BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, 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
Wednesday the 11th day of April, 2012
C.C.No.111/2011
Between:
K.Thirumaleswara Reddy,S/o K. Bhaskar Reddy, Agriculturist,
R/o D.No.2/50, Pedda Pujarla Village - 518 222, Peapully Mandal,
Kurnool District.
…Complainant
-Vs-
The Oriental Insurance Company Limited,Represented by its Divisional Manager,
Bhupal Complex,P.B.No.33, Park Road,Kurnool - 518 001.
...Opposite ParTy
This complaint is coming on this day for orders in the presence of Sri M.L.Srinivasa Reddy, Advocate for complainants and Sri N.Isaiah, Advocate for opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri.T.Sundara Ramaiah, President)
C.C. No.111/2011
1. This complaint is filed under section 12 of C.P. Act, 1986 praying:-
- To direct the opposite party to pay Rs.1,97,193/- towards the damages caused to the tractor and trailer of complainant with interest at 12% per annum from 26-03-2010, the date of damage caused in a road accident;
- To award compensation of Rs.20,000/- for causing mental agony and inconvenience suffered by the complainant at the deficient conduct of the opposite parties;
- To award costs of Rs.10,000/-;
- To pass such other reliefs as the Honourable Forum may deem fit and proper in the circumstance of the case.
2. The case of the complainant in brief is as under:- The complainant is the owner of the Tractor and Trailer bearing No.AP21 Y 9040 and 9041. The said Tractor and Trailer of the complainant were insured with opposite party under policy bearing No.433100/31/2010/336. On 26-03-2010 the lorry bearing No.AP21 Y 5261 driven by its driver in a rash and negligent manner came in opposite direction and dashed against the Tractor and Trailer of the complainant at Reliance Dhaba on N.H.7 near Dhone. As a result the Tractor and Trailer of the complainant were damaged. The complainant submitted the claim along with relevant documents to the opposite party. The opposite party appointed a surveyor to assess the loss. The opposite party through its letter dated 04-08-2010 repudiated the claim of the complainant on the ground that there were 15 passengers in trailer of the complainant at the time of accident. The repudiation of the claim by the opposite party is untenable as the accident took place due to negligent driving of the lorry bearing No.AP21 Y 5261. There is deficiency of service on the part of the opposite party. Hence the complaint.
3. Opposite Party filed written version stating that the complaint is not maintainable. The complainant insured his Tractor and Trailer with opposite party under the policy bearing No.433100/31/2010/336. The complainant submitted the claim stating that his Tractor and Trailer were damaged in the accident that took place on 26-03-2010. The surveyor was appointed to assess the loss. The claim of the complainant was repudiated on the ground that there passengers in the trailer at the time of accident. The Tractor and Trailer of the complainant were permitted to carry only goods. There is violation of the terms and conditions of the policy. The opposite party repudiated the claim after verifying the documents. There is no negligence on the part of the opposite party. The surveyor appointed by the opposite party assessed the loss at Rs.88,500/- only. The complaint is liable to be dismissed.
4. On behalf of the complainant Ex.A1 to A3 are marked and sworn affidavit of complainant is 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:
- Whether there is deficiency of service on the part of opposite party?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i and ii:- Admittedly the complainant is the owner of the Tractor and Trailer bearing No.AP21 Y 9040 and 9041. They were insured with opposite party under policy (Ex.B2). The period of policy is from 18-04-2009 to 17-04-2010. It is the case of the complainant that his Tractor and Trailer were damaged in the road accident that took place on 26-03-2010. It is for the complainant to show that there was road accident on 26-03-2010 and in the said road accident the Tractor and Trailer of the complainant were damaged. The complainant in his sworn affidavit clearly stated that on 26-03-2010 a lorry bearing No.AP21 Y5261 driven by its driver in a rash and negligent manner came in opposite direction and dashed against the Tractor and Trailer of the complainant at Reliance Dhaba on N.H.7 near Dhone. In support of his contention the complainant also filed Ex.A2 copy of the F.I.R. in Crime No.47/2010 of Dhone Police Station and Ex.A3 copy of the Charge Sheet in C.C.No.183/2010 on the file of Judicial First Class Magistrate, Dhone. It is mentioned in Ex.A2 and Ex.A3 that on 26-03-2010 at about 8.00 P.M. a lorry bearing No.AP21 Y 5261 came in opposite direction and dashed against the Tractor and Trailer of the complainant. Admittedly on the intimation given by the complainant, the opposite party appointed a surveyor to assess the loss and the surveyor filed final report Ex.B1. The surveyor in his report mentioned about the damage caused to the Tractor and Trailer of the complainant. From the evidence available on record it is very clear that the Tractor and Trailer of the complainant was damaged in the motor accident that took place on 26-03-2010 at Reliance Dhaba on N.H.7 near Dhone.
8. The present complaint is filed claiming damages of Rs.1,97,193/-. The complainant did not produce any documentary evidence to show that he incurred an amount of Rs.1,97,193/- for repairs and spare parts. Admittedly the surveyor appointed by the opposite party filed Ex.B1 final report. The surveyor assessed the loss at Rs.88,500/- after physical verification of the damaged vehicle. The opposite party did not choose to pay the said amount to the complainant. The claim of the complainant was repudiated by the opposite party stating that the complainant violated the terms and conditions of the policy. The Tractor and Trailer of the complainant is intended to carry goods and that there were 15 passengers in the trailer at the time of the accident. Ex.A2 and Ex.A3 go to show that at the time of accident there were passengers in the trailer of the complainant. Ex.A1 is the repudiation letter dated 04-08-2010 issued by the opposite party to the complainant.
9. It is submitted by the learned counsel appearing for the complainant that the accident took place due to rash and negligent driving of the lorry bearing No.AP21 Y 5261, that there was no negligence in driving the Tractor and Trailer by its driver and that the passengers in the trailer did not contribute for causing the accident. In support of his contention the complainant filed Ex.A2 and Ex.A3 where in it is mentioned that the accident occurred due to the negligent driving of the lorry by its driver. The learned counsel appearing for the complainant argued that when the driver of the lorry caused the accident, the insurer of the Tractor and Trailer can not escape its liability on the ground that the Tractor and Trailer was used to carry passengers at the time of the accident. In support of his contention he relied on the following the decisions
1. 1999 (1) C.P.R. Page 449 Kerala S.C.
2. 2005 (3) C.P.R. Page 184 M.P. S.C.
In the present case on hand no doubt there were 15 passengers in the Tractor and Trailer of the complainant at the time of the accident. The passengers of the Tractor and Trailer did not contribute to the occurring of the accident. The accident took place due to the rash and negligent driving of the lorry. There was damage to the Tractor and Trailer of the complainant due to the accident. The passengers in the Tractor and Trailer of the complainant did not any manner contribute to the accident, which was caused solely an account of fault of the driver of the lorry. Under the circumstance the repudiation of the claim of the complainant by the opposite party was unjustified. The opposite party unnecessarily avoided to pay the damages to the complainant. There is deficiency of service on the part of opposite party. The opposite party is liable to pay an amount of Rs.88,500/- as assessed by the insurance surveyor to the complainant.
10. In the result, the complaint is partly allowed directing the opposite party to pay an amount of Rs.88,500/- to the complainant with interest of 9% from 04-08-2010 i.e., the date of repudiation of the claim, till the date of payment along with costs Rs.500/-.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 11th day of April, 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 Repudiation letter issued by OP to complainant
dated 04-08-2010.
Ex.A2 Photo copy of F.I.R. in Crime No.47/2010 Dhone P.S.
Kurnool District dated 26-03-2010.
Ex.A3 Photo copy of Charge Sheet in C.C.No.183/2010 of the
Honourable Judicial First Class Magistrate, Dhone
dated 21-04-2010.
List of exhibits marked for the opposite party:-
Ex.B1 Office copy of Motor Survey Report (Final) of
Sri M.R.Srinivasan dated 16-06-2010.
Ex.B2 Office copy of Policy bearing No.433100/31/2010/336
along with terms and conditions.
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 :
