0BEFORE THE DISTRICT CONSUMER’S 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

Friday the 20^th day of July, 2012

C.C.No.154/2011

Between:

Mohammed Salam, S/o Md.Khajamiah,

R/o D.No.5-120, Lateef Lowbali Street, Osmania College Road,Kurnool District - 518 001.                         

    …Complainant

                                                    -Vs-      

The Oriental Insurance Company Limited,Represented by its Divisional Manager,

P.B.No.33, D.No.40-383,Bhupal Complex, Park Road,Kurnool District - 518 001.                         

...Opposite ParTy

This complaint is coming on this day for orders in the presence of Sri.M.L.Srinivasa Reddy, Advocate for complainant 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.154/2011

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

1.   To direct the opposite party to pay Rs.3,25,000/- towards the damages caused to the complainant’s vehicle bearing No.AP03 AF 1399 with interest at 12% per annum from 20-08-2010, the date of damages caused in a road accident;

1.   To award compensation of Rs.20,000/- for causing mental agony and inconvenience suffered by the complainant due to the deficient conduct of the opposite parties;

1.   To award costs of Rs.10,000/-;

And

1.   To pass such other reliefs as the Honourable Forum 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 owner of the Vehicle bearing No.AP03 AF 1399.  The said vehicle was insured with opposite party under the policy bearing No.433100/31/2010/5070.  The said vehicle of the complainant met with an accident on 20-08-2010 when it was being used for domestic purpose.  The complainant submitted the claim form and all necessary documents to the opposite party to settle the claim.  The opposite party gave a reply stating that the claim of the complainant was referred to Regional Office, Hyderabad.  The complainant also got a legal notice issued to the opposite party demanding for settlement of his claim.  Inspite of receiving the legal notice, the opposite party did not settle the claim of the complainant. The complainant did not violate the terms and conditions of the policy.  Non settling of the claim of the complainant even after lapse of more than one year amounts to deficiency in service on the part of the opposite party.  Hence the complaint.

3.     Opposite party filed written version stating that the complaint is not maintainable.  It is admitted that the vehicle of the complainant bearing No.AP03 AF 1399 was insured with it.   The complainant submitted the claim stating that his vehicle met with an accident on 20-08-2010. Immediately after receipt of claim of the complainant, the opposite party appointed an advocate investigator to investigate the claim.  During the course of investigation the investigator contacted Sri D.Muralidhar, Inspector of Police who lost his daughter in the said accident.  The said Sri D.Muralidhar in his statement in writing stated that he hired the vehicle of the complainant on the date of accident and he agreed to pay Rs.10/- Pr Kilometer.  The vehicle of the complainant is registered as Non transport vehicle.  The complainant violated the terms and conditions of the policy and sent the vehicle on hire to Sri.D.Muralidhar.  As the complainant violated the terms and conditions of the policy he is not entitled to any amount from the opposite party.  There is no negligence or deficiency of service on the part of the opposite party.  The complaint is liable to be dismissed. 

4.     On behalf of the complainant Ex.A1 to A9 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite party Ex.B1 to Ex.B4 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.      POINTS i and ii:-  Admittedly the complainant is the owner of the car bearing No.AP03 AF 1399.  The said vehicle of the complainant was insured with the opposite party under original of Ex.B4 policy.  The policy was in force from 15-02-2010 to 14-02-2011.  It is the case of the complainant that on 20-08-2010 his vehicle met with an accident near Kandur Village Shiver on N.H-7 Road.  The complainant to prove that his vehicle met with an accident relied on Exs.A5 to Ex.A7.  Ex.A5 is the copy of F.I.R. in Crime No.122/2010.  Ex.A7 is the copy of Charge Sheet in Crime No.122/2010.  As seen from Ex.A5 to Ex.A7 it is very clear that on 20-08-2010 at 8.10 A.M., the vehicle of the complainant dashed against the bridge near Kandur Village Shiver on N.H-7 Road.  The complainant also in his sworn affidavit clearly stated that his vehicle met with an accident on 20-08-2010.  Admittedly after receiving the information the opposite party appointed an Advocate Investigator to investigate into the accident in Crime No.122/2010 of Addukal Police Station and submitted the report Ex.B1.   There is satisfactory evidence on record to show that the vehicle of the complainant met with an accident on 20-08-2010.

8.     The complainant who is the owner of the Car bearing No.AP03 AF 1399 filed the present complaint claiming damages of Rs.3,25,000/- alleging that his vehicle was damaged in the accident.   It is the case of the opposite party that the vehicle of the complainant is a Non transport vehicle, that the complainant sent the said vehicle on hire to Sri.D.Muralidhar, Inspector of Police, Kurnool on the date of the accident and that the opposite party is not liable to pay any amount to the complainant.  The complainant in his affidavit has stated that on the date of the accident the vehicle was used for domestic purpose.  Admittedly the family members of the complainant were not there in the car at the time of the accident.  It is evident from the contents of Ex.A5 to Ex.A7 that the family members of Sr.D.Muralidhar, C.I., of Police, Kurnool were there in the vehicle at the time of the accident.  The opposite party filed Ex.B1 Investigation Report and Ex.B2 Clarification Letter dated 24-11-2010given by Sri.D.Muralidhar, Inspector of Police, Kurnool.  In the said letter Ex.B2 it is clearly mentioned that Sri.D.Muralidhar, Inspector of Police hire the vehicle bearing No.AP03 AF 1399 of the complainant on                 20-08-2010 to send his family from Kurnool to Hyderabad.  He also stated that it was hired for Rs.10/- Per Kilometer.  Ex.B2 letter contains the office stamp of the Inspector of Police, District Special Branch, Kurnool.  It is submitted by the learned counsel appearing for the complainant that the opposite e party did not file affidavit of Sri.D.Muralidhar to prove Ex.B2.  Admittedly investigator was appointed after the accident.  Ex.B1 is the investigation report in the investigators report it is clearly stated that the investigator contacted Sri.D.Muralidhar, Inspector of Police and enquired him about the accident.  Simply because the affidavit of said Sri.D.Muralidhar, Inspector of Police, Kurnool is not filed it cannot be said that Ex.B2 was not issued by Sri.D.Muralidhar, Inspector of Police, Kurnool.  There is no necessity for the investigator to fabric to Ex.B2 letter.  It is also argued by the learned counsel appearing for the complainant that Sri.D.Muralidhar and his wife also filed M.V.O.P. No.172/2011 on the file of the Motor Accident Claims Tribunal, Kurnool and in the said petition no mention is made that the vehicle of the complainant was hired by Sri D.Muralidhar on the date of the accident. Ex.A8 is the copy of the petition in M.V.O.P.No.172/2011 on the file of the Motor Accident Claims Tribunal, Kurnool.  In the said petition there is no mention as to how Sri D.Muralidhar’s family members secured the vehicle of the complainant.  There is a clear evidence on record that on the date of the accident the complainant sent his vehicle on hire.  Admittedly the vehicle of the complainant is a non transport vehicle. He is not allowed to send the said vehicle on hire.  The complainant violated the terms and conditions of the policy and sent the vehicle to 3^rd party on hire.  

9.     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 toto.  In support of his contention he relied on decision reported in II (2010) CPJ 9 (SC).  In the said decision the Honourable Apex Court held that the repudiation of claim in toto is unjustified even though there is violation of the policy conditions regarding nature of use of the vehicle and the claim ought to be settled on non standard basis.  In the present case the complainant claims damage of Rs.3,25,000/-.  The complainant did not place any documentary evidence to show that he got repaired his vehicle by spending an amount of Rs.3,25,000/-.  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 the surveyor said to have been appointed by the opposite party to assess the loss.  During the course of investigator the complainant gave a notice to the opposite party counsel to cause production of surveyor report.  The opposite party did not respond on the said memo.  Merely because the opposite party failed to produce the surveyor report, the complainant is not entitled for damages of Rs.3,25,000/-.  No doubt there is evidence on record to show that the vehicle of the complainant met with an accident and there was damage to the vehicle of the complainant to some extent.   There is no mention in the complaint that he spent Rs.3,25,000/- to get his vehicle repaired.  The complainant did not mention in his complaint the garage where he got his vehicle repaired.  The bills showing the purchase of the spare parts etc., to get his vehicle repaired, are not filed.  In the absence of clear evidence it is not possible to award damages of Rs.3,25,000/- as claimed by the complainant.  The accident took place on 20-08-2010.  The opposite party even after receiving the legal notice got issued by the complainant did not settle the claim of the complainant.  There is deficiency of service on the part of opposite party.  In the facts and the circumstances of the case we direct the opposite party to pay consolidated sum of Rs.50,000/- even though the complainant claimed an amount of Rs.3,25,000/-. 

10.    In the result, the complaint is partly allowed directing the opposite party to pay damages of Rs.50,000/- to the complainant within two months from the date of the order along with costs of Rs.500/-.    

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 20^th day of July, 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 Oriental Insurance Company Motor Claim

                Form Policy bearing No.433100/31/2010/5070.

Ex.A2.       Letter dated 23-12-2010 issued by opposite party to

                complainant.

Ex.A3                Office copy of Legal Notice dated 01-05-2011 issued by

                complainant Advocate to opposite party.

Ex.A4                Acknowledgement.

Ex.A5                Photo copy of F.I.R. in Crime No.122/2010 issued by

Addakal P.S dated 20-08-2010.

Ex.A6                Photo copy of Case Dairy.

Ex.A7                Photo copy of Charge Sheet in Crime No.122/2010 of

                Addakul P.S. dated 20-08-2010.

Ex.A8                Photo copy of MVOP No.172/2011 Neat copy Petition and

                notice of the Principal District Judge cum Motor Accidents

                Claims Tribunal, Kurnool dated 24-08-2011.

Ex.A9                Photo copy of MVOP No.171/2011 Neat copy Petition and

                notice of the Principal District Judge cum Motor Accidents

                Claims Tribunal, Kurnool dated 24-08-2011.

List of exhibits marked for the opposite party:-

Ex.B1                Photo copy of Investigation in accident registered as

Crime No.122/2010 of Addakul P.S. dated 25-11-2010.

Ex.B2                Photo copy of clarification Letter dated 24-11-2010.

Ex.B3                Photo copy of Office Note dated 22-12-2010.

Ex.B4                Motor Insurance Certificate cum Policy

                No.433100/31/2010/5070 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               :