BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Wednesday the 21st day of December, 2005.
CD No. 89/2005
M.Obulesu, S/o M.Chennappa, aged about 35 years,
R/o Door.No.9-16-124, S.V.Nagar, Allagadda, Kurnool Dist.
. . . Complainant
-Vs-
The New India Assurance Co.Ltd.,
Rep. by its Divisional Manager,Kurnool. . . . Opposite party
This complaint coming on 14.12.2005 for arguments in the presence of Sri V.V.Augustine, Advocate, Kurnool for complainant and Sri V.Nagalakshmi Devi, Advocate, Kurnool for opposite party, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per R. Ramachandra Reddy, Hon’ble Member)
1. The Consumer Disputes Case of the complainant is filed under section 12 A of C.P Act, 1986 seeking a an award in favour of the complainant from the opposite party to pay an amount of Rs. 42,441/- which he spent for actual repairs, replacements and labour charges, with future interest at the rate of 12% per annum, Rs.10,000/- for mental agony along with costs of this complaint.
2. The brief facts of the complainant’s case are that on 4.7.2002 at about 10 A.M he was driving his Ape Pick up van bearing No. AP 21 –U- 8349 from Alamur Village with a load of vegetables and its owners to Allagadda Town and carry pesticide bags from Allagdda to Almaur Village. While it was so, a Jeep bearing No. AAY – 3047 was being driven at a very high speed and in rash and negligent manner in opposite direction from Allagadda side and came and dashed against the Ape Pick up van bearing No. AP 21 –U- 8349 that was being driven by him on extreme left side. As a result of the collision he sustained injuries and his said pick van was extensively damaged. He was admitted in Govt. Hospital, Allagadda, thereafter he was shifted to Govt. General Hospital, Kurnool, for treatment of fracture and surgery. The Allagadda town Police Station registered a case in crime No. 72/2002 U/Sec. 337, 338 and 304(a) IPC against the driver of the crime vehicle i.e Jeep bearing No. AAY – 3047 and the driver of the Jeep D. Bala Obulesu is being prosecuted for the above offences by J.F.C.M. Allagadda the damaged Ape Pick up van bearing No. AP 21 –U- 8349 belonging to him (complainant) was towed from the accident site to Sambala Motor Carriage, Kurnool. Where the said van was surveyed by the insurance surveyor and repair and replacements of various components took place and about the above said accident, he gave immediate information to the opposite party and submitted copy of F.I.R., R.C, D.L., Policy of Insurance along with a claim form. He also submitted a list of damaged parts and estimates by the carriage mechanic. The opposite party immediately sent its surveyor and got the damaged said vehicle inspected and surveyed. The Surveyor’s report along with repair/ replacement recommendations made by the surveyor are directly submitted to the opposite party by the surveyor. Further Sumbala Motor Carriage which under took repairs and replacement submitted the relevant bills towards the repairs, re-placement of the components and labor charges relating to said vehicle. Further he approached the opposite party several times for getting his claim processed. The opposite party had been deliberately evading the settlement of his claim on some pretext or the other. Finally when he approached the opposite party for settlement of his claim for damages he was informed by the opposite party that he his not entitle for settlement of his claim for damages. Even the opposite party has sent a letter dated 5.3.2003 stating that his claim under the insurance policy bearing No. 611500/31/02/00408 is closed, the above mentioned letter dated 5.3.2003 was sent under RL No. 2607 on 06.3.2003 and the same was received by him on 9.3.2003 . The above said comprehensive policy which he insured with the opposite party is valid from 11.5.2002 to 10.5.2003 and the above said accident took place on 4.7.2002 which was within the valid period of the said insurance and the closure of his claim without any justifiable grounds is only nefarious attempt on the part of the opposite party to cook up imaginary and flimsy grounds to deny the right full settlements of a claim of him and this is clearly a case of deficiency on the part of the opposite party.
3. In pursuance of the service of the notice of this Forum as to this case of the complainant the opposite party contested the case through his counsel by filing its written version and sworn affidavit denying any of its liability.
4. The written version of the opposite party, even though admit the accident of the said vehicle pertaining to the complainant i.e on 4.7.2002 which was within the valid period of the policy, which covers from 11.5.2002 to 10.5.2003. As the actual state of affairs pertaining to the case are as the vehicle involved in the alleged accident is registered by the complainant as a goods carrying transport vehicle on the policy issued by this opposite party also accordingly covers the same as a goods carrying vehicle. As per the terms and conditions of the policy issued, the vehicle should not be used for carrying passengers. The contents of F.I. R clearly state the vehicle was not carrying any goods on the other hand was carrying several passengers. This is a clear violation of the M.V. Act and M.V Rules as also the terms and conditions of the policy issued by this opposite party. The case of the complainant in Para No.4 that the complainant was driving his Ape Pick up van bearing No. AP 21 –U- 8349 with a load of vegetables and its owners is only an after thought and improved version to get wrongful gain. His version is against to the contents of his own document i.e. F.I.R. The perusal of F.I.R contents clearly reveals that the complainant is making hectic efforts to pose the unauthorized passengers as goods owners. Further to inform that this opposite party immediately on receiving intimation about the accident and loss from the complainant, promptly arranged for survey of damages, and assessment of loss and thereafter repeatedly reminded the complainant for submission of bills, vehicle for inspection and vehicle documents. On receiving the said information from the complainant about completion of repairs promptly arranged re-inspection survey. Upon receiving the survey reports from the surveyors, the vehicle documents, crime records from the complainant, it was observed that the complainant violated terms and conditions of the policy where as the vehicle is registered as Goods carrying Transport Vehicle and as per M.V. Act , M.V. Rules, the effective driving licence required to drive this vehicle is “AUTORICKSHAW– Transport “ where as the driver at the time of accident was holding LMV DL which is not an effective driving licence to drive the vehicle involved in the accident. Thus the complainant who himself was the driver knowingly and intentionally drove the vehicle even though he was pretty well aware that he was not authorized to drive the vehicle involved in the accident and as it is very well within the knowledge of the complainant that there is no deficiency of service at all on the part of the opposite party and rightfully repudiated the claim of the complainant in view of the afore stated two violations. At para 11 of the written version of the opposite party himself put a proposal that even inspite of the above pleadings, if the Hon’ble Forum, comes to the conclusion that the complainant is eligible for compensation, the same is to be restricted to Rs. 28,200/- only as assessed by the independent I.R.D.A, Licenced Surveyor less costs of Wiper Motor Pipe Set which the complainant has not replaced as per the report submitted by the re-inspection surveyor Mr. Narayana Swami, dated 29.8.2002.
5. In substantiation of case averments while the complainant’s side as relied upon the documentary record in Ex A.1 to A.4, besides to the sworn affidavit of the complainant in reiteration of its case and filed interrogatories of the complainant to the opposite party dated 30.9.2005, the opposite party’s side has relied upon the documentary record in Ex B.1 to B.3 and its sworn affidavit in reiteration of its defence and filed replies by the opposite party to the interrogatories of the complainant dated 21.9.2005 and on the surveyor’s report.
6. Hence, the point for consideration is whether the complainant has made out the alleged deficiency of service on the conduct of the opposite party in the repudiation of the claim so as to enable himself to the reliefs claimed.?
7. The Ex A.1 is the letter dated 5.3.2003 of the opposite party to the complainant sent by registered post stating that the claim file of the complainant has been closed on account of in effective driving licence and passengers carried in violation of policy/ permit. Hence, no claim. The Ex A.2 is the certified copy of F.I.R No. 72/02 dated 4.7.2002 under section 154 and 157 C r.P.C. wherein it is clearly mentioned that on 4.7.2002 at about 10.A.M and the statement of one P.Narasimhulu, S/o. Narasaiah R/o. Mukundapuram (V), Rudravaram (M) he himself, Chinna Vobula, Prakasham and other three ryots boarded in the trally Auto No. AP 21 U – 8349 at Alamur and he came to know that the name of the said trally Auto driver is Obulesu who drove the said vehicle. He himself and the above said five others intended to go to Allagadda to purchase pesticide bags and come back to Alamur Village. At Padakandla near the house of Narsayya, a Jeep bearing No. AYY – 3047 was being driven at a very high seeped and in rash and negligent manner in opposite direction form Allagadda and colluded with trally Auto in which all the above were traveling. The above said accident took place at about 10.30 A.M. The Ex A.3 is the certified copy of charge sheet No. 31 dated 30.9.2002 filed by Police Station, Allagadda U/s 337,338,304(A) I.P.C. The Ex A.4 are bills eight in number of SAMBALA Motors, Kurnool towards the repairs, replacement of components and labour charges relating to the said accident vehicle of the complainant.
8. The Ex B.1 is the policy No. 611500/31/02/00408 pertaining to the complainant’s Ape Pick Van No. AP 21 U 8349, the period of insurance of the said vehicle from 11.5.2002 to 10.5.2003 with conditions as to use i.e. use only for carriage goods within the meaning of the MV Act 1988 and this policy does not cover the use for carrying passengers in the vehicle except employees ( other than the driver ) not exceeding six in number coming under the per view of workmen’s compensation Act, 1923 and also mentioned in the said policy about the persons a class of persons entitled to drive i.e. any person including insured provided that a person driving holds an effective driving licence at the time of accident and such a person satisfies the requirements of rule 3 of Central Motor Vehicle Rule 1989. The Ex B.2 is the extract of driving licence of the complainant obtained from the R.T.A Nandyal, who holds L.M.V Driving licence. The Ex B.3 is the extract of FORM, 24 of B- Register of Motor Vehicle which contains vehicle Registration No. i.e AP 21 U 8349 dated 23.6.2001. The class of vehicle mentioned as Goods Carriage – L.M.V.
9. The complainant in addition to material in Ex A.1 to A.4 in support of his case and also relied on the judgment of 2001 (3) CPR 39 (NC) wherein it was observed that MAXI CAB which met with accident was having unladen weight of 1,500 Kgs and was that light Motor Vehicle and would be a Transport Vehicle and driver holding driving licence to drive a light motor vehicle was having effective driving licence, where as the said complainant’s vehicle’s unladen weight of 415 Kgs and G.V.W (R ) 975 Kgs, further the complainant in support of his case relied on the judgment of the Hon’ble Supreme Court, II (1996) CPJ 18 (SC) ( referred case 1987 (2) Sec 654) which was a Civil Appeal No. 6296 of 1995 and decided on 20.5.1996 on the decision of N.C.D.R.C where in it was observed that the “Breach of carrying human in the goods vehicle more than in number permitted in terms, the extra passengers could not have contributed the accident and insurance company has to indemnify by the damage caused to the vehicle. In this case, the Hon’ble Supreme Court discussed at length about the clause (3) of the policy which the complainant obtained is also relevant to the present case wherein the policy does not cover “ use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in numbers coming under the per view of W.C , Act , 1923 “ In the above said appeal on the judgment of Hon’ble State Consumer Disputes Redressal Commission in the said case, the Hon’ble N.C.D.R.C set aside the said order. In an appeal the Hon’ble Supreme Court in this case allowed and restored in its entirety but with out any order as to costs. The Hon’ble State Commission Consumer Disputes Redressal Commission in the above said case allowed the claim of the complainant (Appellant) to the extent of Rs. 75,700/-, the figure at which the official surveyor of the Insurance Company (Respondent) has estimated the repair charges along with interest at the rate of 18% per annum from the date of accident i.e 5.8.1991 till the date of payment.
10. In the present case also an independent I.R.D.A Licenced Surveyor assessed and restricted to Rs.28,200/- towards compensation after taking into consideration the bills eight in number produced by the complainant (Ex A.4) to which the complainant is eligible. The opposite party also has no hesitation to pay the said compensation to the complainant as per the averments at para 11 of the written version of him.
11. In the light of the above discussion and citations relied upon by the complainant, the opposite party has not placed any cogent material especially as to Rule 3 of Central Motor Vehicle Rule 1989 as to the repudiation/ no claim and hence it is clear deficiency of service on the part of the opposite party.
12. Therefore, in the result, the complainant is entitle for Rs. 28,200/- with interest at 12% per annum from the date of accident i.e. 4.7.2002 till the date of payment towards the damages of the accident vehicle of the complainant as estimated by the official surveyor of the opposite party. A sum of Rs.1,000/- also awarded to the complainant as costs, and the opposite party is granted one month time for the compliance of this order from the date of receipt.
Dictated to the stenographer, transcribed by her, corrected and pronounced in the Open Court this the 21st day of December, 2005.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
Exhibits Marked for the complainant:
Ex.A1 Letter of opposite party to the complainant by Regd. Post stating closure
of the claim Dt.5-3-2003.
Ex.A2 C.C of First Information Report (FIR) in Cr.No.72/2002
Ex.A3 C.C. of charge sheet P.S. Allagadda, Dt.4-7-2002
Ex.A4 Bills of Sambala Motors, Kurnool Numbers 8 (1 to 8)
Exhibits Marked for the opposite party:
Ex.B1 Policy No.611500/31/02/00408
Ex.B2 Extract of driving licence
Ex.B3 Extract of registration claim (Form 24, B-Register of Motor vehicle)
PRESIDENT
MEMBER MEMBER
Copy to:
- Sri. V.V.Augustine, Advocate, Kurnool
- Smt. V.Nagalakshmi Devi, Advocate, Kurnool
Copy was made ready on :
Copy was dispatched on :
Copy was delivered to parties:
