BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY
Present : Smt Meena Ramanathan, B.Com., Lady Member
Sri G.Sreenivas Rao, M.Sc.,B.Ed.,LL.B.,PGADR (NALSAR), Male Member
Thursday, the 23rd day of June 2011
C.C. No. 5 of 2011
Between:
Md. Liyaquat Ali S/o Mohd. Basheeruddin,
Aged about 40 years, Occ: Business,
R/o H.No.5-1-113, Shanthinagar,
Sangareddy town and mandal, Medak District. …..Complainant
And
United India Insurance Company Limited,
Branch Office: 5-2-17/2, Main Road,
Near Bus Stand, Sangareddy – 502 001,
Medak District, rep. through its Branch Manager. ….Opposite party
This case came up for final hearing before us on 26.05.2011 in the presence of Sri K. Jaipal Reddy, Advocate for complainant and Sri P. Rama Rao, Advocate for the Opposite party, upon hearing arguments of both sides, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:
O R D E R
(Per Se Meena Ramanathan, Lady Member)
1. This complaint is filed under section 12 of Consumer Protection Act, 1986 by Complainant alleging that he is the registered owner of Eicher Goods Carriage vehicle bearing No. AP-23V-6112 and obtained valid permit from the Transport Authority, Medak bearing PPC AP-023/523/PPC/2004 and also insured the same with opposite party vide policy bearing No. 051403/31/06/01/2274 which was in force during 13.09.2006 to 12.09.2007. It is further alleged that he proceeded along with his vehicle to Kotha Konda village of Kurnool district and on 28.01.2007 as he was returning to Sangareddy – on the way, when the vehicle reached near Dhupadu village on National Highway No. 7, at about 10-30 p.m. in between Done and Kurnool, the vehicle of complainant met with an accident having come into contact with an on going [front] lorry an application of sudden brakes by the driver of the lorry bearing No. KA-01/AA3399, the front portion cabin and the body of the vehicle of the complainant was completely damaged and came to a stand still. Inspite of his best efforts, complainant could not avert the ghastly and sudden accident.
It is further alleged that on the very day of accident, he lodged a complaint with the Police, Ulindakonda of Kurnool district, who visited the spot, inspected the vehicle and assessed the loss and damage. Complainant is also said to have informed the fact of accident to opposite party company which turn deputed its Surveyor to conduct inspection and also to assess the loss. The police, Ulindakonda stated to have issued certificate on 29.01.2007, certifying the occurrence of the accident. Complainant photographed the damaged vehicle. Complainant also furnished the claim form along with the estimates for Rs. 95,969/- to the opposite party. The surveyor is said to have made extraneous demands as illegal gratis which the complainant refused to comply. Thereafter the opposite party repudiated the claim of complainant through a letter dated 13.09.2007. On approaching, the opposite party – the officials assured to look into the matter but failed, hence, he made a written representation on 01.02.2008 which they acknowledged. Thereafter the complainant stated to have fallen ill due to jaundice, which prevented him from leaving home and there occurred a delay in filing the complaint. Hence, the present complaint is filed with a prayer to reimburse the amount of Rs. 95,969/- incurred by him for carrying out the repairs to the damaged vehicle together with interest @ 18% p.a. from the date of complaint; to make good the loss of Rs. 1,50,000/- which the complainant sustained from 28.01.2007 to 16.03.2007; to award compensation of Rs. 1,00,000/- on account of resorting to unfair practice of trade, acting negligently and rendering deficient services and also to pay costs of the complaint.
2. The opposite party filed their counter denying the ownership of complainant of the vehicle No. AP-23V-6112 and also the involvement of the vehicle in any accident. In case of any accident, the complaint shall be lodged with the police, who will register the case and investigate the matter. In the instance case, no scene of offence, observation was made, no panchanama was conducted and no rough sketch is drawn, which indicates that no accident took place. All the allegations of complainant are concocted for the purpose of case. The certificate alleged to have issued by the S.I. of Police, Ulindakonda is a fabricated one and forged. There are two dates below the signature of the S.I. on the certificate, there is no dispatch number, no crime number, consecutive number or G.D. entry. All these shows that no accident took place as alleged. No case is registered against the driver. There are two versions as regards to the occurrence of accident as per claim form and the oral version. As per versions, there is negligence on the part of both the drivers of accident vehicles. There is no proof as regards to occurrence of the accident.
It further alleged that the driver of Van was not having valid driving licence at the time of accident and the same was in lapsed condition. The complainant created that he drove the vehicle. As per police certificate, there was load of cucumber but as per the representation, it was empty and there were no trip sheets. As per certificate, the van was proceeding from Kotakanda of Done Mandal to Gadwal with flower load but as per representation, the van was coming to Hyderabad empty. On receipt of claim form, this opposite party informed the complainant to furnish the required documents and on his failure, the claim was repudiated. The complaint is filed after lapse of more than three years with delay petition. There is no deficiency of service.
3. Complainant let evidence in the form of his affidavit reiterating the facts stated in his complaint and got Exs. A1 to A10 documents marked. Whereas the opposite party filed the affidavit of one Ravi Chandra and got Exs. B1 to B6 documents marked. The opposite party filed their written arguments.
4. The point for consideration is 1) whether the complainant is entitled for the claim as stated in the complaint? 2) Whether there is any deficiency of service on the part of the opposite party in settling the claim? And if so, to what relief the complainant is entitled to?
5. Ex.A1 is certificate of insurance of vehicle No. AP-23V-6112 covering the period from 13.09.2006 to 12.09.2007. Ex.A2 is Xerox copy of good carriage permit of lorry in question valid till 02.09.2009. Ex. A3 is Xerox copy of driving licence of complainant, valid till 25.07.2008. Ex.A4 is Xerox copy of certificate stated to have issued by the sub inspector of police, Ulindakonda P.S. Ulindakonda. Ex.A5 is the Xerox copy of the claim form stated to have submitted by complainant to opposite party. Ex.A6 is Xerox copy of the estimates for Rs. 95,969/- and receipt. Ex.A7 is the Xerox copy of Re-Inspection report dated 16.03.2007. Ex.A8 is the copy of the repudiation letter dated 13.09.2007. Ex.A9 is the representation of the complainant dated 01.02.2008 made to opposite party and Ex.A10 are the (14) photos together with negative of the damaged vehicle.
Ex.B1 is original repudiation of the claim dated 24.09.2007. Ex.B2 is the original driving licence of C. Bala Swamy. Ex.B3 is original (in telugu) representation dated 30.04.2007 of the complainant. Ex.B4 is original (telugu) written representation dated 10.08.2007 of the complainant. Ex.B5 is the original of Ex.A8 document and Ex.B6 is the postal acknowledgement.
6. If truly no accident took place, there is no need for the opposite party to depute their surveyor and thereafter to depute another surveyor to re-survey the damages occurred. Surprisingly, the opposite party failed to file the surveyor report which is in their custody for reasons best known to them. It is stated by the opposite party that one Bala Swamy was driver of the vehicle at the time of alleged accident, but there is no proof that Mr. Bala Swamy drove the vehicle. Both in the complaint and the claim form, the complainant clearly stated that the vehicle was driven by Md. Liyaquat Ali, who was holding a valid driving licence to drive the vehicle and the same was in force as on the date of accident.
On other hand, complainant filed the certificate issued by the Police, Ulidakonda to show that accident took place near Dupadu village on NH-7 at about 2230 hours, hitting a lorry which was proceeding in the same direction, without observing the sudden brake of the lorry in front. In the certificate, it is mentioned that on verification by the police issuing the certificate, nobody was injured in the incident. This certificate bears the date 28.01.2007 and 29.01.2007 and also the seal of the police station. As regards to putting of two dates, it can be inferred that as the accident stated to have taken place in the intervening night – of 28.01.2007, the issuing Authority might have put two dates. To disprove that this certificate is not real one but instead fabricated, the opposite party did not place any evidence on record. The opposite party ought to have addressed a letter to the concerned police station to ascertain the validity of the certificate, which is not done. It is for the opposite party to disprove the document filed by the complainant. There was sufficient time for the opposite party to investigate into the matter and men at its disposal but it is not known what prevented the opposite party from ascertaining the truth of the accident and the certificate Ex.A4. Even the opposite party withheld to file the first surveyor’s report and the Re-survey report, which are within their custody. The photos marked as Ex.A10 goes to show that the vehicle of the complainant was involved in the accident and the front portion is badly damaged.
7. To vouchsafe his contention the complainant filed certificate issued by police, Ulindakonda marked as Ex.A2 to show that accident took place on 28.01.2007. Ex.A2 shows that the complainant was having valid permit to ply the vehicle as on the date of alleged accident. Ex.A3 shows that the complainant possess valid and subsisting driving licence to drive the vehicle. Ex.A10 shows that the vehicle of the complainant was badly damaged in the accident. Ex.A6 and A7 shows that the complainant got his vehicle repaired by incurring an expense to the tune of Rs.95,969/-.
8. The opposite party did not choose to file any document to disprove the claim of complainant. Even the opposite party did not take any steps to examine the police, Ulindakonda for the reasons best known. The Ex.A4 is nothing but a public document and there is no reason to disbelieve the same. A bald assertion is made by the opposite party that the certificate is a fabricated one. It has not placed any evidence to show that the signature found on Ex. A4 of the issuing officer is not the correct one. The police station is a public institution and is available within the reach of public. Nothing prevented the opposite party from obtaining the documents from the police station Ulindakonda and also the reasons for non issuing of FIR. Non-issuing of FIR is not a criteria for deciding the claim of the accident vehicle. It is clearly mentioned in Ex. A4 that none were injured in the accident. As can be seen from the very document, due to application of sudden brakes of the driver of lorry in front, the accident stated to have occasioned. In these circumstances, no liability can be fastened on any of the drivers.
9. The complainant proved his case without any reasonable doubt. Whereas the opposite party failed to disprove the claim of the complainant. Time and again, the opposite party is harping on saying that no accident took place on the alleged date. Except this, nothing is placed on record to disprove the same. The other contention of the opposite party is that the complaint is not filed within the period of limitation and the delay is condoned without issuing any notice. Allowing the delay is purely the discretion of a court. With a well reasoned cause, the petition to condone the delay was allowed. And now it is not open for the complainant to comment on it. Further, the opposite party contended that there are discrepancies in the representations made and to that of the oral submissions. Though there exists discrepancies, it will in no way disprove the very accident itself.
10. Merely because the complainant failed to file the relevant documents viz., FIR, the claim was repudiated. Only in cases of suspicion, the FIR is mandatory and in cases of known accidents, there need not be any FIR. Proving the accident is more important, to that of registration of a case. Admittedly, due to nobody’s fault, the accident stated to have taken place, hence, there is no rashness or negligence on the part of any of the driver to book a case against them. The opposite party utterly failed to disprove the contention of the complainant. And on repudiation of claim for no reason, the complainant approached this forum with the present complaint. We have no hesitation to accept the contention of the complainant and accordingly answer the issue No. 1 in favour of the complainant and against the opposite party.
11. Merely stating that he sustained loss of Rs. 1,50,000/- nothing is brought on record by the complainant to show that he sustained loss through the vehicle for the period from 28.01.2007 to 16.03.2007. A bald and vague assertion is made, which is not convincing. Complainant ought to have filed the books of account or atleast the income-tax returns to show that he was earning such an amount through the vehicle in dispute and that he sustained loss on account of accident. A compensation of Rs. 30,000/- would suffice for the loss of the complainant.
12. In the result, we allow the complaint of complainant and direct the opposite party to pay the amount of Rs. 95,969/- together with interest @ 9% per annum from the date of complaint i.e., 31.01.2011 till realization and further to pay compensation of Rs. 30,000/- towards alleged loss, deficiency of service and inconvenience caused to the complainant along with costs of Rs. 1,000/- towards the complaint. Time for compliance: one month.
Typed to dictation, corrected and pronounced by us in the open forum this 23rd day of June 2011.
Sd/- Sd/-
Senior Member/Lady Member Male Member
