Date of filing:08.06.2012

Date of disposal:22.09.2014   

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.

PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)

Smt. M.Sreelatha, B.A.,B.L., Lady Member

Monday, the 22^nd day of September, 2014

C.C.No.28/2012

Between:

1.       Bomma Lakshminarasamma,

          W/o Late Sreeramulu.

2.       Bomma Bharathi D/o late Sreeramulu.

          Minor, aged about 4 years.

3.       Bomma Chandana @ Baby D/o Late Sreeramulu,

          Minor, aged about 3 years,

          Complainants 2 & 3 are minors,

          Rep. by its Guardian Mother B.Lakshminarasamma.

4.       Bomma Lakshmamma W/o Bomma Narayana,

          All are residing at D.No.1/162/13,

          Mudigubba Village & Mandal,

          Ananthapuramu District.                     …                        Complainants

Vs.

1.     The Manger Claims,

        Shriram General Insurance Company Limited,

        E-8, RIICO Industries Area, Sitapura, Jaipur,

        Rajasthan- 302 022.

2.     The Branch Manager,

        Shriram Transport Finance Company Limited,

        Gooty Road,

        Ananthapuramu.                                           …                 Opposite Parties

This case coming on this day for final hearing before us in the presence of Sri N.P.Sreenivasulu, Advocate for the complainants and Sri G.Seetharama Rao, Advocate for the 1^st Opposite Party and Sri K.Chandra Sekhar Rao Advocate for the 2^nd Opposite Party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Sri S.Niranjan Babu, President (FAC): - This complaint has been filed by the complainants under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.2,50,000/- towards compensation and Rs.50,000/- towards mental agony and costs of the complaint with interest @24% P.A. on the award amount from the date of complaint to till the date of payment.

2.       The brief facts of the complaint are that: - The 1^st complainant is the wife of the deceased who is the owner of the lorry bearing No.AP-04-U-7998.  The complainants 2 & 3 are the minor children of the deceased and they are represented by the guardian 1^st complainant and the 4^th complainant is the mother of the deceased.  The complainants are depending on the income of the deceased.  The 1^st complainant’s husband is the owner cum driver of lorry bearing No.AP-04-U-7998.  The deceased had a valid driving licence at the time of driving the vehicle.  The 1^st complainant’s husband had obtained an insurance policy bearing No.100003/31/10/256829 from the 1^st opposite party which is valid from 31.01.2010 to 30.01.2011.  The 2^nd opposite party is the agent of the 1^st opposite party for collecting premiums.  On 12.06.2010 at about 5.30 A.M. the above said lorry was proceeding on N.H.205 road i.e., Kadiri to Anantapur near Malakavemala cross the said lorry met with an accident by dashing against a stationed lorry bearing No.RJ-09-JA-1417.  In the said accident the                               1^st complainant’s husband died and the vehicle was also badly damaged and a case was registered in crime No.39/2010 by Patnam police under section 227,338 304(A) I.P.C. The police authorities by mistake noted the vehicle number as AP-04-U-7978 instead of AP-04-U-7998.  Subsequently the 1^st complainant approached the opposite party claiming compensation for her husband’s death.  Though the opposite party agreed to pay the same went o postponing the same on one pretext or the other.  Then the complainants got issued a legal notice demanding to pay a sum of Rs.4,00,000/- to the complainants, the said notice was received by the opposite parties but there was no reply from the opposite parties.  All the efforts made by the complainants proved futile.  The complainants filed this complaint against the opposite parties claiming a sum of Rs.2,50,000/- towards insurance amount and Rs.50,000/- towards mental agony and costs of the complaint  with interest @24% P.A/ on the award amount from the date of complaint till the date of payment.

3.       The 1^st opposite party filed counter stating that all the allegations made in the above complaint are false.  The 1^st opposite party submitted that the                           1^st opposite party was not aware of the accident, involvement of the motor vehicles and the death of the deceased etc., facts as averred in the complainant.  The 1^st opposite party submitted that all the criminal case records including charge sheet filed by the police concerned to the offending vehicle AP-04-U-7978 but not AP-04-U-7998 and the police  records filed by the complainants in to the Forum are pertaining to AP-04-U-7998 but not  AP-04-U-7998 as contended by the complainants.  The 1^st opposite party submitted that the insurance is a contract of indemnity and it is a contract between two parties i.e., the insured and insurer.  In the present case the 1^st opposite party never issued any policy to the vehicle bearing No.AP-04-U-7978. Hence there is no contract between the deceased and the 1^st opposite party. Therefore the complaint is not maintainable and this opposite party is not liable to pay any amount as claimed by the complainants.  Further the 1^st opposite party submitted that this Hon’ble Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the Consumer Protection Act, 1986.  Further the 1^st opposite party submitted that the complainants are estopped by their own acts and conduct from filing the present complaint as there is no cause of action has arisen to the complainants against the opposite parties. Hence the complaint is liable to be dismissed.  Further the 1^st opposite party submitted that no documents such as criminal records and vehicle particulars and driving licence of the deceased have not been sent to the insurance company, at least to verify the claim. It is only after the receipt of summons from this Hon’ble Forum the 1^st opposite party came to know of the alleged accident. Hence there is no privity of contract between the complainants and the opposite parties and they are not liable to pay any compensation as there is no deficiency of service on the part of the 1^st opposite party.  

4.       The 2^nd opposite party filed counter stating that all the allegations made in the complaint are all false.  The 2^nd opposite party has no knowledge that the complainants are solely depending on the income of the deceased and the allegation that the 1^st complainant’s husband has obtained insurance policy from the 1^st opposite party through the 2^nd opposite party is false.  Further the 2^nd opposite party is acting as agent of the 1^st opposite party in collecting the premium for policies and issue of policy to the policyholder is false and invented for the purpose of wrongful gain from the opposite parties.  The 2^nd opposite party submitted that the police found that the deceased was responsible for the accident and one cannot take the advantage of his own negligence.  Further the 2^nd opposite party submitted that the complainants are silent whether the family members have claimed any compensation against the insurance company of stationed lorry bearing No.RJ-09-JA-1417.Further the 2^nd opposite party submitted the 1^st complainant’s husband has taken the policy from the                  1^st opposite party directly and the 2^nd opposite party is a financier for the vehicle AP-04-U -7998 as per the request of the 1^st complainant’s husband.  Further the 2^nd opposite party submitted that they are not liable to pay any compensation as claimed by the complainants as there is no deficiency of service on the part of the 2^nd opposite party. Hence the complaint against the 2^nd opposite party is liable to be dismissed with costs.

5.       Basing on the above pleadings, the following points that arise for consideration are:-

1. Whether there is any deficiency of service on the part of the opposite parties 1 & 2?

ii)      To what relief?

6.       In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A7 documents. On behalf of the 1^st opposite party, the 1^st opposite party filed evidence on affidavit and no documents are marked. On behalf of the 2^nd opposite party, the 2^nd opposite party filed evidence on affidavit and no documents are marked.

7.       Heard both sides 

8.       POINT NO 1:- The counsel for the complaints submitted that the                              1^st complainant is the wife of the deceased Sreeramulu who was the sole bread winner of his family. The deceased was having valid driving licence at the time of the accident.  The counsel for the complainants submitted that her husband has obtained an insurance policy through the 2^nd opposite party from the                          1^st opposite party insurance company policy bearing No.100003/31/10/256829 which is valid from 31.01.2010 to 30.01.2011.  The opposite parties has collected an additional premium of Rs.100/-towards personal accident benefit.  The counsel for the complainants submitted that the 2^nd opposite party collected the premium and the 1^st opposite party issued the policy.   Subsequently on 12.06.2010 at about 5.30 A.M. the above said lorry bearing No.AP-04-U-7998 while proceeding on National Highway No.205 i.e., Kadiri to Ananthapuramu road the said lorry met with an accident near Malakavemala cross by dashing stationed lorry bearing No.RJ-09-JA-1417.  In the accident the driver cum owner Sreeramulu received fatal injuries and succumbed to the injuries. Further the counsel for complainants submitted that in the said accident the vehicle was badly damaged and in this connection a case was also registered in crime No.39/2010 by Patnam Police under sections 337,338 & 304(A) I.P.C. But the police authorities by mistake noted the vehicle number as AP-04-U-7978 instead of AP-04-U-7998. The counsel for the complainants contended that by oversight the police have wrongly noted the vehicle number as AP-04-U-7978 instead of AP-04-U-7998 for which the complainants cannot be denied their legal right.  As per the terms and conditions of the policy the opposite parties are liable to pay compensation towards the death of Sreeramulu who is the owner cum driver of the said vehicle. Further the counsel for the complainants contended that after the death of Sreeramulu the complainants approached and requested the opposite parties to pay the compensation amount for which they are legally entitled.  Though the opposite parties agreed to pay the same went on postponing the same on one pretext or other.  Then the complainants got issued a legal notice to the opposite parties for the compensation and the said notice was served to the opposite party, but there was neither a reply from the opposite parties nor settled the claim. In this connection all the efforts made by the complainants prove futile. Hence filed this complaint against the opposite parties claiming compensation for deficiency of service for which they are legally entitled.

9.       The counsel for the 1^st opposite party submitted that all the allegations made in the complaint are false and the complaint is liable to be dismissed with costs.   The counsel for the 1^st opposite party submitted that the 1^st opposite party was not aware of the accident and the death of the deceased in the said accident as averred in the complaint.  The counsel for the 1^st opposite party contended that the criminal case records including charge sheet by the police concerned to the offending vehicle is of AP-04-U-7978 but not of AP-04-U-7998 and the police records filed by the complainants in to the Forum show the same.  Further the 1^st opposite party contended that AP-04-U-7978 is not at all enveloped in the alleged accident and so the complaint is to be dismissed with costs. The counsel for 1^st opposite party contended that insurance is a contract of indemnity it is a contract between two parties i.e., between the insurer and insured. In the instant case the 1^st opposite party never issued any policy to the vehicle   AP-04-U-7978 and there is no contract between the deceased and the                      1^st opposite party with regard to the said registration number.  Further the                       1^st opposite party contended that there is no privity of contract between the deceased and the 1^st opposite party.  Hence the complainants have no locus stand to file the complaint against the 1^st opposite party claiming compensation. Further the 1^st opposite party contended that the present complaint is misconceived, groundless and unsustainable in law as the lorry bearing registration No.AP-04-U-7998 is not involved in the alleged accident as per the criminal records and the police records submitted by the complainants.  Hence there is no liability on the part of the 1^st opposite party to pay compensation to the complainants as claimed and there is no deficiency of service on the part of the 1^st opposite party. Hence the complaint is liable to be dismissed.

10.     Further the counsel for the counsel for the 1^st opposite party contended that even though the legal notice was issued by the complainants no documents such as criminal case records and vehicle particulars and the driving licence of the deceased have not been sent to the 1^st opposite party at least to verify the claim.  It is only after the receipt of summons from the Hon’ble Forum then only the opposite parties came to know that the claim was made by the complainants.  Further the 1^st opposite party contended that as per the document submitted in the Hon’ble Forum which are marked as Ex.A1 which is F.I.R. the vehicle was involved in the accident was shown as AP-04-U-7978 and Ex.A3 which is the inquest report also shows the vehicle No. AP-04-U-7978.  While the said documents clearly shows that the vehicle involved in the accident is bearing                           No.AP-04-U-7978 but not AP-04-U-7998 as contended by the complainants. Hence the 1^st opposite party is not liable to pay any compensation to the complainants.

11.     The counsel for the 2^nd opposite party submitted that it is not true to say that the 2^nd opposite party is the agent of 1^st opposite party and they have never collected any amount from the complainants.  The allegation made by the complainants that the 2^nd opposite party has collected premium to issue policy by the 1^st opposite party is invented for the purpose of wrongful gain against the                   2^nd opposite party.  Further the 2^nd opposite party contended that as per police records it was the deceased who was responsible for the accident and one cannot take advantage of his own negligence.  Further the 2^nd opposite party submitted that whether the complainants has claimed any compensation or not against the stationed the lorry bearing No.RJ-09-JA-1417 is not clarified.  Further the                      2^nd opposite party contended that it is no way concerned with the policy bearing No.100003/31/10/256829 which is valid from 31.01.2010 to 30.01.2011 and it was issued by the 1^st opposite party.  Further the 2^nd opposite party contended that the 2^nd opposite party is the financier for the vehicle AP-04-U-7998 as per the request of the deceased.  Further the 2^nd opposite party contended the                                2^nd opposite party have not agreed to pay any compensation or postponed the same on one pretext or other.  Hence the 2^nd opposite party is not liable to pay any compensation as claimed by the complainants and the complaint is liable to be dismissed against the 2^nd opposite party with costs.

12.     After hearing the arguments of both side counsels it is an admitted fact that the vehicle bearing No.AP-04-U-7998 was insured with the 1^st opposite party under policy bearing No.100003/31/10/256829 which is valid from 31.01.2010 to 30.01.2011.  As seen from the documents filed by the complainants all the records starting from F.I.R. and inquest report the vehicle which was involved in the accident was mentioned  as AP-04-U-7978 but as per the policy  the vehicle which was insured is AP-04-U-7998. In this back ground the claim of the complainants that her husband died in an accident near Malakavemala cross is not established as there is no pinch of evidence to show that the vehicle bearing registration No.AP-04-U-7998 was involved in the accident.  In this back drop the opposite parties cannot be made liable to pay compensation when the vehicle bearing No.AP-04-U-7978 is the vehicle which is involved in the accident as per Ex.A1 & A3. Hence the argument made by the complainants are not tenable and we are of the view that there is no deficiency of service on the part of the opposite parties 1 & 2 hence they are not liable to pay any compensation.

13.     In the result the complaint is dismissed without costs.

Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 22^nd day of September, 2014.

                      Sd/-                                                                   Sd/-

              LADY MEMBER                                                PRESIDENT (FAC)        

 DISTRICT CONSUMER FORUM                    DISTRICT CONSUMER FORUM

             ANANTAPUR                                                       ANANTAPUR  

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE COMPLAINANTS:

NIL

ON BEHALF OF THE OPPOISITE PARTIES

-NIL-

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANTS

Ex.A1 Attested copy of F.I.R. in crime No.39/2010 of Patnam P.S.

Ex.A2 Attested copy of Postmortem of deceased Sreeramulu dt.12.06.2010.

Ex.A3 Attested copy inquest report relating to deceased Sreeramulu.

Ex.A4 Office copy of the legal notice dt.26.02.2012 got issued by the

          complainants to the opposite parties 1 & 2.

Ex.A5 Served postal acknowledgments singed by the opposite parties.

Ex.A6 Photo copy of Certificate cum policy bearing No.10003/31/10/256829

          issued by the 1^st opposite party in favour of deceased Sreeramulu.

Ex.A7 Photo copy of R.C. issued by RTA Kadapa.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

NIL

                      Sd/-                                                                Sd/-

            LADY MEMBER                                                  PRESIDENT (FAC)

 DISTRICT CONSUMER FORUM                         DISTRICT CONSUMER FORUM

             ANANTAPUR                                                       ANANTAPUR