::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.114/2016.
Date of filing: 03.12.2016.
Date of disposal: 30.04.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Mohammad Fayajoddin
S/o Mohammad Yakub Sab,
Age: 40 years, Occ: Driver-cum-owner
of vehicle bearing Reg.No.K56/1826,
R/o H.No.16 village Tadola
Tq: Basavakalyan, Dist: Bidar
Karnataka State.
(By Sri. Rajkumar.K., Adv.)
VERSUS
OPPONENT/S: 1) The Manager,royal Sundaram General Insurance
Co., Ltd., Door No.3 plot No.40 and 41 Mahanth
Arcade Mahanth Nagar Kalburgi-585103.
2) Royal Sundaram General Insurance Co., Ltd.,
authorized agent Santosh S/o Gundappa Mulge
Behind Hanuman Temple Molkera
Tq: Humnabad, Dist: Bidar.
(By.Sri.V.M.Prakash., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complaint has filed the present complaint against the O.P.s alleging deficiency of service u/s 12 of the C.P. Act, 1986. While the O.P.No.1 has participated in the proceedings, the O.P.No.2 has not put up appearance inspite of service of notice and has been placed exparte.
The gist of the complaint is as hereunder:-
2. That, the complainant is the registered owner of Ashok Leyland Lorry bearing No.KA 56/1826 and he had got insured the vehicle with the O.P.No.1 vide policy No.VGC0375309000100, date of validity from 04.05.2015 to 03.05.2016 midnight. On 13.08.2015 at about 07.30hrs, the complainant and his cleaner cum-driver Syed MustafaS/o Syed Aleemuddin, were on their way driving the Lorry, loading plastic materials from Surat to Hyderabad. When the Lorry was being driven on Naldurg-Tuljapur Road, another Lorry bearing No.RJ19GA7625 was approaching Naldurg side in a rash, negligent manner, on the wrong side of the road and dashed against complainants vehicle causing damages in entirety.
3. The jurisdictional Tuljapur Police registered the case and has charge sheeted the driver of the offending vehicle No.RJ19GA7625. The complainant claims that, he has sustained expenditure of more than Rs.3,00,000/- and when lodged the claim, it was rebutted by the O.P.No.1 on the grounds of misrepresentation of fact and hence the complaint is before this forum claiming a compensation of Rs.3,00,000/- with 18% interest, further compensation of Rs.50,000/- and any other relief deemed fit.
4. As indicated above, only theO.P.No.1 has put up appearance and has filed written version challenging the claims of the complainant. The O.P.No.1 in Para-4 of the W.V. states that, at the time of accident one Syed Mustafa S/o Alimooddin was driving the vehicle and on his complaint the Tuljapur Police Station had registered the case. While but lodging the claim, the present complainant has revealed to have himself driving the vehicle and Syed Mustafa was his cleaner.
5. The O.P.No.1 claims that, the revelations of the insured was false. The O.P. has verified the investigation reports of the jurisdictional Police in entirety and has concluded that, the Insured had permitted an unauthorized person (Syed Mustafa) to drive the vehicle, thereby violating provisions u/s157 and 180 of the M.V. Act and therefore it was justified in denying the liability as provided for u/s 149(2) of the M.V. Act.
6. The O.P.No.1 has further raised a point regarding the territorial jurisdiction of this forum and prays for dismissal of the complaint.
7. Both sides have filed evidence affidavits, argued the case in length and only the complainant has submitted documents listed at the end of this order. The O.P.No.1 has further submitted two judgements reported in (2009) Acci.C.R.312(s) concerning gratuitous passengers and another ILR 2009 KAR 2921, concerning placing reliance by the M.A.C.T. on a judgement of a Criminal Court in entirety. Neither of the judgements are applicable to the present case, the facts and circumstances being entirely different.
8. From the pleadings and counters, the following points rise for our consideration.
- Does this forum has jurisdiction to try this case?
- Does the complainant prove deficiency of service?
- Does the O.P.No.1 prove that, the rebuttal of claim was justified?
- What orders?
9. Our answers to points are as following:-
- In the affirmative.
- In the affirmative.
- In the negative.
- As per the final orders owing to the following:-
:: REASONS ::
10. Point (1): this point is first and foremost having regard to the question of jurisdiction raised by the O.P.No.1. It is on record that, the O.P.No.1 is having his agent, the O.P.No.2 having his place of work in Humnabad, Bidar and is conducting the Insurance business of O.P.No.1. Section11(2) (d) C.P. Act specifies that, a District forum shall have jurisdiction to entertain complaints where the opposite party or each of the opposite parties where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain. In view of the specification as such, it is a futile attempt of the O.P.No.1 to challenge the jurisdiction of this forum and we answer the point in negative.
11. Point (2&3): Both these points closely inter webbed are to be answered simultaneously. In the case, the complainant claims that, at the time of accident, the vehicle under reference was being driven by the owner cum driver, Mohmmed Fayajoddin and one Syed Mustafa, cleaner cum Driver was in the cabin. The O.P.No.1, however taking a cue from the F.I.R. (annexure-A) challenges this claim of the complainant terming it as misrepresentation. Albeit in the first instance Mustafa has stated to have driven the vehicle on 13.08.2015. Later, but he has given a further statement before the Police on 28.08.2015 that, while being treated at Hospital at Solapur his previous statement was recorded. He was not able to understand Marathi language, his mother tongue being Hindi and in his native place Kannada is the lingua franca. He further states that, he was sleeping in a Zoola inside the cabin and Fayajoddin was driving the vehicle. After the impact he fell down, sustained grievious injuries, was unconscious and could come to know about the cause of accident later. The statement (later) was record in the presence of the attending Orthopaedic -ian of Om Vishvekar Accident hospital, Omerga and has been accepted by the investigating agency, basing on which charge sheet has been filed against the Driver of the offending vehicle RJ-19/GA 7625. Surprisingly, the O.P. No.1 after receipt of information has not bothered to depute any surveyor to ascertain the true picture leading to the accident or the identity of the person driving the vehicle a even to assess the damages sustained. Certainly, this sort of approach by an Insurer does not deserve applauds.
12. However, after the investigating agency has accepted the subsequent statement of Syed Mustafa on its face value it is no business of this Forum to make a roving enquiry about the Drivers identity. We are not here conducting a criminal trial but a claim of compensation and preponderance of probabilities would be the normal etho. Further, we take a cue from a judgement of Hon’ble supreme Court reported in III (2007) CPJ-3 (S.C.) united India Insurance Company limited V/s Great Eastern Shipping Company Limited, in which it is mandated that when two views can be taken, the one favouring the consumer should be accepted. Therefore, we answer both points accordingly.
13. As stated earlier, the insurance company has not made effort to ascertain the facts leading to the accident or the extent of damages to the vehicle. The complainant claims to have repaired the vehicle at his own cost and has submitted a memo of calculation (Annexure-J) with eleven bills amounting to Rs. 3,48,665/-. In the absence of any challenge or contrary claim of the O.P.No.1 we have to accept the claim of the complainant on its face value. But, the complainant raising a claim for Rs.3,00,000/-, we propose to award him that much and proceed to pass the following:-
ORDER.
- The case is dismissed being barred by limitation;
- Both sides are directed to remit a penalty of Rs.10,000/- each favouring the Consumers legal aid account of this forum;
- Four weeks time granted to comply this order.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
