The Manager, United India Insurance Co. Ltd, Raichur, V/S Shri Billam Raju - Consumer Court Case

Karnataka

Raichur

CC/10/73

Shri Billam Raju - Complainant(s)

Versus

The Manager, United India Insurance Co. Ltd, Raichur, - Opp.Party(s)

B.V. Patil

18 Jan 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/73

Shri Billam Raju						...........Appellant(s)
Vs.
The Manager, United India Insurance Co. Ltd, Raichur,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Billam Raju against the opposite United India Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to make the payment of Rs. 41,850/- towards repair charges of the tractor and trolley due to damage of the tractor and trolley in the accident and Rs. 50,000/- towards mental agony, pain and sufferings etc., with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he is the owner of Tractor bearing No. KA-36/TB-1251 and KA-36/T-8727 which was insured with opposite Insurance Company vide Policy bearing No. 240203/47/09/76/00002849 which is valid from 19-08-2009 to 18-08-2010. On 20-03-10 at about 4.00 p.m. the said tractor turned turtle on Sindhanoor to N.Hosur village which loaded with iron rods. The tractor sustained severe damage, it got repaired in VK Commercial Corporation at Sindhanoor by incurring expenditure amount of Rs. 41,851/-. The said fact was informed to opposite Insurance Company, thereafter he filed claim petition before opposite with all necessary records. But opposite shown its negligence in settling his claim, but repudiated his claim vide its letter dt. 14-05-10. Hence this complaint is filed for deficiency in service by opposites for the reliefs as prayed in his complaint. 3. The opposite Insurance Company appeared in this case through its Advocate, filed written version by contending that, the vehicle was not driven by the driver with valid licence as on the date, time and place of accident, there was an endorsement in his DL for to drive Transport/Goods Carriage. The use of the tractor was carrying iron and rods at that time which is not according to valid permit. Hence the Insurance Company repudiated the claim of complainant there was no deficiency in its service and thereby prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his tractor and Trolley bearing No. KA-36/TB-1251 and KA-36/T-8727 met with an accident on 20-03-10 on Sindhanoor N. Hosur public road which was driven by the driver with damage and effective driving licence to drive it and the said tractor was damaged in the accident he got repaired by spending amount of Rs. 41,851/- thereafter he filed claim petition before the opposite Insurance Company, but opposite Insurance Company shown its negligence in settling his claim and repudiated his claim on untenable grounds vide its letter dt. 14-05-10 and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-12 are marked. On the other hand affidavit-evidence of Assistant Manager of the opposite Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked. 7. In the light of the pleadings of the parties and their respective affidavit-evidences, we have noticed some of the following facts are undisputed facts in between the parties are:- 1. It is undisputed fact that, the complainant is the owner of Tractor and Trolley bearing No. KA-36/TB-1251 and KA-36/T-8727. 2. It is further undisputed fact that, the said Tractor and Trolley insured with opposite Insurance Company vide Insurance Policy bearing No. 240203/47/09/76/00002849 and the said policy was valid for a period from 19-08-2009 to 18-08-2010. 3. It is undisputed fact that, the said Tractor and Trolley met with an accident on 20-03-10 by turning turtle while going with load of iron rods on Sindhanoor N.Hosur public road and tractor badly damaged in the accident. 4. It is further undisputed fact that, opposite Insurance Company repudiated the claim of complainant by its letter dt. 14-05-10 Ex.R-2. 8. In the light of these undisputed facts between the parties. Now let us examine the case of complainant as to whether, he proved the negligence and deficiency in service on the part of opposite Insurance Company with regard to settlement of his claim. It is a fact that, the accident took place while the Insurance Policy of the vehicle was inforce. Now we have to examine the reason for repudiation of the claim of the complainant is proper and genuine reason as noted in its letter Ex.R-2 dt. 14-05-10. In the said letter the Insurance Company stated reason for repudiation of the claim of the complainant is that, complainant not produced effective and valid driving licence to drive the vehicle as on the date, time and place, according to it, it is a breach of condition of the policy and thereby it rightly repudiated the claim of complainant. 9. On the other hand the learned advocate for complainant before us that, the driving licence Ex.P-7 which stands in the name of driver by name Shekarappa S/o. Yamunappa was holding valid and effective licence to drive the vehicle. There is a clear endorsement by the licensing authority in the DL Ex.P-7. The said endorsement came with effect from 16-03-08 therefore the driver was holding valid and effective licence to drive the vehicle. 10. Contrary to it, the opposite filed document Ex.R-3 which is an endorsement made by the additional licensing authority Rangareddy District in which he stated that, DL No. 97930/08 in respect of Shekarappa S/o. Yamunappa is not issued by his office and the learned advocate for opposite further submitted that, the document Ex.P-7, is not a proper and effective driving licence to drive the vehicle under question. 11. In the light of the submissions made on both sides and considering the documents Ex.R-3 & Ex.P-7, we are of the view that, we are not proper authorities to decide as to whether DL Ex.P-7 filed by the complainant is correct or the document Ex.R-3 filed by the opposite is correct. However the Consumer Forum can decide the above fact in favour of the complainant-consumer as Ex.R-3 came to the light only after filing of this complaint. Secondly there are no circumstances or documents forth coming from the side of opposite regarding the action taken by it with regard to validity or genuineness of Ex.P-7 when it came it to the knowledge of the fact that, no such endorsement made in. Thirdly it not filed any affidavit-evidence of the said officer to substantiate its stand. Admittedly we adopting summary procedure to find out as to whether there is any negligence on the part of opposite Insurance Company and if, the case of complainant and opposite stands 50% 50% then, the case has to be decided in favour of the consumer only and not in favour of opposite Insurance Company. Keeping in view of the prime object of the C.P. Act 1986 we decided to hold that Ex.P-7 and endorsement there in is valid and acceptable and thereby the driver of the tractor and trolley was holding valid and effective licence as on the date, time and place of the accident, accordingly we rejected the contention of the opposite Insurance Company. 12. The learned advocate for opposite filed following rulings in his support: 1) 2008 ACJ 627. 2) Xerox copy of the Appeal No. 3881/2009 of the Honble State Commission pertaining to the case of this Forum. 3) AIR 2004 SC 4882. 13. In the ruling cited at Sl.No.1 of the Honble Supreme Court of India was dealing a case in respect of driving licence of the driver to drive the LMV without any endorsement to drive Transport Vehicle. 14. In the judgment of the Honble State Commission in Appeal No. 3881/09 noted at Sl.No-2 is also of the similar situation were the driver did not posses valid and effective driving licence to drive the vehicle, that means the driver was driving goods carriage without any endorsement by the authority. Similarly the case noted at Sl.No-3 also in respect of the same facts. 15. We are of the clear view that, with great respect to their lordships of the rulings referred above. The facts noted at discussed by their lordships are different to the facts of the present case on hand. In this case we have accepted the DL of the driver Ex.P-7 as it has got endorsement by the competent authority to drive the tractor and trolley by him by rejecting Ex.R-3. 16. Another ground that was taken by the opposite in its written version which is not taken by it in repudiation letter dt. 14-05-10 is that, the vehicle was plying as a goods vehicle in which iron rods were loaded, as such it is also a violation to the terms and conditions of the policy. 17. In support of the above said contention the learned advocate for opposite relied on the rulings reported in: 1) ILR 2007 Karnataka 1382 and 2) III 2009 SLT 158. These two rulings are in respect of the contravention of section 66 of the M.V. Act. Ruling cited at Sl.No.1 is of differenct case to the facts of this case. In the said case there were 60-70 passengers traveling in the tractor and trolley, which met with an accident, in that circumstances their lordships of the Honble High Court of Karnataka rejected the claim of complainant. So also the facts dealt by their lordships in the ruling cited at Sl.No-2 are different to the facts of this case. In the present case it is a case of complainant as noted in FIR and complaint filed before the police vide Ex.P-1 that, he was carrying some iron rods for construction of his house in the village. No documents out coming from the side of opposite Insurance Company to say that vehicle was loaded with iron rods for commercial purpose as a goods vehicle. In such circumstances, we are of the view that, even though it appears that, the said tractor was carrying some iron rods, but the purpose behind it was not to use the vehicle as a goods vehicle. It is not a fundamental breach of the condition of Insurance Policy. As such we rejected the contention of opposite in this regard and we are of the view that, the repudiation vide Ex.P-2 by the opposite Insurance Company is nothing but deficiency in its service, hence we answered Point No-1 accordingly by keeping in view of the principles of the rulings referred by the advocate for complainant. 18. As regard to the claim of the complainant, he sustained loss of rs. 41,851/- for repair of damages caused to the tractor in the said accident. In this regard, he submitted Ex.P-6 estimated cost of repairs issued by one V.K. Commercial Corporation, Sindhanoor and at the same time he filed cash bill Ex.P-4 for Rs. 18,615/- regarding the payment made by him. Apart from Ex.P-4 he not filed any other cash bills to say that, he spent about Rs.41,851/- as per the estimate cost Ex.P-6, as such we have not taken note of Ex.P-6 which is only estimate cost of repair, we have accepted Ex.P-4 cash bills regarding the payment made by him towards the repair of the tractor which amounts to Rs. 18,615/-. The complainant is entitled for to recover this amount from the opposite Insurance Company. 19. We have clearly noticed the deficiency in service on the part of opposite Insurance Company, as such a lumpsum amount of Rs. 3,000/- is granted to the complainant under this head. Accordingly the complainant is entitled to recover total amount of Rs. 21,615/- from opposite Insurance Company and thereby we answered Point No-2 accordingly. POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed. The complainant is entitled to recover a total amount of Rs. 21,615/- from Opposite Insurance Company. Opposite Insurance Company is hereby granted one month time to make the above payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-01-2011) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Billam Raju against the opposite United India Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to make the payment of Rs. 41,850/- towards repair charges of the tractor and trolley due to damage of the tractor and trolley in the accident and Rs. 50,000/- towards mental agony, pain and sufferings etc., with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he is the owner of Tractor bearing No. KA-36/TB-1251 and KA-36/T-8727 which was insured with opposite Insurance Company vide Policy bearing No. 240203/47/09/76/00002849 which is valid from 19-08-2009 to 18-08-2010. On 20-03-10 at about 4.00 p.m. the said tractor turned turtle on Sindhanoor to N.Hosur village which loaded with iron rods. The tractor sustained severe damage, it got repaired in VK Commercial Corporation at Sindhanoor by incurring expenditure amount of Rs. 41,851/-. The said fact was informed to opposite Insurance Company, thereafter he filed claim petition before opposite with all necessary records. But opposite shown its negligence in settling his claim, but repudiated his claim vide its letter dt. 14-05-10. Hence this complaint is filed for deficiency in service by opposites for the reliefs as prayed in his complaint. 3. The opposite Insurance Company appeared in this case through its Advocate, filed written version by contending that, the vehicle was not driven by the driver with valid licence as on the date, time and place of accident, there was an endorsement in his DL for to drive Transport/Goods Carriage. The use of the tractor was carrying iron and rods at that time which is not according to valid permit. Hence the Insurance Company repudiated the claim of complainant there was no deficiency in its service and thereby prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his tractor and Trolley bearing No. KA-36/TB-1251 and KA-36/T-8727 met with an accident on 20-03-10 on Sindhanoor N. Hosur public road which was driven by the driver with damage and effective driving licence to drive it and the said tractor was damaged in the accident he got repaired by spending amount of Rs. 41,851/- thereafter he filed claim petition before the opposite Insurance Company, but opposite Insurance Company shown its negligence in settling his claim and repudiated his claim on untenable grounds vide its letter dt. 14-05-10 and thereby opposite found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-12 are marked. On the other hand affidavit-evidence of Assistant Manager of the opposite Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked. 7. In the light of the pleadings of the parties and their respective affidavit-evidences, we have noticed some of the following facts are undisputed facts in between the parties are:- 1. It is undisputed fact that, the complainant is the owner of Tractor and Trolley bearing No. KA-36/TB-1251 and KA-36/T-8727. 2. It is further undisputed fact that, the said Tractor and Trolley insured with opposite Insurance Company vide Insurance Policy bearing No. 240203/47/09/76/00002849 and the said policy was valid for a period from 19-08-2009 to 18-08-2010. 3. It is undisputed fact that, the said Tractor and Trolley met with an accident on 20-03-10 by turning turtle while going with load of iron rods on Sindhanoor N.Hosur public road and tractor badly damaged in the accident. 4. It is further undisputed fact that, opposite Insurance Company repudiated the claim of complainant by its letter dt. 14-05-10 Ex.R-2. 8. In the light of these undisputed facts between the parties. Now let us examine the case of complainant as to whether, he proved the negligence and deficiency in service on the part of opposite Insurance Company with regard to settlement of his claim. It is a fact that, the accident took place while the Insurance Policy of the vehicle was inforce. Now we have to examine the reason for repudiation of the claim of the complainant is proper and genuine reason as noted in its letter Ex.R-2 dt. 14-05-10. In the said letter the Insurance Company stated reason for repudiation of the claim of the complainant is that, complainant not produced effective and valid driving licence to drive the vehicle as on the date, time and place, according to it, it is a breach of condition of the policy and thereby it rightly repudiated the claim of complainant. 9. On the other hand the learned advocate for complainant before us that, the driving licence Ex.P-7 which stands in the name of driver by name Shekarappa S/o. Yamunappa was holding valid and effective licence to drive the vehicle. There is a clear endorsement by the licensing authority in the DL Ex.P-7. The said endorsement came with effect from 16-03-08 therefore the driver was holding valid and effective licence to drive the vehicle. 10. Contrary to it, the opposite filed document Ex.R-3 which is an endorsement made by the additional licensing authority Rangareddy District in which he stated that, DL No. 97930/08 in respect of Shekarappa S/o. Yamunappa is not issued by his office and the learned advocate for opposite further submitted that, the document Ex.P-7, is not a proper and effective driving licence to drive the vehicle under question. 11. In the light of the submissions made on both sides and considering the documents Ex.R-3 & Ex.P-7, we are of the view that, we are not proper authorities to decide as to whether DL Ex.P-7 filed by the complainant is correct or the document Ex.R-3 filed by the opposite is correct. However the Consumer Forum can decide the above fact in favour of the complainant-consumer as Ex.R-3 came to the light only after filing of this complaint. Secondly there are no circumstances or documents forth coming from the side of opposite regarding the action taken by it with regard to validity or genuineness of Ex.P-7 when it came it to the knowledge of the fact that, no such endorsement made in. Thirdly it not filed any affidavit-evidence of the said officer to substantiate its stand. Admittedly we adopting summary procedure to find out as to whether there is any negligence on the part of opposite Insurance Company and if, the case of complainant and opposite stands 50% 50% then, the case has to be decided in favour of the consumer only and not in favour of opposite Insurance Company. Keeping in view of the prime object of the C.P. Act 1986 we decided to hold that Ex.P-7 and endorsement there in is valid and acceptable and thereby the driver of the tractor and trolley was holding valid and effective licence as on the date, time and place of the accident, accordingly we rejected the contention of the opposite Insurance Company. 12. The learned advocate for opposite filed following rulings in his support: 1) 2008 ACJ 627. 2) Xerox copy of the Appeal No. 3881/2009 of the Honble State Commission pertaining to the case of this Forum. 3) AIR 2004 SC 4882. 13. In the ruling cited at Sl.No.1 of the Honble Supreme Court of India was dealing a case in respect of driving licence of the driver to drive the LMV without any endorsement to drive Transport Vehicle. 14. In the judgment of the Honble State Commission in Appeal No. 3881/09 noted at Sl.No-2 is also of the similar situation were the driver did not posses valid and effective driving licence to drive the vehicle, that means the driver was driving goods carriage without any endorsement by the authority. Similarly the case noted at Sl.No-3 also in respect of the same facts. 15. We are of the clear view that, with great respect to their lordships of the rulings referred above. The facts noted at discussed by their lordships are different to the facts of the present case on hand. In this case we have accepted the DL of the driver Ex.P-7 as it has got endorsement by the competent authority to drive the tractor and trolley by him by rejecting Ex.R-3. 16. Another ground that was taken by the opposite in its written version which is not taken by it in repudiation letter dt. 14-05-10 is that, the vehicle was plying as a goods vehicle in which iron rods were loaded, as such it is also a violation to the terms and conditions of the policy. 17. In support of the above said contention the learned advocate for opposite relied on the rulings reported in: 1) ILR 2007 Karnataka 1382 and 2) III 2009 SLT 158. These two rulings are in respect of the contravention of section 66 of the M.V. Act. Ruling cited at Sl.No.1 is of differenct case to the facts of this case. In the said case there were 60-70 passengers traveling in the tractor and trolley, which met with an accident, in that circumstances their lordships of the Honble High Court of Karnataka rejected the claim of complainant. So also the facts dealt by their lordships in the ruling cited at Sl.No-2 are different to the facts of this case. In the present case it is a case of complainant as noted in FIR and complaint filed before the police vide Ex.P-1 that, he was carrying some iron rods for construction of his house in the village. No documents out coming from the side of opposite Insurance Company to say that vehicle was loaded with iron rods for commercial purpose as a goods vehicle. In such circumstances, we are of the view that, even though it appears that, the said tractor was carrying some iron rods, but the purpose behind it was not to use the vehicle as a goods vehicle. It is not a fundamental breach of the condition of Insurance Policy. As such we rejected the contention of opposite in this regard and we are of the view that, the repudiation vide Ex.P-2 by the opposite Insurance Company is nothing but deficiency in its service, hence we answered Point No-1 accordingly by keeping in view of the principles of the rulings referred by the advocate for complainant. 18. As regard to the claim of the complainant, he sustained loss of rs. 41,851/- for repair of damages caused to the tractor in the said accident. In this regard, he submitted Ex.P-6 estimated cost of repairs issued by one V.K. Commercial Corporation, Sindhanoor and at the same time he filed cash bill Ex.P-4 for Rs. 18,615/- regarding the payment made by him. Apart from Ex.P-4 he not filed any other cash bills to say that, he spent about Rs.41,851/- as per the estimate cost Ex.P-6, as such we have not taken note of Ex.P-6 which is only estimate cost of repair, we have accepted Ex.P-4 cash bills regarding the payment made by him towards the repair of the tractor which amounts to Rs. 18,615/-. The complainant is entitled for to recover this amount from the opposite Insurance Company. 19. We have clearly noticed the deficiency in service on the part of opposite Insurance Company, as such a lumpsum amount of Rs. 3,000/- is granted to the complainant under this head. Accordingly the complainant is entitled to recover total amount of Rs. 21,615/- from opposite Insurance Company and thereby we answered Point No-2 accordingly. POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed. The complainant is entitled to recover a total amount of Rs. 21,615/- from Opposite Insurance Company. Opposite Insurance Company is hereby granted one month time to make the above payment. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-01-2011) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.