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
Wednesday the 12th day of January, 2005
C.D.No. 190/2003
1. T.Narayanamma,
W/o Late T.Rathnamaiah.
2. T.Venugopal,
S/o. Late T.Rathnamaiah.
3. T.Janardhana,
S/o. Late T.Rahtnamaiah.
All are residents of Owk (V) and (M),
Kurnnool Dist. . . . Complainants represents by their counsel
Sri M.L.Sreenivasa Reddy.
-VS-
1.The Branch Manager,
The New India Assurance Co. Ltd,
Nandyal.
2.The divisional Manager,
The New India Assurance Co. Ltd,
Kurnool. . . . Opposite party No.1&2 represented by
their counsel Sri Ms. C.M.K.Ranjani.
3. G.Lakshmi Devi,
W/o. R.Chalapathi,
H.No. 19/107-B,
Banaganapalle,
Kurnool Dist. . . . Opposite party No.3 represented by his
counsel Sri K.Yerukala Reddy.
O R D E R
(As per Smt C.Preethi, Member)
1. This CD complaint of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay Rs.50,000/- with 18% interest per annum from 17.4.2003, Rs.10,000/- towards compensation for mental agony, cost of the complaint and any such other relief or reliefs which the complainant is entitled in the circumstance of the case.
2. The brief facts of the complainants case is that complainant No. 1 is the wife and complainants No.2&3 are the sons late T. Rathanamaiah @ Rathanamaiah Shetty of Owk Village (M). The opposite party No.3 is the owner of Tata Sumo bearing No. AP 02-G-3155 and the said vehicle was insured opposite party No.1 under policy bearing No. 611502/31/02/03156 and the same is valid from 27.1.2003 to 26.1.2004. The opposite party No.3 paid necessary premium for covering the risk of life of each passengers traveling in the said vehicle for Rs. 50,000/-. On 17.4.2003 the deceased T.Rathnamaiah along with others were proceeding in the said vehicle to Chinna Malkapuram, at about 4 P.M met and with accident with a lorry bearing No. AP 21-V- 2979 coming from opposite direction, the said T.Rathnamaiah and another passenger by name P. Raju received injuries and died in the hospital at Kurnool on the same day. After that the complainants came to know the existence of the accidental policy to the passengers travelling in the said Tata Sumo, have submitted a requisition with necessary documents such as FIR and inquest report held over the dead body of T.Rathanamaiah and requested the opposite party No.1 to pay insured amount of Rs.50,000/- on the death of said T.Rathanamaiah. But the opposite party No.1 did not pay the said amount, the complainants got issued a legal notice dt 13.5.2003 to opposite party No.1 along with Xerox copies of FIR and inquest report for payment of insurance amount. But the opposite parties No.1 though received the said notice did neither paid the insured amount nor replied to the said legal notice. Hence, constrained the complainants to seek redressal in this forum for relief.
3. In substantiation of its case the complainants relied on the following documents Viz (1) certified copy of FIR No. 69/03 dt 17.4.2003 of Dhone PS (2) inquest report held over the dead body of deceased T.Rathnamaiah under Cr. No. 69/03 dt 18.4.2003 (3) legal notice dt 13.5.2003 issued by complainant’s counsel to opposite party No.1 and (4) postal acknowledgement for receipt of Ex A.3 by opposite party No.1, besides to the sworn affidavit of complainant No.3 in reiteration of its complaint avernments and the about documents are marked as Ex A.1 to A.4 for its appreciation in this case and the complainants also relied on two third party affidavits of Satish Babu and T.Janardhan and the third parties suitable replied to the interrogatories filed by the opposite parties.
4. In pursuance to the notice of this forum as to this case of the complainants the opposite parties 1&2 appeared through their standing counsel and contested the case by filing denial written version. Opposite party No.3 appeared through its standing counsel but did not contest the case.
5. The written version of opposite party 1&2 submits that opposite party No.3 obtained a private car policy to her Tata Sumo bearing No. AP-02-G-3155 by paying necessary premium and the insured has to use the said vehicle only for private purpose but not for commercial purpose. But the said vehicle was given for hire purpose, the deceased along with 10 other were traveling from Owk to China Malkapuram for their personal purpose by paying fare in the said vehicle and met with accident with a lorry bearing No. AP-21-V-2979 coming from opposite direction in a rash of negligent manner and dashed the said Tata Sumo and the passengers in the said Tata Sumo sustained injuries. A criminal case was registered against the driver of the lorry and the claimants had claimed compensation for the death of deceased before the Motor Accidents Claims Tribunal against the Insured and Insurance of the lorry. As the accident occurred due to the sole negligence of the driver of the lorry as such the complainants are not entitled to claim any amount from opposite party No.1&2.
6. The opposite party 1&2 further submits that the deceased along with 10 persons traveled in a private car as fare paid passengers at the time of the accident in contrary to the terms and conditions of the policy and no premium was collected for covering the said risk, therefore, the opposite party No.1&2 are not liable to pay compensation to the complainants. It lastly submits, that the policy amount is payable only when the occupants comes under the category of non-fare paying passengers and when the accident occurs only due to the negligence of the driver of that vehicle and there is no insurable interest either with the deceased or with complainants to the opposite party No.1&2 as no premium is received from the deceased or from the complainants and there is no deficiency of service on part of the opposite parties and seeks for the dismissal of complaint with costs.
7. In substation of its case the opposite party No.1&2 relied on the following document Viz (1) receipt policy bearing No. 611502/31/02/03156, besides to the sworn affidavit of opposite party No.2 and the above document is marked as Ex B.1 for its appreciation in this case.
8. Hence, the point for consideration is to what relief the complainant is remaining entitled alleging deficiency of service and deficient conduct on part of the opposite parties No.1&2?:-
9. It is a categorical case of the complainants that the deceased T.Rathnamaiah was traveling in the accident vehicle of opposite party No.3, which met with accident on 17.4.2003. The opposite party No.3 insured the said vehicle with opposite party 1&2 under comprehensive policy, and paid required premium for covering Personal Accidents risks to passengers traveling in her vehicle. Therefore, the complainants are entitled to the insured amount of Rs.50,000/-. But as against to it the opposite party 1&2 in their written version alleges that the complainants are not entitled to any insured amount.
10. Firstly, the opposite party No.3 has obtained the private car policy to her Tata Sumo and to use the said vehicle only for private purpose, but the said vehicle was given for hire purpose and the deceased along with 10 others were traveling from Owk to Chinna Malakapuram for their personal purpose by paying fare and met with accident. Which is in utter violation of policy terms and conditions as the said Tata Sumo was carrying passengers as commercial vehicle, therefore, the complainants are not entitled to the insured amount. In support of the supra stated contentions the opposite party No.1&2 did not place any cogent material and there is no evidence on the file to show that the passengers traveling in the said vehicle were fare paying passengers and thus the owner(Op No.3) of the said vehicle cannot be held guilty of any breach of policy conditions obligating them to the insurer, hence, there remains every bonafides of the complainants in their hesitation on the said grievance, the complainants placed reliance on the ruling of National Commission in the case of United India Insurance Company Ltd Vs Dashrath Lal Jeltha Bai, reported in 1996 (2) CPR Pg 51, wherein, it was held that claim was repudiated on the ground that the complainant committed breach of conditions of policy by carrying passengers on fare paying, no evidence led by opposite party that the persons traveling were fare passengers, hence the complainant is entitled to insurance claim under the said policy. In the present case the opposite party 1&2 except alleging the said vehicle carrying fare paying passengers did neither filed any affidavit of passengers traveled in the said vehicle nor placed any evidence to prove that the passenger have paid or agreed to have paid any fare to the owner of the said vehicle, thus the owner cannot be held guilty of any breech of policy conditions and there appears every deficiency of service on the side of the opposite party 1&2 in that regard.
11. Secondly, the opposite party 1&2 alleges that the complainants claimed compensation for the death of the deceased before the Motor Accidents Claim Tribunal against the insured and insurer of the lorry as accident occurred due to the sole negligence of the driver of the lorry. So they are not entitled to claim any amount from opposite party No.1&2. The learned counsel for complainant has correctly stated that the amount received by the complainants before the Motor Accidents Claim Tribunal as third party and the said amount was paid under a separate contract entered by owner of the lorry with insurance company. Whether the said amount received by the complainants on account of above contract between the owner of the lorry and insurance company disentitles the complainants to claim the said insured amount in this case. The answer is definitely ‘No’. There is no reason in setting off what the complainant being entitled to receive under the above contract between owner of the lorry and Insurance Company as third party. The complainants received the said amount under a separate policy, in this present case the complainants are claiming amount under a policy entered between the owner of Tata Sumo (OP No.3) and Insurance Company. The opposite party No.3 insured her vehicle with opposite party 1&2 in the event of accident happening, the opposite party No.1&2 will reimburse the Personal Accident Insurance amount of Rs.50,000/- to the persons traveling in the said vehicle and the complainants did not receive the above amount under this policy. Hence the complainants are perfectly remaining entitled to claim insurance amount under the above policy entered between opposite party No3 and opposite party 1&2. As already observed the payment of compensation before Motor Accidents Claim Tribunal was not on policy taken by opposite party No.3, but as third party to the policy between the owner of the lorry and Insurance Company. Therefore, it cannot be said that by claiming damages before the Tribunal because of rash and negligent driving of the driver of the lorry, the complainants would be debarred from claiming compensation under the present policy taken by opposite party No.3, which would amount to unjust enrichment. Therefore, the plea taken by the opposite party No.1&2 cannot inspire any confidence nor can be relied upon nor can be acted upon. The complainant placed reliance on the following citations of (1) High Court of Delhi at Delhi, between Dr A.C. Mehra Vs Behari Lal and other reported in 1998 ACJ Pg 379 wherein, it was held that compensation paid under a separate contract between the owner of the insurer of the car, tort feaser cannot take advantage of the owners contract with third party (2) High Court of Karnataka, at Bangalore between National Insurance Company Ltd Vs Sarojini (By L Rs and others) reported in 2000 ACJ Pg 226, wherein, it was held that death of a passenger traveling in a private car Insurance Company of the car paid Rs.1,00,000/- under separate clause in the policy in respect of the same accident as additional premium under clause I M T 5 was paid, additional cover presupposes that this would be a cover that one would be entitled to irrespective of the quantum of basic cover, compensation is payable virtually under two different heads under the same policy.
12. Thirdly, the opposite party No.1&2 alleges that deceased along with 10 others traveled in a private car as fare paid passengers at the time of the accident in violation of terms and conditions of the policy and no premium was paid for covering the risk of such passengers and the complainants are not entitled to any amount. As already held above that it is not proved that the passenger traveling in the said vehicle were fare paying passengers and no evidence was placed to show that the passengers has paid any fare and said vehicle is plying as a taxi. Merely the deceased along with 10 other traveling in the said vehicle cannot be such a fundamental breach that the complainants should in all events be denied of compensation.
13. Fourthly, the Personal Accident benefit under the policy becomes payable only when the passengers traveling in the said vehicle are non fare paying passengers, as already observed above the passengers traveling in the said vehicle are not proved as passengers traveling as fare paid passengers.
14. Lastly and fifthly, the opposite party No.1&2 alleges that there is no insurable interest with the deceased and with the complainants to the opposite party No.1and 2, the opposite party No.3 has paid required premium for covering the Personal Accident risk to 9 passengers traveling in her vehicle and the said premium is paid for covering the risk of passengers traveling in the said vehicle, hence the plea taken by the opposite party No.1&2 is rejected as untenable and un sustainable.
15. The Ex A.1 &A.2 envisages the cause of death of deceased T.Rathnamaiah in the alleged accident on 17.4.2003 and there is no dispute between the parties as to the cause of death, the only dispute is regarding the willful breach of policy conditions, in view of the citations cited above, the discussions made supra and the exhibits filed as well as legal aspects, the complainants are certainly remaining entitled to get the insured amount covered under the Ex B.1, policy bearing No. 611502/31/02/03156, for the death of T.Rathnamaiah in the alleged accident and the opposite party No.1&2 are liable to pay the same, as they miserable failed to prove that the passengers traveling in the said vehicle were fare paying passengers and there is clear deficiency of service on part opposite party No.1&2 in not paying the said amount. As no cause of action is made out against opposite party No.3 the case against opposite party No.3 is dismissed.
16. Consequently, the complaint is allowed, directing the opposite party No.1&2 jointly and severally to pay Rs.50,000/- insured amount to the complainants with 9% interest from the date of demise of the deceased till realization along with RS.3,000/- as costs within a month from the date of receipt of this order.
Dictated to the Stenographer, Typed to the dictation corrected by us, pronounced in the open court this the 12th day of January, 2005.
PRESIDENT
MEMBER MEMBER
