3

that R2 repudiated the claim of the complainant on false and frivolous grounds to

escape from their bounden duty to pay compensation. The complainant alleged

deficiency of service on the part of R2. Hence, the complaint.

3. The R2 filed its counter and stated that the present complaint is not

maintainable either in law or on facts. It is true that the complainant is the

registered owner of TATA Indica car bearing No. AP 04 TV : 0403 the said vehicle

was purchased under hire purchase agreement and hypothecated to R1. The said

vehicle was insured with R2 covering the risk of own damages as well as 3

damages, 3

3004/52471008/00/000 under passenger carrying package policy. The said

policy was inforce from 8-9-2007 to 7-9-2008. The complainant is owner cum

driver of the said car, who engaged passengers to Kadiri of Anantapur district on

15-5-2008 while returning back from Kadiri – Kadapa after leaving the passengers

at Kidiri at about 9.30 p.m from the said care reached 10

Kadiri – pulivendla main road, suddenly smoke came out from the AC compressor

of the car. Immediately the complainant / driver took the car to road side and got

down from the drivers seat of the car and tried to extinguish the flames but the

flames were not controlled by him and it is run by diesel, as a result of which the

car was totally burnt. The complainant submitted the claim form to this

respondent along with documents the claim form is marked as Ex. B2, which

disclose the time of the accident. The complainant was on the wheels of the car he

did not put any efforts to put off the fire. The driving license which was submitted

by the complainant which is marked as Ex. B3 clearly established that the

complainant was having only LMV non-transport driving license at the time of

accident. The subjected car is passenger carrying commercial vehicle, the insured

himself was the driver of the vehicle at the time of accident. The complainant has

violated the terms and conditions of the policy as well as section 3 of M.V. Act and

4

rule 3 of Central Motor Vehicle Act 1989. As per drivers clause mentioned in the

policy “any person including the insured, provided that a person driving holds an

effective driving license at the time of the accident and is not disqualified from

holding or obtaining such a license. Provided also that the person holding an

effective learner’s license may also drive vehicle and that such a person satisfies

and requirements of Rule 3 of Central Motor Vehicle rules 1989”. In Ex. B4 the

surveyors report the surveyor has clearly mentioned that the insured has

possessed LMV driving license at the material time of accident. The complainant

was not having any transport license with badge to drive the transport vehicle at

the time of accident. Therefore, the R2 company rightly repudiated the claim of

the complainant and as such there is no any deficiency of service on their part.

Further the R2 stated that the claim of the complainant is very high and there is

no way for the amounts mentioned in the complaint and the respondent mentioned

citation reported in 2008 ACJ 627 New India Assurance Co. Ltd., Vs. Prabulal.

4. On behalf of the complainant Ex. A1 to A6 were marked and on behalf

of the respondents Ex. B1 to B5 were marked.

5. On the basis of the above pleadings the following points are settled for

determination.

i. Whether the complainant is entitled to receive the claim amount from

R2?

ii. Whether the complainant is entitled to receive any compensation

towards deficiency of service from the respondents?

iii. To what relief?

6. Point Nos. 1 & 2. Heard both sides and perused the records available

in the forum and the forum made the following order. The complainant is the

registered owner of TATA Indica Car bearing No. AP 04 TV : 0403. The said vehicle

is purchased under hire purchase agreement and hypothecated to R1. The said

car was insured with R2 through R1 covering the risk of own damages as well as

5

t h e 3

3004/52471008/00/000 under passenger carrying package valid from 8-9-2007

to 7-9-2008. The said card was registered with RTO office, Kadapa as tourist

vehicle and the complainant is eking out his livelihood from the car by running for

hire to others. The R1 provided loan to purchase the said car and R1 paid

insurance premium to R2 on behalf of the complainant and the said vehicle is

hypothecated to R1. The complainant further stated that he is the owner cum

driver of the said vehicle and engaged passengers to Kadiri of Ananthapur district

on 15-5-2008 and on 17-5-2008 and on his return from Kadiri to Kadapa at about

9.30 p.m when the said car reached near 10

Pulivendla main road, suddenly smoke came out from the AC compressor of the

car. Immediately the driver put the car road side and got down from the drivers

seat and tried to extinguish the flames but the flames were not controlled by him,

as a result of which the ca was totally burnt. The fire accident occurred in the

dark night in the forest on deep ghat road no one to help to the complainant to put

off the flames on his car. On 18-5-2008 the complainant reported the same to

Vemula Police station and Head Constable of the said police station visited the

place of fire accident and inspected the car and opined that the car was burnt

totally due to short circuit in the wires AC compressor. The Sub-inspector of

Vemula Police station issued a certificate to that effect. Ex. A1 is the Xerox copy of

certificate issued by Vemula Sub-Inspector. The said accident was informed to the

respondents immediately and R2 appointed a spot surveyor to quantify the

damages of the car and after the survey the car was brought to Kadapa and kept in

Prani Auto Plaza, Kadapa by paying Rs. 7,000/-. The R2 submitted the claim form

along with original bills before R2 instead of settling the claim of the complainant.

The R2 repudiated the claim stating that at the time of accident the said driver is

not having valid license. Ex. A2 is the Xerox copy of repudiation letter dt.

7-6-2008. The objections taken by the respondent company is that the driver is

6

having LMV motor vehicle and not the transport vehicle license along with badge.

So they have repudiated the claim of the complainant. Ex. A3 is the estimation bill

issued by Prani Auto Plaza, Kadapa. Ex. A4 is the Xerox copy of Registration

certificate. Ex. A5 is the Xerox copy of driving license. Ex. A6 is the Xerox copy of

insurance policy.

7. The complainant alleged deficiency of service on the part of the

respondents as they have repudiated their genuine claim. The R1 is a formal party

to the present complaint and R2 submitted his counter stating that it is true that

the complainant is owner of the TATA India car bearing No. AP 04 TV : 0403 which

was purchased under hire purchase agreement and hypothecated from R1 that the

same was insured with R2 covering the risk of own damage as well as 3

property damage and 3

3004/52471008/00/000 under passenger carrying package valid from 8-9-2007

to 7-9-2008. The R2 is not denied the accident to the said vehicle. The R2 stated

that the complainant has submitted the claim form along with original documents

and after perusing the said documents they came to know that at the time of

material accident. The said complainant / driver does not possessed valid license

at the time of accident the driver of the said vehicle was having only LMV nontransport

driving license. But the said car is passengers carrying commercial

vehicle. The insured himself was driver of the vehicle at the time of accident, who

is having only LMV non-transport driving license but not the transport vehicle

license with badge. The complainant has violated the terms and conditions of the

policy as well as section 3 of M.V. Act and rule 3 of Central Motor Act 1989. Only

one objection was taken by the insurance company that the complainant / driver

does the transport license with badge to drive the transport vehicle at the time of

accident and they have rightly repudiated the claim of the complainant.

7

8. Ex. B1 is the Xerox copy of the policy. Ex. B2 is the Xerox copy of

claim form. Ex. B3 is the Xerox copy of driving license. Ex. B4 is the Xerox copy

of surveyor report. Ex. B5 is the clarification letter issued by Naveen vellanki. The

insurance company has appointed one spot surveyor to assess the loss of the said

vehicle and the surveyor has submitted his report stating that the car was totally

burnt in the said accident and he has assessed net loss assessment, repair loss,

total loss and salvage loss basis. The claim settlement on salvage loss basis is

quite reasonable compared with repair loss and total loss assessment. The

surveyor has recommended for total loss of the said vehicle but still R2 company

has repudiated the claim of the complainant. The said accident occurred due to

flames came out from AC compressor and at the time of flames the vehicle was run

with diesel. The flames were not controlled by the complainant driver. As a result

the said TATA Indica car was burnt out in the dark night and no one to help to the

complainant. This objection taken by R2 company is that the complainant driver is

not having valid license at the time of material accident. But the said accident has

not occurred due to the mistake of the driver or any rash and negligent driving. So

it is not a fault of the driver it is the short circuit which occurred in the wires of AC

compressor as a result of the fire accident occurred. It means there is no

involvement of the driver in the said accident. (2003) 6 Supreme Court cases 420

Jitendra Kumar Vs. Oriental Insurance Co. Ltd., held that the Motor Vehicles Act

1988 – S. 149 (2) (a) (ii) – Scope of – Vehicle damaged due to accidental fire – Driver

not holding a valid driving license at the time of incident – Liability of insurer –

Vehicle (Maruti Van), which was duly insured, caught fire during the drive due to

mechanical reasons and not due to any fault of the driver – Held, S. 149 (20 (a) (ii)

does not empower the Insurance Company to repudiate a claim for damages

incurred due to reasons other than the act of the driver – Therefore, held on facts,

Insurance Co. could not have repudiated the claim of the appellant owner solely on

the ground that the driver did not have a valid license at the time of the incident in

8

question. We are of the opinion that the insurance company has not applied its

mind in repudiating the claim of the complainant. The respondent filed one

Supreme Court Judgement New India Assurance Co. Ltd., Vs. Prabhulal which is

not applicable to the present case.

9. Point No. 3. In the result, the complaint is allowed. Directing R2 to

pay Rs. 3,30,013/- (Rupees Three lakh thirty thousand and thirteen only) towards

total loss of the vehicle and Rs. 2,000/- (Rupees two thousand only) towards

mental agony and Rs. 1,000/- (Rupees one thousand only) towards costs of the

complaint, in favour of R1, who in turn deduct all outstanding dues of loan of the

complainant if any and pay the balance. The R2 is directed to comply the order of

the Hon’ble Forum within 45 days from the date of receipt of the order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced

by us in the open forum, this the 3

MEMBER MEMBER PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant : NIL For Respondents : NIL

Exhibits marked for complainant:-

Ex. A1 X/c of letter issued by Sub-Inspector, Vemula Police station, Kadapa.

Ex. A2 X/c of repudiation letter issued by R2, dt. 20-6-2008.

Ex. A3 X/c of estimation bill issued by Prani Auto Plaza, dt. 5-6-2008.

Ex. A4 X/c of Registration Certificate issued by RTO, Kadapa.

Ex. A5 X/c of driving license issued by Addl. Licensing authority, Kadapa.

Ex. A6 X/c of insurance policy issued R2.

Exhibits marked for Respodnent.

Ex. B1 X/c of insurance policy issued R2.

Ex. B2 X/c of claim form.

Ex. B3 X/c of driving license

Ex. B4 X/c of surveyor report, dt. 19-6-2008.

Ex. B5 X/c of letter issued by Naveen vellanki.

MEMBER MEMBER PRESIDENT

Copy to :-

1) Sri K. Murali, Advocate.

2) Sri D. Rajasekhar Reddy, Advocate.

3) M/s TML Financial Services Ltd., Mumbai, Rep. by its

Branch Manager, Branch Office, D.No. 2/13, First Floor,

Kotireddy Circle, Kadapa City.

9