<br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Basavaraj against the Respondents- Divisional Manager United India Insurance Company Ltd., Divisional Office, Raichur. The brief facts of the complaint are as under:<br /> <br /> The complainant is an agriculturist residing at Jerabandi village, Tq. Deodurga. He is owner and R.C. Holder of Mahindra & Mahindra Commander Jeep bearing Registration No. KA-33/M-470, which being used for his family purpose. The complainant got appointed an effective and valid driving licence holder by name Reddappa S/o. Channappa, R/o. Budinal village as his jeep driver. He got insured his jeep with Respondent in Package Policy bearing NO. 240200/31/04/00002738 dt. 15-12-04 which was valid upto mid night on 14-12-05.<br /> <br /> On 21-10-05 while his jeep was proceeding towards Deodurga from Jerabandi village for brining his family members, the said jeep driver without knowledge and permission of the complainant took some of his friends and relatives from Jerabandi and Yermanal village to Deodurga without any consideration and while proceeding towards Deodurga at about 12-00 PM the said jeep was turtled into a ditch nearby stone crusher center which is about 4 K.M. distrance from Deodurga P.S. resulting an accident due to loss of control by the said driver. In the said accident one Umapathi S/o. Channabasappa Sahukar suffered grievous injuries and died on the same evening while taking treatment at OPEC Hospital Raichur, and few others were also injured. One Siddapa R/o. Yermanal village has complained the same before Deodurga P.S. which was registered in Crime No. 130/05 U/s. 279, 337, 338 & 304 (A) of IPC R/w 134 & 187 of IMV Act, against the said jeep driver.<br /> <br /> After the said accident the complainant informed the Respondent about the accident and damages caused to his vehicle for which the Respondents appointed a Surveyor for estimate of damages. But the survey report and amount of estimated damage was not made known to the complainant. However the complainant got repaired his vehicle at Authorized Service Center of Mahindra & Mahindra Company i.e, Avinash & Company at Gulbarga and submitted the claim form along-with original bills of repair amounting to Rs. 29,078/- which came to be repudiated on 23-03-06 by the Respondents on the ground of breach/violation of terms and conditions of policy by the complainant.<br /> <br /> The friends of his jeep driver who were inmates in the said jeep have wrongly deposed before the Deodurga P.S. in their statement recorded in Crime No. 130/05 by mentioning themselves as passengers in the said jeep which is just with a plan for getting compensation from this complainant and Insurer. The Respondent by taking into consideration of the same police records has repudiated his claim as per their letter dt. 23-03-06 which is against the natural justice. Though the complainant’s jeep driver had not carried any passengers for consideration, in-spite of it the Respondent has repudiated his claim solely on the basis of police records. Even if it is considered as violation of policy by way of carrying passengers by the driver without knowledge of the complainant, so the Respondents is not exonerated from liability for treating the claim as non-standard claim in-view of our object of the Insurance Act. Hence for all these reasons the complainant has sought for awarding Rs. 29,078/- towards vehicle damages along with interest from 23-03-06 till realization and Rs. 10,000/- mental harassment and financial deprivement and for cost of Rs. 5,000/-.<br /> <br /> 2. In-response to service of notice, on 08-12-06 the Respondent appeared through its counsel and filed the written statement as under:<br /> <br /> The complaint given to the police Deodurga, by one Siddappa Chaluvadi states that they were passengers for hire in the said jeep, as such the allegation that without the knowledge and permission of the complainant his jeep driver took some of his friends and relatives in the jeep from Jerebandi and Yermnal village to Deodurga without any consideration is false. In-fact the complainant was running the jeep as Taxi/ Stage Carrier which is against the terms and conditions of the Policy as well as Permit. The statements before the police given by the passengers in the said jeep clearly shows that the said vehicle was used as Taxi/Stage Carrier without any valid permit and violation of terms and conditions of the policy.<br /> <br /> The complainant who has entrusted the said jeep to the driver Radeppa was not having a valid subsisting and effective driving licence to drive particular class of vehicle at the time of accident and thereby the complainant has violated the policy condition. The averments regarding repair of the jeep with Avinash & Company Ltd., at Gulbarga is false and baseless and the bills submitted are exorbitant for the purpose of claiming heavy damages. The alleged bills are prepared with the collusion of the complainant and Avinash & Company Ltd., Gulbarga. The Respondents Insurance Company have rightly repudiated the claim of the complainant for violation of policy condition as such there is no deficiency of service on the part of this Respondent. Hence for all these reasons the Respondents Insurance Company has prayed for dismissal of the complaint with cost.<br /> <br /> 3. During the course of enquiry the complainant has filed his sworn-affidavit as examination-in-chief and has got marked as many as (17) documents at Ex.P-1 to P-17. In-rebuttal the Respondent Insurance Company has filed sworn-affidavit of its Divisional Manager as evidence and got marked two documents at Ex.R-1 & R-2.<br /> <br /> 4. Heard the arguments of both sides 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 in not settling his claim, 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 /> <br /> 1.In the affirmative 2. As per final order for the following.<br /> <br /> REASONS<br /> <br /> POINT NO:-1<br /> <br /> 6. There is no dispute that the complainant is the owner and R.C. Holder of the jeep in-question and it was insured with the Respondent Company which was in-force at the time of accident. The complainant alleges that after the accident he informed the Respondent about the accident, who sent a surveyor for assessing the damages caused to the jeep and after the survey he got repaired the jeep at Avinash & Company Ltd., at Gulbarga by incurring expenditure of Rs. 29,078/- and submitted his claim by enclosing original bills but the Respondent have repudiated his claim on the ground that the vehicle was used as Taxi/ Stage Carrier by carrying hire passengers. It is also his case that on the date of accident i.e, on 21-10-05 while proceeding his jeep towards Deodurga from his village Jerebandi for brining his family members, his jeep driver without his knowledge and permission took some of his friends and relatives in the jeep from Jerebandi and Yermnal village to Deodurga without consideration and while so proceeding towards Deodurga the jeep turtled into a ditch and met with an accident due to loss of control by the jeep driver. In the said accident one Umpathi S/o. Channappa Sahukar suffered grievous injury and died on the same evening in the OPEC Hospital Raichur while taking treatment and some others were also injured. Deodurga Police have registered a case in Crime NO. 130/05 U/s. 279, 337, 338 and 304(A) of IPC R/w 134, 187 of IMV Act against his jeep driver on the complaint of one Siddappa of Yermnal village. The said complainant-Siddappa and the other friends of his jeep-driver in their statement before the police have wrongly stated that they were traveling in the jeep as hired passengers in-order to claim compensation from Insurance Company, though in-fact his jeep driver had taken them without any consideration. But the Respondent Insurance Company taking into consideration the police statement of the inmates of the jeep have repudiated the claim on the ground that the jeep was used as Stage Carrier by violating the terms and conditions of the policy.<br /> <br /> 7. The Respondent Insurance Company has denied the allegation of the complainant that the jeep driver without knowledge & permission of the complainant, had taken some of his friends and relatives in the jeep while proceeding to Deodurga. In-fact the complainant was running the jeep as Stage Carrier without any permit and thus has violated the terms and conditions of the Permit and Insurance policy. The police complaint given by Siddappa Chaluvadi and police statements of passengers go to show that they were traveling in the jeep as hire passengers. So the jeep was used for purposes of carrying passengers as Taxi/Stage Carrier which is against the terms and conditions of the policy and without valid Permit and so the Respondents have rightly repudiated the claim of the complainant. <br /> <br /> 8. The complainant has produced in all (17) documents at Ex.P-1 to P-17 namely: Original Insurance Police at Ex.P-1. Original repudiation letter at Ex.P-2, Notarized copy of FIR with complaint at Ex.P-3. Notarized copy of charge-sheet at Ex.P-4. Notarized copy of Spot panchanama at Ex.P-5. Notarized copy of police statements of Veeresh, Ashok, G.Pampanna, Mahantesh-Swamy, Ameen Reddy, and Basangouda at Ex.P-6 to P-11, Notarized copy of Driving Licence of Radeppa driver at Ex.P-12. Notarized copy of R.C. Book at Ex.P-13. Copies of (7) cash bills at Ex.P-14. Three photos of vehicle at Ex.P-15. Certified copy of award passed in MVC Case No. 68/06 at Ex.P-16 and certified copy of the order passed by MACT in MVC Case No. 742/06. The Respondents have produced certified true copy of Package Policy of vehicle at Ex.R-1, Survey Report dt. 16-12-05 at Ex.R-2.<br /> Ex.P-2 Repudiation letter dt. 23-03-06 issued by the Respondent which is material reads thus:<br /> “After going through the claim papers, Paper news and police records which you have submitted in-respect of your above accidental damaged claim. We observed that at the time of accident you have carried the 26 passengers and one person Sri. Umapathi was died at spot and other 25 persons were sustained injuries. As per the R.C. Book your vehicle has been registered as LMC O/B and seating capacity is 9+1 for Private/Family use and you have taken the insurance policy for private car Package Policy. You are not expected to carry passengers in the jeep as per the terms and conditions of our insurance policy.<br /> <br /> Since, there is a breach of terms and conditions of our insurance policy. We are not in a position to admit your claim which please note.<br /> Thanking you, Yours faithfully,”<br /> Sd/-<br /> Divisional Manager.<br /> <br /> <br /> <br /> <br /> (8A) From this letter Ex.P-2 it discloses that the Respondent has repudiated the claim on the ground that as per the paper news and police records submitted along with claim papers, it is noticed that at the time of accident the complainant has carried (26) passengers and as per the R.C. Book the vehicle has been registered as LMV O/B and seating capacity as 9+1 for Private/Family use and Insurance policy was taken for private car Package Policy. So the complainant was not expected to carry passengers in the jeep as per the terms and conditions of Insurance Policy so there is a breach of terms and conditions of the Insurance policy so the claim is not admitted.<br /> <br /> 9. The learned Advocate for the complainant has submitted that the allegation that the vehicle was used as taxi carrying (26) passengers is absolutely false one since there is no whisper in the police complaint and charge-sheet and the burden to prove the grounds of repudiation is on the Respondent who have failed to prove the same. In this back ground now let us consider police complaint, charge-sheet and statement of witnesses. <br /> Ex.P.3 FIR/ complaint of Siddappa discloses that on 21-10-05 at about 10-30 AM near school of Yermnal village, he along with one late Umapathi were waiting for vehicle and at that time the jeep in-question came from Jerebandi side and he and Umapathi boarded the jeep to go to Deodurga. In the said Jeep some passengers were also traveling. While the jeep was proceeding near Deodurga Town at that time due to rash and negligent driving by the driver it turtled into a ditch nearby Stone Crusher Center at a distance of 4 K.M. from Deodurga and thus the accident took place due to rash and negligent driving by the driver, Umapathy suffered grievous injury and died on the same day himself and this passengers had suffered simple injury and they were all taken to the Hospital. Ex.P-4 charge-sheet also does not show how many passengers were traveling in the said jeep further it shows grievous injury caused to deceased Umapathy who succumbed to the injury and other passengers namely: CW-6 Ashok had suffered grievous injury and CW-1 complainant Siddappa & CW-7 Mahantesh Swamy had suffered simple injuries. <br /> Ex.P-6 the statement of Veeresh (CW-8) states that on the date of accident on 21-10-05 his late father Umapathy had gone to Deodurga and after one hour thereafter they came to know that the jeep wherein his father was traveling had met with an accident and his father had suffered serious injury and admitted in Deodurga Hospital. So he went to Deodurga Hospital and he came to know about the vehicle accident and thereafter his father was shifted to Government Hospital Raichur, where he died at about 4-30 PM on that day. So this Veeresh CW-8 is not a person traveled in the vehicle. <br /> Ex.P-7 is the statement of CW-6 Ashok of Chikamadhur. He states that on 21-10-05 at about 9-00 A.M. he boarded in the jeep to go to Deodurga. On the way at Jerebandi village and Yermnal village passengers were also boarded in the said jeep. While the jeep was proceeding towards Deodurga due to rash and negligent driving by its driver the jeep turtled into a ditch near Stone Crusher Center. He along with one Umapathy had suffered grievous injury and CW-7 Mahantesh and CW-1 Siddappa had suffered simple injury Umpathy died in the hospital. <br /> Ex.P-8 is the statement of CW-9 G.Pampanna. He states that on 21-10-05 at about 11-30 AM at Deodurga he came to know that it met with accident on Raichur-Deodurga Road near Stone Crusher Center and passengers Umapathy and other (3) persons had sustained injury and were admitted in the hospital. So this G.Pampanna is not a person traveled in the said jeep. <br /> <br /> Ex.P-9 is the police statement of CW-7 Mahantesh Swamy resident of Sugral village. He states that on 21-10-05 at about 9-00 AM he boarded in the jeep at Chikamadur village to go to Deodurga and on the way at Jerebandi- Yermnal village some passengers were also boarded in the said jeep and while jeep was proceeding to Deodurga due to rash and negligent driving by its driver it met with accident near Stone Crusher Center near Deudorga. As a result of which he along with CW-1 Siddappa, Ashok (CW-6) suffered injuries and late Umapathy has suffered grievous injury who died subsequently in the Hospital. <br /> <br /> Ex.P-10 is the statement of CW-10 Ameen Reddy resident of Jerebandi village he states that on 21-10-05 at about 10-00 AM while he was waiting in the bus-stand to go to Deodurga, at that time one jeep of Basavarj came from Chikaraya Kumpi side he along with one Basangouda (CW-11) went in the jeep. On the way at Yermnal village some persons boarded the jeep and thereafter when the bus was proceeding towards Deodurga, due to rash and negligent driving by the driver, the jeep met with accident near Stone Crusher Center he along with Basangouda jumped out from the jeep so they did not suffer any injury in the accident but 3-4 persons had suffered grievous injury and out of them Umpathy succumbed to the injuries in the hospital. <br /> <br /> Ex.P-11 is the statement of Basangouda (CW-11) is co-passenger who has reiterated as Ameen Reddy CW-10 as stated above <br /> <br /> 10. From a close perusal of police complaint, charge-sheet and statement of charge sheet witnesses it does not show exactly as how many passengers were traveling in the jeep. It amply shows that CW-1 Siddappa, CW-6 Ashok, CW.7 Mahantesh-Swamy, CW-10 Ameen Reddy and CW-11 Basangouda were traveling in the jeep. The arguments of the learned counsel for the complainant that on the date of accident his jeep driver had taken the jeep to Deodurga for brining the relatives of this complainant from Deodurga and while so going, jeep the jeep driver without the knowledge and permission of the complainant had taken some passengers in the jeep and this act of his jeep- driver cannot be said that the complainant had used the jeep as Stage Carrier. We find substance in the arguments of learned counsel for the complainant. As stated earlier the police statement and charge sheet do not disclose carrying of (26) passengers in the jeep as stated in the repudiation letter. Similarly we find a supporting observation in this regard in the order passed by the MACT Raichur in MVC Case No. 742/06 at Ex.P-17. Wherein in para-10 interalia it is stated that “there is no evidence to show that there were more than (9) persons in the jeep at the time of accident”. The capacity of jeep is 9+1 as stated by Respondent Insurance Company itself. The learned counsel for the complainant has argued that merely act of driver in taking passengers while using private-jeep for brining the relatives of the complainant-owner from Deodurga and that too without his knowledge and permission, it cannot be said that the complainant-owner had used jeep as Stage Carrier. In-support of his arguments he has relied on decision reported in Current Consumer Cases 1996(2) SC 676 and 2003 ACJ Allahabad High Court page-1113. We find considerable force in his argument and the dictum laid-down in the decision of Hon’ble S.C. <br /> <br /> 11. In this case admittedly the capacity of the jeep was 9+1 and the charge- sheet and other police papers as discussed supra do not disclose about (26) passengers were being carried in the said jeep at the time of accident and even the MACT award pertaining to this jeep accident in MVC Case No. 742/06 at Ex.P-17 also discloses that there is no evidence to show that there were more than (9) persons in the jeep at the time of accident. As discussed earlier the police statement shows CWs-1, 6, 7, 10, & 11 i.e, only (5) persons were traveling in the jeep. Even those (5) persons are taken to be hired passengers, taken by the jeep driver that too without the knowledge and consent of owner-complainant, it cannot be said to be a fundamental breach that the owner should in all events be denied indemnification. The misuse of the vehicle was some what irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves had gone to contribute to the causing of the accident.<br /> So merely the mis-use of the vehicle by the driver it cannot be said that the owner-complainant is liable for breach of the terms and conditions of the policy. More-over the Respondents Insurance Company has not proved that (26) persons were traveling in the jeep at the time of accident and it was used as a Stage Carrier. Hence for all these reasons we hold that the Respondents has failed to prove the grounds for repudiation of the claim of the complainant. Consequently the repudiation of the claim of the complainant amounts to deficiency of service by the Respondents. Hence we hold that the complainant has proved deficiency in service in not settling his claim by the Respondent. Hence Point NO-1 is answered in the affirmative.<br /> <br /> POINT NO.2:-<br /> <br /> 12. The complainant has sought for payment of Rs. 29,078/- to his vehicle damages with interest at 12% p.a. from 23-03-06 and Rs. 10,000/- towards harassment and financial deprivements & Rs. 5,000/- towards cost. The Respondents have produced survey report at Ex.R-2 it shows the surveyor appointed by the Respondent has assessed the damages caused to the vehicle at Rs. 20,524/-. The complainant has stated that he got repaired the jeep by incurring expenditure of Rs. 29,078/- and he has produced bills issued by Avinash & Company at Gulbarga vide Ex.P-14 (1) to P-14(7). The Respondent has disputed the genuiness bills however the survey report at Ex.R-2 which shows the assessment of loss at Rs. 20,524/-. Taking into consideration the facts and circumstances of the case we feel it just and proper to award Rs. 20,524/- towards the assessed loss of the damaged vehicle. In so far as awarding Rs. 10,000/- towards mental harassment & financial deprivement and Rs. 5,000/- towards cost of litigation having regard to the facts and circumstances of the case and in-view of our discussion on Point NO-1, we feel it just and proper to award a global compensation of Rs. 5,000/- including cost of litigation. In this view of the matter we pass the following order.<br /> <br /> ORDER<br /> <br /> The complaint of the complainant is allowed in part.<br /> <br /> The Respondents shall pay Rs.20,524/- being assessed loss of the damaged vehicle as per survey report, along with Rs. 5,000/- as global compensation including cost of litigation. <br /> <br /> The Respondents shall comply this order within (6) weeks from the date of receipt of copy of this order.<br /> <br /> Office to furnish a 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 30-04-07)<br /> <br /> <br /> Sd/-<br /> Sri. N.H. Savalagi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Pampannagouda, <br /> Member<br /> District Forum-Raichur.<br /> <br /> <br /> On leave. <br /> Smt.Kavita Patil, <br /> Member. <br /> District Forum-Raichur<br />