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
Tuesday the 21st day of February, 2006.
C.D.No.35/2005
Anisetty Madhusudhana Rao, S/o Narayana, aged about 24 years, Hindu,
R/o Ho.No.13/27, Chukka Peta, Pedda Banda, Nandyal, Nandyal Mandal,
Kurnool Dt.
. . . Complainant
-Vs-
The Divisional Manager, New India Assurance Company Ltd.,
H.D.C.T. Complex, R.S.Road, Kurnool.
. . . Opposite party
This complaint coming on 20.02.2006 for hearing in the presence of Sri K.Uma Hanumantha Rao, Advocate, Kurnool for complainant and Smt. C.M.K.Ranjini, Advocate, Kurnool opposite party No.1 and 2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Smt.C.Preethi, Hon’ble Member)
1. This Consumer Dispute complaint of the complainant is filed under Section 12 of C.P. Act, seeking a direction on the opposite parties to pay Rs.1,79,491/- with interest and costs.
2. The brief facts of the complainant’s case is that the owner of the Tata Sumo bearing No.AP26 B 3333 insured with opposite party and the policy was inforce on the date of accident. On 8-8-2002 at about 5 A.M. while proceeding to Kurnool, the said Tata Sumo met with accident near Chetlamallapuram cross road by dashing a stationed APSRTC Bus and the said Tata Sumo was badly damaged. Immediately, after the accident the complainant informed the opposite party and submitted relevant documents along with claim form claiming an amount of Rs.1,79,491/-. The opposite party there after deputed a surveyor to conduct survey and submit his report. Inspite of submitting the claim form and several requests the opposite party did not settle the claim. The opposite parties renewed the earlier policy by collecting the loading on premium with a view to settle the claim for damages to said Tata Sumo. But to the dismay of the complainant the opposite parties repudiated the claim through their communication dated 9-9-2003 stating that the Tata Sumo was used for hire purpose. But the complainant’s submits that the said Tata Sumo was used for his personal purpose and not for hire purpose. The above conduct of opposite parties in the repudiating the claim constrained the complainant to seek redressal in this Forum.
3. In substantiation of his case the complainant relied on the following documents viz. (1) Repudiation letter dated 9-9-2003 of opposite party addressed to the complainant (2) C.C of order in MVOP No.789/2002 of MACT-II ADJ, Kurnool dated 15-3-2005 (3) C.C copy of Chief Examination of PW-2 (Kumar Raju) dated 5-8-2004 and (4) Policy bond bearing No.611502310203018 of the complainant, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and caused interrogatories to opposite party and third party replied suitabely to the interrogatories caused by opposite party. The complainant also relied on the deposition of PW-1 K.Prabhakar Rao.
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 filed its written version questioning the maintainability of the complainant’s case either in law or on facts.
5. The written version of opposite party admits the complainant as the owner of Tata Sumo bearing No.AP26 B 3333 and the said Tata Sumo is a private vehicle as per Registration Certificate. And the purpose of the vehicle is for private use only and under the terms and conditions of the policy under ‘limitation to use’ the vehicle of the complainant should be used only for private purpose but not for hire or reward. But the complainant in this case hired the Tata Sumo to the Government Officials for travelling from Kurnool to Chitradurga district of Holikera, Karnataka State for two days. One Mr.Abdul Kareem, Asst. Project Director (Trainings) D.P.A.P, Kurnool has taken the said vehicle for hire from 5-8-2002 to 8-8-2002 and in order to attend Watershed Training Classes at Holikera for two days i.e. 6-8-2002 and 7-8-2002 along with seven other officials. After completion of watershed training while returning to Kurnool the said Tata Sumo dashed against the stationed bus and badly damaged. The persons travelling in the said Tata Sumo are all Government Officials but not friends of the complainant and the said car was given for hire purpose violating the terms and conditions of the policy. Hence, the repudiation of opposite party to the claim of the complainant is justifiable. In view of the gross negligence by the complainant and violating the conditions of the said policy by giving the Tata Sumo for hire for two days to the officials of DPAP, Kurnool. Hence, there is no question of deficiency of service on part of opposite parties. And lastly, submits that if at all the complainant is entitled is to the amount of Rs.79,384/- as per the report of surveyor and seeks for the dismissal of complaint with costs.
6. In substantiation of its case the opposite parties relied on the following documents viz.(1) Attested Xerox copy of the policy bearing No.621101/31/01/04287 (2) Private and confidential motor (final) survey report of L.Manohar Rao, dated 4-1-2003 (3) Inspection survey report of P.S. Mahabub Hussain dated 10-2-2003 (4) Acknowledgement as to the receipt of payment of Rs.3,200/- (5) Letter dated 3-2-2002 of opposite party to the investigator E.Nagendraiah to conduct investigation and (6) Report of investigator dated 9-10-2002, besides to the sworn affidavit of the opposite party in reiteration of its written version averment and the above documents are marked as Ex.B1 to B6 for its appreciation in this case the opposite party also relied on the third party affidavit of E.Nagendraiah. The opposite parties caused interrogatories to the complainant. The opposite party and the third party replied to the interrogatories caused by the complainant. The opposite party also relied on the deposition of RW-1 S.Sashi Devi.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties.
8. It is a categorical case of the complainant alleging deficiency of service on opposite parties for repudiating vide Ex.A1 dated 9-9-2003 for his valid claim. The Ex.A1 repudiates the claim of the complainant stating that the complainant’s vehicle was plying for hire at the time of accident, as the policy issued was given under private vehicle, hence, there is clear violation of policy terms and conditions hence, the repudiation is justified. The complainant submits that his vehicle met with accident on 8-8-2002 while proceeding to Kurnool from Holikera along with his friends but the opposite party in his written version submits that the said vehicle was given for hire purpose to the government officials of DPAP, Kurnool for two days. The learned counsel for opposite party’s side strongly relied on Ex.B4 acknowledgement as to the receipt of Rs.3,200/-, the said exhibit is an unattested Xerox document, and the opposite party alleges that the DPAP officials has paid Rs.3,200/- as hire charges for a period from 4-5-2002 to 7-8-2002 to the complainant and the said payment was accepted by the complainant by signing the Ex.B1, but the complainant strongly denies the said document as not signed by him and after perusal of said Ex.B4 there is nothing to say that by whom the said amount is paid and who has received the said amount, except the stating that hire charges of Rs.3,200/- paid nothing more is revealed from the said Ex.B4, while such is so the opposite party in their written version alleges that the complainant has given his vehicle for hire for two days i.e. on 6-8-2002 and 7-8-2002 but the Ex.B4 reveals that the vehicle was hired for four days and hire charges are paid for four days. Hence, the said inconsistence statements on this aspect not only remains highly inconsistence but also there by untrustworthy and as consists of any bonafidies of opposite party in repudiating the said claim. The opposite party except filing the said Ex.B4 did not made any endeavour to prove the said Ex.B4, as mere marking of documents does not amount to proof. Hence, the said Ex.B4 bears no binding force for being acted upon by the opposite party, especially when the said document was denied by the complainant as not signed by him and no other material is placed by the opposite party to substantiate that the complainant gave his vehicle for hire purpose. Therefore when the said Ex.B4 is not carrying any force the repudiation by opposite party being on said exhibit remains not justifiable.
9. It may be noticed in the above that the opposite party brought on record receipt and marked it as Ex.B4 stating that complainant’s vehicle was given for hire purpose, however no affidavit has been filed in support of said exhibit, nor the affidavit of Abdul Kareem is filed whom opposite party alleges to have hired the complainant’s vehicle. Therefore, the Ex.B4 (receipt) by itself cannot be acted upon. Even otherwise as noted above there is no basis to be held that the complainant has given his vehicle for hire purpose. Therefore, the opposite parties has miserably failed to prove that the complainant has used his vehicle for hire purpose.
10. The opposite party in support of his contentions also relied on Ex.B6 investigator report of E.Nagendraiah and his affidavit, stating that the complainant’s vehicle was hired by DPAP officials, on page-2 of his report he says the vehicle was given for hire on 15-8-2002 but as per Ex.B4 the said vehicle was hired on 4-8-2002, as it was already held above that the opposite party failed to prove that the complainant used his vehicle for hire purpose hence, no predence can be given to the said Ex.B6. Thus, the complainant in the present case does not appear to be guilty of any violation of policy conditions, in fact the opposite party has failed to prove any violation of policy condition by the complainant. Therefore, the complainant is entitled to get compensation from the opposite party.
11. The complainant in support of his case relied on the following decisions. (i) Chota Nagpur Adivas Cooperative Vegetable Marketing Federation Ltd., V/s Oriental Insurance Company and Others reported in 2003 NCJ page-375 (NCDRC) and (ii) National Insurance Company Ltd., V/s Suman Oil Industries reported in 2002 NCJ 544 (NCDRC), the decisions cited by the complainant has little relevancy for its appreciation in this case.
12. The opposite party in support of its case relied on the following decisions. (i) Reported in 2003 CLD page-85 between New India Assurance Company Ltd., V/s Prakash Chand Jain, Delhi State Commission, it was held that the vehicle at the time of theft was used for commercial purpose and not for private purpose as prescribed under terms and conditions, hence, repudiation was held valid and (ii) 2004 7 CLD page-628 between Pyare Hussain Khan V/s New India Assurance Company, Jarkhand State Commission, wherein it was held that when the vehicle was carrying 53 passengers which is gross violation of terms and conditions of insurance policy by the complainant, insurance company justified in repudiating the claim. In the present case the opposite parties failed to prove that the complainant used his vehicle for hire purpose. Hence, the above cited decisions have no relevancy for applicability in this case.
13. To sum up in view of the discussions made supra and the exhibits filed as well as a legal aspects the complainant has to get the amount which he spent in getting the said insured lorry repaired for damages it sustained in the accident covered under the policy and the insurance company is liable to pay the same and there is deficiency of service on part of opposite party in not paying the said amount.
14. In the present case the complainant claimed an amount of Rs.1,79,491/- but in the Ex.B2 final survey report assessed the loss after depreciation to Rs.79,384/-. Thus basing on Ex.B2 the claim has been reduced to Rs.79,384/- which the opposite party has to pay to the complainant.
15. In the result, the complaint is allowed directing the opposite party to pay to the complainant a sum of Rs.79,384/- with 12% interest per annum from the date of accident till realisation along with Rs.5,000/- as costs within a month of receipt of this order. In default the opposite party shall pay the supra awarded amount with 18% interest per annum from the date of default till realization.
Dictated to the Stenographer, transcribed by him corrected and pronounced by us in the Open Forum this the 21st day of February, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: For the opposite party:
PW-1: K.Prabhakar Rao RW-1: S.Sashi Devi
Exhibits Marked for the complainant:
Ex.A1 Repudiation letter dated 9-9-2003 of opposite party addressed to the
complainant
Ex.A2 C.C of order in MVOP No.789/2002 of MACT-II ADJ, Kurnool dated
15-3-2005
Ex.A3 C.C copy of Chief Examination of PW-2 (Kumar Raju) dated 5-8-2004
Ex.A4 Policy bond bearing No.611502310203018 of the complainant
Exhibits Marked for the opposite party:
Ex.B1 Attested Xerox copy of the policy bearing No.621101/31/01/04287
Ex.B2 Private and confidential motor (final) survey report of L.Manohar Rao,
dated 4-1-2003
Ex.B3 Inspection survey report of P.S. Mahabub Hussain dated 10-2-2003
Ex.B4 Acknowledgement as to the receipt of payment of Rs.3,200/-
Ex.B5 Letter dated 3-2-2002 of opposite party to the investigator
E.Nagendraiah to conduct investigation
Ex.B6 Report of investigator dated 9-10-2002.
PRESIDENT
MEMBER MEMBER
Copy to
1. Sri K.Umahanumantha Rao, Advocate, Kurnool.
2. Smt. C.M.K.Ranjani, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
