BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri. T.SundaraRamaiah, B.Com B.L., President

And

Sri.M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Monday the 29^th day of October, 2012

C.C.No.151/2009

Between:

S.Hassan,

S/o S.Mabusaheb,

H.No.3-33,

IskalaVillage,

PamulapaduMandal,

Kurnool-518 002.         …Complainant

                                                    -Vs-      

The Oriental Insurance Company Limited,

Represented by its Divisional Manager,

Bhupal Complex,

Post Box No.33,

Kurnool – 518 001.                                                                            ...Opposite ParTy

This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate for complainant and Sri.V.Victor Augustine, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri.M.Krishna Reddy, Male Member)                                                             C.C. No.151/2009

1.     This complaint is filed under section 11 and 12 of C.P. Act, 1986 praying:-

1. To direct the opposite party to pay the complainant a sum of Rs.3,45,218/- as estimated by the Mahabbob Auto Mechanical Workshop Complainant;

1. To award Rs.50,000/- towards compensation for causing mental agony and for hardship to the complainant;
2. To award interest at the rate of 36% per annum from the date of the accident;

1. To award cost of the complainant;

And

1. To pass such other relief or reliefs as the HonourableForum may deem fit and proper in the circumstances of the case.

2.    The case of the complainant in brief is as under:-The complainant is the registered owner of the lorry bearing registration No.AP21 W 1515.  The said vehicle is insured with opposite party and the policy was inforce from 10-05-2007 to 09-05-2008. The said policy is a comprehensive policy covering risk of the vehicle damages. The said vehicle met with an accident on 23-12-2007. In the said accident the lorry sustained major damages. After the accident the complainant informed about the accident to opposite party. The opposite party obtained estimation of the damage of the vehicle from Mahaboob Auto Mechanical Workshop, Atmakur for Rs.3,49,218/-. The OP did not settle the claim of the complainant, and repudiated the claim alleging that the driver M.D.Hussain was driving the vehicle in the state of Intoxication. Hence the complaint.

3.     Opposite party filed written version stating that the complaint is not maintainable.  The lorry bearing No.AP21 W 1515 met with an accident on 23-12-2007 at Vemagiri Junction of Dowleswaram of East Godavari while its driver was driving the said vehicle in rash and negligent manner.  At the time of accident the driver and the cleaner of the lorry were fully drunk.  The driver allowed nineunauthorized passengers to travel on the load.Five out of them died due to the injuries received in the accident.  The driver allowed unauthorized passengers.  The company is not liable to pay any compensation as the driver was driving the lorry under intoxication mood.  No request was made by the complainant for final surveyor.  The estimate submitted by the complainant is not valid. As no final survey was carried out the complaint cannot be granted any compensation.  There is no deficiency of service on the part of the opposite party.  The opposite party rightly repudiated the claim of the complainant.  The complaint is liable to be dismissed. 

4.     On behalf of the complainant Ex.A1 to A7 are marked and sworn affidavits of the complainant and third party affidavits of Sri.Shamsheer and Sri.M.D.Hussain are filed. On behalf of the opposite party Ex.B1 and B2 are marked and sworn affidavit of opposite party is filed.

5.     Both sides filed written arguments.

6.     Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of Opposite Party?

1. Whether the complainant is entitled for the reliefs as prayed for?

1. To what relief?

7.      Point No.1 & 2:It is the case of the complainant that he is the owner of the lorry bearing registration No.AP21 W 1515. Ex.A1 is the registration certificate of the vehicle bearing No.AP21 W 1515.  Its stands in the name of the complainant. It is the further case of the complainant that he insured the vehicle with opposite party and that the opposite party issued Ex.A2 policy.  It is mentioned in Ex.A2 policy that it was inforce from 10-05-2007 to 09-05-2008.   The vehicle bearing No.AP21 W 1515 met with an accident on 23-12-2007 Vemagiri Junction of Dowleswaram, East Godavari is not under dispute. Admittedly after the accident on the intimation given by the complainant a spot surveyor by name Sri.K.S.Chiranjeevi was appointed.  He visited the damaged vehicle and submitted the report Ex.B2. 

8.     Admittedly the complainant submitted the claim after the accident.  The opposite party repudiated the said claim stating that at the time of the accident the drive of the vehicle was under the influence of liquor.  Ex.A6 is the repudiation letter.  In the affidavit filed on behalf of the opposite party it is mentioned that the driver of the vehicle was under influence of liquor at the time of the accident.  In the policy Ex.B1 it is mentioned that the company is not liable to make any payment for any accidental loss or damage suffered while the driver with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.  It is not the case of the opposite party that the complainant was also there in the lorry at the time of the accident.  There is no evidence that the complainant had knowledge that his driver was under the influence of intoxicating liquor at the time of accident.  It is also the case of the opposite party that at the time of accident there were 9 unauthorized passengers on the load of the vehicle and that 5 out of them died on the spot.  The opposite party filed Ex.B2 spot surveyors report.  It is mentioned the NewsPaper attached Ex.B2 that 5 coolies who were on the load of the lorry fell down and died.  Admitted there was a load in the lorry at the time of the accident.  There is clearly mention in the News Paper that the persons who died due to the accident were coolies engaged to unload the load.  It is not establishd by the opposite party that the personswho died in the accident are unauthorized passengers. 

9.     The complainant filed the present complaint claiming compensation of Rs.3,49,218/-.  It is the case of the opposite party that the complainant did not spend any amount to affect the repairs and that the opposite party is not liable to pay any amount to the complainant.  The complainant simply filed copy of estimate Ex.A7 issued by Mahaboob Auto Mechanical Workshop, Atmakur.  No evidence is placed by the complainant to show that he got his damaged vehicle repaired in the workshop.   It is the case of the opposite party that no final survey was carried out and no assessment was made by the licensed surveyor.  It is not the case of the complainant that final surveyor was carried out.  There is no material on record to show that the opposite party appointed a final surveyor.   The complainant also failed to establish that he got his vehicle repaired.  Therefore the opposite party cannot be directed to identify the alleged loss suffered bythe complainant.  No deficiency of service on the part of the opposite party is established by the complainant.  The opposite party is not liable to pay any amount to the complainant. 

10.    In the result, the complaint is dismissed without costs.

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 29^thday of October, 2012.

Sd/-                     Sd/-                              Sd/-

MALE MEMBER            PRESIDENT                 LADY MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant:Nill             For the opposite party:Nill

List of exhibits marked for the complainant:-

Ex.A1                Photo copy of Certificate of Registration dated 22-05-2004.

Ex.A2                Photo copy of Policy bearing No.41130031/2008/2141.

Ex.A3                Photo copy of Driving License issued dated 05-06-1996

Ex.A4                Photo copy of Motor Claim Form.

Ex.A5                Photo copy of F.I.R in Crime No.224/2007 of Dowlaiswaram

                P.S. dated 23-12-2007.

Ex.A6                Photo copy of Repudiation Letter dated 28-03-2009.

Ex.A7                Photo copy of Estimation Report issued by Mahaboob Auto

Mechanical Work Shop, Atmakur, Kurnool District.

List of exhibits marked for the opposite party:-

Ex.B1                Photo copy of Insurance Policy bearing

                No.411300/31/2008/2141 with conditions.

Ex.B2                Photo copy of Motor Spot Survey Report prepared by

                Licenced Surveyor Sri.K.S.Chiranjeevi dated 01-01-2008.

Sd/-                     Sd/-                              Sd/-

MALE MEMBER                 PRESIDENT                   LADY MEMBER

    // Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties  :

Copy was made ready on             :

Copy was dispatched on               :