BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah , B.Com B.L., President

And

Sri. M.Krishna  Reddy , M.Sc., M.Phil., Male Member

Wednesday the 22^nd day of December, 2010

C.C.No 93/10

Between:

S.Ahmed Basha, S/o Noor Ahmed,

H.No.24/78, Ganagalli Street, Kurnool.                                      

       …..…Complainant

-Vs-

The Divisional Manager,Oriental Insurance Co.,Ltd.,

Bhopal Complex, Park Road, Kurnool.                                

….…Opposite  Party

                       This complaint is coming on this day for orders in the presence of Sri. K. Hyder Vali , Advocate, for complainant, Sri. L. Harihara Natha Reddy , Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. T.Sundara Ramaiah, President)

C.C. No. 93/10

1. This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying

1. to pay Rs.2,51,250/- towards the loss sustained due to

 accident to the lorry with interest @ 24% from the date of accident i.,e from 07-02-2008 till the date of realization  

1. to grant a sum of Rs.1,00,000/- towards the damages for 

causing mental agony to the complainant by the OP by not settling the claim of accident in time.

1. to grant the cost of the complaint , and
2. to grant such other relief or reliefs as the Hon’ble Forum may

deem to be fit and proper in the circumstances of the case.

(2)   The case of the complainant in brief is as under:-The complainant purchased lorry bearing No. AP21 X 6414 to eke out his livelihood .The complainant appointed one Sri. L. Srinivasa Reddy who is having valid driving license to drive the vehicle . The complainant insured his lorry with the OP for Rs.11,00,000/- . OP issued insurance policy bearing No. 43310/31/2007 /5862 and it was valid up to 08-02-2008. On    06-02-2008 the complainant entrusted his lorry to his driver Srinivasa Reddy to take iron ore load to Nellore from Hospet.  Accordingly on 06-02-2008 the driver proceeded to Nellore with iron ore load . At 3-00 AM on 07-02-2008 the complainant’s lorry met with an accident near Rayalacheruvu Village on Gooty - Tadipathri State Highway. In the said accident the cleaner of the lorry died on the spot.  The Yadiki police station, Anantapur recorded the statement of the driver L. Srinivasa Reddy and registered a case under section 337 and 304-A IPC against the cleaner. The driver Srinivasa Reddy gave false statement before the police stating that the cleaner was driving the vehicle at the time of the accident. He gave the said statement before the police with an intention to escape from criminal liability. In the accident that took place on 07-02-2008 the lorry of the complainant was badly damaged and damages was estimated to nearly Rs.3,00,000/- . OP appointed final surveyor Sri. Mr. Govindaraja Murthy of Adoni. The surveyor submitted his report. The complainant  submitted claim form for Rs.2,51,250/- to OP. OP repudiated the claim of the complainant  through a letter dated 10-12-2008 on the ground that at the time of the accident the lorry was being driven by M. Ravi who was not having a valid driving license to drive the vehicle. Hence the complaint.

3.     OP filed written version stating that the complaint is not maintainable. After receiving the intimation about the accident the company appointed final surveyor Sri. K. Govindaraja Murthy. The surveyor  inspected the vehicle and submitted his report assessing the loss at Rs.1,75,000/- .At the time of the accident Ravi the cleaner of the vehicle who had no effective driving license was driving the vehicle of the complainant. There was violation of the terms and conditions of the policy. Therefore the complainant is not entitled to any amount. The claim of the complainant was repudiated on correct liens. There was no deficiency of service  on the part of the OPs. The complaint is bared by time and it is liable to be dismissed.

4.     On behalf of the complainant Ex.A1 to A7 are marked and the sworn affidavit of the complainant is filed .  On behalf of the OPs Ex.B1 to B14 are marked and sworn affidavit of OP is filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are     

(i)     whether the complaint is bared by time?

(ii)    whether there is deficiency of service on the part of the OPs.

(iii)    whether the  complainant is entitled to the reliefs as prayed for?

(iv)   To what relief?

7. Point No.1:    The complainant  filed the complaint against the OP claiming compensation of Rs.2,51,250/- along with other reliefs. It is the case of the complainant that his vehicle met with accident on      07-02-2008 that after the accident he submitted claim to the OP and that the OP repudiated the claim on 10-12-2008. Ex.A6= B14 is the repudiation letter dated 10-12-2008 .The period of limitation for filling the complaint is two years from the date of repudiation of the claim by the OP. As seen from the complaint it is very clear that the complainant  presented the complaint on 30-04-2010. i.e, with in the period of two years from the date of repudiation of the claim. Therefore the contention of the OP that the complaint is bared by limitation can not be accepted.

8.     Point No; 2 & 3:   Admittedly the complainant is the owner of the lorry bearing No. AP21 X 6414 and he insured the said vehicle with the OP and obtained Ex.A5 policy. The said policy was inforce till      08-02-2008 .The sum assured under the policy was Rs.11,00,000/-. It is also admitted that after receiving the intimation about the accident, OP appointed a final surveyor Sri. K. Govindaraja Murthy and that he submitted his report Ex.B2.

9.     It is the case of the complainant that one Srinivasa Reddy who got valid driving license was appointed as his driver and the accident took place on 07-02-2008 near Rayalacheruvu (v) on Gooty – Tadipatri State Highway. It is the contention of the OP that at the time of the accident one Ravi who was working as cleaner under the complainant was driving the damaged vehicle. The complainant did not place any documentary evidence on record to show that Srinivasa Reddy was driving the vehicle at the time of the accident. Op filed number of documents Ex.B3 to B11 in support of its contention that the vehicle was driven by the cleaner Ravi at the time of the accident. Ex.B3 is the copy of the FIR in Cr.NO.14/08 of Yadiki police station. As seen form Ex.B3 it is very clear that the station house officer, yadiki registered a case in Cr.No.14/08 under Sec. 337, 304 IPC on the basis of the statement of Srinivasa Reddy the driver of the crime vehicle. It is mentioned in Ex.B3 that Ravi the cleaner of the vehicle drove it in rash and negligent manner and dashed against apposite coming lorry bearing No.AP 04V 6674 and in the said accident the lorry of the complainant is fully damaged. Ex.B11 is the inquest report.  In the said inquest report also it is stated that on 07-02-2008 at 3-00 AM the deceased Ravi drove the  vehicle of the complainant in a rash and negligent manner and dashed against the opposite coming lorry bearing No. AP 04 V 6674. Ex.B13 is the final report in Cr.No.14/08 of Yadiki police station. In the said final report it is clearly mentioned that the deceased Ravi was driving the lorry bearing No. AP21 x 6414  in a rash and negligent manner and caused the accident. It is further mentioned in Ex.B13 that the cleaner who was driving the lorry of the complainant died due to the injuries received by him in the accident. In the light of the documentary evidence the contention of the complainant that his driver Srinivasa Reddy who got valid driving license was driving the vehicle at the time of the accident can not be believed at all. The affidavit evidence of OP and the documents on record go to show  that the accident took place due to the rash and negligent driving of the lorry of the complainant by its cleaner Ravi on 07-06-2008 near Rayalacheruvu of Gooty - Tadipatri road.

10.    Admittedly after the accident a surveyor Sri. K. Govindaraja Murthy was appointed to assess the damage caused to the vehicle of the complainant in the accident. The surveyor inspected the damaged vehicle and filed his report Ex.B2 where in it is stated that the net loss caused to the vehicle was Rs.1,75,000/- . The complainant claims an amount of Rs.2,51,250/- . The complainant filed Ex.A7 estimates said to have been issued by Andhra Body builders. The complainant  did not choose to file at lease the sworn affidavit of the person  who issue Ex.A7. The report of the surveyor must be given due weight by the both parties. As already stated the surveyor in his report clearly mentioned that the net loss caused to the vehicle was Rs.1,75,000/-

11.    The OP repudiated the claim of the complainant on the ground that at the time of the accident the cleaner Ravi was driving the vehicle of the complainant and that the said Ravi had no valid driving license  at the time of the accident. Ex.B12 is the report of the motor vehicle where in it is stated that K. Ravi was the driver of the vehicle and that his driving license was not produced. It is not the case of the complainant  that the deceased Ravi was having valid driving license at the time of the accident. It is argued by the learned counsel appearing for the OP that there is violation of the terms and conditions of the policy by the complainant and that the OP is not liable to pay any amount to the complainant . In support of his contention he relied on a decision reported in IV (2010) CPJ 244 (NC) where in the National Commission held that the repudiation is justified on ground that cleaner of vehicle was driving the vehicle when accident occurred. The facts of the case on hand are entirely different from the  facts of the case cited above. In the instant case it is proved that the cleaner of the vehicle who had no valid driving license at the time of the accident was driving the vehicle. It is submitted  by the learned counsel appearing for the complainant that the complainant appointed one Srinivasa Reddy as his driver and entrusted the vehicle to him to take iron wore load to Nellore. As seen from the contents of Ex.B3 it is very clear that Srinivasa Reddy was the driver of the lorry of the complainant on the relevant date. It appears that the said Srinivasa Reddy without knowledge of the complainant entrusted the vehicle to the cleaner to drive it on 07-02-2008. There is no material on record to show that the complainant entrusted the vehicle willfully and negligently to Ravi who was the cleaner. The complainant in support of his contention that insurance company has to establish that the insured violated the terms of the policy relied on following decisions

(1) 2008 –TLPRE-0-634 Supreme Court of India, (2) AIR 1987 Supreme Court 1184 (1) , (3) 2009 (6) ALT 620 . In the above decision it is clearly held that the insurance company to escape liability has to establish that the owner of the vehicle willfully entrusted the vehicle to a person who had no valid driving license and there was breach of condition of policy. In the present case on hand the OP failed to establish that the complainant willfully entrusted the vehicle to the cleaner who had no driving license. As seen from the evidence available on record the complainant entrusted the vehicle to Srinivasa Reddy who got valid driving license . Merely because Srinivasa Reddy the driver appointed by the complainant allowed the cleaner of the vehicle to drive the vehicle , the insurance company can not escape its liability . In AIR 1989 Supreme Court 2002 Apix court held that without the knowledge of the insured , if by driver’s acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnity the insured . The insurer in such a case cannot take the defence of breach of the condition in the certificate of insurance. As already stated there is no material on record to show that the complainant who is the insured entrusted the vehicle to the cleaner who had no valid driving license . The repudiation of the claim of the complainant by the OP is not justified .  Inspite of report of the surveyor the OP has not chosen to pay the damage caused to the vehicle of the complainant .

11 Point No3:   In the result the complaint is partly allowed directing the OP to pay an amount of Rs.1,75,000/- to the complainant along with interest at 9% p.a from 10-12-2008 i.,e date of the repudiation of the claim till the date of payment along with costs of Rs.500/-.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 22^th day of December, 2010.

          Sd/-                                                                                     Sd/-

MALE MEMBER                                                            PRESIDENT

          APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant : Nil            For the opposite parties : Nil

List of exhibits marked for the complainant:-

List of exhibits marked for the opposite parties:

         Sd/-                                                                                       Sd/-

MALE MEMBER                                                            PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

Copy was made ready on :

Copy was dispatched on   :