BEFORE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 616 OF 2012 AGAINST C.C.NO.154 OF 2011 DISTRICT CONSUMER FORUM KURNOOL
Between
Mohammed Salem S/o R/o D.No.5-120,
Osmania College Road, Kurnool Dist.
Appellant/complainant
The Oriental Insurance Co., Ltd
P.B.No.33, D.No.40-383,
Respondent/opposite party
Counsel for the Appellants M/
Counsel for the Respondent M/s
QUORUM:
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
MONDAY THE TWENTY FIFTH DAY OF MARCH
TWO THOUSAND THIRTEEN
Oral Order per ***
1. The complainant is the appellant. He filed complaint seeking for damages of `3,25,000/- with interest @12% p.a. from 20.08.2010 and `20,000/- towards compensation for suffering mental tension and costs of `10,000/-.
2. The appellant is the owner of got the vehicle insured with the respondent-insurance company under insurance policy bearing number 433100/31/2010/5070 for the for the period from 15.02.2010 to 14.02.2011. The car met with accident on 20.08 and the car was damaged
3. The appellant intimated the accident and lodged claim with the respondent -insurance company. The appellant was said to have informed that the surveyor assessed the loss at `3
4. The respondent- insurance company has resisted the claim on the premise that the during the course of of the claim it was revealed that the vehicle was hired to The respondent informed the appellant that matter was referred to its regional office. It is contended that the vehicle was insured for and private car package policy was issued and contrary to the terms of the insurance policy and provisions of APMV Rules, the appellant let the vehicle on hire to There was no deficiency in service on the part of the appellant-insurance company.
5. The appellant filed his affidavit and the documents, ExA1 to A9. On behalf of the respondent - insurance company, its Divisional Manager filed his affidavit and the documents, ExB1 to B4.
6. The District Forum allowed the complaint on the premise that use of the vehicle for transport purpose is not a fundamental breach of terms of the policy and the appellant had not filed any documentary evidence to show that he incurred an amount of `3,25,000/-.
7. The complainant filed appeal contending that the District Forum awarded an amount of `50,000/- against his claim for `3,25,000/- and that the respondent had not filed the surveyor’s report though notice was issued by the appellant.
8. The learned counsel for the appellant has filed written submissions.
9. The point for consideration i) Whether the first respondent violated the terms of the insurance policy?
ii) Whether appellant is entitled to 3/4th of `3
iii) To what relief?
10. POINT NO.1: The appellant-insurance company issuing insurance policy bearing Number 433100/31/2010/5070 in respect of car bearing number AP 03 AF 1399 pertaining to the appellant for the period from 15.02.2010 till 14.02.2010 and occurrence of accident on 20.08.2010 involving the car wherein its driver, four other persons sustained injuries and the intimation of the accident by the respondent and deputation of surveyor for assessment of loss caused to the vehicle are the facts which need no discussion in view of the admission of by both the respondent -insurance company and the appellant.
11. The appellant filed claim on 6.09.2010 with the respondent–insurance company stating that the vehicle met with accident on 20.08.2010 while proceeding from Kurnool to Hyderabad when the driver attempted to avert hitting cattle which came running on the road and the vehicle hit to the bridge and it was damaged. The purpose for which the vehicle was used at the time of the accident was answered as “domestic purpose’. The appellant filed copy of his statement made before the police wherein he stated that the driver drove the car in rash and negligent manner resulting in occurrence of the accident.
12. The investigator appointed by the respondent mentioned his report that the appellant informed him that he let the car on hire to in writing that he had used the vehicle on hire on the date on which accident occurred and the letter reads as follows:
“My family had hired the vehicle no.AP.03.Af-1399 for the visit of Hyderabad and when going to Hyderabad on 20.08.2010, the accident took place in the limits of
1. No, I am not the owner of vehicle.
2. Hired Vehicle.
3. Hired the vehicle at the time of accident.
4. I hired the vehicle AP 03 AF 1399,
No advance has been paid
5. Driver drove the vehicle with rash and negligent manner. Due to his negligence the accident occurred”
13. The learned counsel for the appellant has relied upon the decision of the
14. The contention of the counsel holds no water in any of the grounds of appeal is there any mention or challenge to the letter issued by the inspector of the police who hired the car and also in the absence of challenge of the finding of the District Forum that the vehicle was used on hire at the time of the accident. Further, it is urged in the appeal that the claim be considered on non-standard basis. Therefore, the decisions are not applicable to the facts of the case or the appellant cannot pray for their application on one hand and on the other hand accept the violation of the terms of the insurance policy.
15. The appellant let the car on hire and lodged claim that the vehicle was used for domestic purpose. Thus, the appellant violated the terms of the insurance policy which reads as under:
1. “The policy covers use of the vehicle for any purpose other than a Hire or Reward
B) Carriage of goods (other than samples or personal luggage) …..
16. In view of letting the vehicle on hire on the date of accident, the appellant floated the terms of the insurance policy. The point is answered against the appellant.
17. POINT NO.2: The appellant lodged claim without enclosing thereto the estimate for repairs of the car. The appellant got issued notice to the respondent on 1.05.2011 without making any mention of the repair of the car. The notice does not contain the particulars of the workshop and the parts damaged as also the parts of the car to be replaced with etc. The District Forum has elaborately dealt with the failure of the appellant to produce the evidence in support of his claim as follows:
“It is argued by the learned counsel appearing for the complainant that though there is violation of the condition of the policy regarding nature of use of vehicle the claim cannot be rejected in In support of his contention he relied on decision reported in II (2010) CPJ 9 (SC). In the said decision the basis. In the present case the complainant claims damage of Rs.3 The complainant did not place any documentary evidence to show that he got repaired his vehicle by spending an amount of RS.3 There is also no evidence to show that a final surveyor visited the vehicle of the complainant and assessed the net loss. The complainant did not mention in his complaint the name of the surveyor said to have been appointed by the opposite party to assess the loss. ”
18. The appellant even at the time of filing the appeal has not chosen to file cash receipts showing the actual amount he incurred for getting the car repaired. Anywhere in the complaint or in his affidavit the name of the repairer, estimated amount and the actual amount incurred for repairing of the car is not found mention. All through the appellant is harping on the respondent’s failure to produce the surveyor’s report. It is for the appellant to prove his claim on the basis of cogent evidence which he failed to do at any stage of the case.
19. The respondent had not filed the surveyor’s report and it did not deny that there was survey done and the final surveyor submitted his report assessing the loss at `3`3
20. In the backdrop of the appellant’s failure to produce the evidence to establish the estimate or expenditure incurred for repair of the car, the office note sent by the respondent to its regional office attains importance as its copy is placed on record by the respondent as ExB3 which has reference to the estimate made by the final surveyor as under:
“The above vehicle met with an accident on 20th August, 2010 near The final surveyor has recommended for Rs.3
Based on the above, DCC, Kurnool vide its note Dated 12th October, 2010 had recommended for settlement of claim on cash loss basis for Rs.3,25,000/- and sent the claim file vide its covering letter together with claim th October 2010 to
21. Thus, the amount assessed as loss by the surveyor can be taken as `3
22. In The Supreme Court approved the decision of the National Commission in New India Assurance Company Limited For benefit we the same hereunder :
14. In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. The said guidelines are set out below:-
S.No. | Description | Percentage of settlement |
(Under declaration of licensed Carrying capacity | Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher. |
(ii) | Overloading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claim. |
(iii) | Any other breach of warranty/condition of policy including limitation as to use. | Pay up to 75% of admissible claim. |
15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.
16. In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident. Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in
23. In the light of the aforementioned decision the appellant insurance company has to settle the claim of the respondent on non-standard basis. The surveyor has assessed the damage caused to the insured vehicle at `3 As per the decision of the Three fourth of `3`2,40,375/- to which the appellant is entitled to. Accordingly, the appeal deserves to be allowed the amount from `50,000/- to `2,40,375/- The appellant is entitled to interest @9% p.a. on the amount from the date of filing the complaint.
24. In the result the appeal is allowed. The order of the District Forum is modified. Respondent-insurance company/opposite party is directed to pay `2,40,375/- with interest @9% p.a. on the amount from the date of filing the complaint till payment together with costs of `3,000/-.
MEMBER
MEMBER
Dt.25.03.2013
కె.ఎం.కె.*
