The Divisional Manager, United India Insurance Company Ltd. V/S Parvath Reddy S/o. Chandrayya - Consumer Court Case

Karnataka

Raichur

DCFR 53/06

Parvath Reddy S/o. Chandrayya - Complainant(s)

Versus

The Divisional Manager, United India Insurance Company Ltd. - Opp.Party(s)

Sri. Shanker Patil

08 Sep 2006

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 53/06

Parvath Reddy S/o. Chandrayya						...........Appellant(s)
Vs.
The Divisional Manager, United India Insurance Company Ltd.						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Parvath Reddy against Divisional Manager, United India Insurance Company Ltd., Raichur, herein after referred as Respondent. The brief facts of the complaint are as under:- Complainant is the Registered owner and R.C. Holder of the lorry bearing registration No. KA-36/2060 and the same is insured with the Respondent Company under Policy No. 240200/31/05/00064 covering the period from 07-04-05 to 06-04-06 and it was in-force on the date of accident. On 11-04-05 at about 4-30 PM the said lorry was going from Gugal to Deodurga and when the said lorry came near Gundgurthi Cross due to rash and negligent driving of the driver the said lorry met with an accident. Due to the said accident the lorry was completely damaged. The complainant filed his claim-forms along with the original bills, estimates and other documents in-connection with the damaged vehicle. On receiving the claim-forms the Respondent appointed a Surveyor who done the survey of the damaged vehicle and submitted his report. In-spite of personal approach on 8-10 times for settling his claim the Respondents have not cared and sent back the complainant by giving one or the other reasons and at last he received a letter from the Respondent on 24-01-06 stating that the Respondent is not liable to compensation as complainant has violated the policy conditions. The rejection of his claim is illegal and not sustainable. So there is a deficiency in service on the part of the Respondent Company in settlement of his claim. Hence for all these reasons the complainant has prayed for direction to Respondent to pay the total sum of Rs. 60,877/- as detailed in para-7 of his complaint and for further direction to pay interest at 18% p.a. from 01-03-06 till realization. 2. The Respondent has filed written statement denying the contents of complaint. The vehicle belonging to the complainant being a goods carrier has carried more than 15 persons at the time of accident who sustained injuries. This clearly goes to show that the complainant has violated the terms and conditions of the policy. The provisions of the Motor Vehicles Act and Rules made there under specifically the permit which is granted to carry goods only as Light Motor Vehicle. Therefore in-view of violation of terms and conditions of the policy the complainant is not entitled for compensation. So this Respondent has not admitted the claim of the complainant. Further it is contended that there is no damage to vehicle as stated in the complainant worth about Rs.26,850/-. This Respondent soon after the accident arranged for survey of the damages by this surveyor who assessed the loss to the tune of Rs. 15,000/- for which the complainant is not entitled in-view of violation of terms and conditions of the policy. The complainant is not entitled for any interest or damage as there is no deficiency in service on the part of the Respondent. Hence for all these reasons he has prayed for dismissal of the complaint. 3. During the course of enquiry the complainant has filed his sworn affidavit along with one affidavit of P.Bheemanna Mechanic & Body Builders of the vehicle as his evidence and has got marked [7] documents at Ex.P-1 to P-7. In rebuttal the Divisional Manager Respondent Bank has filed his sworn affidavit as his evidence and has got marked one document at Ex.R-1. 4. Heard the arguments of both sides besides the written arguments filed by counsel for complainant. Perused the records. The following points arise for our consideration:- 1.Whether the complainant proves deficiency in service by the Respondent as alleged? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1.In the Negative. 2. As per final order for the following REASONS POINT NO.1:- 6. There is no dispute that the complainant is the owner and R.C. Holder of the lorry and it was insured with the Respondent Company and it was in-force on the date of accident on 11-04-05. The complainant has contended due to rash and negligent driving of the driver of the said lorry the accident took place when the said lorry came near Malihala after Gundgurthi cross and it was completely damaged. It is also the case of the complainant that he filed claim forms along with the original bills, estimates & necessary documents and the Respondent appointed a Surveyor who done the survey of the damaged vehicle and submitted his report of assessment of loss. But the Respondent in-spite of his personal approach on several times have not cared to settle his claim and lastly they sent a letter on 24-01-06 stating that the complainant has violated the policy conditions and so they are not liable to pay any compensation. The Respondent Company has contended that the vehicle in-question being the goods carrier, had carried passengers at the time of accident and more than 15 persons sustained injuries and it clearly shows the violation of terms and conditions of the policy and violation of provisions of Motor Vehicle Act and Rules since the permit has been granted to carry goods only as Light Goods Vehicle. Hence there is breach of terms of the policy so they are not liable to pay compensation. 7. The complainant has produced in all [7] documents at Ex.P-1 to P-7. Out of which Ex.P-1 is the copy of FIR with complaint, Ex.P-2 is the copy of M.V.I. Report, Ex.P-3 is the Insurance policy of the vehicle held by the complainant, Ex.P-5 is the Repudiation Letter, Ex.P-6 is the copy of charge sheet and Ex.P-7 is the copy of R.C. Book are material in this case. The police complaint enclosed to FIR at Ex.P-1 shows that one Mallikarjuna S/o. Nagappa had field a police complaint against the driver of the said lorry alleging that on 11-04-05 as he had some work at Deodurga he came to Bus-stand of his village and noticed 407 vehicle [lorry] of Kamadal Parvathredappa was standing. He went and sat in the said lorry along with other persons. It left at about 3-00 PM and after Gundgurthi cross at about 4-30 PM near Malihala the vehicle met with an accident and due to rash and negligent driving by the driver of the vehicle. As a result of which he along with other 14-15 passengers [persons] in the vehicle sustained simple and grievous injuries and one Ningappa of his village had sustained grievous bleeding injury and he sustained injury on left knee, waist. The said lorry was driven by driver Boodeppa S/o. Ganganna R.o. Kamadal. On this complaint PSI Deodurga registered a case and after investigation he filed charge sheet and the copy of which is filed at Ex.P-6. MVI Report produced at Ex.P-2 shows that the accident was not due to any mechanical defect of the vehicle. 8. The learned counsel for the complainant reiterating the written arguments filed by him has vehemently argued that merely because the driver of the complainant-vehicle had allowed some passengers in the vehicle without the knowledge of owner-complainant cannot be said to be violation of policy conditions by the complainant especially when the accident had not occurred due to traveling of those persons in the vehicle. In support of his arguments the learned counsel has relied upon the decision of Honble Supreme Court reported in: 1996 AIR S.C Page 2054 Head Note which reads as under:- Motor Vehicles Act (59 of 1988) S. 147 __ Liability of insurance company__ Head on collision__Damage caused to vehicle__ Claim by truckowner__ Alleged breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy__ Is not so fundamental a breach so as to afford to the insurer to eschew liability altogether __ Exclusion term of insurance policy read down to serve main purpose of policy. 9. The facts in the referred judgement were that the driver of that vehicle had allowed three passengers excess to permitted-number and there was no dispute that the driver of the said vehicle was responsible for the accident as on-coming vehicle had collided head-on against the said vehicle, which resulted in the damages and so the Honble Supreme Court observed that merely by lifting a person or two or even three by the driver or the cleaner of the vehicle, without the knowledge of the owner cannot be said to be such a fundamental breach that the owner should in all events be denied indemnification of damages, though mis-use of the some what irregular, but not so fundamental in nature so as to put an end to the contract (vide para-7 of the said judgment). 10. But in the case, as seen above FIR with complaint at Ex.P-1 discloses that about 14-15 passengers were traveling in the said lorry at the time of accident. The complaint is very specific that they are not either labours engaged or transporting the goods in the vehicle. Even there is no material on record or there is no whisper in the complaint of the complainant in this case, that so-called passengers are the labours or persons transporting the goods with them. But as per the police complaint of Mallikarjuna at Ex.P-1 as referred to above about 14-15 persons were traveling in the said lorry of Parvathreddappa the complainant in this case. Even assuming that out of [15] persons, six were the labours as per the Permit, even then there is excess of [9] persons traveling in the said lorry and the accident occurred due to rash and negligent driving by the driver. If these factors are taken into account, then it clearly shows violation of policy terms and conditions as contended by the Respondent. Therefore the principles laid down in the decision of Honble Supreme Court referred to above is not applicable to the facts in hand. So we do not find any illegality in repudiation of the claim. Hence it cannot be said that there is deficiency in service by the Respondent in not settling his claim. Therefore it follows that the complainant has failed to prove deficiency in service by the Respondent Corporation so point NO-1 is answered in the negative. POINT NO.2:- 11. In view of our discussion and finding on Point No-1 the complainant is not entitled for the reliefs sought for. Hence we pass the following order: ORDER The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost. Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 08-09-06.) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. Sd/- Smt.Kavita Patil Member. Dist.Consumer Forum-Raichur.

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Parvath Reddy against Divisional Manager, United India Insurance Company Ltd., Raichur, herein after referred as Respondent. The brief facts of the complaint are as under:- Complainant is the Registered owner and R.C. Holder of the lorry bearing registration No. KA-36/2060 and the same is insured with the Respondent Company under Policy No. 240200/31/05/00064 covering the period from 07-04-05 to 06-04-06 and it was in-force on the date of accident. On 11-04-05 at about 4-30 PM the said lorry was going from Gugal to Deodurga and when the said lorry came near Gundgurthi Cross due to rash and negligent driving of the driver the said lorry met with an accident. Due to the said accident the lorry was completely damaged. The complainant filed his claim-forms along with the original bills, estimates and other documents in-connection with the damaged vehicle. On receiving the claim-forms the Respondent appointed a Surveyor who done the survey of the damaged vehicle and submitted his report. In-spite of personal approach on 8-10 times for settling his claim the Respondents have not cared and sent back the complainant by giving one or the other reasons and at last he received a letter from the Respondent on 24-01-06 stating that the Respondent is not liable to compensation as complainant has violated the policy conditions. The rejection of his claim is illegal and not sustainable. So there is a deficiency in service on the part of the Respondent Company in settlement of his claim. Hence for all these reasons the complainant has prayed for direction to Respondent to pay the total sum of Rs. 60,877/- as detailed in para-7 of his complaint and for further direction to pay interest at 18% p.a. from 01-03-06 till realization. 2. The Respondent has filed written statement denying the contents of complaint. The vehicle belonging to the complainant being a goods carrier has carried more than 15 persons at the time of accident who sustained injuries. This clearly goes to show that the complainant has violated the terms and conditions of the policy. The provisions of the Motor Vehicles Act and Rules made there under specifically the permit which is granted to carry goods only as Light Motor Vehicle. Therefore in-view of violation of terms and conditions of the policy the complainant is not entitled for compensation. So this Respondent has not admitted the claim of the complainant. Further it is contended that there is no damage to vehicle as stated in the complainant worth about Rs.26,850/-. This Respondent soon after the accident arranged for survey of the damages by this surveyor who assessed the loss to the tune of Rs. 15,000/- for which the complainant is not entitled in-view of violation of terms and conditions of the policy. The complainant is not entitled for any interest or damage as there is no deficiency in service on the part of the Respondent. Hence for all these reasons he has prayed for dismissal of the complaint. 3. During the course of enquiry the complainant has filed his sworn affidavit along with one affidavit of P.Bheemanna Mechanic & Body Builders of the vehicle as his evidence and has got marked [7] documents at Ex.P-1 to P-7. In rebuttal the Divisional Manager Respondent Bank has filed his sworn affidavit as his evidence and has got marked one document at Ex.R-1. 4. Heard the arguments of both sides besides the written arguments filed by counsel for complainant. Perused the records. The following points arise for our consideration:- 1.Whether the complainant proves deficiency in service by the Respondent as alleged? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1.In the Negative. 2. As per final order for the following REASONS POINT NO.1:- 6. There is no dispute that the complainant is the owner and R.C. Holder of the lorry and it was insured with the Respondent Company and it was in-force on the date of accident on 11-04-05. The complainant has contended due to rash and negligent driving of the driver of the said lorry the accident took place when the said lorry came near Malihala after Gundgurthi cross and it was completely damaged. It is also the case of the complainant that he filed claim forms along with the original bills, estimates & necessary documents and the Respondent appointed a Surveyor who done the survey of the damaged vehicle and submitted his report of assessment of loss. But the Respondent in-spite of his personal approach on several times have not cared to settle his claim and lastly they sent a letter on 24-01-06 stating that the complainant has violated the policy conditions and so they are not liable to pay any compensation. The Respondent Company has contended that the vehicle in-question being the goods carrier, had carried passengers at the time of accident and more than 15 persons sustained injuries and it clearly shows the violation of terms and conditions of the policy and violation of provisions of Motor Vehicle Act and Rules since the permit has been granted to carry goods only as Light Goods Vehicle. Hence there is breach of terms of the policy so they are not liable to pay compensation. 7. The complainant has produced in all [7] documents at Ex.P-1 to P-7. Out of which Ex.P-1 is the copy of FIR with complaint, Ex.P-2 is the copy of M.V.I. Report, Ex.P-3 is the Insurance policy of the vehicle held by the complainant, Ex.P-5 is the Repudiation Letter, Ex.P-6 is the copy of charge sheet and Ex.P-7 is the copy of R.C. Book are material in this case. The police complaint enclosed to FIR at Ex.P-1 shows that one Mallikarjuna S/o. Nagappa had field a police complaint against the driver of the said lorry alleging that on 11-04-05 as he had some work at Deodurga he came to Bus-stand of his village and noticed 407 vehicle [lorry] of Kamadal Parvathredappa was standing. He went and sat in the said lorry along with other persons. It left at about 3-00 PM and after Gundgurthi cross at about 4-30 PM near Malihala the vehicle met with an accident and due to rash and negligent driving by the driver of the vehicle. As a result of which he along with other 14-15 passengers [persons] in the vehicle sustained simple and grievous injuries and one Ningappa of his village had sustained grievous bleeding injury and he sustained injury on left knee, waist. The said lorry was driven by driver Boodeppa S/o. Ganganna R.o. Kamadal. On this complaint PSI Deodurga registered a case and after investigation he filed charge sheet and the copy of which is filed at Ex.P-6. MVI Report produced at Ex.P-2 shows that the accident was not due to any mechanical defect of the vehicle. 8. The learned counsel for the complainant reiterating the written arguments filed by him has vehemently argued that merely because the driver of the complainant-vehicle had allowed some passengers in the vehicle without the knowledge of owner-complainant cannot be said to be violation of policy conditions by the complainant especially when the accident had not occurred due to traveling of those persons in the vehicle. In support of his arguments the learned counsel has relied upon the decision of Honble Supreme Court reported in: 1996 AIR S.C Page 2054 Head Note which reads as under:- Motor Vehicles Act (59 of 1988) S. 147 __ Liability of insurance company__ Head on collision__Damage caused to vehicle__ Claim by truckowner__ Alleged breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy__ Is not so fundamental a breach so as to afford to the insurer to eschew liability altogether __ Exclusion term of insurance policy read down to serve main purpose of policy. 9. The facts in the referred judgement were that the driver of that vehicle had allowed three passengers excess to permitted-number and there was no dispute that the driver of the said vehicle was responsible for the accident as on-coming vehicle had collided head-on against the said vehicle, which resulted in the damages and so the Honble Supreme Court observed that merely by lifting a person or two or even three by the driver or the cleaner of the vehicle, without the knowledge of the owner cannot be said to be such a fundamental breach that the owner should in all events be denied indemnification of damages, though mis-use of the some what irregular, but not so fundamental in nature so as to put an end to the contract (vide para-7 of the said judgment). 10. But in the case, as seen above FIR with complaint at Ex.P-1 discloses that about 14-15 passengers were traveling in the said lorry at the time of accident. The complaint is very specific that they are not either labours engaged or transporting the goods in the vehicle. Even there is no material on record or there is no whisper in the complaint of the complainant in this case, that so-called passengers are the labours or persons transporting the goods with them. But as per the police complaint of Mallikarjuna at Ex.P-1 as referred to above about 14-15 persons were traveling in the said lorry of Parvathreddappa the complainant in this case. Even assuming that out of [15] persons, six were the labours as per the Permit, even then there is excess of [9] persons traveling in the said lorry and the accident occurred due to rash and negligent driving by the driver. If these factors are taken into account, then it clearly shows violation of policy terms and conditions as contended by the Respondent. Therefore the principles laid down in the decision of Honble Supreme Court referred to above is not applicable to the facts in hand. So we do not find any illegality in repudiation of the claim. Hence it cannot be said that there is deficiency in service by the Respondent in not settling his claim. Therefore it follows that the complainant has failed to prove deficiency in service by the Respondent Corporation so point NO-1 is answered in the negative. POINT NO.2:- 11. In view of our discussion and finding on Point No-1 the complainant is not entitled for the reliefs sought for. Hence we pass the following order: ORDER The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost. Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 08-09-06.) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. Sd/- Smt.Kavita Patil Member. Dist.Consumer Forum-Raichur.