BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H.Prasad,,B.A.,LL.B. President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Tuesday the 23rd day of July, 2008
C.C.No. 110/07
Between:
Y. Subba Reddy, S/o. Y. Anki Reddy,
R/o.45-142-44/3, Road - 8, Sri Venkataramana Colony, Kurnool District.
… Complainant
Versus
The New India Assurance Company Limited, Represented by its Divisional Manager,
H.D.C.T. Compex, Kurnool
… Opposite party
This complaint is coming on this day for orders in the presence of Sri. P. Siva Sudharshan, Advocate, for the complainant, and Sri. P. Ramanjaneyulu, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.110/07
1. This case of the complainant is filed U/s 11 and 12 of C.P.Act, seeking direction on the opposite party to pay to the complainant Rs.8 lakhs with interest at 12% p.a from the date of accident , Rs.1 lakh towards mental agony , Rs.5,000/- as cost of this case alleging deficiency on the part of the opposite party in repudiating , without any reasonable and lawful excuse , the claim arising on account of fire accident to the complainant’s lorry No.AP21-W-1195, with load of cotton bales, covered under policy No.611500/31/04/06198 on 24-5-2005 at 8-30 or 9-00 p.m on Dhoole - Surat highway .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party has caused their appearance and contested the case by filling written version denying its liability to the complainants claim as the vehicle of the complainant covered under above stated goods carrying commercial (open) policy “B” package , carried an excess load of 1238 kgs over the permitted of 16,770 kgs in violation of terms and conditions of policy , at the time of said accident and the said excess loading caused the fire accident to the lorry of the complainant .
3. In substantiation of the contentions while the complainant’s side has relied upon documentary record in Ex.A1 to A 10 and his sworn affidavit in reiteration of his case , the opposite party side has taken reliance on documentary record in Ex.B1 to B.6 and its sworn affidavit in support of its defence.
4. Hence, the point for consideration is whether the complainant has made out the liability of the opposite party to the complainant’s claim.
5. The Ex.A1 is the certified copy of panchanama of place of accident lorry at the place of occurrence . The police of SAAR registered a case in crime No.7/05 for said accident . The afore said panchanama followed with an English translation, envisages the occurrence of fire accident to the lorry and its load on account of friction between of metal seals of cotton bales loaded in said lorry. The Ex.A2 , is the statement of M.A. Rasool the driver of the accident lorry bearing No.AP 21W 1195 – recorded by police Sakri of Dhoole District. It says the fire accident occurred to said lorry while he was driving the said vehicle on Surpan – Sakri road and his efforts to put off the fire failed and hence the fire services attended put of the file and no foul play is in said fire accident to said lorry carrying cotton bales loads. The Ex.A3 is certificate issued by officers of Dhoole, Mahanagar corporation followed with its English translation says the fire accident on 24-5-2005 to lorry No.AP 21 W 1195 with load of cotton bales was put of by its fighter , Ex.A4 is the certificate issued by grampanchayat Sakri followed with English translation says the fires service sakri put of the fire to said cotton load lorry and Rs.3,766/- was charged vide Ex.A6 for the said service. The facts envisaged in the above said material was not disputed by the opposite party either denying the very fire accident or the bonafidees of the above said material. Hence, from the above said material what remains clear beyond doubt is that the said lorry loaded with cotton bales met fire accident on account of friction between the metal seals of the cotton bundles and hence no foul play was involved in it.
7. From the Ex.A8 repudiation letter dated 8-10-2006 of the opposite party , it appears that the claim of the complainant for said fire accident was repudiated on the reason that the said lorry was carrying a load of 1,238 kgs in excess to the permissible one of 16,770 kgs, in violation of terms of permit and RC of the vehicle of policy terms and conditions . The Ex.A9 – insurance policy covering the risk to the said lorry No.AP 21 W 1195 for the period of one year i.e. from 28-2-2005 to 27-2-2006 says that for the coverage of the policy the said lorry must be used under a permit within the meaning of the motor vehicle Act .
8. Even though from the Ex.A5 – confirmation endorsement of sakri police – the R.C. & D.L were reported as burnt in said fire accident to the said lorry – from the Ex.B2 Xerox of policy of said vehicle filed by the opposite party – the unladden weight of said vehicle as 8,230 kgs at the gross weight of said vehicle as 25,000 kgs and so the net loading capacity of the said vehicle should not exceed 16,770 kgs ( i.e. 25,000 -8,230 kgs) as mentioned in Ex.B3 permit pertaining to said vehicle . While such is so as per Ex.B4 and B5 the weight of the load carried in said lorry is 17,758 kgs . Thus it remains clear that the said lorry of the complainant is carrying an excess load of 988 kgs i.e., (17,758 – 16,770) over permissible load under permit.
9. Proviso to Rule 399 (2) MV Act says that no goods vehicle shall be deemed to have contravened the laden weight restrictions , if the excess weight is not more than 5% of the permitted laden weight . So an allowance of further weight of 8.38.8 kgs ( ie 16,770 x 5/100) to 16,770 kgs permissible weight totaling an extent of 17,608/- kgs remains permissible . But here the weight of load carried in said lorry being 17,758 kgs as per Ex.B4 and B5 , the excess load carried therein than the permissible under supra stated allowances remains at 150 kgs. Hence the said carrying of excess load of 150 kgs in said lorry undoubtedly remains as one in violation of permit and RC .
10. The Hon’ble National Consumer Disputed Redressal Commission New Delhi, in New India Assurance Company Limited Vs Surendra Singh Khuranna – reported in II ( 2006) CPJ 43 NC – holds violation of MV Act could be termed as breach of warrant only and claim should be settled on non stranded basis i.e., 75% basis of the admissible claim and any non settlement under the pretext that the violation of MV Act and Rules , amounts to violation of policy conditions.
11. So the repudiation of the complainant’s insurance claim by the opposite party on pretext of lorry carrying excess load in violation of policy conditions , remains not justifiable .
12. The Ex.B1 survey report asses the loss on repair basis to Rs. 7,60,000/- and on total loss basis to 7,98,500/- while the insured declared value was Rs.8,00,000/- as per B6 policy .
13. As stated in the supra paras a violation of MV Act provisions amounts to a mere breach of warranty and the claim should be settled in such cases on standard basis at 75% of admissible claim and the loss on total loss basis as was assessed in Ex.B1 surveyor’s report at Rs.7,98,500/- arrived at consideration of several applicable factors and being near to the IDV of Rs.8,00,000/- and thus said Rs.7,98,500/- in view of the total loss basis as remaining admissible claim of the complainant the claim on non standard basis settle at Rs.5,98,875/- i.e, ( Rs,7,98,500 x 75/100) .
- Instead of settling the insurance claim of the complainant on non standard basis as the opposite party repudiated the claim vide Ex.A8 and ensured not only mental agony to the complainant but also driven the complainant to the forum for redressal , the opposite party is remaining liable for said deficient conduct to pay to the complainant Rs.5,000/- as compensation and Rs.3,000/- as cost of this case.
15. consequently, the case of the complainant is allowed directing the opposite parties to pay to the complainant Rs.5,98,875/- towards settlement of claim on non standard basis , Rs.5,000, and 3,000/- as compensation for mental agony cost of the case respectively within a month of receipt of this order. In default the supra stated award amount shall be payable by the opposite party to the complainant with 9% interest p.a from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 23rd day of July, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Spot Panchanama in manatt along with English Translation
(No. in 3 papers)
Ex.A2. Statement of C. Murthuja.
Ex.A3. Letter, dated 30-5-2005 of Manager, Dhoole Mahanagar Corporation.
Ex.A4. Receipt, dated 27-5-2005 of Gram Panchayat, Sakri, Dhoole District.
Ex.A5. Letter, dated 27-5-2005 of PHC Dahawel Doorkshetram..
Ex.A6. Receipt, dated 26-5-2005 issued by Dhoole Mahanagar Palika.
Ex.A7. Office copy of legal notice, dated 10-7-2006.
Ex.A8. Repudiation letter, dated 8-10-2006.
Ex.A9. Policy Copy.
Ex.A10. Bill, dated 7-6-2005 as to the purchase of spare parts, labour charges.
List of exhibits marked for the opposite parties:
Ex.B1. Survey report of S. Datta & Company (No. in 13 papers)
Ex.B2. Xerox copy of certificate of registration.
Ex.B3. Form of N.P.P.U.C.
Ex.B4. Receipt, dated 22-5-2005 for Rs.26,000/-
Ex.B5. Way bill , dated 22-5-2005 (No. in 3 papers)
EX.B6. Policy copy along with terms and conditions.
Sd/- Sd/-
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 party.
Copy was made ready on :
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Copy was posted on :
