This complaint coming up before us for final hearing on 30-05-14 in the presence of Sri Para Kishore, advocate for complainant and Sri. S.Satyanarayana, Advocate for opposite parties, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Prabhakar Gupta, Member:-

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions to grant reliefs of Rs.4,82,000/- in total against the opposite parties towards damages, mental agony and costs of the complaint. 

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

          The present complainant is the owner a vehicle belongs to the Mahindra company by name Mahindra Scorpio car, bearing registration No.AP 16 BB 1279.  The present complainant purchased the same from the Shriram City Union Finance, Guntur under hire purchase scheme.  At the time of his purchase the said vehicle has been insured by the financing institution with the opposite parties.  The said policy is having the nature of 3^rd party risk as well as for own damages, bearing policy No.1008/31/12/009461. The said policy is in force from               19-01-12 to 18-01-2013. For getting this policy the present complainant paid an amount of Rs.19,000/- to the opposite parties who are the insurance company authorities.  While that is so, the said vehicle met with an accident on 24-03-12 and caused heavy damages to the vehicle.  The said accident has been registered with Kavali rural police of Nellore District under crime No.62/2012.  After the said accident the complainant informed the same to the opposite parties and in turn the opposite parties deputed their surveyor for getting detailed report and for the assessment of loss caused.  After completion of survey, he assessed the damages of vehicle and submitted his report to the opposite parties.  For repairs the complainant spent an amount of Rs.10,04,401/- and matter was informed to the opposite parties.  Subsequently, the present complainant submitted his claim form along with all required documents to the opposite parties.  Inspite of his requests and demands the opposite parties not settled the claim on one pretext or another postponing the same from date to date.  At last the opposite parties expressed their inability for consideration of claim by a letter dated 12-07-12 since the complainant not followed the terms and conditions of the policy and violated the same by making vehicle with over load.  After this, the complainant issued legal notice dated 10-12-12 demanding to pay the repairing expenses as claimed by him.  The opposite parties not responded and even not issued any reply notice to the said legal notice.  So, the act of the opposite parties comes under deficiency in services and so he filed the present complaint as there is no other go to him.       

3.      The averments of the version of opposite parties in brief

as follows:

In reply to the complaint the opposite parties filed their version admitting the fact of issuance of policy and denying the claim of the complainant.  In their version the opposite parties mainly mentioned that at first the accident was registered with Kavali police under crime No.62/12.  Subsequently, the same accident was registered with Secunderabad police under crime No.60/12.  In both the cases the date of accident has been differ from one crime to another crime.  Further, they mentioned that the fact of registration of crime No.62/12 has been suppressed by the complainant and got registered of another/fresh crime under 60/12 with Secunderabad police.  Further, they mainly mentioned that as per the submitted documents the vehicle as loaded with 10 persons that is more than prescribed persons to carry.  As per the registration certificate the complainant’s vehicle has to be loaded only 6+1 persons.  So the present complainant violated the terms and conditions of the policy and so the complainant is not entitled for any claim as per the policy conditions.  Basing all these pleadings the opposite parties prayed this Forum to dismiss the present complaint since they denied the claim of the complainant as he violated the terms of the policy.    

4.     Complainant opposite parties filed their respective affidavits.  Ex.A-1 to A-10 were marked on behalf of complainant and Ex.B-1 to B-10 were marked on behalf of opposite parties.

5.  Now the points that arose for consideration in this complaint are:

1.     Whether the repudiation made by the opposite parties is justifiable and if so did not amounts to deficiency of service?

2.     Whether the complainant is entitled for compensation?

3.     To what relief?

6.      POINT No.1:- The learned counsel for the complainant argued that the complainant is the owner of the vehicle and he is the policy owner holder.  The said policy is in force as on date of accident.  As per the claim form submitted by the complainant he mentioned each and every fact of the about the incident, about persons traveled in the said vehicle including the valid driving license.  However he argued that at the first stage that is on 26-03-12 the complainant made the complaint to the Kavali police and got registration of the accident under crime No.62/12.  The said crime was registered U/s.279 I.P.C.  The accident was took place on 24-03-12.  By this accident the driver of the vehicle got severe injuries and lastly died at KIMS hospital of Hyderabad.  After his death, the concerned advocate who is not having knowledge over the previous registration with Kavali police lodged a fresh complainant with Secunderabad policy and got registered under crime No.60/12.  However this crime was registered U/s.174 of Cr.P.C.  So there is no impediment for proceeding with claim settlement as per Law.  Further, he argued that inspite of his submission of all the documents concerned including claim form the opposite parties made denial for the settlement of claim on the baseless ground i.e., at the time of accident the vehicle having overload i.e., more than prescribed persons.  As per the present Law position it is not a ground for the denial of the claim if the accident took place for the some other reasons.  As per the police records the accident took place with the negligence of the driver.  So, opposite parties made deficiency of service in settlement of claim and so the present complainant is entitled for the reliefs as prayed far.

        Counsel for the opposite parties argued that as per the terms and conditions of the policy, the vehicle has to be loaded with 6+1 persons.  Where as, as per the documents submitted by the complainant the vehicle was loaded with ten persons.   Basing on this ground the opposite parties denied the claim of the complainant on right path and so there is no negligence on the part of opposite parties.  Hence, he prayed for the dismissal of the complaint.

        With the above discussions and on the strength of the documents filed by the both parties it is an admitted fact that the present complainant is the owner of the vehicle, holder of the opposite parties insurance policy, the said policy is in force as on date of accident.  There is no dispute with regard to these facts.  Now the discussing point is whether the present complainant followed the terms and conditions of the policy in connection with over load of the vehicle.  In addition to this it has to be discussed whether two crimes are maintainable on one accident. As per the documents filed by the opposite parties marked as Ex.B-1 and Ex.B-2 which are the F.I.Rs for the crime Nos.60/12 & 62/12 were registered with Secunderabad police and Kavali police for the accident took place on 24-03-12.              Ex.B-1 was registered U/s.174 Cr.P.C. by the Secunderabad police after the death of driver of the vehicle.  Where as Ex.B-2 was registered with Kavali police U/s.279 I.P.C. at the beginning stage. Both were pertaining to same accident and there is no material differences between both the crimes.  Ex.B-1 is the subsequent registration for the Ex.B-2.  In affidavit the complainant categorically mentioned that as the concerned advocate registered Ex.B-1 without knowledge on registration of Ex.B-2.  Further, it is not the case of the opposite parties for grant of claim for the death.  It is the only case for grant of claim for vehicle damages.  Further, it is not the case of the complainant to grant the insurance for the death of driver and the claim is pertaining to vehicle damages.  So, there is no impediment to the opposite parties for settlement of claim on this plea.  Coming to the next point in connection with over load of the vehicle , the complainant himself submitted a list of persons who are traveled at the time of accident specified as ten persons. Whereas the policy marked under Ex.A-2 and registration certificate of the vehicle marked under Ex.A-1 permitted only seven persons in all (6+1).  Admittedly the vehicle is loaded with ten persons.  But it is not the case of the opposite parties that due to over load the vehicle met with an accident and so they are denied the claim. We have to draw our attention on a reported authority in a case in Amalendu Sahu Vs. Oriental Insurance Company Ltd., reported in 2013 (3) C.P.R. 641 (SC).  In that case the apex Court made some guidelines for the settlement of claim in connection with over loaded of the vehicle which is the subject issue.  As per the apex Court guidelines the present plea of the opposite parties is not a ground for the denial of claim of the complainant.  As per the guidelines the opposite parties ought to have settle the claim of the complainant by granting upto 75% of admissible claim.  In absence of settlement it comes under the deficiency of service.  So, this point is decided infavour of complainant.

7.      POINT NO.2:- The main ground of the opposite parties in connection with over load of vehicle is not at all deniable ground if the accident took place for other reasons. This fact has been clearly discussed in a case reported in 2006 CPJ 144 (NC) held between New India Assurance Vs.Narayana Prasad and another, reiterated in another case reported in 2013 (3) CPR 641 (SC).  So, as per the documents filed by the both parties and as per the plea taken by opposite parties in connection with over load of vehicle is not sole and whole ground for the cause of accident. So, the claim has to be settled by the opposite parties.  This point also decided infavour of complainant.

8.      POINT NO. 3:- Coming to the fact of awarding of claim the complainant mentioned in complaint that he spend an amount of Rs.10,04,401/-.  However, he claimed only 4,70,000/- by his affidavit.  As per the Ex.B-7 which is surveyor’s report made by Libra Surveyor Limited the total damages has been assessed as Rs.1,75,900/- as a final figure.  Where as the complainant claimed Rs.4,70,000/- in total.  The claim of the complainant neither supported by any document even nor by any authenticated bills.  So, we cannot consider the claim of the complainant in total.  However, as per the surveyor report the complainant is entitled upto 75% of the assessed amount in view of the apex Court authority.

9.      In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite parties are directed to pay an amount of Rs.1,25,000/- (Rupees one lakh twenty five thousand only) towards damages of vehicle.
2.  The opposite parties further directed to pay the above amount with interest @9% p.a from the date of complaint till realisation.
3. There is no order as to mental agony.
4. The opposite parties further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards costs of the complaint.
5. The above order shall be complied by the opposite parties within a period of 30 days from the date of receipt of copy of this order.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 10^th day of June, 2014.

SD/-XXX                                   SD/-XXX                                  SD/-XXX

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:   

                                                                                                         SD/-XXX

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.