BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Friday the 9th day of December, 2005
CD 39/2005
D. Narasimhulu,S/o. D. Chandrasekhar,
R/o. Sivaram Talkies,Banaganapalli (V) and (M),
Kurnool Dist. . . . Complainant
-Vs-
The Branch Manager,
M/s The Oriental Insurance Company Ltd,
25/511, Srinivasanagar,Nandyal, Kurnool Dist. . . . Opposite party
This complaint coming on 29.11.2005 for arguments in the presence of Sri A.Prabhakara Reddy, Advocate, Kurnool for complainant Sri D. Srinivasulu, Advocate, Kurnool for opposite party, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Smt C.preethi, Member)
1. The CD complaint of the complainant is filed under section 12 of CP Act, seeking a direction on the opposite party to pay to the complainant the damages of Rs.1,13,219/- as estimated by surveyor with 24% interest from 25-8-2000, Rs.10,000/- as compensation and Rs.5,000/- as costs.
2. The brief facts of the complainant’s case is that the complainant is the owner of Tata Sumo bearing No.AP04-B-8442 and insured the said vehicle with opposite party under policy bearing No.499102/2004/630 and the policy commenced from 31-7-2003 to 30-7-2004. On 22-5-2004 the said vehicle met with accident near Pusalapadu village on Giddalur to Ongole high-way and the said vehicle was damaged badly. The complainant made a claim for damages for the said accident vehicle and the opposite party deputed a surveyor to assess the loss. But to the dismay of the complainant the opposite party repudiated the claim on the following grounds (a) the said vehicle was insured as private vehicle but it carried passengers for hire which is violation of policy. (b) The driver at the material time was having Light Motor Vehicle license. (c) The vehicle is registered as Omni Bus private use only. (d) The complainant concealed facts that there were injuries to the occupants and submitted a false police certificate stating that no one was injured. (e) On pursuing FIR / Charge Sheet it is clear that the vehicle was plying for hire in violation of RC, permit and policy conditions.
3. The complainant submits that the vehicle was not used for hire or reward but it can be used for pleasure trips of complainant or can allow any of the friends and relatives or any one gratuitously at the mercy of the complainant without hire or reward. There is no material to say that the said vehicle was used for hire or reward and the driver at the relevant time was not having valid driving license, hence, the repudiation by opposite party amounts to deficiency of service to the complainant.
4. In support of his case the complainant relied on following documents. Viz (1) Repudiation letter dated 8-10-2004 addresses to complainant, besides to the sworn affidavit of complainant in reiteration of his complaint avenments and three third party affidavit of J.Ramalinga Reddy, Chinna Subba Reddy, and Bana Siva Mohana Reddy. The complainant caused interrogatories to opposite party and the complainant and third party suitablely replied to the interrogatories caused by opposite party and the above document is marked as Ex.A1 for its appreciation in this case.
4. In pursuance to the notice of this Forum as to this case of the complainant the opposite party appeared through their standing counsel and contested the case by filling written version.
5. The written version of opposite party denies the complaint as not maintainable in law or on facts, but admits the complainant as the owner of the Tata Sumo bearing No.AP04-B-8442 and insured the said vehicle under policy covering from 31-7-2003 to 30-7-2004. It further submits that on the information given by the complainant in the claim form in Coloum No.2 that he carried seven passengers and in Coloumn –B the purpose for which the vehicle used as own business, from the above it is clear that the vehicle used for business of carrying passengers and the complainant failed to give names and addresses of passengers and stated that the driver is only occupant. It further submits that as per the RC of the said vehicle, it is only Omni Bus for private use, but on the date of accident, it carried passengers for hire from Nandyal to Ongole and the complainant intentionally suppressed the fact of carrying passengers in the said vehicle and one of the inmates Bana Siva Mohana Reddy was injured the said fact was suppressed by the complainant in the claim form and stated that non was injured.
6. The certificate issued by Inspector of Police, Giddalur in proof of accident itself is a suspicious document as its silent about the time and date of accident and there is no supporting G.O entry to prove the said version therefore the police certificate is false and fabricated document.
7. It lastly submits that the driver was having driving license to drive only LMV and not authorized to drive vehicle carrying passengers for hire and was not possessing driving license with transport as per MV Act, therefore the driver was not having valid license to drive the said vehicle on the date of accident, therefore, the repudiation is a valid one taking into account the criminal case records and facts and circumstances leading to the said accident and seeks for the dismissal of complaint with costs.
8. In substantiation of its case the opposite party relied on the following documents Viz (1) The certified copy of First Information Report issued by Bastivaripeta, Police Station, dated 31-5-2004 (2) Certified copy of charge sheet filed in Judicial First Class Magistrate, Giddalur (3) Statement of Bana Siva Mohana Redd, Beeram Sesha Reddy, Nemali Chinna Subba Reddy, Dorndula Narasimhulu and (4) Policy issued by opposite party, besides to the sworn affidavit of opposite party in reiteration of his written version and caused interrogatories to complainant and third parties and suitabely replied to the interrogatories caused by complainant.
9. Hence, point for consideration is to what relief the complaint is entitled alleging deficiency of service on part of opposite party:-
10. It is a categorical case of the complainant that he is the Jeep owner in question and that it was insured with the opposite party duly covering the vehicle under the policy bearing No. 4331021/2004/630 and the said policy was in force from 31.7.2003 to 30.7.2004. On 22.5.2004 the said vehicle met with accident neat Pasalapadu (V) on Giddalur to Ongole Highway and the said vehicle was damage badly and the concerned Police Station Besthavari Peta registered a FIR on 31.5.2004 under section 337 of IPC regarding the said accident. The complainant made a claim to which the opposite party illegally and repudiated by its letter dt 8.10.2004. Here, the contentions of the opposite party is that the complainant is guilty of mire presentation and suppression of material facts of passengers traveling in the said vehicle and the some passengers received injuries in order to claim wrongful claim and the driver on the date of accident was not having valid driving license to drive the said vehicle and the opposite party repudiated the claim vide Ex A.1. The Ex A.1 is the repudiation letter dt 8.10.2004 addressed to complainant by opposite party, it repudiates the claim of the complainant alleging violation of policy conditions Viz Driver of the said vehicle at the time of said accident is having license to drive light motor vehicle only, while the vehicle so insured was registered as Omni bus for private use only and at the time of material accident, passengers for hire were being carried in the said vehicle. To substantiate the above contentions the opposite parties side has merely relied upon the police investigation material in Ex A.1 to A.3 mainly basing on Ex B.3 the so called statements of witness recorded by investigating agency Under section 161 (3) Cr. P.C during the course of its investigation. The scope and purpose of the statements recorded in Section 161 (3) Cr. P.C being limited to its availment in Criminal Proceedings pertaining to that matter that too for contradiction purpose and not for corroboration purpose. The sole reliance of the Insurance Company on said statements in Ex B.3 without any enquiry there on in satisfying of their correctness for reliance by them and to arrive at the said conclusions, is not remaining justifiable to take the bonafides in the said repudiation of claim, especially, those persons whose alleged statements said to have been covered under Ex B.3 have given their sworn affidavits in this case proceedings denying to have given any such statements as in Ex B.3 to the police. Therefore, when Ex B.1 to B.3 are not carrying any force for reliance by opposite party the repudiation of opposite party’s being on said Ex B.1 to B.3 remains not justifiable.
11. The opposite party merely filed Ex B.1 to B.3, it does not mean that the contends there of are necessarily true, no documents or direct evidence produced by the opposite party about the suppression of material facts or violation of policy conditions by the complainant, mere assertion or oral testimony in respect of suppression and violation of conditions neither inspires any confidence nor can be acted upon. Onus is on the opposite party to substantiate their plea. Hence, the exhibits filed by the opposite party cannot be looked into nor it can inspire any confidence.
12. Having regard to over all consideration, there is no hesitation to hold the opposite party have miserably failed to substantiate that the complainant has suppressed material facts and violated policy conditions. Therefore, in these circumstances the repudiation of claim
by opposite party is wholly arbitrary, un reasonable and unjust and amounts deficiency of service.
13. Now the point for consideration is to what reliefs the complainant is entitled under the said policy. The complainant except alleging in the complaint an amount of Rs.1,13,219/- was incurred towards the repair expenditure of the damaged vehicle did not place any cogent record in substantiation of the same. Hence, even though the repudiation of the opposite party is not justifiable on the grounds alleged therein, for want of cogent material in support for the claim of Rs.1,13,219/- as the complainant has not placed any such cogent material on which the incurred expenditure could be assessed for reimbursement under the insurance policy issued to the said vehicle, the said claim for Rs.1,13,219/- cannot be granted. But the opposite party in their replies to the interrogatories caused by the complainant, in answer No.10 admitted that their surveyor assessed damages to Rs. 56,400/-, thus basing on the said admission by opposite party, the claim has been reduced to Rs.56,400/- which the opposite party has to pay to the complainant. As the opposite party has driven the complainant to Forum for redressal the complainant is entitled to costs of Rs.2,000/-.
14. In the result, the complaint is allowed directing the opposite party to pay to the complainant Rs.56,400/- with 12% interest per annum from the date of accident till realization along with Rs.2,000/- as costs within a month of the receipt of this order.
Dictated to the Stenographer, transcribed by him corrected and pronounced in the Open Court this the 9th day of December, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite party Nil
List of Exhibits Marked for the complainant:
Ex A.1 Repudiation letter, dt 8.10.2004 addressed to complainant by
opposite party.
List of Exhibits Marked for the opposite party:
Ex B.1 C.C of First Information Report (FIR).
Ex B.2 Certified copy of order in CC NO. 198/2004 of Judicial First Class
Magistrate, Giddalur.
Ex B.3 Statement of Bana Siva Mohan Reddy, Tangatur (V),
Banaganipally (M), Kurnool Dist).
Ex B.4 Policy issued by opposite party.
PRESIDENT
MEMBER MEMBER
Copy to:-
- Sri A. Prabhakara Reddy, Advocate, Kurnool
- Sri D. Sreenivasulu, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties on: