This Complaint coming up before us for hearing on 28-02-11 in the presence of Sri K. Raja sekhar, advocate for the complainant, 1^st opposite party remained absent and set exparte, and of Sri G. Srinivasu, advocate for Opposite parties 2 and 3, upon perusing the material on record after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

            The complainant filed this complaint U/s.12 of the Consumer Protection Act, 1986 seeking refund of Rs.2,00,000/- together with interest @24% p.a., Rs.1,00,000/- towards mental agony, Rs.1,00,000/- towards deficiency of service and Rs.5,000/- towards costs.

2.  In brief the averments of the complaint are hereunder:

    On Orusu Venkatachalem husband of the complainant worked as driver in the proclainer of OP1 which was insured with OP2 vide cover note No.53650300.   The policy was in force from 10-03-08 to 09-03-09.   The proclainer bearing No.N/A 0000 was lifted in the lorry bearing No.AP 16X 4488 on 12-02-09 to work at a tank near Narukullapadu village.    While the complainant’s husband was working as driver on it the said proclainer turned up side down.   Husband of the complainant fell under that proclainer causing death instantaneously.   The SHO, Amaravathi PS registered the said accident as Crime No.29/2009 U/S 304-A of IPC.   The complainant’s husband at the time of accident was in the course of employment with the 1^st opposite party.   The 1^st opposite party did not settle the insurance claim even after lapse of 7 months.  In view of the adamant nature of the opposite parties in settling the claim the complainant got issued registered notice to opposite parties 1 to 3.   The notice addressed to OP1 returned while OP3 kept quite though received notice.  Inspite of notice OP3 failed to settle the claim.   Non payment of amount to the complainant amounted to deficiency of service.

3.     OP1 remained absent.

4.     OP3 filed memo adopting the version of OP2 and the contents in brief of the same are hereunder:

     The complaint is guilty of suppression of material facts.   The complaint is bad for non joinder of proper and necessary parties i.e., owner and insurer of the lorry bearing No.AP 16X 4488 in which the offending vehicle was carrying at the time of accident.   There is no relationship of employer and employee between the 1^st opposite party and the deceased.   The offending vehicle was not registered and the offending vehicle has no permit and as such the 1^st opposite party intentionally violated the terms and conditions of the policy and provisions of M.V.Act by allowing a vehicle to ply on road without registration and permit.   The 1^st opposite party has not paid any additional premium towards personal accident coverage for the paid driver.  The deceased was not having valid and effective driving license to drive the excavators.    The complainant has not submitted any claim form till today and as such the question of deficiency of service did not arise.   The complaint is barred by time.

5.     Exs.A-1 to A-11 on behalf of complainant and Exs.B-1 and B-2 on behalf of opposite party were marked.

6.     Now the points that arose for consideration are:

1. Whether the complaint is barred by time?
2. Whether the opposite parties committed deficiency of service?
3. To what relief?

7.   POINT No. 1:-     The death of the complainant’s husband               took place on 12-02-09 said to have been in an accident.   The complaint was filed on 13-11-09.   Under those circumstances, it can be said that the complaint is in time.  This point is therefore answered in favour of complainant.

8.    POINT No. 2:-     Ex.A-4 is copy of FIR in Cr.No.28/09 and it revealed that the deceased met with accidental death while lifting the proclainer from the lorry bearing No.AP 16XD 4488.   Under those circumstances, the contention of the opposite party that the complaint was bad for non-joinder of the owner and insurer of the said lorry is devoid of merit.  It can therefore be said that the husband of the complainant died due to accident. 

9.     In Ex.A-1 insurance policy the registration number was mentioned as N/A 0000.  Having issued the policy for an unregistered vehicle, it is not now open to the opposite parties 2 and 3 to contend that the owner of the said proclainer plied it without registration.   The said contention of the opposite parties is devoid of merit.   In Ex.A-1 (=Ex.B-1) policy the liability was shown as follows:

Liability(B)

Basic Third party liability                         :800.00

Total                                                    :800.00

Add

Paid Driver(Endt.IMT-28)                         :  25.00

PA cover for owner-driver of Rs.2,00,000/- :100.00

Employees of Insured                             : 25.00

Cleaner/conductor/coolies                        : 25.00

Sub Total(additions)                               : 50.00

Total                                                    : 50.00

Total Liability Premium                           :975.00 

10.   Ex.B-1 is the terms and conditions of the policy. Under              Ex.A-1=B-1 policy the 1^st opposite party paid premium for personal accident cover for owner-cum-driver.  The Section 4 of Ex.B-2 deals with personal accident for owner-cum-driver. In Ex.B-2 it was mentioned that the personal accident cover is subject to:

1. The owner-driver is the registered owner of the vehicle insured herein:
2. The owner-driver is the insured named in this policy.
3. The owner-driver holds an effective driving license, in accordance with the provisions of Rule-3 of the Central Motor Vehicles Rules, 1989 at the time of the accident.

11.   The terms and conditions of insurance policy will guide the insurer and the insured and its terms have to be strictly adhered to.   Ex.A-4 revealed that husband of the defacto complainant met with accident while lifting the proclainer from the lorry.   But in the complaint it was mentioned that the deceased met with accident while operating proclainer.   Ex.A-4 being earliest in point of time considering its recitals will meet ends of justice.  Under those circumstances, the contention of the opposite parties 2 and 3 regarding driving license of the deceased is of no consequence.   The opposite parties 2 and 3 collected insurance premium of Rs.25/- for cleaner/conductor/coolie.  Therefore, we are of the view that the opposite parties 2 & 3 are liable to pay compensation.   Not settling the claim in our considered opinion amounted to deficiency of service.  

12.   The complainant claimed Rs.1,00,000/- towards mental agony and Rs.1,00,000/- towards deficiency of service.   No material is placed before the Court on the above aspects.   Awarding certain amount towards deficiency of service will meet the ends of justice.    In view of the afore mentioned discussions, this point is answered accordingly.

13.   POINT No.2:-     In view of the above findings, in the result, the complaint is allowed partly as indicated below:

1. The opposite parties 2 and 3 are directed to pay a sum of Rs.2,00,000/- together with interest @9% p.a., from                    01-12-09 till payment.
2. The opposite parties 2 and 3 are directed to pay a sum of Rs.5,000/- towards deficiency of service and Rs.1,000/- towards costs.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order. 

        Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum dated this the 15th day of              March, 2011.

MEMBER                                             MEMBER                                             PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party :  

                                                                                           PRESIDENT