State Consumer Disputes Redressal Commission
Smt.M.Neelamma vs Sri Gopal Reddy 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.160/2006 Between:
1.
Smt.G.Neelamma W/o Lingamaiah
2. Linga Raju S/o Lingamaiah minor rep. by next friend, guardian, mother Smt.G.Neelamma Both are residing at Medapuram (V) Chennekothapalli Mandal Anantapur District.
Complainants Vs.
1. Sri Gopal Reddy S/o Narayana Reddy Owner of the Van bearing No.AP-02-U-4399, D.No.16-685-1D, Survey Tailors Bangalore Road Dharmavaram 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 complainants and Sri P.Chenna Reddy, advocate for the 1st opposite party 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 deceased namely G.Narayana Swamy died in the accident was son of the 1st complainant and elder brother of the 2nd complainant. The accident occurred on 28-02-2004 near Vadigepalli under Gorantla Police Station. At the time of the accident, the deceased was driving 407 Van bearing Registration No.AP-02-U-4399. Meanwhile, one lorry bearing No.AP-02-U-4412 came with high speed in a rash and negligent manner dashed against 407 Van, resulting the death of the driver on the spot. The deceased at the time of death was working under employment of 1st opposite party as paid driver on monthly wages of Rs.4,500/- per month. The 1st complainant approached the 1st opposite party for Rs.2,00,000/- under Personal Accident Claim for the death of the driver. The 1st opposite party, who informed that the 2nd opposite party should pay additional amount because the vehicle was insured with the 2nd opposite party. The complainant approached the 2nd opposite party, but they were postponing. Therefore, a notice was issued to both opposite parties on 10-02-2006. As per the policy, the 1st opposite party paid additional premium of Rs.100/- for his paid driver s personal accident coverage. It was endorsed as IMT-17 in the policy. Thus, the insurance company should pay Rs.2,00,000/- as personal accident to the paid driver of the 1st opposite party. Thus the complaint was filed for compensation of Rs.2,00,000/- with interest and costs of Rs.5,000/-.
3. The 1st opposite party filed a separate counter in brief as follows:-
The 1st opposite party was not liable to pay compensation. The 1st opposite party paid Rs.100/- as additional premium for coverage of the vehicle paid driver in addition to the statutory liability. If any liability, that should indemnify the 2nd opposite party only. The 2nd opposite party received additional premium and agreed to pay compensation under personal accident coverage to the paid driver. The personal accident coverage to the paid driver was Rs.2,00,000/- as per IMT-17 under the policy. So the 2nd opposite party was only liable to pay compensation as claimed. The deceased died in the accident as paid driver. In W.C.No.17/04, it was ordered that the liability was joint and several under Workmens Compensation Act. Thus the complaint may be dismissed with costs.
4. The 2nd opposite party filed a counter that the complainant had to prove that the deceased was paid driver of the 1st opposite party, who was the owner of vehicle bearing No.AP-02-U-4412 and died during the course of employment and also to prove the monthly wage of the paid driver of Rs.4,500/- per month. The premium of Rs.100/- was 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 as per IMT-17 in the policy as alleged by the complainant. No premium was paid to cover the risks of the driver in the crime vehicle. The premium of Rs.100/- was collected to cover the risks or to indemnify the risks of the owner-cum-driver, but not owner and driver as interpreted. The complainants suppressed the material facts regarding the award passed in W.C.No.17/04 before the Assistant Commissioner of Labour, Anantapur for the death of deceased and claimed an amount of Rs.4,50,000/- . The award was passed on 28-12-2006 for Rs.3,31,908/- as compensation to the complainants. The complainants have already filed W.C.No.17/2004 and award was passed. They could not file the present case for the same relief under personal coverage before the Forum. The premium of Rs.100/- collected was compulsory under personal accident to owner-cum-driver. It was not for paid driver. If the owner had any injury while driving the vehicle, he had to pay compensation himself and in such event, the liability of the company could not be contemplated and he did not answer the description of the workmen under the provisions of Workmens Compensation Act. Therefore, the premium of Rs.100/- was collected as compulsory for the personal accident claim to the owner-cum-driver. Therefore, there were no merits and the complaint may be dismissed with costs.
5. 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 ?
(2)Whether the complainants are entitled for the benefits as prayed for ?
(3)To what relief ?
6. On behalf of the complainants Ex.A1 to A4 were marked. On behalf of the opposite parties, RW1 was examined and Ex.B1 & B2 were marked.
7. POINTS 1 & 2:- The 1st complainant was the mother and the 2nd complainant was younger brother of the deceased namely G.Narayana Swamy, who died in the accident on 28-02-2004 near Vadigepalli in Gorantla P.S. while driving 407 Van bearing No.AP-02-U-4399, which met with an accident with lorry bearing No.AP-02-U-4412. The lorry came with high speed in a rash and negligent manner and dashed against the 407 Van, resulting the driver of the Van died on the spot. The deceased was paid driver on monthly wages of Rs.4,500/- per month under the 1st opposite party namely Gopal Reddy of Dharmavaram. The 1st opposite party obtained an insurance policy under goods carrying commercial vehicle (Open) Policy B-package with policy No.501602/31/03/6300010670 with valid period from 15-02-2004 to 14-02-2005 with total premium of Rs.9,399/-. Ex.B1 was copy of the policy. Under the policy, the 1st opposite party paid Rs.100/- as additional premium as compulsory personal accident to owner-cum-driver to an extent of Rs.2,00,000/-.
8. After the accident, one Vemala Sudhakar Reddy gave complaint to Gorantla P.S. and they have registered the case in Cr.no.23/04 u/s 337 & 338 & 304-A I.P.C. Xerox copy of the F.I.R. was Ex.A1. Ex.A2 was Xerox copy of postmortem report. Ex.A3 was Xerox copy of inquest report. Subsequently, the complainant approached the opposite parties for compensation. As the opposite parties failed to give proper response, the complainant got issued notice to both the opposite parties. Office copy of the notice was Ex.A4 alongwith postal receipts. The 2nd opposite party filed Ex.B1 copy of the policy alongwith terms and conditions.
As per the said policy terms & conditions under IMT-17 personal accident coverage was to the paid drivers, cleaners and conductors. In case of death, on payment of additional premium 100% to be paid as scale of compensation. Under the policy Ex.B1, the compensation amount was shown as Rs.2,00,000/- under additional premium of Rs.100/- for compulsory personal accident to owner-cum-driver. The complainant filed W.C.No.17/04 before the Assistant Commissioner of Labour, Anantapur under Workmens Compensation Act against the opposite parties and another and the award was passed for Rs.3,31,908/- on 28-12-2006. Xerox copy of the order was Ex.B2. The opposite party contended that the complainants had received compensation under Workmens Compensation Act and so they were not liable under the Consumer Protection Act towards double benefit. It was stated by RW1, who was the Administrative Officer (Legal) of the 2nd opposite party at Anantapur, who admitted in the cross-examination that the deceased was a paid driver. RW1 also admitted under section 4 of the policy regarding coverage of the policy to owner-cum-driver, IMT-17 was for personal accident coverage to paid driver. So the case of the 2nd opposite party was under IMT-17 and section 4 of the policy. Personal accident coverage was only for owner-cum-driver and not owner and driver.
9. 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.
10. 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.
11. 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 complainants under Workmens Compensation Act for the death of the driver.
12. 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 deceased 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 documentary evidence either by the complainants or 2nd opposite party. 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 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 deceased 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 complainants have received compensation amount and it was an admitted fact. Therefore, the complainants were not entitled for the benefits as prayed for in view of section 167 of M.V.Act, 1988. There was no deficiency of service on the part of the opposite parties.
13. 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 COMPLAINANTS
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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.N o.23/04 Ex.A2 Xerox copy of Postmortem report.
Ex.A3 - Xerox copy of inquest report.
Ex.A4 - Office copy of the notice dt.06-02-2006 alongwith postal receipts.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO.2 EX.B1 Copy of Insurance Policy No.501602/31/03/6300010670.
EX.B2
- Xerox copy of order in W.C.No.17/04 of the Assistant Commissioner of Labour, Anantapur.
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MEMBER PRESIDENT (F.A.C.) DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, ANANTAPUR ANANTAPUR Typed by JPNN