This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mohammed Shafi against the Respondents- (1) Branch Manager Oriental Insurance Company Ltd., M.M. Road, (2) Branch Manager Oriental Insurance Company Ltd., City Talkies Road, Raichur. The brief facts of the complaint are as under:<br /> <br /> Complainant is the registered owner of lorry bearing No. MH-13/G/2668. He had insured the said lorry with Respondent No-1 & 2 and obtained the policy No. 520/06 which was in-force from 22-07-05 to 21-07-06. On 28-08-05 the complainant’s lorry met with an accident near Sultanpur Bridge on Raichur-Gabbur Road. The accident was informed to the Raichur Rural Police who visited the spot and conducted the spot panchanama. The surveyor of Respondents surveyed the spot and the vehicle and thereafter as per the instructions of the Respondents, he shifted his vehicle to the garage for repairs. Approximately he incurred Rs. 1,65,000/- for his repairs of his lorry. Thereafter the Respondents again conducted Final Survey and suggested the complainant to submit his claim with bills and required documents. Accordingly the complainant submitted all the relevant bills and documents. In-spite of the same the Respondents have not settled his claim even after lapse of 1 ½ years. After waiting long time he got issued legal notice to the Respondents in-spite of the said notice Respondents have not settled his claim nor Respondents to his legal notice. This in-turn shows negligence on the part of the Respondents and also deficiency of service. Due to this act of Respondents complainant is suffering from mental torture and agony and incurring loss from earning of damaged vehicle. Hence for all these reasons he has sought for awarding a total compensation of Rs. 3,00,000/- against the Respondents 1 & 2 along with cost and interest.<br /> 2. In response to service of notice both the Respondents appeared through counsel and Respondent No-2 and filed written version contending that the complaint is filed on false and baseless and a manipulated facts by twisting material true facts. As per the FIR and Statement of cleaner of the lorry who was in the cabin and eye witness of the accident, the driver of the vehicle at the time of accident was one Yenkappa, whereas the driving licence of one Md. Hussain is submitted which is clearly violative of the terms and conditions of the policy and suppression of the material facts. In-view of the same the complaint is not maintainable.<br /> <br /> Further as per the Spot Report/panchanama the load of 300 bags of 50 kgs weight i.e, 15 tonnes was carrying in the vehicle but as per the R.C. and Permit the RLW of the vehicle is 10.2 tonnes only. So the actual load carried was beyond the licence carrying capacity of 10 tonnes which is also violation of the policy terms and conditions. The complainant has also not responded to the various letters dt. 05-10-04, 14-12-05 final reminder 10-06-06 & 12-02-06 as such the complaint is not maintainable. In-view of above said violation the liability of the Respondent is denied. So the Authority has repudiated the claim of the complainant. Therefore there is no deficiency of service on the part of the Respondent. Hence for all these reasons they have sought for dismissal of the complaint with cost.<br /> <br /> 3. During the course of enquiry the complainant Md. Shafi has filed his sworn-affidavit by way of examination-in-chief and has got marked (9) documents at Ex.P-1 to Ex.P-9. In-rebuttal the Respondents have filed the sworn-affidavit of Respondent and has got marked (10) documents at Ex.R-1 to Ex.R-10.<br /> <br /> 4. Heard the arguments of both sides in-addition of written arguments filed by counsel for complainant and perused the records. The following points arise for our consideration and determination:<br /> 1.Whether the complainant proves deficiency of service by the Respondents, as alleged.?<br /> <br /> 2.Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 5. Our finding on the above points are as under:-<br /> 1) In the negative. 2) As per final order for the following<br /> <br /> REASONS<br /> <br /> POINT NO.1 :-<br /> <br /> 6. The complainant has produced (9) documents namely: Ex.P-1 is the Attested copy of F.I.R. with complaint along with English translation of the complaint/statement; Ex.P-2 is A.C. of charge sheet; Ex.P-3 is A.C. of Spot Panchanama along with its English translation; Ex.P-4 copy of legal notice with postal acknowledgement; Ex.P-5 is Repudiation Letter of the Respondent dt. 27-11-06; Ex.P-6 is the Xerox copy of R.C; Ex. P-7 is the Xerox copy of D.L; Ex.P-8 is the Xerox copy of Insurance Certificate Cum Policy Schedule; Ex.P-9 is the Xerox copy of Claim Form.<br /> <br /> 7. The Respondents have produced (10) documents namely: Ex.R-1 is the Certified copy of Insurance Policy; Ex.R-2 is the copy of conditions of the policy; Ex.R-3 is the copy of Repudiation letter dt. 27-11-06 issued to the complainant; Ex.R-4 is the copy of D.L. of Md. Hussain; Ex.R-5 is the Endorsement of D.L. issued by RTO Raichur; Ex.R-6 is the copy of R.C. Book of the vehicle in-question; Ex.R-7 is the copy of Insurance Spot Survey Report dt. 27-09-05; Ex.R-8 is the copy of Independent Survey Report dt. 09-02-06; Ex.R-9 is the copy of Delivery Note issued by Vasavadatta Cement Company of 300 bags of Cement each weighing 50 Kgs; Ex.R-10 is the Goods Carriage Permit.<br /> <br /> 8. The Respondents have contended that as per F.I.R. & Statement/complaint of the cleaner of lorry who was in the cabin and eye witness of the accident, one Yenkappa was the driver of the vehicle who caused accident whereas the complaint has produced D.L. of one Md. Hussain which is clearly violation of the terms and conditions of the policy and thereby the complainant has suppressed the material facts. The Respondents have further contended that as per spot Panchanama-Report the actual load carried was 300 bags of cement of 50 Kgs each i.e, is (15) tones but as per the R.C. and Permit the RLW of the vehicle is 10.2 tonnes only. So the actual load carried was beyond the capacity of (10) tones which is also violation of policy terms and conditions.<br /> <br /> 9. Ex.P-1 the F.I.R. with complaint/statement shows that on the complaint of one Ramesh Nayak cleaner of the lorry in-question, the Raichur Rural Police have registered a case in crime No. 151/05 on 29-08-05 U/s. 279 of IPC. The complaint/statement of the complainant Ramesh goes to show that on 27-08-05 they load the lorry with 300 bags of cement and at about 12-30 in the night he along with driver left Raichur to Lingasugur. On 28-08-05 in the night in the early hours at about One O’ Clock the lorry was going on Gabur- Road near Sultanpur village on the Bridge one Tata-Sumo came from front side then the driver of his lorry to give side took the lorry and drove the lorry rash and negligently which turtled and fell down from the Bridge and all the 300 cement bags were fell into the water and destroyed. Himself and driver have not suffered any injuries. Then he informed the accident to his lorry owner Basavarajappa R/o. Sirwar. The driver was one Yenkappa Bender (Nayak) R/o. Heera. The Spot Panchanama Ex.P-3 also goes to show that the complainant Ramesh who was present at the time of Spot-Panchanama showed the spot of accident and narrated about the accident by stating that the accident was caused by Yenkappa who drove the said lorry with high-speed in rash and negligently manner etc., So the complaint at Ex.P-1 and the Spot-Panchanama at Ex.P-3 clearly go to show that Yenkappa Bender was the driver of lorry who caused the accident. But the charge-sheet Ex.P-2 shows that the case has been foisted against one Mohhammed S/o. Hasansab R/o. Sirwar Tq. Manvi as driver of the lorry. As rightly pointed out by the L.C. for the Respondent Insurance Company it is not the case that police complaint has been filed by some one else without knowing the name of the lorry driver, but the police complaint was lodged by Ramesh Nayak the cleaner of the very lorry which clearly shows that one Yenkappa Bender was driver of the lorry who caused the accident. Further the Spot-Panchanama conducted by the police also shows the name of the lorry driver as Yenkappa-driver who caused the accident. When the police complaint lodged by Ramesh Nayak the cleaner of the very lorry and eye witness to accident who set the criminal law into motion by lodging the complaint and on the basis of which a crime has been registered by the Rural Police Raichur, against lorry driver Yenkappa and during the course of investigation Spot-Panchanama was conducted showing the name of the driver as Yenkappa Bender who caused the accident in-question, then it goes without any hesitation for the purpose of consideration of the complaint U/s. 12 of C.P. Act that it is said Yenkappa Bender who was the driver and who caused the accident in-question and not Mohammed S/o. Hasansab R/o. Sirwar. So the driving licence Ex.P-7 produced by the complainant showing the driving licence of Mohammed Hussain as the driver of the lorry clearly shows violation of terms and conditions of the Insurance policy as rightly submitted by the L.C. for Respondent. <br /> <br /> 10. Secondly it is argued by the L.C. for the Respondent that the lorry was loaded with 300 bags of cement weighing of 50 Kgs each which comes to 15 tonnes as against to capacity of 10.2 tonnes as per the R.C. and Permit. Both the parties have produced Xerox copies R.C. Book at Ex.P-6 & Ex.R-6 showing the loading capacity of the vehicle as 10.2 tonnes. The Respondents have also produced copy of Delivery Note No. 67636 at Ex.R-9 issued by Vasavadatta Cement dt. 27-08-06 for 300 bags of cement weighing 50 Kgs each i.e, 15000 M.T. The Respondents have also produced copy of Goods Carriage Permit at Ex.R-10 showing the load capacity of the vehicle as 10.200 Kgs. As discussed above the complaint at Ex.P-1, Spot-Panchanama at Ex.P-3, and the copy of Delivery Note issued by Vasavadatta Cement at Ex.R-9 go to show that the lorry was loaded with 300 bags of cement weighing of 50 Kgs each totaling to 15000 M.T. as against the Permit of 10.2 tonnes vide Ex.R-10. The Survey Report at Ex.R-7 and Final Survey Report at Ex.R-8 also shows the load carrying capacity of the lorry in-question is 10.200 Kgs. The Respondents have produced the copy of insurance policy at Ex.R-1 and copy of condition of the policy at Ex.R-2. From complaint, Spot-Panchanama, R.C., Permit and the Delivery Note of Vasavadatta Cement it shows that the vehicle was loaded with 15000 tonnes Cement bags as against the loading capacity of the vehicle and Permit of 10.2 tonnes and thereby it clearly shows violation of terms and conditions of the Permit at Ex.R-10 and also terms and conditions of the Insurance policy and for which the Respondent Company have repudiated the claim of the complainant as rightly submitted by the L.C. for the Respondent. So we do not find any illegality in repudiating the claim of the complainant and so we do not find deficiency in service by the Respondent Company. Therefore we hold that the complainant has failed to prove deficiency in service by the Respondent. Hence Point No-1 is answered in the negative.<br /> <br /> POINT NO.2:-<br /> <br /> 9. In view of our discussion and finding on Point No-1, holding that the complainant has failed to prove deficiency in service so he is not entitled for reliefs sought for. In the result we pass the following order:<br /> <br /> ORDER<br /> The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost.<br /> <br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-02-08)<br /> <br /> Sd/- Sd/- Sd/-<br /> Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi,<br /> Member. Member. President, <br /> Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.<br /> <br />