| ORDER | | BEFORE THE DISTRICT CONSUMERS FORUM AT KHAMMAM Dated this, the 29th day of April, 2011 CORAM: 1. Sri Vijay Kumar, B.Com., LL.B., President 2. Sri.R.Kiran Kumar, B.Sc., LL.B., Member C.C.No.6 of 2009 Between: 1) Boina Satyanarayana, S/o Buchalu, Age:51years, Occu:S.C.Company employee. 2) Boina Malathi, W/o Satyanarayana, Age:45years, Occu:Housewife. Both are resident of H.No.5-16-46, Coolie Lane, Kothagudem, Khammam District. …Complainants and The Reliance General Insurance Co., Ltd., D.No.40-1-21/1, Surya Towers, III Floor, M.G.Road, Labbipet, Vijayawada – 520010. …Opposite party. This C.C. is coming on before this Forum for final hearing in the presence of Sri.P.Madhava Rao, Advocate for complainant and of Sri.G.Sita Rama Rao, Advocate for opposite party; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:- ORDER (Per Sri.Vijay Kumar, President) This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainants are the parents of late Boina Yuvaraj, who died due to injuries sustained in the Road Accident. On 22-3-2008, at about 8.00AM the deceased Boina Yuvaraj along with his mother, complainant No.2 started from Coolie Lane, Kothagudem to Regalla on their Hero Honda Motor Cycle bearing No.AP-20-TR-AL-2546 and after attending the work while they were returning Kothagudem and when they reached near Regalla cross roads, at the same time a lorry bearing No.AP-27-W-1267 came, driven by its driver in a rash and negligent manger at high speed and gave dash to the deceased due to that impact the deceased along with his mother fell down on the road and deceased died on the spot while his mother sustained injuries. The said accident occurred only due to rash and negligent driving of lorry bearing No. AP-27-W-1267 by its driver. Immediately the brother of the deceased by name Boina Prudevi Raj, lodged a complaint at Kothagudem III town, P.S. Upon which a case is registered in Crime No.50/2008 for the offences u/ss. 304-A and 337 I.P.C against the driver of the lorry and subsequently the section was altered to 304-A and 338 I.P.C. The opposite party had issued insurance policy to the motor-cycle owned by the deceased. In the said accident the said motor cycle was completely damaged. As per the terms and conditions of the policy, the coverage of the motor cycle is valued at Rs.46,350/-, the insurance commenced from 01-03-2008. As per the terms and conditions of the policy there is personal accident coverage for the owner cum driver u/s.3 CSI, for Rs.1,00,000/-. Since the owner cum driver of the motor cycle Yuvaraj died, the complainants who are the class-I legal heirs of the deceased had filed a claim statement before the opposite party to make payment for Rs.1,00,000/- towards personal coverage and Rs.46,350/- towards cost of the motor cycle, which has completely damaged in the accident. The claim is in total Rs.1,46,350/-. But the opposite parties issued repudiation letter on 10-06-2008 stating that the driver N.B.Yuvaraj, who died in the accident was not having valid driving license at the time of accident. The objections taken by the opposite party are not tenable since the deceased/ driver got valid driving license and the accident did not occur due to his negligence, but it was only due to negligent driving of the driver of lorry. Therefore the opposite party is not entitled to take such objection. The complainants are entitled to an amount of Rs.1,00,000/- towards personal accident and Rs.46,350/- towards damage of motor cycle together with interest @24% p.a. and Rs.20,000/- towards damages, in all they are entitled to Rs.1,66,350/-. Hence this complaint. 2. Apart from the complaint, the complainants No.1 filed an affidavit reiterating the contents of the complaint and got marked the following documents. Ex.A1:- Repudiation letter dated 10-06-2008 Ex.A2:- Charge Sheet dated 22-04-2008. Ex.A3:- Remand Case Diary Part-I in Crime No.50/2008. Ex.A4:- P.M.E. Report dated 22-03-2008 Ex.A5:- M.V.I. report. 3. On receipt of the notice, the opposite parties appeared through their counsel and filed the counter and denied all the averments made in the complaint. 4. In the counter, the opposite parties have repeatedly taken a plea that the opposite party issued a policy to the deceased with the terms and conditions and also issued an insurance policy with utmost good faith. It is further submitted in the counter that no cause of action has arisen to the complainant for filing the present complaint. The opposite parties have rightly repudiated the claim on the due verification of the documents. The rider of the insured vehicle, who died in the accident was having only Learner’s license and has not complied with the Rule 3 of the Central Motor Vehicle Rules, 1989. It clearly shows that the rider has driven the vehicle without having valid and effective driving license and violated the terms and conditions mentioned in the policy. On receipt of the claim intimation, the opposite parties deputed a Licensed Surveyor to assess the loss of the accident and all other averments in the complaint are denied in toto. The opposite party is not liable to settle the claim of the complainant and prayed to dismiss the complaint. 5. On behalf of the opposite parties, the following documents filed and marked as exhibits. Insurance Policy is Ex.B1. The terms and conditions of the policy is Ex.B2. The repudiation letter dated 10-06-2008 as Ex.B3. 6. Both sides filed written arguments. 7. Heard both sides. Perused the oral and documentary evidence. Upon which, the points that arose for consideration are, 1) Whether the complainants are entitled to the amounts covered under the policy and the damage caused to the motor cycle to the amount as mentioned in the policy Insured Declared Value? 2) To what relief? Point No.1:- The learned counsel for complainants vehemently argued and submitted that on 22-03-2008, while they were returning to Kothagudem and when they reached near Regalla cross roads, at the same time one lorry driven by its driver came in a rash and negligent manner at high speed and gave dash to the motor cycle of the deceased, due to which the deceased and the complainant No.2 fell down on the road and deceased Yuvaraj died on the spot, whereas the complainant No.2 sustained injuries. The said accident occurred only due to rash and negligent driving of the driver of lorry. A complaint was lodged and the police at Kothagudem III town registered a case in crime No.50/2008 for the offences u/ss. 304-A and 338 I.P.C. In the said accident the motor cycle of the deceased was completely damaged. As per the terms and conditions of the policy, the coverage of motor cycle ID value is Rs.46,350/- and the policy commenced from 01-03-2008 under personal accident coverage for the owner cum rider of the motor cycle u/s.3 CSI for Rs.1,00,000/-. But the opposite party repudiated the claim of the complainant on flimsy grounds by stating that the deceased was not holding driving license. In regard to the cause of action is concerned, the learned counsel for the complainant filed the relevant documents which are marked as Exs. A1 to A6. Ex.A2 is the copy of charge sheet issued on 22-04-2008, as per the contents of the charge sheet, the investigating officer has clearly laid down that the driver of the lorry drove it in a rash and negligent manner and dashed against the motor cycle due to which the rider of the motor cycle who is insured died on the spot and pillion rider, complainant No.2 fell on the ground and sustained bleeding injuries. The motor cycle was completely damaged. The contents of the charge sheet clearly vindicate that the accused, the driver of the lorry has committed an offence punishable u/sec.304(A) and 338 IPC. Apart from the charge sheet he also refers to Case Diary, which is marked as Ex.A3, the contents are in the similar line as in the charge sheet. The contents of Ex.A3 reveal that the police apprehended the accused lorry driver and remanded him to judicial custody and after investigation they filed the charge sheet. Apart from the above documents, the learned counsel for the complainant refers to the crucial and important document, which is P.M.E. report marked as Ex.A4. As per the P.M.E. report, the cause of death mentioned due to Haemorrhagic shock due to head injury. The P.M.E. report clearly establishes that the deceased died due to the head injury in the accident. Apart from the above documents he also refers to Ex.A5, MVI report, who has opined that the accident occurred not due to any mechanical defect of the vehicle. On the basis of Ex.A1 to A5, the complainant has substantially established that the accident taken place due to rash and negligent driving of the driver of the lorry who gave dash to the motor cycle of the deceased. On the basis of the aforesaid documents it can be safely believed that the accident occurred only due to rash and negligent driving of the driver of the lorry. There is no fault on the part of deceased in the accident. On the other hand the learned counsel for opposite party vehemently argued and submitted a number of citations along with his written arguments. All the citations appended to written arguments are with regard to learner’s license, which cannot be said to have effective driving license. The intention and meaning of policy clears that the person driving the vehicle at the time of accident must hold a driving licence, the learner’s license would be regarded as not duly licensed, the insurance company would not be liable for compensation. The endeavor of the learned counsel for opposite parties is to draw the attention of the forum to the effect that there is violation of insurance contract and the contract becomes void and the insurance company would not be liable to answer the claim of other party. His endeavor is to draw the attention of this forum on the ground that the deceased who was driving motor cycle at the relevant time of accident was not holding effective driving license and hereby he is not entitled to the benefits covered under the policy. All the citations referred by him are regarding temporary licenses or a learner’s license would not be covered by the insurance policy. But at the same time, he is forgetting to the facts of the case that the accident occurred as in the manner is only due to rash and negligent driving of the lorry by its driver. A complaint is also filed and registered by the police against the accused lorry driver. The police after the investigation filed a charge sheet and the same is pending before the competent criminal court. After the investigation undertaken by the police, it is the lorry driver who is responsible for causing the accident and the deceased is not at all responsible. The complainants would not have been entitled had there was negligence on the part of deceased in driving the vehicle without having valid permanent driving license, but entire documents relied upon by the complainants clinchingly establish that there is no negligence on the part of deceased and accident occurred because of rash and negligent driving by the lorry driver. Therefore the repudiation of the claim by the opposite parties is not justified. As per the conditions of the policy as contained in Ex.B1, the IDV of Motor cycle is Rs.46,350/- which was totally damaged in the accident. As on the date of accident the policy was in force. Apart from the ID value as per the Ex.B1, the personal accident cover for owner cum driver u/sec.3 CSI is Rs.1,00,000/- to which the complainants are entitled in the circumstances of the case. On the basis of the aforesaid discussion, the complaint is fit to be allowed. Point No.2:- In the result, the complaint is allowed. The opposite parties are directed to pay an amount of Rs.1,00,000/- towards personal accident cover for owner cum driver and Rs.46,350/- being the ID value shown in Ex.B1. Thus the opposite parties are directed to pay an amount of Rs.1,00,000/- (+) Rs.46,350/- in total Rs.1,46,350/- (Rupees One Lakh Forty Six Thousand Three Hundred and Fifty only) together with interest @9% p.a. from the date of repudiation of the claim i.e. 10-06-2008 till the date of deposit. Further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only ) towards cost of the litigation. Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this the 29th day of April, 2011. PRESIDENT MEMBER DISTRICT CONSUMERS FORUM KHAMMAM APPENDIX OF EVIDENCE Witnesses examined for complainants: -None- Witnesses examined for opposite party -None- Exhibits marked for complainants: Ex.A1:- Repudiation letter dated 10-06-2008 Ex.A2:- Charge Sheet dated 22-04-2008. Ex.A3:- Remand Case Diary Part-I in Crime No.50/2008. Ex.A4:- P.M.E. Report dated 22-03-2008 Ex.A5:- M.V.I. report Exhibits marked for opposite parties: Ex.B1:- Insurance Policy Ex.B2:- The terms and conditions of the policy.. Ex.B3:- The repudiation letter dated 20-06-2008. PRESIDENT MEMBER DISTRICT CONSUMERS FORUM KHAMMAM | |
