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

FA.No.651 OF 2006 AGAINST C.D.NO.139 OF 2002  District  Forum, CUDDAPAH.   

Between:

The Branch Manager,

Branch Office, M/s.United India Insurance

Company Limited, Dwaraka Towers,

Cuddapah.                                                                  ..Appellant/

                                                                                 Opp. party

           And

Sri S.A.Sattar, S/o.Abdul Rahaman,

Aged about 48 years, R/o.D.No.8/277-A,

Almaspet, Cuddapah.                                                   Respondent/

                                                                                Complainant

Counsel for the Appellant     : Mr. V.Sambasiva Rao..                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Counsel for the Respondent: Respondent served through s.s.                                                                                                                                                                   

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

                                                AND

                           SMT.M.SHREESHA, MEMBER. 

MONDAY, THE TWENTY SEVENTH DAY OF OCTOBER,

TWO THOUSAND EIGHT

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

                                                ***

        Aggrieved by the order in C.D.No.139/2002 on the file of District Forum, Cuddapah, opposite party preferred this appeal.

The brief facts as set out in the complaint are that the complainant, owner of Tata sumo jeep bearing No.AP04 8442, insured the same with the respondent company under policy No.050904/31/001/26/00357/2001 for the period from 13-6-2001 to 12-6-2002 to cover risks of third party as well as own damages.  The complainant submitted that as per the policy, the jeep is to be used for social domestic and pleasure of the owners own business under private car policy.  On 17-6-2001 the complainant handed over his car to one of his friends at Kadapa to go to Hyderabad to take his relatives to attend a marriage, free of cost.  The said jeep was proceeding from Kadapa to Hyderabad and on night of 17-6-2001, it met with an accident near Buthpur on National Highway No.7 and in the said accident 4 persons died and the jeep also sustained heavy damages.  After the accident, the complainant intimated the accident to opposite party company to arrange a surveyor to assess damages to the said vehicle.  The opposite party deputed a surveyor and he assessed the damages.  Later the vehicle was sent for repair and replacement of damaged parts to one Prasanthi Motor, Vinayaknagar at Kadapa and the vehicle was repaired for which the complainant spent Rs.2,50,000/-.  The complainant submitted the claim form along with relevant documents to the opposite party company and inspite of several requests, opposite party company did not settle the claim.  The complainant, therefore, got issued a legal notice calling upon the opposite party to settle the claim but it failed to do so.  Hence the complaint for a direction to the respondent to pay Rs.2,50,000/- spent towards effecting repairs to his vehicle together with interest and costs.

Opposite party filed counter denying the allegations made by the complainant and submitted that the policy was issued to the vehicle of the complainant for own use, social or domestic purpose, own business.  They submitted that the complainant let out his vehicle for hire to a marriage party to go to Hyderabad from Cuddapah on the date of accident.  The statements given  by the inmates of the jeep i.e. Kum.Salima, D/o.Mohd.Ali, Abdul Rahi, S/o.Shaik Mahaboob Jan and the clearner of the said vehicle and recorded by the Station House Officer, Annasagar, P.S.Mahaboobnagar Dist. show that the vehicle was engaged by one Ibrahim Khan, Hyderabad for hire and there were 7 persons in total and one Arif was driving the vehicle of the complainant at the time of accident.  The complainant himself has given the vehicle for hire to one Ibrahim Khan of Hyderabad for transporting the marriage party reveal that the vehicle was taken for hire, which itself is breach of the policy conditions and therefore the complainant is not entitled to claim any damages and submitted that they had repudiated the claim for own damages on 20-9-2001 itself and prayed for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A7 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite party to pay Rs.2,00,000/- towards repairs of the damaged vehicle with interest at 6% p.a. from the date of accident till the date of realization.

Aggrieved by the said order, opposite party preferred this appeal.

The learned counsel for the appellant submitted that they issued policy to TATA SUMO bearing No.AP-04-8442, belonging to the complainant for the purpose of use only social, domestic and pleasure purposes of the insured’s own business and own use only and the complainant gave the vehicle on hire contrary to the policy conditions.  He submitted that the District Forum erred in believing the version of the complainant that the persons, who gave statements before the Police, Annasagar, at the time of accident were neither connected to the complainant nor to the marriage party and directed payment of damages of Rs.2,00,000/- unlawfully against the policy conditions.  He further submitted that the District Forum erred in arriving at damages of Rs.2,00,000/- in the absence of sufficient  evidence and submitted that the complainant fabricated the inflated bills and prayed to allow the appeal. 

The facts not in dispute are that the complainant is the owner of Tata Suma jeep which was insured with the appellant company from 13-6-2001 to 12-6-2001 insuring own damages risk along with third party risk and that this vehicle met with a road accident on 18-6-2001 at 5.00 a.m.  It is the case of the complainant that he handed over the vehicle to one of his friends, S.M.Yousuf, for dropping his newly married daughter and their relatives at Hyderabad on 17-6-2001 and that the accident took place the next day morning wherein 4 persons died and others received injuries.  The complainant submitted that a surveyor was appointed, who assessed the damages to the vehicle but this report has not been filed.  It is the complainant’s case that he spent Rs.2,50,000/- towards repairs and submitted the bills to the appellant company and the appellant company had repudiated his claim on the ground that the complainant had violated the terms and condition of the policy by giving his vehicle for hire.  It is the appellant’s case that the marriage party had taken the vehicle on hire from the complainant and the appellant relied on the statements of the passengers, who were in the vehicle and had given their version in Annanagar Police Station.  It is pertinent to note that the appellant had not filed these statements before the District Forum but has however filed the statements before this Commission.  As against this, we observe from the F.I.R., Ex.A2 wherein the same Salima and Abdul Raheem who were intmates of the vehicle have not stated anything about the vehicle being taken for hire.  Since is the appellant’s contention that the vehicle has been taken on hire and they are relying on the statements of these two inmates, they ought to have filed their affidavits in support of their contention.  The burden of proof shifts to the appellant since it is their contention that the vehicle was taken on hire.  We observe from the Ex.A7, which is order copy of Motor Accident Claims Tribunal, the appellant has not filed any statements but P.W.1, P.W.2 and P.W.3 i.e. Ayesha Begum, S.M.Yousuf and S.A.Sattar were filed to state that the vehicle was not engaged for hire.  We rely on the judgement of the Apex Court in IV (2008) CPJ 1 (SC) in NATIONAL INSURANCE COMPANY LTD., v. NITIN KHANDELWAL in which it was held that

‘the vehicle breach of condition is not germane.  The appellant,

insurance company is liable to indemnify the owner of the vehicle

when the policy obtained was a comprehensive policy for the loss

caused to the insured.  The appellant, insurance company ought to

have settled the claim on non-standard basis’.

In the instant case a breach of policy condition that the vehicle was taken on hire cannot be germaned to the accident and the insurance company is liable to indemnify the loss on non-standard basis.  The contention of the insurance company, that the bills filed are fabricated is not supported by any investigator’s or surveyor’s report quantifying any fabrication.  Therefore, we are of the considered view that the appellant, insurance company, should settle this claim on non-standard basis i.e. 75% of the claim amount which is Rs.1,87,500/- with interest at 6% p.a. as ordered by the District Forum.  However, the District Forum has awarded interest from the date of accident, which we modify to the date of repudiation i.e. 20-9-2001 while we confirm the rest of the order of the District Forum.

        In the result, we allow the appeal in part and modify the order of the District Forum and direct the appellant, insurance company, to settle the claim on non-standard basis i.e. 75% of the claim amount, which is Rs.1,87,500/- with interest at 6% p.a. from 20-9-2001 i.e. the date of repudiation.  Time for compliance four weeks.

                                                PRESIDENT.  LADY  MEMBER.

                                                                   Dated 27-10-2008.