Before the District Forum: Kurnool
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Wednesday the 5th day of January, 2005
C.D.No.187/2003
M. Noor Ali Baig,
S/o. Hasan Ali Baig,
Noor Slabs Polishing Industry,
Betamcherla,
Kurnool. . . . Complainant represented by his counsel
Sri B. Nagi Reddy
-Vs-
The Divisional Manager,
New India Assurance Company Ltd,
Kurnool. . . . Opposite party represented by his counsel
Sri P. Ramanjaneyulu.
O R D E R
(As per Smt C. Preethi, Member)
1. This CD complaint of the complainant is filed under section 12 of C.P Act, 1986 seeking a direction on the opposite party to pay Rs.2,17,000/- towards damages of the lorry with 16% interest per annum from the date of accident till realization, cost of the complaint and any such other relief or reliefs with the complainant is entitled in the circumstances of the case.
2. The gist of the complaint of the complainant is that the complaint owner of the lorry bearing No. AP 21 T 9396, insured the said lorry with opposite party under policy bearing No. 611500/31/02/02885. The said lorry on 23.1.2003 at about 4.45 A.M met with accident near Gajjalajara Village, Kasoba Post, Maddur Taluk, Mandya District, Karnataka State, by dashing against the tractor bearing No. CNN 5054 and trolley bearing No. MYN 5451, which was coming from the opposite direction and the entire lorry was badly damaged and the information about the said accident was given to opposite party. The Station House Officer, Maddur PS, has registered a case under crime No. 12/2003, the cleaner of the lorry by name Azamathullah sustained injuries and died on the spot and the driver of the lorry by name Shanoor Ali Baig and one Nagendra, Hamali sustained injures in the said accident. The tractor driver by name K.M. Mahadeva has given a complaint to the police stating that the lorry driver died in the accident without the knowledge about who is the driver and cleaner of the said lorry, the S.H.O Maddur has issued a FIR on the said complaint and later the said S.H.O. enquired the case and filed a charge sheet against the driver of the lorry who sustained injuries in the said accident. The complainant informed about the accident to the opposite party who in turn appointed a surveyor to conduct spot survey and later the said accident lorry was shifted to Ameer Industrial Lorry Body Building Labour Works, Madanapalli, Chittoor District. Again the opposite party deputed another surveyor to conduct final survey and the said surveyor noted down the damaged parts of the said lorry and also taken photos and prepared estimation and submitted his report to the opposite party. The complainant thereafter, submitted all bills photographs damaged spare parts worth of Rs.2,17,000/- including repairs charges. But the opposite party did not pay the insured amount to the complainant inspite of several demands and approaches. The opposite party thereafter, repudiated the claim of the complainant through its communication dt 9.9.2003 stating that the driver of the lorry Azmatuallah has no valid driving licence at the time of the accident, so, they are unable to pay the compensation towards damages.
3. The complainant further submits that the driver of the tractor K.M. Mahadeva, who has given a complaint before the Maddur PS and who a local person and to escape from his liability about the accident has given the said complaint before the Maddur PS and further on enquiry the S.H.O filed charge sheet against the driver of the lorry Shanoor Ali Baig, who received injuries in the said accident. Hence, the opposite party is liable to pay compensation towards the damages caused to the said lorry in the said accident and non payment of the said compensation is amounting to deficiency of service to the complainant.
4. The complainant in support of his complaint avernments filed the following documents Viz (1) CCF charge sheet in crime No. 12/2003 (Kannada Version) (2) translation in English of Ex A.1 (3) repudiation letter of opposite party dt 9.9.2003 to the complainant (4) letter dt 19.5.2003 of opposite party to the complainant (5) reply letter dt 26.5.2003 of complainant to opposite party for Ex A.4 (6) bunch of three bills dt 25.4.2003 containing six papers issued by Sagar Automobiles, Bangalore (7) bill dt 26.4.2003 containing two papers issued by Sagar Automobiles , Bangalore and (8) Cash receipt dt 23.3.2003 issued by Ameer Industrial Lorry Body Building Labour Works, Madanapalli, besides to the sworn affidavit of the complainant and two third party affidavits Nagendra and Shanoor Ali Baig and the third parties suitable replied to the interrogatories filed by opposite party. The above documents are marked as Ex A.1 to A.8 for its appreciation in this case.
5. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite party caused its appearance through its counsel and contested the case denying its liability for the complainant’s claim.
6. The written version of opposite party besides questioning the maintainability of the complainant’s case deny the allegations made in the complaint avernements, even though admits the complainant as the owner of the lorry bearing No. AP 21 T 9396 has taken a policy from the opposite party for a period of one year and the said policy was inforce at the time of alleged accident. It further submits that after the accident the driver of the tractor trailer gave a complaint to the Maddur PS stating that the driver of the lorry who drove the accident vehicle died on the spot and was hanging on the driver seat. So at the time of accident the cleaner Azamathullah was driving accident lorry and died instantaneously. The original driver Shanoor Ali Baig and a passenger Nagendra was sitting besides the driver seat and they receive injuries in the said accident. The complainant’s lorry was extensively damaged towards the right side i.e the driver side of the lorry. The spot survey photos and final survey report and photos are self explanatory that there is no chance of driver to escape from his seat in the said accident. Hence, there is no confusion by the driver of the tractor trailer to lodge a complaint of the Maddur PS. It further submits that the complaint managed that the police of Maddur PS and fabricated and manipulated the charge sheet and submitted in the Court stating that the Shanoor Ali Baig was driving the said vehicle and he caused the said accident, if that is so he ought not have survived in the said accident. Therefore, the claim of the complainant is fictitious and frivolous and hence, the opposite party rightly repudiated the claim on the ground the deceased who was on wheels at the time of the accident had no valid and affective driving licence to drive the said accident vehicle and the complainant is not entitle to claim damages as he violated the policy terms and condition of the policy.
7. It further submits that the complainant assessed the damages to Rs. 2,80,000/- and submitted bill for Rs.2,17,000/- but the independent surveyor by name V. Balaiah Chetty who submitted his final survey report dt 10.4.2003 assessed the actual damages and loss and replacement of spare parts to Rs. 99,420/- only. The complainant is entitle to the said lorry and if the complainant proves that the accident was occurred due to the rash and negligent driving by the driver Shanoor Ali Baig beyond reasonable doubt and the said accident was not occurred due to the driving of Azamathullah, who died on the spot in the said accident the complainant is entitled to the amount as assessed by V.Balaiah Chetty only. Hence, there is no deficiency of service on part of the opposite party in repudiating the claim of the complainant, so, seeks dismissal of complaint with exemplary costs.
8. In support of its written version the opposite party side filed the following documents Viz (1) Policy bearing No. 611500/31/02/02885 of the complainant’s vehicle (2) Xerox copy of FIR under Cr No. 12/2003 of Maddur PS (Kannada Version) (3) Xerox copy of translation in English of Ex B.2 (4) private and Confidential motor spot survey report dt 10.2.2004 by K.L. Srinivas, survey/ loss assessor along with photos and (5) Private and Confidential Motor Finial survey report dt 10.4.2003 of V. Balaiah Chetty, Insurance survey along with photos and negatives, besides to its sworn affidavit in reiteration of its written version as defence and cause interrogatories to the third party affidavits filed by the complainant and the above marked as Ex B.1 to B.5 for its appreciation in this case
9. Hence the point for consideration is whether the complainant has made out the case against the opposite party and his entitleness to the reliefs sought?:-
10. It is a categorical case of the complainant that he is the owner of the lorry bearing No. AP-21-T-9396 and insured the said lorry with opposite party under policy bearing No. 611500/31/02/02885. On 23.1.2003 the said lorry while proceeding to Bethamcherla after unloading marble stores met with accident by dashing a tractor trolley coming from opposite direction, the cleaner of the lorry by name Azamathullah died on the spot, the driver by name Shanoor Ali Baig and one Nagendra, Hamali sustained injuries and were admitted in Govt. Hospital, Maddur. The said lorry was badly damaged, as the said lorry was covered under the above said policy the complainant preferred a claim before the opposite party, but the opposite party through its communication dt 9.9.2003 repudiated the claim of the complainant stating that the driver of the lorry at the time of the accident has no valid driving licence, so, they are unable to pay compensation towards damages. But the complainant submits that his driver Shanoor Ali Baig who was on wheels at the time of the accident was having valid driving licence, therefore, he is entitled to the insured amount. But as against to it the opposite party in its written version avernemnts in para 6 alleges that the driver who drove the accident vehicle on that particular day was the cleaner of the lorry by name Azmathullah, the driver of tractor trailer who gave complaint to Maddur Police Station also stated that the driver who was on wheels, drove the accident vehicle and died on the spot hanging on the driver seat, as there is no valid driving licence to the cleaner Azmathullah to drive the said lorry the opposite party is not liable to pay insured amount. So, the only ground on which the opposite party repudiated the claim of the complainant was that the driver Azmathullah who drove the insured lorry was not having valid driving licence. According to the complainant the insured lorry was driven by his driver Shanoor Ali Baig and he is having valid effective driving licence, but according to opposite party the insured lorry was driven by cleaner Azmathullah. The Ex A.1 is the C.C of Charge Sheet in Cr No. 12/2003, Kannada Version and Ex A, 2 is the English Version to Ex A.1. It envisages the driver by name Shanoor Ali Baig drove the said insured lorry from Mysore side to Bangalore side and colluded with tractor and trailer No. CNH 5054 & MYN 5451 and cleaner of the lorry Azmathullah got serious injuries and died on the spot and another person by name Nagendra got severe injuries. The said version is supported by two third party sworn affidavits of Shanoor Ali Baig and Nagendra. The said sworn affidavit of Shanoor Ali Baig submits that he is working as driver of the lorry bearing No. AP-21-T-9396 for last two years and on 23.1.2003 while he was driving the said insured lorry, met with accident by colluding with tractor tailor, the lorry cleaner Azmathullah died on spot, he and another person Nagendra sustained injuries. At the time of the accident the lorry cleaner was operating tape recorder standing on his back side and fell down in the cabin on the left side, due to sudden brake he applied when tractor turned left. The other sworn affidavit of third party Nagendra, submits that he is working as cleaner cum Hamali of the lorry bearing No. AP-21-T-9396 and on 23.1.2003 Shanoor Ali Baig was driving the accident vehicle when it colluded with tractor trailer and lorry cleaner Azmathullah died on spot. The said Azmathullah was operating tape recorder standing at the back of the driver and due to sudden brake he fell down in the cabin on the left side and died. The said sworn affidavit avernments of third parties which were on oath being not discredited are remaining worthy of acceptance.
11. The Ex A.3 is the repudiation letter dt 9.9.2003 of the opposite party to the complainant stating that the claim of the complainant has been repudiated, as per crime records lorry cleaner Azmathullah was driving the vehicle at the time of the accident and who died on the spot, as Azmathullah was not having valid and effective driving licence to drive the said vehicle, which is in violation of policy conditions, the claim cannot be entertained. The Ex A.4 is the letter dt 19.5.2003 of the opposite party to the complainant requesting the complainant to produce driving licence of Mr Azmathullah, the Ex A.5 is the reply dt 26.5.2003 of the complainant to the opposite party to Ex A.4, stating that lorry cleaner Azmathullaah died on spot and driver Shannor Ali Baig and one Nagendra sustained severe injuries, as they were in Hospital they could not give complaint to police. The driver of tractor who gave complaint to police doesn’t known who is the driver and cleaner and who drove the said lorry at the time of the accident. The police after registering the case enquired the matter and filed charge sheet against the driver Shannor Ali Baig. So, the driver who drove the said lorry on 23.1.2003 at the time of the accident was Shanoor Ali Baig and not lorry cleaner Azmathullah who died on the spot. The Ex A.7 is bill dt 26.4.2003 issued by Sagar Automobiles, Bangalore and Ex A.8 is the cash receipt dt 22.3.2003 issued by Ameer Industries Lorry Body Building Workars, Madanapalli.
12. The learned counsel for opposite party strongly argued that it is the lorry cleaner Azmathullah who drove the said lorry at the time of the accident as per true copy of FIR in Ex B.1 Kannada Version and Ex B.2 is the English Version, it envisages, suspected/accused as driver of lorry bearing No.AP-21-T-9396 and address not known. The contends of FIR doesn’t give the correct position as there was no inquest and cause of death could not be ascertained correctly. The statement of K.M.Mahadeva in Ex B.2 says that driver of the said lorry is dead and other two persons by name Nagendra and Shannor Ali Baig had grevious injuries. The contends in Ex B.2 doesn’t support the case of the opposite party, as the person died near the seat of the driver by hanging down doesn’t necessarily mean that he was driving the said accident lorry at the time of the accident. More over the case of the complainant is that lorry cleaner Azmathullah died and driver Shannor Ali Baig was driving the said accident lorry at the time of the accident, which is evidenced by two third party sworn affidavits who in unitone says that driver Shannor Ali Baig was driving the accident lorry which were on oath cannot be discredited and the police filed a Charge Sheet against the driver Shannor Ali Baig. From the discussions made above what follows is that at the time of the accident the driver Shanoor Ali Baig was driving the said accident lorry, even though it appears that lorry cleaner Azmathullah died near the driving seat of lorry, it doesn’t necessarily mean that he was driving the said lorry.
13. The Ex B.1 is the policy issued to complainant’s vehicle by opposite party, Ex B.4 is the Spot Survey Report of K.L.Srinivas dt 10.2.2004 with photos and Ex B.5 is the Final Survey Report of V.Balaiah Chetty dt 10.4.2003 along with photos, who estimated the loss/ damaged caused to the said accident lorry after depreciation is Rs.99,420/-. The photos filed in Ex B.4&B.5 doesn’t support the case of opposite party as it only shows the damages portion of the said accident lorry. It doesn’t show who was driving the said lorry at the time of the accident, hence, the said photos doesn’t support the case of the opposite party.
- From the above reasons, it is clear from the facts and circumstances of this case that the opposite party failed to establish that lorry cleaner Azmathullah was driving the accident vehicle at the time of the accident and thus the owner of the lorry committed willful breach of promise by entrusting the said lorry to the cleaner, and the lorry owner is deprived of compensation for damages caused to the said accident lorry.
15. To sum up of the above discussions made supra and the exhibits filed as well as legal as pects, the complainant has to get the amount which he spent in getting the said insured lorry repaired for the damages it sustained in accident covered under the policy and the opposite party is liable to pay the same and thereby there is deficiency of service on part of the opposite party in paying the said amount.
16. In the present case the complainant has claimed Rs.2,17,000/- but the opposite party has submitted that certain depreciations are to be deducted from the repairs. The Ex B.5 is the Final Survey Report of V. Balaiah Chetty who assessed the loss after depreciation to RS.99,420/-. Thus basing on Ex B.5 the claim has been reduced to Rs.99,420/- which the opposite party has to pay to the complainant.
17. Thus, the complainant is entitled to claim a sum of Rs.99,420/- along with 9% interest towards the loss and damage caused to the said lorry due to the accident as assessed by opposite party surveyor from the date of accident till realization. The opposite party is directed to pay the supra awarded amount within one month from the date of receipt of this order along with Rs.5,000/- as costs.
Dictated to the Stenographer Typed to the dictation corrected by us, pronounced in the Open Court this the 5th day of January, 2005.
PRESIDENT
MEMBER MEMBER
