DISTRICT FORUM :: KADAPA Y.S.R DISTRICT
PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT
SRI S.A. KHADER BASHA, B.Sc., MEMBER.
SMT. K. SIREESHA, B.L., MEMBER
Monday, 9th May 2011
CONSUMER COMPLAINT No. 14 / 2011
G. Reddanna Reddy, S/o G. Gangi Reddy,
aged 38 years, Ramachandrapuram Village,
Togurpet Post, Rajampet Mandal, Kadapa District. ……Complainant
Vs.
1) The New India Assurance Co. Rep. by its
Branch manager, 2/789, 1st floor, Sairam Towers,
Nagarajpet, Kadapa.
2) Chowdari Financiers, Rep. by its Manager, 3/183,
Chennachavidi Street, Rajampet, Kadapa District. …..Respondents.
This complaint coming on this day for final hearing on 4-5-2011 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri D. Rajasekhar Reddy, Advocate for R1 and R2 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per S.A. Khader Basha, Member),
1. Complaint filed under section 12 of the C.P. Act 1986.
2. The brief facts of the complaint are as follows:- The Complainant is the resident of Ramachandrapuram village, Rajampet Mandal, Kadapa district. He is the owner of TATA sumo bearing No. AP 04 U : 2858 and the vehicle was insured with R1. He availed finance to purchase the vehicle from R2. The insurance policy is having coverage of all packages including vehicle damages under miscellaneous type bearing policy No. 611200-31-07-01-00002316. On 14-8-2008 his vehicle met with an accident and was badly damaged. He incurred an amount of Rs. 1,50,000/- for repairing his vehicle. Without application of mind, R1 has repudiated his claim. He made several requests to R1 to get compensation, as there is no response from him he filed the present complaint before this forum requesting to direct the R1, to pay a sum of Rs. 1,50,000/- towards loss sustained by the Complainant due to accident, Rs. 50,000/- towards mental agony and Rs. 2,000/- towards costs.
3. R1 filed a counter stating that the claim is not maintainable either in law or on facts. The insured vehicle was used for commercial purpose at the material time; as such the insured does not come under the definition of a Consumer as per C.P. Act. Hence, the Complainant cannot get any relief. The Complainant insured his vehicle with R1 under passengers carrying commercial vehicle policy and the insured vehicle was registered as vehicle bearing No. AP 04 U : 2858 with Additional Registering Authority, Kadapa under Luxury Tourist Cab LMV. The vehicle was engaged by P. Srinivasulu and others for traveling as passengers to Chennai airport. This vehicle was registered with a seating capacity “6” in all. The Complainant is doing a transport business and in the course of his business he purchased the vehicle. As per the contents of the FIR and charge sheet, one P. Srinivasulu, was engaged the Complainant’s Jeep on hire, as such it is clear that the Complainant was transported the passengers to Chennai Airport. The Complainant used his vehicle for transport of passengers on commercial activities at the time of accident. Hence, the Complainant would not come under the purview of definition under section 2 (1) (d) of C.P. Act 1986. It is clear that the Complainant is hiring the service to others on profit motive. Therefore, the Complainant filed by the Complaint may be dismissed with costs. The Complainant is not a consumer. Four passengers’ sustained injuries and two passengers died on the date of alleged accident. The seating capacity of the vehicle “5” which is in the policy. Therefore, the Complainant violated the terms and conditions of the policy. On receiving the intimation from the Complainant, the R1 appointed one B.A. Sammad Khan, insurance surveyor and loss assessor conducted spot survey noted the particulars of damage to the vehicle.
4. T. Gangadhar Prasad, authorized surveyor and loss assessor conducted final survey and quantified the total damage of Rs. 62,010/-, after calculating depreciation of parts and less salvage of Rs. 4,010/- the total damage of Rs. 59,500/- is estimated. One authorized passenger in the vehicle at the time of material time. There is no deficiency of service on the part of the R1 and R1 rightly repudiated the claim. R1 requested to dismiss the Complaint with costs.
5. R2 called absent and set exparte on 29-3-2011.
6. On the basis of the above pleadings the following points are settled for determination.
i. Whether the complainant is entitled to the relief as prayed for?
ii. To what relief?
7. On behalf of the complainant Ex. A1 to A7 were marked and on behalf of the Respondents Ex. B1 to B8 were marked. Oral arguments were heard from both sides. Written arguments filed by R1 as well as the Complainant.
8. Point No. 1. Ex. A1 is the Photostat copy of registration certificate of the vehicle bearing No. AP 04 U : 2858 in the name of the Complainant. The seating capacity is mentioned as “6”. It is a Luxury Tourist Cab LMV. Ex. A2 is the Photostat copy of insurance policy No. 611200-31-07-01-00002316 issued by R1. It is valid from 27-8-2007 to 26-8-2008. Ex. A3 is the Photostat copy of First Information Report in FIR No. 59/2008, dt. 15-8-2008 under section 337, 304 A IPC of Obulavaripalli Police Station. Ex. A4 is the Photostat copy of permit of the vehicle in which maximum passengers capacity is noted as “6” in all. Ex. A5 is the Photostat copy of Tourist permit of the vehicle in which seating capacity is noted as “6”. Ex. A6 are different cash bills 10 in number. Ex. A7 is the Photostat copy of of letter issued by the Divisional Manager, New India Assurance Co. Ltd., in which the claim was repudiated stating that the Complainant have violated by carrying one un-authorized passengers in the vehicle in question. Ex. B1 is the Photostat copy of Ex. A2. Ex. B2 is the photo of Ex. A1. Ex. B3 is the Photostat copy of spot survey report, dt. 21-8-2008 issued by B.A. Sammad Khan, Insurance Surveyor and loss Assessor. In this report also the seating capacity is noted as “6” in all. Ex. B4 is the Photostat copy of Motor Final report issued by T. Gangadhar Prasad, dt. 30-10-2008 in this report also seating capacity of the vehicle is noted “6” in all. Ex. B5 is the Photostat copy of re-inspection survey of S. Mohammed Azam, dt. 2-12-2008. Ex. B6 is Photostat copy of 161 Cr.P.C statement of P. Srinivasulu. Ex. B7 is the Photostat copy of charge sheet in Cr.No. 59/2008 of Obulavaripali Police station. Ex. B8 is the Photostat copy of Ex. A7.
9. As per Ex. B4 (Final Survey Report), the surveyor estimated the damages of the vehicle to the tune of Rs. 59,500/- after deducting depreciation of parts and less salvage. The R1 repudiated the claim on the solitary ground that one passenger was carrying the vehicle at the time of accident. The Complainant contended that the vehicle was purchased and registered as Taxi for eaking out his livelihood. He denied about the transport of passengers as alleged by the R1. The vehicle sands in the name of the Complainant in his personal capacity. When the vehicle is in the name of the Complainant, the R1 cannot made allegations that he is doing transport business and the burden is on R1 to prove the same which R1 thoroughly failed to do so.
10. Carrying one passenger excessively never led to accident. The entire records never suggest about the over loading of the vehicle in question, in such situation it cannot be said that there is a violation of terms and conditions of the policy. The Complainant contended that a number of cases the Hon’ble National Commission and Hon’ble Supreme Court have allowed the claims in similar cases. It is clear from Ex. B3, B4 and B5 i.e. spot survey report, final report and re-inspection report respectively that have no indication about violation of terms and conditions of the policy and all the vehicle records were found correct in all the surveyors reports. In Ex. B4, the final survey report, the surveyor has assessed the assessment to the tune of Rs. 59,500/- and the Complainant thoroughly failed to prove his contention of incurring of Rs. 1,50,000/- towards repairs to the insured vehicle by producing relevant documents. The bills produced by the Complainant which are 10 in number amounting to Rs. 98,863/- only which is not conveniencing. In view of the admitted facts by both sides we feel that the Complainant deserves consideration in his favour and the loss estimated by the final surveyor in Ex. B4 to the tune of Rs. 59,500/- can be allowed to be paid to the Complainant towards the vehicle damages. Hence, the points are answered accordingly.
11. Point No. 2. In the result, the complaint is allowed, directing the R1 to pay Rs. 59,500/- (Rupees Fifty Nine Thousand Five Hundred Only) towards loss sustained by the Complainant, Rs. 5,000/- (Rupees Five Thousand Only) towards mental agony and Rs. 2,000/- (Rupees Two Thousand Only) towards costs to the Complainant, payable within 45 days from the date of receipt of the order. The case against R2 is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 9th May 2011
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant NIL For Respondent : NIL
Exhibits marked for Complainant : -
Ex. A1 P/c of registration certificate of the vehicle bearing No. AP 04 U : 2858 in the name of the Complainant.
Ex. A2 P/c of insurance policy No. 611200-31-07-01-00002316 issued by R1. It is valid from 27-8-2007 to 26-8-2008.
Ex. A3 P/c of First Information Report in FIR No. 59/2008, dt. 15-8-2008 under section 337, 304 A IPC of Obulavaripalli Police Station.
Ex. A4 P/c of permit of the vehicle in which maximum passengers capacity is noted as “6” in all.
Ex. A5 P/c of Tourist permit of the vehicle in which sating capacity is
noted as “6”.
Ex. A6 Cash bills on different dates (10 in numbers).
Ex. A7 P/c of of letter issued by the Divisional Manager, New India Assurance Co. Ltd., in which the claim was repudiated stating that the Complainant have violated by carrying one un-authorized passengers in the vehicle in question.
Exhibits marked for Respondent : -
Ex. B1 P/c of insurance policy No. 611200-31-07-01-00002316 issued by R1. It is valid from 27-8-2007 to 26-8-2008.
Ex. B2 P/c of registration certificate of the vehicle bearing No. AP 04 U : 2858 in the name of the Complainant.
Ex. B3 P/c of spot survey report, dt. 21-8-2008 issued by B.A. Sammad Khan, Insurance Surveyor and loss Assessor. In this report also the seating capacity is noted as “6” in all.
Ex. B4 P/c of Motor Final report issued by T. Gangadhar Prasad, dt. 30-10-2008 in this report also seating capacity of the vehicle is noted “6” in all.
Ex. B5 P/c of re-inspection survey of S. Mohammed Azam, dt. 2-12-2008.
Ex. B6 P/c of 161 Cr.P.C statement of P. Srinivasulu.
Ex. B7 P/c of charge sheet in Cr.No. 59/2008 of Obulavaripali Police station.
Ex. B8 P/c of of letter issued by the Divisional Manager, New India Assurance Co. Ltd., in which the claim was repudiated stating that the Complainant have violated by carrying one un-authorized passengers in the vehicle in question.
MEMBER MEMBER PRESIDENT
Copy to
1) Sri G. Trivikram Singh, Advocate for complainant.
2) Sri D. Raja Sekhar Reddy, Advocate for R1.
3) Chowdari Financiers, Rep. by its Manager, 3/183,
Chennachavidi Street, Rajampet, Kadapa District.
1) Copy was made ready on:
2) Copy was dispatched on:
3) Copy was delivered to parties:
B.V.P.
