BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.S.Chinnaiah, B.A., B.L.,I/C President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 28th day of December, 2007
C.C.No. 70/07
Between:-
P. Gopal, S/o. Seshaiah,
Near Hanuman Temple, Kollapur, Mahabubnagar District.
… Complainant
Versus
1. The Branch Manager, M/s. New India Assurance Company Limited,
Branch Office 2-2-2/D, Opp. Modern High School, Mahabubnagar.
2. The Divisional Manager,M/s.New India Assurance Company Limited,
Divisional Office, 40-526, 1st Floor, HDCT Complex, R.S.Road, Kurnool.
… Opposite Parties
This C.C. coming on before us for final hearing on 14.12.2007, Sri. M. Sivaji Rao, Advocate, for the complainant, and Sri.Mohammed Ishaq, Advocate for the opposite party No.2 and the opposite party No.1 having been set exparte and having stood over for consideration till this day, this forum delivered the following:
ORDER
(Sri. S. Chinnaiah, I/C President)
C.C.No.70/07
1. This is a complaint filled under section 12 of C.P.Act, 1986 by the complainant to direct the opposite parties to pay a sum of Rs.90,000/- towards the damages and amount spent to repair the damaged vehicle, to pay Rs.24,000/- towards loss of earnings, to pay a sum of Rs.20,000/- towards the compensation for mental agony and hardship and also pay costs of the complaint.
2. The dispute arose in the following background. The complainant is the owner and driver of the Mahindra Savari Jeep (Mini vehicle) bearing its Registration No.AP 22U 3666 who insured his vehicle with the opposite party No.1 vide its policy No.611501/31/04/04329 and the period of the insurance coverage was from 03-09-2004 to 02-09-2005. Opposite party No.1 is the insurer and the opposite party No.2 is the Divisional office of the opposite party No.1 who sought the particulars and the documents of the vehicle from the complainant under whom opposite party No.1 works and who recommends the opposite party No.1 to repudiate the claim of the complainant. Due to illness on 08-01-2005 the complainant requested one driver Kumar Goud who was having valid and effective driving license to run the vehicle. On 8/9-01-2005 at about 2.30 hrs while the said vehicle was coming from Hyderabad to kollapur met with an accident by hitting a road culvert near Nagarkurnool, Kanapur and turned turtle of the said vehicle and thereby completely damaged the said vehicle. After the accident a case has been registered under Sec.337 of IPC in Crime No.7 of Nagarkurnool Police Station. As the said vehicle was under insurance coverage, immediately the complainant being the insured and owner of the vehicle submitted his claim No.611501/31/04/00247 to the opposite party No.1. Thereafter the opposite parties have appointed investigator to investigate and to assess the damages caused to the vehicle. The complainant got repaired his vehicle at Sri. Laxmi Venkateswara Auto workshop, kollapur by spending more than Rs.90,000/-. But to the utter surprise, the opposite party No.1 in connivance and instructions of the opposite party No.2 repudiated the claim of the complainant vide their letter dated 31-05-2005 on a false ground that “driver of vehicle at the time of accident did not have valid and effective driving license”. Though the driver of the vehicle Mr. Kumar Goud is having valid and effective driving license at the time of accident, the opposite parties illegally and wrongfully repudiated claim of the complainant on baseless grounds which amount to deficiency of service on their part. The complainant is running his vehicle for earning his livelihood on self employment basis. Due to non-running of the vehicle for two months he suffered huge loss to his earning and he suffered loss of Rs.24,000/- per month @ Rs.400/- per day. The complainant also get got issued legal notice on 08-5-2007 to both the opposite parties to settle the claim but the opposite parties after receipt of the notice neither replied nor paid any amount. Thus the case of the complainant.
3. Opposite party No.1 remained exparte and did not contest the case.
4. The opposite party No.2 filed a counter opposing the petition contents, contending that it is incorrect to state that on 08-01-2005 the complainant due to illness requested one driver who was having valid and effective driving license to drive the vehicle and that the complainant is running the vehicle AP 22 U-3666 for earning his livelihood on self employment basis and that due to non-running of the vehicle for two months he suffered huge loss to his earnings and suffered loss of Rs.24,000/- @ Rs.400/- per day. It is also incorrect to state that the complainant got repaired the vehicle by spending more than Rs.90,000/- in Laxmi Venkatewara Auto Work Shop in Kollapur and the opposite party colluding with opposite party no.2 repudiated the claim of the complainant vide letter dated 31-05-2005 though the alleged driver having valid driving license. The opposite parties appointed the surveyor one Sri.Mukul to asses the loss to the vehicle AP 22 U 3666 who submitted his report dated 03-06-2005 assessing the net loss as Rs.20,000/- only. After going through the entire record while processing the claim it is found that the driver Sri. G. Venkatesh Goud at the time of alleged accident possessing only Driving license to drive LMV non-transport vehicle whereas the vehicle AP 22 U 3666 was insured with our company as a commercial vehicle which should be driven by a driver who possess the driving license to drive LMV transport only as per the terms of the policy. Thus the complainant is guilty of violation of terms of the policy as such he is not entitled to claim any compensation. Therefore, there is, absolutely no deficiency of service on the part of the opposite parties and the complainant is not a consumer within the meaning of Section 2 of the C.P.Act. The claim of the complainant is also time barred by limitation. Hence to dismiss the complaint with costs.
5. Heard arguments both sides.
6. Basing on the above pleadings, the points that arises for consideration herein are:
(i) Whether the accident had occurred due to the rash and
negligent driving by the driver of the Mahindra Savarai Jeep
(Mini vehicle) bearing registration No.AP22 U 3666 ?
(ii) Whether the complainant is a consumer within the meaning
of the C.P.Act?
(iii) Whether the complainant has proved the deficiency of
Service on the part of the opposite parties and if so whether
the complainant is entitled to the compensation amount and
and if so to what amount and from which of the opposite parties.
(iv) To what relief ?
7. Both sides have not adduced oral evidence. Ex.A-1 copy of insurance policy for the vehicle bearing No.AP 22 U 3666 belonging to the complainant i.e., P. Gopal, Ex.A-2 copy of FIR in Cr. No.7/2005 of Nagarkurnool police station, Ex.A-3 copy of charge sheet filed in Cr. No.7/2005 of Nagarkurnool police station, Ex.A-4 bunch of bills, Ex.A-5 repudiation letter dated 31.5.2005, Ex.A-6 letter issued by the opposite party dated 16-11-2005 to the complainant, Ex.A-7 legal notice issued by the complainant to the opposite parties dated 08-05-2007, Ex.A-8 is the extract of driving license No.DLFAP 022196102003 issued by the Addl. Licensing Authority, Mahabubnagar are marked for the complainant.
8. Ex.B-1 original policy issued for the vehicle bearing No.AP22 U 3666, Ex.- B-2 is the report of the surveyor dated 03-06-2005 relating to the vehicle bearing No.AP22 U 3666 belonging to P. Gopal.
9. We have gone through the contents of the complaint, counter, chief affidavit and counter affidavit, filed by the opposite parties, written arguments and documents filed by either side and the relevant material available on record.
10. Point No.1:- To prove the accident the complainant both in the complaint and chief affidavit says that he is the owner and driver of the Mahendra Savari Jeep (Mini vehicle) bearing registration No.AP22 U 3666 and the same was insured with the opposite party No.1 under Ex.A-1. Ex.A-1 and Ex.B-1 are the insurance policies for the vehicle bearing No. AP22 U 3666 are one and the same. The complainant says that due to illness on 08-01-2005 at his request the driver by name Kumar Goud who was having valid and effective driving license was engaged. He says that on 8/9-01-2005 at about 2.30 a.m. while the vehicle bearing No.AP22 Y 3666 was coming from Hyderabad to Kollapur met with an accident by hitting a road culvert near Nagakurnool, Kanapur and turned turtle of the said vehicle and there by completely damaged. According to him the accident occurred solely due to the rash and negligent driving by the driver kumar Goud. Ex.A-2 is the copy of FIR, one Sampangy Veera Swamy gave report to the police, Nagarkurnool and case in Cr.No.7/2005 under section 337 IPC was registered against the driver of the vehicle bearing No.AP22 U 3666. The police after investigation into the case filed Ex.A-3 charge sheet in Cr.No.7/2005 of Nagarkurnool police station against the driver of offending vehicle for rash and negligent driving. The case of the complainant is amply corroborated with the contents of Exs. A-2 and A-3 as to the manner of accident. On the other hand, the opposite parties are also not seriously disputing the manner of accident. In view of the above material as recorded we hold that the accident occurred solely due to the rash and negligent driving of the vehicle bearing No.AP22 U 3666 by its driver. This point is answered accordingly.
11. Point No.2:- The contention of the opposite party is that admittedly the vehicle in question was not being given by the complainant at the time of accident. His next contention is there is no evidence that the driver was his friend as being claimed by the complainant and therefore it can safely be concluded that he was an employee of the complainant and therefore the complainant is not a consumer within the meaning of the Consumer Protection Act.
On the other hand, the contention of the complainant is that he is the owner and drive of Mahindra Savari Jeep (Mini vehicle) bearing registration No.AP22 U 3666. His next contention is the complainant insured the said vehicle with opposite party No.1 and insurance was in force by the date of accident. His next contention is on 08-01-2005 the complainant die to illness requested the driver by name Kumar Goud who was having valid and effective driving license to run the vehicle and as such the contention of the opposite party is that the complainant is not a consumer cannot be accepted.
After going through the rival contentions, we are of the view that the contention of the complainant sounds well. Here, the first and foremost question that is to be decided is whether the complainant is a “consumer as defined in Section 2 (d) of the Consumer Protection Act. The contention of the opposite parties is that the complainant is not a “consumer”, so as to attract the above said definition. It is, therefore, useful to extract Section 2 (d) hereunder:
“ Section 2 (d): “Consumer” means, any person who,
a) ………………
b) hires or avails of any services for a consideration which has been
paid or promised or partly paid and partly promised, or under any
system of deferred payment and includes any beneficiary of such
services other than the person who hires or avails of the services
for consideration paid or promised, or partly paid and partly
promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned
person, but does not include a person who avails of such services
for any commercial purpose”.
It is an admitted fact that the complainant insured his vehicle bearing No.AP22 U 3666 with the opposite parties under Exs. A-1 and B-1 which are one and the same and for that purpose the complainant has paid the amounts as required under the policy. The period of insurance was 03-9 -2004 to 02-9-2005. On fateful day i.e., on 08-01-2005 due to his illness at his request the driver by name Kumar Goud drove the offending vehicle. The staunch case of the complainant is that, he has purchased the vehicle for running his livelihood on self employment as such he is a consumer.
Hence, the complainant avails of the services of the opposite parties for consideration, which he has been paid as required under the definition of “Consumer” as defined in Sec. 2 (d) of the C.P.Act. Hence we are inclined to hold that the complainant is a consumer under the act. Thus the point is answered accordingly.
12. Point No.3:- The opposite party No.2 contended that it is an admitted fact that the driver Mr. Kumar Goud was possessing the driving license to drive the vehicle LMV non- transport only, whereas, the Mahindra Savari Jeep (Mini vehicle) bearing registration No.AP22 U 3666 was insured with the opposite party as commercial vehicle and that the said vehicle is a “Maxi Cab” within the meaning of Sec.2 (22) of Motor Vehicle Act. His next contention is the notification No.S0451 (E) dated 19-6-92 describes a ‘Maxi Cab” is a transport vehicle. That means a person having driving license (Non – transport) only cannot drive it. Thus the complainant is guilty of violation of terms of the policy as well as sec.3 of Motor Vehicle Act and therefore the repudiation of the complainant’s claim by the opposite party is valid and legal and as such it is not guilty of any deficiency of service. The opposite parties relied on the decisions reported in 2007 (2) APLJ 24 (CC) (full text not filed), II (2006) CPJ 8 (SC).
On the other hand, the contention of the complainant is that the opposite party contending that the driver of the vehicle at the time of accident possessing only a driving license to drive LML non-transport vehicle. Whereas, the vehicle AP22 U 3666 was insured with the opposite party as commercial vehicle which should be driven by driver who is possessing the driving license to drive LMV transport vehicle. It is further submitted that as per Sec.2 (21) of Motor Vehicle Act, 1988 light motor vehicle means “ A transport vehicle or omnibus the gross vehicle weight of either of which of a motor car or tractor and road roller the unlading weight of any of which does not exceed 7.500 kgs. The complainant’s vehicle is a Mahindra & Mahindra made jeep which is with a weight of 2060 kgs gross. So the driver of the vehicle is competent to drive LMV vehicle which is within the purview of light motor vehicle and relied on a decision reported in 2005 (2) AJR 242 Madhya Pradesh High Court.
After going through the rival contentions we are satisfied that the contention of the opposite party No.2 is not convincing.
In the present case, after the accident the opposite parties have appointed surveyor and Ex.B-2 is such surveyor report filed by him. A perusal of Ex.B-2 reveals the particulars of registration of the vehicle in question and its driver, owner and the driving particulars and the registered laden weight of the vehicle. The laden weight of the vehicle is 2060kgs and unladen weight is 1820kgs. Now the contention of the complainant is if the unlading weight of the vehicle does not exceed 7500 kgs as per sec 2 (21) of Motor Vehicle Act, it is a light vehicle. In the present case, as per the case of the complainant, and as seen from Ex.B-2 surveyor report the unladen weight of the vehicle bearing No.AP22 U 3666 is 1820kgs and laden weight of the vehicle is 2060kgs.
Their Lordships in a decision reported in 2005 (2) AJR 242 Madhya Pradesh High Court has held that:
“The insurance company challenged on ground that driver of offending vehicle had license to drive only light vehicle and not transport vehicle – validity even if a driver is possessing a license to drive a light motor vehicle, the license would be a valid driving license for driving a transport vehicle if its unlading weigh not exceeded weight prescribed under definition of light motor vehicle since offending vehicle was transport vehicle and since its unlading weight not exceed 7500 kg as prescribed under definition of light motor vehicle hence insurance company held liable award of tribunal exonerating insurance company being unsustainable set aside.”
In the present case the unlading offending vehicle is 2060 kgs. The driver Kumar Goud who drove the vehicle at the time of accident was possessing LMV driving license. Thus by the date of accident the driver is having license to drive light motor vehicle. Added to it Ex.A-8 is a driving license of the driver to drive LMV vehicle w.e.f. 21-11-2003. In these circumstances, the contention of opposite party No.2 that the driver is not having valid driving license cannot be accepted and its contention falls to the ground and it holds no water. The decisions relied on by the opposite parties as mentioned supra are not applicable to the fact of the present case. Even though the driver of the vehicle has no license, to drive the vehicle the opposite parties are liable to pay the amount and the opposite parties have to recover the amount from the owner, in view of the latest decisions of our highest Courts on our land.
The complainant who is the owner of the vehicle bearing No.AP22 U 3666 both in the complaint and chief affidavit says that he got repaired his damaged vehicle at Sri. Laxmi Venkateswara Auto Work Shop, Kollapur by spending more thatn Rs.90,000/-. In support of his contention filed Ex. A-4 bunch of bills. Though he complainant claimed Rs.90,000/- towards repairing charges, purchasing spare parts, painting , labour charges, etc, he neither exmined any of the persons who issued relevant bills nor filed their affidavits. Hence, it is very difficult to say that he has spent Rs.90,000/- towards effecting repairs of the damaged vehicle that met with an accident. At the same time the opposite parties have appointed surveyor who assessed the loss after inspecting the vehicle involved in the accident and he assessed the net loss of Rs.22,000/- Ex.B-2 is such report of the surveyor. The surveyor while assessing the amount of loss deducted the depreciation at 35 % and 50%. As seen under Ex.B-2 the running position of the vehicle in question as per speedometer reading is 47,151 kms. The date of registration is on 23-08-2000. The surveyor has not given cogent reasons for deducing 35% and 50 % towards depreciation. Added to it, the surveyor is neither examined by the opposite parties nor filed his affidavit. It is no doubt true that the complainant has not examined, the persons who issued various bills towards the expenses for effecting repairs on that score, it cannot be said that he has not spent any amount for repairing the vehicle as it is not in dispute that the vehicle in question was not damaged due to accident caused by its driver Kumar Goud, hitting the same to a culvert as he lost its control. Hence, considering the bills filed by the complainant and Ex.B-2 surveyor report as a via media measure we are satisfied that granting of Rs.62,000/- towards repairing charges spent by the complainant is quite reasonable.
The complainant both in his counter and chief affidavit says that he is running his vehicle for earning his livelihood on self employment basis. As such due to non-running of the vehicle for two months he suffered huge loss to his earnings. For two months he suffered loss of Rs.24,000/- at Rs.400/- per day. The opposite parties are disputing the claim of the complainant. However though the complainant claimed Rs.400/- per day as income he has not filed any document in support of his claim. However it is not in dispute that the vehicle of the complainant was detained in the workshop for effecting repairs. Hence the complainant must have sustained some loss for not running the vehicle. Hence in our considered opinion granting of Rs.12,000/- towards loss of non-running the vehicle is quite reasonable.
The complainant is claiming Rs.20,000/- towards compensation for mental agony and hardship. As the vehicle met with an accident and he has affected repairs to the vehicle and in that connection it was kept idle for some days. In our considered view granting of Rs.3,500/- towards mental agony and hardship is quite reasonable. Thus in all the complainant is entitled to a total sum of Rs. 77,500/- (62,000+ 12000+3500). As the complainant did not claim interest we are not awarding the same.
The complainant issued Ex.A-7 legal notice demanding the opposite parties to pay the amount spent by him for affecting damages. Ex.A-6 is the letter issued by the opposite parties, dated 16-11-2005. As seen under Ex.A-5 the opposite parties have closed the claim of the complainant stating that the driver of the vehicle at the time of accident did not have valid and effective driving license. It is already held in the previous lines that the drive of the offending vehicle was possessing valid and effective driving license to drive the vehicle in question. Hence there is every deficiency of service on the part of the opposite parties for not settling the claim in spite of the representation made by the complainant. The claim of the complainant is also within time for the reason that the claim was closed under Ex.A-5 dated 31-5-2005 and that they have addressed a letter to the complainant on 16-11-2005 asking him to submit relevant documents and that the complaint is filed on 18-6-2007 which is within the time of limitation.
The vehicle bearing No.AP22 3666 belonging to the complainant was insured with the opposite parties and insurance was in force by the date of accident. Hence the opposite parties 1 and 2 are jointly and severally liable to pay damages and compensation to the complainant as discussed supra.
13. Point No.4: In the result, the complaint is partly allowed directing the opposite parties 1 and 2 jointly and severally liable to pay a sum of Rs.77,500/- to the complainant and also pay a sum of Rs.750/- towards costs of the complaint within one month from the date of receipt of the order.
Typed to dictation, corrected and pronounced by us in the open Forum on this the 28th day of December, 2007.
Sd/- Sd/-
LADY MEMBER I/C PRESIDENT
Appendix of evidence
Witness examined
For Complainant: For Opposite parties:
-Nil- -Nil
Documents marked
For the Complainant:
Ex.A-1. Xerox copy of insurance policy for the vehicle bearing No. AP
22 U 3666 belonging to the complainant.
Ex.A-2. Copy of FIR in Cr.No.7/2005 of Nagarkurnool P.S.
Ex.A-3. Copy of charge sheet filed in Cr.No.7/2005 of Nagarkurnool
police station.
Ex.A-4. Bunch of bills.
Ex.A-5. Repudiation letter dated 31.5.2005.
Ex.A-6. Letter issued by the opposite party No.2 dated 16-11-2005 to
the complainant.
Ex.A-7. Office copy of legal notice issued by the complainant to the
opposite parties dated 08-05-2007.
Ex.A-8. Xerox copy of driving license of the driver Mr. Kumar Goud.
For the opposite parties:
Ex.B-1 Original policy issued for the vehicle bearing No.AP22 U 3666.
Ex.B-2 Motor Survey Report, dated 03-06-2005 relating to the
Vehicle, bearing No.AP22 U 3666 belonging to P.Gopal.
By the Forum:
- Nil- I/C PRESIDENT
Copy to :-
1. Sri. Sivaji Rao, Advocate,Kurnool for the complainant.
2. The Branch Manager, M/s. New India Assurance Company Limited,
Branch office 2-2-2/D. Opp. Modern High School, Mahabubnagar.
3. Sri Mohammed Ishaq, Advocate, Kurnool for the opposite party No.2.
Copy was made ready on :
Copy was dispatched on:
Copy was delivered to parites:
