Date of filing:23-07-2012
Date of Disposal: 18-12-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTHAPURAMU.
PRESENT: -Kum. Y.H.Prameela Reddy, M.A., LL.B., President
Smt.M.Sreelatha, B.A., B.L., Lady Member
Thursday, the 18th day of December, 2014
C.C.NO.43/2012
Between:
Polepalli Hariprasad
S/o Gangi Setty
r/o Ustilipalli Village
Tanakallu Mandal
Ananthapuramu District. …. Complainant
Vs.
Cholamandalam M.S.General
Insurance Co.Ltd., by its Executive
C/o Cholamandalam Investment
and Finance Co. Ltd., Shop
No.12 &13, D.N.R. Complex,
Sapthagiri Circle.
Ananthapuramu. … Opposite Party
This complaint coming on this day for final hearing before us in the presence of Sri P.Krishna Swamy Kumar, Advocate for the complainant and Sri G.Seetharama Rao, Advocate for the opposite party and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Kum.Y.H.Prameela Reddy, President: - This complaint is filed by the complainant i.e. Polepalli Hari Prasad under section 12 of Consumer Protection Act, 1986 against the opposite party/ Cholamandalam M.S.General Insurance Co. Ltd., by its Executive C/o Cholamandalam Investment and Finance Co. Ltd., Shop No.12 & 13, D.N.R. Complex, Sapthagiri Circle, Ananthapuram with a prayer to direct the opposite party to pay sum of Rs.3,00,000/- towards insurance amount, Rs.50,000/- towards compensation for mental agony with an interest @ 12% p.a. from the date of accident i.e. 12-08-2010 till the date of payment and grants costs, with the following brief allegations that:
2. The complainant is the registered owner of the goods vehicle bearing No.AP-02-Y-0728. He borrowed the amount from Cholamandalam Investment and Finance Company Ltd., Anantapur for purchasing the said vehicle and plying the said vehicle to eke out his livelihood by way of self-employment.
3. The opposite party-company is the Insurance Company having offices throughout India. They are doing insurance business at Anantapur in the office of the above said fiancé company, which is the sister concern. Both the companies belong to same group of companies. The opposite party insured the risks of the complainant in respect of the above Mini lorry vide their cover Note No.7875714 dt.01-04-2010. The premium for the policy was collected at Anantapur and the cover note was also issued at Anantapur. Thus the contract of insurance was entered into between the parties at Anantapur on 01-04-2010. Later on cover note was followed up by the policy No.3379/00434862/000/00. The period of insurance was from 01-04-2010 to 31-03-2011. While so, the said vehicle of the complainant met with an accident on 12-08-2010 at William Konda Bus Stop within the limits of Kothakota P.S., Mahaboob Nagar District and it was heavily damaged. One Niranjan was the driver of the vehicle at the time of the accident. Soon after the accident, the damage to the vehicle was informed to the opposite party. They conducted necessary surveys. The complainant carried out repairs to the vehicle and claimed an amount of Rs.3,00,000/- towards the insured amount for the damage caused to the vehicle. The repair bills also handed over to the opposite party. Unfortunately, the said claim was repudiated by the opposite party vide their letter dt.24-02-2011.Their contention was that one Mallikarjuna Reddy reported that the driver was one Mallesh. Further their contention was that the said Mallesh was driving the vehicle without holding valid driving licence at the time of accident. The opposite party contended that Mr.Niranjan stopped his driving profession on medical advice. In fact no doctor advised him to stop his profession. He is continuing profession with all his vigor. If a third party out of ignorance and imagination gives incorrect name of the driver in the FIR, it cannot bind on the complainant. Ultimately the police filed charge sheet against Niranjan after discrete enquiries and through investigation. All these confusion arose because Niranjan ran away from the spot soon after the accident to protect himself from the assault. The grounds of repudiation of claim are false. Hence the complaint with prayer to direct the opposite party to pay a sum of Rs.3,00,000/- towards insurance amount and Rs.50,000/- towards compensation for mental agony with an interest @ 12% p.a. from the date of accident i.e. 12-08-2010 till the date of payment and costs of the complaint and grant such other relief or reliefs.
4. On the other hand, the opposite party filed counter denying the above allegations of the complainant with brief contents that the dispute raised by the complainant is manifestly outside the purview of the C.P.Act and the complainant is not a consumer as defined under the Act. Hence the proceedings initiated by the complainant are null and void and without jurisdiction. Basing on the claim intimation, immediately the opposite party arranged the surveyor duly licenced by IRDA to assess the loss sustained by the insured vehicle. Further in the said claim, the insured vehicle hit against the parked lorry resulting into death of the cleaner and helper and damages to the insured vehicle. Hence, the opposite party had arranged an external investigation to ascertain the facts of the claim. On perusal of the documents it was found that the driver at the material time of accident was one Mr.Mallesh and he does not hold an effective driving licence. On discrete enquiry with Mr.Nianjan, who has been swapped in the place of Mr.Mallesh and also on verification of the medical records he had undergone heart surgery in the year 2009 and based on the advises of the doctors, he has stopped the driving profession. The initial police records stated that Mr.Mallesh was the driver but subsequently altered as Mr.Niranjan since Mr.Mallesh does not have a driving licence to drive the vehicle. Moreover while reporting the claim by one Mr.Mallikarjuna Reddy on 12-08-2010 the name of the driver was Mr.Mallesh and subsequently while submitting the claim form, the driver name has been changed. Under the above circumstances, it has been established clearly that there is a deliberate and wilful misrepresentation of the facts on the part of the complainant regarding the driver name at the material time of the accident. Hence there has been a serious breach of the driver’s clause contained in the policy apart from violation of M.V. Act. On the above finding, the opposite party repudiated the claim made by the complainant and the complainant is not entitled to relief as mentioned in the complaint. Hence prayed to dismiss the complaint with costs in the interests of justice.
5. In order to establish the above rivalry contentions, both sides adduced their evidence by filing their respective chief affidavits and documents. On behalf of the complainant, he himself has filed chief affidavit and additional chief affidavit as PW1 and placed reliance on Ex.A1 to A6. On the other hand, the opposite party Sri BHS Pavan , Assistant Manager (Legal) in the opposite party Insurance Co. Ltd., has filed his chief affidavit as RW1 and placed reliance on the documents Ex.B1 to B5.
6. Heard both sides.
7. Now the points that arise for determination are:
1. Whether the complainant is a consumer as defined under Consumer
Protection Act ?
2. Whether the complainant is entitled for the claims as prayed for?
8. POINT NO.1 - The Insurance Company policy between the insurer and insured represents a contract between the parties since the insurer undertakes to compensate the loss suffered by the insured on account of the risk covered by the insurance policy. The terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. In the instant case, the evidence of PW1 on the chief affidavit goes to show that “ he has purchased the goods vehicle bearing No.AP-02-Y-0728 from Cholamandalam Investment and Finance Co. Ltd.,, Anantapur . The opposite party company is the insurance company and having offices throughout India and they are doing insurance business in the office of the said finance company, which is the sister concern. The opposite party-company insured his risks in respect of the above said Mini Lorry vide their cover Note No.7875714 dt.01-04-2010. The premium for the policy was collected at Anantapur and the cover note was also issued at Anantapur. Thus the contract of insurance was entered into between them at Anantapur on 01-04-2010. Later on cover note was followed by the policy No.3379/00434862/000/00. The period of insurance was from 01-04-2010 to 31-03-2011. While so, the said vehicle met with an accident on 12-08-2010 at William Konda Bus Stop within the limits of Kothakota P.S. in Mahaboob Nagar and it was heavily damaged.” In support of the above testimony of PW1, he placed reliance on Ex.A1 photo copy of cover note dt.01-04-2010. The above evidence of PW1 was not denied by the opposite party either in the counter or in the chief affidavit of the RW1. As such the complainant taking insurance policy from the opposite party is admitted fact and the same was evidenced by the document Ex.A1 cover note, which was not denied by the opposite party. Hence in such circumstances, the complainant is a consumer as defined under the Consumer Protection Act. We held that this point is in favour of the complainant.
9. POINT NO.2 - The testimony of PW1 on the chief affidavit goes to show that the said vehicle met with an accident on 12-08-2010 and one Niranjan was the driver of the vehicle at the time of accident. Soon after the accident the damage to the vehicle was informed to the opposite party. They conducted necessary surveys. PW1 carried out repairs to the vehicle and claimed an amount of Rs.3,00,000/- towards the insured amount for the damage caused to the vehicle. The original repair bills were also handed over to the opposite party. Hence he has filed Xerox copies under Ex.A5. Further the evidence of PW1 on chief affidavit goes to show that unfortunately the said claim was repudiated by the opposite party vide their letter dt.24-02-2011. The said letter is marked as Ex.A2. Their contention in the said letter that one Mallesh was driving the vehicle without holding valid driving licence at the time of accident and that Mr.Niranjan stopped his driving profession on medical advise. Further the evidence of PW1 on his chief affidavit goes to show “ that in fact no doctor advised him to stop his profession. He is continuing profession with all his vigor. If a third party out of ignorance and imagination gives an incorrect name of the driver in the FIR, it cannot bind on the complainant. Ultimately the police filed charge sheet against Niranjan after discrete enquiries. Ex.A6 is Xerox copy of the charge sheet. The opposite party contended that in the letter dt.24-02-2011 (Ex.A2) that one Mallikarjuna Reddy reported the claim stating that the driver was one Mallesh. To the best of the complainant’s knowledge Mallikarjuna Reddy never reported the claim. Even other-wise his report is not binding on the complainant. All these confusion arose because Niranjan ran away from the spot soon after the accident to protect himself from the assault. The grounds of repudiation are false. PW1 made several demands on the opposite party company for his insurance claim. He also got issued legal notice on 09-02-2012. Office copy of the legal notice is Ex.A3. Ex.A4 is served postal acknowledgment. But the opposite party turned deaf ear even to the said notice.”
10. On behalf of the opposite party, evidence on chief affidavit of RW1 goes to show that “ on perusal of the documents, it was found that the driver at the material time of accident was one Mr.Mallesh , who was driving the insured vehicle and does not hold an effective driving licence. Further on discrete enquiry with Mr.Niranjan, who has been swapped in the place of Mr.Mallesh and also on verification of the medical records, he had undergone heart surgery in the year 2009 and based on the advise of the doctors, he has stopped the driving profession. While reporting the claim by one Mr.Mallikarjuna Reddy on 12-08-2010 the name of the driver was Mr.Mallesh and subsequently while submitting the claim form, the driver name has been changed. It is a willful misrepresentation on the part of the complainant regarding the driver name at the material time of accident. Hence, there is a breach of driver’s clause contained in the policy apart from violation of Motor Vehicles Act.” In support of the above evidence of RW1 he placed reliance on the investigation report of the accident of vehicle by their company investigating agency Ex.B1, B2 is statement given by one P.Prabhavathamma, who is no other than the wife of P.Sreenivasulu, cleaner in the said DCM Van of the complainant, who died in the said accident, Ex.B3 is Statement of wife of K.Shankar, who was driver in the said van and died due to the accident, Ex.B4 is FIR of the police, and Ex.B5 is Photostat copy of Medical Report of the said Niranjan. In view of the above evidence of RW1, the documents and Ex.B1 to B5 mentioned in the affidavit of the opposite party submitted at the time of arguments that “in the accident the driver’s name was altered as Mr.Niranjan instead of Mr.Mallesh. In fact the said Mallesh was driver at the material time of accident but not Mr.Niranjan as shown in the charge sheet of the police because the statements of wives of the deceased in the accident i.e. Ex.B2 and Ex.B3 made it very clear that at the time of material accident, the said DCM Van was driving by one Mallesh. Alternation took place mainly to claim the amount from the opposite party as the said Mallesh was no holding driving licence . As such Niranjan was introduced as driver of the vehicle who holds valid driving licence. Further the opposite party made thorough discrete investigation as per Ex.B1 wherein it is clearly established that Mallesh only the driver of the said DCM Van but not Niranjan and further medical evidence of the said Niranjan reveal that he had undergone heart surgery in the year 2009 and based on the advise of the doctor, he stopped the driving profession. Xerox copy of the medical record of the said Niranjan is marked as Ex.A5. Only to claim the insurance amount, the complainant has falsely misrepresented the facts in the complaint. So only the opposite party repudiated the claim of the complainant as it is evidenced by Ex.A2. Hence the complaint is having no merits and liable for dismissal with costs.” The above arguments of the learned counsel for the opposite party is not appears to be having force since the opposite party has not discharged the burden by establishing the fact that the said Niranjan was not driver at the material time of accident because if really he stopped the driving profession basing on the medical record, the opposite party ought to have examined the doctor, who advised the said Niranjan in the said aspect and also to prove the health condition of the said Niranjan at the time of material accident. Further either Niranjan or Mallesh were not examined in this case to know the true facts of the case. More-over, the evidence of RW1 on his chief affidavit goes to show that while reporting the claim by one Mallikarjuna Reddy on 12-08-2010 the name of the driver was Mallesh and subsequently while submitting the claim forms, the driver name has been changed. If it is so, what prevented the opposite party from examining the said Mallikarjuna Reddy to elicit true facts, but the opposite party failed to do so for the reasons best known to the opposite party and there is no evidence in this case that what was the report given by the said Mallikarjuna Reddy. But no doubt in the FIR Ex.B4 the name of the accused shown as Mallesh, driver of DCM Van bearing No.AP-02-Y-0728 but not Niranjan. But on the other hand, after thorough investigation by the police on the said FIR filed charge sheet showing the name of the driver as Niranjan and name and address of the complainant is Gangavaram Raghuvaran. Even as per charge sheet Ex.B4 also the name of the informant/complainant is shown as Gangavaram Raghuvaran but not Mallikarjuna Reddy as contended by the opposite party. It appears to be very surprise that the opposite party has not even examined any one of the above persons as witnesses or wives of the deceased though marked their statements as Ex.B2 and B3 to prove the contents of the same because mere marking of the documents has no use unless the contents of the same are proved through competent parties. When the contention of the opposite party is that there is misrepresentation with regard to identity of the name of the driver then burden lies on the opposite party to establish the same by adducing satisfactory evidence. On the other hand, the complainant has established with proper evidence that he is a consumer to the opposite party and DCM Van met with accident and the driver of the said vehicle at the material time of accident was one Mr.Niranjan as per charge sheet filed by the police. Copy of the charge sheet is marked as Ex.A6. The opposite party has not rebut the said evidence of the police investigation by adducing rebuttal evidence against Ex.A6. It is an established law that F.I.R. is not substantive piece of evidence and when police submitted charge sheet after thorough investigation, then F.I.R. lost its sanctity with regard to its contents, except to use it for the purpose of contradiction.
11. In support of the version of the complainant in the said regard, he placed reliance on the decision reported in 2012 ACJ 2624 In the High Court of Judicature at Allahabad, Lucknow Bench – New India Assurance Co. Ltd., Vs. Ranni and others, wherein the lordships held that “ There appears to be no doubt that originally, the first information report was lodged under section 302 read with section 392, Indian Penal Code. However, later on, the police submitted charge-sheet under section 304-A, Indian Penal Code in the case Crime No.361 of 1995. It is settled law that contents of F.I.R. are not a substantive evidence but only a corroborative evidence and may be used during trial. Once the police submitted charge-sheet under section 304-A, Indian Penal Code (accidental death), then argument by placing reliance on the F.I.R. seems to be not sustainable. Tribunal has rightly held that F.I.R. is not substantive evidence and when the police submitted charge-sheet under section 304-A, Indian Penal Code, then the F.I.R. loses its sanctity with regard to its contents except to use it for the purpose of contradiction under section 145 of the Evidence Act.” The above proposition of law is applicable to the case on hand. So in the said circumstances, we do not find any merits in the contention of the opposite party to repudiate the claim of the complainant.
12. In the result, the complaint is partly allowed with a direction to the opposite party to pay an amount of Rs.3,00,000/- towards insurance amount and Rs.25,000/- towards mental agony with interest @ 9% p.a. from the date of accident i.e. 12-08-2010 till the date of payment with costs of Rs.2000/- to the complainant within one month from the date of this order.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 18th day of December, 2014.
Sd/- Sd/-
LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EVIDENCE ON CHIEF AFFIDAVITS
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTY
PW1 – Polepalli Hariprasad, complainant RW1 – Sri BHS Pavan, Assistant Manager (Legal)
Cholamandalam MS General Insurance Co. Ltd.,
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – Photo copy of Motor Insurance Cover Note issued by the opposite party to the
Complainant .
Ex.A2 – Repudiation Letter of the opposite party dt.24-02-0211 issued to the complainant.
Ex.A3 – Office copy of legal notice dt.09-02-2012 got issued by the complainant to the
Opposite party.
Ex.A4 – Postal acknowledgement signed by the opposite party.
Ex.A5 – Copy of Repairs Estimate relating to complainant’s vehicle dt.02-10-2010.
Ex.A6 – Photo copy of charge sheet issued by the Sub Inspector of Police, Kothakota
P.S., in Cr.No.127/2010.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
Ex.B1 – Photo copy of Investigation report on accident to vehicle dt.14-12-2010 sent by
Stellar Insurance Management Services Ltd., to the opposite party-company.
Ex.B2 - Statement dt.19-10-2010 given by P.Prabhavathamma W/o Late Sriramulu,
Cleaner of DCM Van.
Ex.B3 - Statement dt.19-10-2010 given by K.Lakshmidevi W/o Late Shankar.
Ex.B4 - Photo copy of FIR in Cr.No.127/2010 of Kothakota P.S., Mahaboobnagar District.
Ex.B5 – Medical Report relating to Niranjan issued by Yashoda Hospital.
Sd/- Sd/-
LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
