16.11.2002 for an amount of Rs.1,50,000/-. On 15.12.2001 the said tractor-cum- trailer was found missing and the driver by name Sadhu Apparao gave a report to the police that the third party had committed a theft of the said vehicle. The police having registered the case as Crime No.101/2002 stated that the vehicle was not traced. The complainant made a claim with the opposite party insurance company who did not settle the claim on the ground that there were civil disputes between the complainant and one Arasuvalli Appa Rao who has taken away the vehicle and there was no theft of the vehicle. Hence the complaint seeking direction to the opposite party to pay Rs.1,50,000/- towards the insured amount of the vehicle together with subsequent interest at 18% from the date of filing of the complaint till realization and to pay Rs.5000/- towards advocate fee and costs of the complaint.
The opposite party filed counter stating that there were civil disputes between the complainant and one Arasuvalli Apparao who has taken away the vehicle and that the investigation report show that the tractor is with Arasuvalli Appa Rao and there is no theft and that the complainant might have colluded with his said relative and played fraud and it is the complainant’s duty to trace the tractor-cum trailer from Arasuvalli Appa Rao and the complainant can also file civil suit for recovery of possession of vehicle against him and the opposite party cannot be made liable to pay the insurance amount.
The District Forum based on the evidence adduced i.e. Exs.A1 to A4 and B1 to B8 allowed the complaint directing the opposite party to pay Rs.1,50,000/- together with interest @ 12% p.a. from the date of the complaint till the date of realization and to pay Rs.1000/- towards litigation expenses including the advocate’s fee of Rs.500/-.
Aggrieved by the said order the opposite party preferred this appeal.
The learned counsel for the appellant/opp.party submitted in his grounds and also in his written arguments that the tractor cum trailer of the complainant was taken away forcibly through the third party by name Arasavelli Appa Rao by removing the driver of the tractor and that there was no theft of the tractor cum trailer and the policy cover only ‘theft’. The Counsel also stated that forcibly taking away the vehicle cannot be construed as theft and hence the risk is not covered and no premium is paid to cover the risk of ‘theft’.
The facts not in dispute are that the complainant is the owner of Tractor-cum-trailer bearing no.AP 30/T26 and AP 30/T28 which was insured with the opposite party on 17.11.2001 and the insurance covered upto 16.11.2002. It is the complainant’s case that on 15.12.2001 the tractor cum trailer was taken away by third party and the driver of the complainant’s vehicle gave a report to the police who simply closed the matter as the vehicle was not traced. It is the case of the opposite party that there were civil disputes between the complainant and one Arasuvalli Apparao and that the said Appa Rao had taken away the tractor forcibly from the driver Mr.Sadhu Apparao and at present it is in his possession and this cannot be construed as theft. On perusal of the material on record we observe that Ex.B5 is the copy of the complaint given by the said Sadhu Apparao who is the driver of the Tractor-cum-trailer against Arasuvelli Apparao in the Hon’ble Court of Judicial First Class Magistrate , Srikakulam stating that when he was driving the said tractor and trailer belonging to the complainant herein that it was forcibly taken away by the said Arasavelli Appparao in the presence of witnesses. The police stated in their report that the vehicle was undetectable. The burden of proof lies on the complainant to establish that there was theft of his tractor-cum-trailer when there is documentary evidence filed by the opposite party that there were civil disputes between the complainant and one Mr.Aarasavelli Apparao and that the driver of the said tractor i.e. Sadhu Apparao had filed the complaint against the third party i.e. Arasavelli Apparao that the vehicle was forcibly taken away from him. The complainant did not file any documentary evidence to establish that there was genuine theft of the vehicle and that there were no civil disputes between him and the said Arasavalli Apparao. The contention of the appellant/opposite party that the policy covers only the risk of ‘theft’ and this act of the third party forcibly taking away the vehicle from the driver of the tractor because of civil disputes cannot be construed as theft, is sustainable. Taking into consideration the civil disputes and also the fact that the complaint was lodged by the driver of the vehicle that the tractor was forcibly taken away from him by a third party, we are of the considered view, that the repudiation by the opposite party on the ground that forcibly taking away the vehicle on account of civil disputes does not come under the definition of ‘theft’, is justified.
For the afore mentioned reasons, this appeal is allowed and the order of the District Forum is set aside and consequently the complaint i.e. C.D.No.69/2004 is dismissed. No costs.
MEMBER
MEMBER
Dt.19.2.2010
Pm*
