State Consumer Disputes Redressal Commission
D.Sivasankar vs Sri Hidayatulla on 6 December, 2007
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR
DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT:-
Sri P.V.Nageswara
Rao, M.A., L.L.M.,
President (F.A.C.)
Smt.S.Lalitha, M.A., M.L.,
Member
Thursday, the 6th day of December, 2007 C.C.NO.154/2006 Between:
D.Sivasankar S/o Kullayappa C/o D.No.6-592, Venkataraonagar Anantapur.
Complainant Vs.
1.
Sri Hidayatulla S/o Mohammad Khan Owner of the Saraj Majada Bearing No.AP-02-U-5269 Store Dealer, Tanakallu (V) & (M) Anantapur District.
2. M/s National Insurance Co. Ltd., rep. by its Divisional Manger, Anantapur.
Opposite Parties This case coming on this day for final hearing before us in the presence of Sri G.Chandrasekhar Reddy, advocate for the complainant, the 1st opposite party was called absent and set-exparte and Sri G.Seetharama Rao, advocate for the 2nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
1.
The complaint filed under section 12 of Consumer Protection Act on behalf of the complainant.
2. The brief facts of the complaint is as follows:-
The complainant was the paid driver of the 1st opposite party, who was owner of the vehicle bearing No.AP-02-U-5269 and sustained injuries to his right ankle in the accident occurred at Pedda Yellampalli Village on 30-05-2004 , while the complainant was proceeding with a load of Banana fruits. The accident occurred on account of lost of control over the vehicle driven by the complainant. The complainant was shifted to Govt. General Hospital, Anantapur, from there he was shifted to Meda Nursing Home for better treatment, where the surgery was conducted and rods were inserted, which was not cured. He became permanent disabled. The Medical Board, Anantapur issued Disability Certificate of 50%. It was happened while in the course of employment. The 1st opposite party paid Rs.100/- towards additional premium for personal accident benefit for the welfare of the paid driver of the vehicle. As per the 2nd opposite party, the compensation amount of Rs.2,00,000/- to be paid only to the paid driver by the 2nd opposite party, who would die or permanently disabled while driving the vehicle. It was mentioned in IMT-17 of the Insurance Policy issued by the 2nd opposite party. The complainant approached the 1st opposite party, who informed him to contact the 2nd opposite party. As the claim was not settled, the complainant got issued a notice on 04-02-2006 to both parties, but there was no response. Hence, the complaint was filed for Rs.2,00,000/- towards personal accident benefit.
3. The 2nd opposite party alone filed a counter that the complainant had to prove that the he was paid driver of the 1st opposite party, who was the owner of vehicle bearing No.AP-02-U-5269 and sustained injuries in the accident as the vehicle hit a tree on the roadside and also to prove grievous injuries and had taken treatment and about 50% of permanent disability. Additional premium of Rs.100/- was received by the 2nd opposite party for personal accident coverage for the owner-cum-driver but not driver or for the complainant to cover the same. There was no contractual obligation to the opposite party No.2 as per IMT-17 of the policy. No premium was paid to cover the risks of the driver in the crime vehicle and premium was collected @ Rs.100/- to cover the risks or to indemnify the risks of the owner-cum-driver but not owner and driver as interpreted. The complainant filed W.C.No.2/05 claiming Rs.4,00,000/-
for the injuries and award was passed by the Assistant Commissioner of Labour, Anantapur for Rs.3,98,997/-. Against the said order, the 2nd opposite party preferred appeal before the Honble High Court of A.P. in C.M.A.No.1183/2005 and the same was disposed on 26-04-2006 reducing the compensation amount to half in view of disability certificate. The lower court awarded on the basis of 100% disability, but the same was reduced by the Honble High Court.
As the compensation was paid under W.C.No.02/2005, the complainant had no scope to claim again in the Forum. It was suppressed by the complainant that the Rs.100/- additional premium was paid for the coverage of the paid driver was not correct. It was collected for compulsory personal accident to owner-cum-driver, but not owner and driver. If the owner would drive the vehicle, then the compensation would be paid as owner-cum-driver. As per IMT-17, additional premium was not collected for paid driver, cleaner, and conductor, but for compulsory personal accident of owner-cum-driver. The owner, who was contracting party, had to pay compensation himself in the event of any risk. In case of injury, while driving the vehicle, he did not answer the description of the workmen under the Workmens Compensation Act and as such he could not claim the compensation. Thus, compulsory personal accident to owner-cum-driver was collected as Rs.100/- for a sum of Rs.2,00,000/-.
Thus, there were no merits and the complaint may be dismissed with costs.
4. On the basis of the above pleadings, the points for consideration are:-
(1). Whether there is any deficiency of service on the part of the opposite parties 1 & 2 ?(2)
Whether the complainant is entitled for the reliefs as prayed for ?
(3)To what relief ?
5. On behalf of the complainant Ex.A1 to A3 were marked. On behalf of the opposite parties, Ex.B1 to B3 were marked. RW1 was examined.
6. POINTS 1 & 2:-
Ex.A1 was Xerox copy of the F.I.R. in Cr.No.22/04 of Nallahceruvu P.S. u/s 337 & 338 I.P.C. alongwith copy of the complaint given by one R.Mallikarjuna.
Ex.A2 was Xerox copy of the Disability Certificate issued by the District Medical Board, Anantapur that the disability of the complainant was 50% . Ex.A3 was office copy of the notice issued by the complainant to both opposite parties. The opposite parties filed Ex.B1 Xerox copy of the Insurance Policy bearing No.501602/31/03/6300574 with valid period from 23-01-2004 to 22-01-2005 in the name of the 1st opposite party. Under Ex.B1, the 1st opposite party paid Rs.100/- towards additional premium for compulsory personal accident to owner-cum-driver for compensation to an extent of Rs.2,00,000/-. The policy was goods carrying commercial vehicle (open) policy B package. The 2nd opposite party filed copy of the terms & conditions of the policy alongwith Ex.B1. The 2nd opposite party filed Ex.B2 Xerox copy of the order in W.C.No.02/05 filed by the complainant against the present opposite parties 1 & 2 before the Assistant Commissioner of Labour, Anantapur under Workmens Compensation Act and the same was awarded for Rs.3,98,997/- dt.17-10-2005. The 2nd opposite party preferred C.M.A.No.1183/05 before the Honble High Court of A.P. against the orders in W.C.No.02/05 of Assistant Commissioner of Labour, Anantapur and the Honble High Court of A.P. disposed of the appeal reducing the compensation to half in view of Disability Certificate as 50% disability. Ex.B3 was the Xerox copy of the judgment in C.M.A.No.1183/05 of the Honble High Court of A.P.
7. The complainant met with an accident while driving the vehicle belonged to the 1st opposite party bearing No.AP-02-U-5269 near Peddayellampalli Village on 30-05-2004 and sustained grievous injuries to his right ankle. The vehicle hit the tree on the road side causing accident and receiving grievous injuries by the complainant. He was taken to Govt. Hospital, Anantapur for treatment and from there he was shifted to Meda Nursing Home, Anantapur, where the surgery was conducted and steel rods were inserted to the right ankle. Medical Board, Anantapur issued Disability Certificate for 50%. The complainant claimed the compensation in view of additional premium of Rs.100/- paid by the 1st opposite party under Ex.B1 towards compulsory personal accident benefit as he was paid driver of the 1st opposite party. The 2nd opposite party did not respond for the claim of the complainant and so the complainant got issued a notice to both the opposite parties 1 & 2. There was no response. In the policy, under Ex.B1 the terms & conditions under IMT-17, the personal accident coverage was to paid drivers, cleaners and conductors. In case of death, it was 100% as scale of compensation. In case of loss of one limb, 50% compensation and in case of permanent disablement, it was 100% compensation and in case of loss of two limbs or sight of two eyes or one limb and sight of one eye, it was 100% compensation. In the present case, the complainant had 50% disablement and in view of Medical Board Certificate and no 100% permanent disablement. However, he claimed 100% compensation of Rs.2,00,000/- in this complaint.
8. At this juncture, the complainants relied upon I (2006) CPJ page 104 (Chhattisgarh State Commission) National Insurance Co. Ltd., Vs. Yogeshwari Verma., It was held that under personal accident claim, additional premium was charged for personal accident of passengers. Persons plying the vehicle was a passenger. So the additional premium would cover the risk of his life and hence the company was liable under the policy. In the present case, additional premium was not for passengers, it was for the owner-cum-driver. Thus, this decision is not applicable to the present facts of the case.
9. In (I) 2007 CPJ page 48 (National Commission), LIC of India Vs. Ram Singh Tanwar , it was held that in case of ambiguity in terms of policy, if any, it should be interpreted in favour of the insured. In this case, the complainant was a driver by profession and lost one leg and became permanent disabled and the complainant was paying premium regularly. The present facts of the case are different. So this decision is not applicable.
10. The complainants relied upon F.A.No.937/03 of A.P.State Commission dt.30-11-2005 in National Insurance Co. Ltd., Vs. S.Mary Sujatha and others with regard to duplication of compensation. It was decided by the Honble A.P.State Commission that the claim under M.V.Act could not be considered as bar while deciding the present claim by the Commission as it was not a duplication of compensation, but would involve two sets of compensation, which were payable virtually under two different heads under the same policy. The compensation was paid to the complainant under Workmens Compensation Act.
11. The opposite parties relied upon 2007 (3) ALT page 57 (Supreme Court) in Oriental Insurance Co. Ltd., Vs. Jhuma Saha and others, it was held that Personal accident Insurance Policy was for owner of vehicle. The owner of the vehicle would claim compensation only when the personal accident policy was taken out. Additional premium was not paid in respect of the entire risk of death or bodily injury of owner of vehicle. Hence insurer was not liable. In the present case, the additional premium was paid for personal accident owner-driver i.e. owner-cum-driver. In other words, the driver should be the owner himself, as per section 4 of terms and conditions of the policy. But under IMT-17 under the same terms and conditions of the policy, the personal accident cover was to paid drivers, cleaners and conducts. In the present case, RW1 admitted that the complainant was paid driver of 1st respondent and also admitted that the liability of the company was as per terms and conditions of the policy. It was not proved by the complainant and the 2nd opposite party except oral evidence. The complainants contended that owner-driver means owner and driver and so the personal accident coverage would cover to both of them. If owner and driver were separate, then there should be and in between the two words instead of dash . But the respondent/2nd opposite party contended that owner--driver would mean owner-cum-driver and so owner himself should be driver. But the hyphen in between owner and driver was meaning to link words and part of words. The hyphen is used to join two or more words so as to form a single word. Example free-for-all, right-handed. But the dash is used to introduce explanation or expansion that would come before it. Therefore in between the words owner and driver, it was only dash and not a hyphen. So it would mean owner- cum-driver. The complainant was not the owner of the vehicle. More over as held in II 2007(5) C.P.J. (S.C.) in National Insurance Co. Ltd., Vs. Ishar Das Madan Lal that in case of ambiguity contract of insurance should be considered in favour of insured. In the present case, there was no ambiguity in the policy conditions. Already under Workmens Compensation Act, the complainant had received compensation amount and it was admitted fact. Therefore, the complainant was not entitled for the benefits as prayed for in view of section 167 of Motor Vehicles Act. There was no deficiency of service on the part of the opposite parties.
12. In the result, the complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 6th day of December, 2007.
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MEMBER PRESIDENT (F.A.C.) DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, ANANTAPUR.
ANANTAPUR.
APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR THE COMPLAINANT
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N I L WITNESSES EXAMINED FOR OPPOSITE PARTY NO.2 RW1: Sri Obulapathi examined as RW1 on 22-11-2007 EXHIBITS MARKED ON BEHALF OF THE COMPLAINANTS Ex.A1 - Xerox copy of the F.I.R. in Cr.No.22/04 Ex.A2 Xerox copy of Disability Certificate issued by the Medical Board, Anantapur.
Ex.A3
- Office copy of the notice dt.04-02-2006.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO.2 EX.B1 Copy of Insurance Policy No.501602/31/03/6300574.
EX.B2 - Xerox copy of order in W.C.No.02/2005 of the Assistant Commissioner of Labour, Anantapur.
Ex.B3 - Xerox copy of Honble High Court Judgment in C..M.A.No.1183/2005.
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MEMBER PRESIDENT (F.A.C.) DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, ANANTAPUR ANANTAPUR Typed by JPNN