BEFORE THE DISTRICT FORUM:KURNOOL

Present: Sri K.V.H.Prasad, B.A., LL.B., President

and

Smt C.Preethi, M.A., LL.B., Member

Wednesday the 18^th day of July, 2007

C.C. No.21/2007

J. Mallikarjuna goud,S/o.Chandraiah goud,

H.No.1-43/8/12,Akkiraju Colony,Atmakur,Kurnool District, A.P.                                                       COMPLAINANT                 

Verses

1. United India Insurance Company Limited,

Represented by its Branch Manager,Nandyal, Kurnool District.

1. United India Insurance Company Limited,

Represented by its Divisional Manager,Kurnool.                                                        … OPPOSITE PARTIES

          This complaint coming on this day for orders in the presence of                Sri.M. Azmathulla, Advocate, kurnool for complainant, Sri. A.V.Subramanyam, Advocate, Kurnool for Opposite Party No.1, and  Opposite Party No.2 called absent and set exparte upon the persuing the material papers on record,  the Forum made the following:-

ORDER

 (As per Smt. C. Preethi,  Member)

1.      This consumer complaint of the complainant is filed Under Section 12 of C.P.Act, 1986 seeking a direction on opposite parties to pay Rs.42,500/- with 18% interest, Rs.50,000/- towards damages, costs of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2.      The brief facts of the complainant’s case is that the complaint is the owner of the Auto bearing No. AP 21-w-2278, which is covered under the policy bearing No.051102/31/05/00001385 from 20.10.2005 to 19.10.2006 and it is a comprehensive  policy covering risk limit to Rs.1,10,000/- on 9.4.2006 the said Auto met with accident and sustained damages which necessitated repairs to the tune of Rs.53,801/-.The opposite parties and deputed a surveyor who inspected the lose  to Rs.42,500/- .After completion of repairs the complainant submitted claim form and bills.  But on 12.12.2006 the opposite party No.1 repudiated the claim stating that at the time of the accident the driver does not hold valid driving license.  Therefore the complainant resorted to the forum for redressal.
3.      In support of his case the complainant relied on the following documents viz., (1) Repudiation letter dated 12.12.2006 (2) Xerox copy of bill dated 5.5.2006 for Rs.41,805/- (3) Xerox  copy of bill dated nil for Rs.8,730/- and (4) Driving licence of Mallikarjuna Rao, besides to the sworn affidavit of the complainant in reiteration of his complaint avernments and the above documents are marked as Ex A1 to A4 for its appreciation in this case.  The complainant caused interrogatories  to opposite parties 1 and 2 replied to the interrogatories of opposite parties.
4.      In pursuance to the notice of this forum as to this case of the complainant, the opposite parties appeared through their counsel and contested the case by filling written version of opposite party No.2 and opposite party No.1 adopted the written version of opposite party No.2.
5.      The written version of opposite parties admits the complainant as the owner of the auto bearing No.AP 21 w  2278 and the same was insured with opposite parties and the said Auto met with accident on 9.4.2006 . Immediately after receiving information of accident investigation was conducted, which revealed that there is violation of terms and conditions of the policy as the driver was not holding  valid driving license on the date of accident .  It further submits that a person  who doesn’t possess a badge issued by  RTA officials is not  eligible to drive Auto Rickshaw carrying passengers  i.e., public service vehicles.  In the present case the driver  of the Auto was not holding a badge authorizing him to drive a passenger Auto, there it is clear violation of policy terms and conditions.  Therefore, the opposite parties repudiated the claim of the complainant on 12.12.2006 after getting clarification from RTA, Nandyal vide letter dated 14.9.2006.  Hence, there is no deficiency of service on their part and seeks for the dismissal of complaint with costs.
6.      The opposite parties in support of their case relied on the following documents viz., (1) Office copy of letter dated 16.8.2006 of opposite party No.1 to RTO Nandyal, (2) Reply dated 13.9.2006 of RTO Nandyal, to opposite parties (3) Xerox copy of motor survey report dated 4.6.2006 (4) true copy of policy bearing  No.051102/31/05/01385, besides to the sworn affidavit of the complainant in reiteration of their written version avernments and the above documents are marked as Ex B1 to B4 for its appreciation in this case.  The opposite parties caused interrogatories to the complainant and replied to the interrogatories of the complainant.
7.      Hence the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties?
8.      It is the case of the complainant that he the owner of the Auto bearing No. AP 21 W 2278 covered under the policy issued by opposite parties and the said Auto with accident on 9.4.2006 and was badly damaged.  On the claim preferred the opposite parties rejected stating that the driver on wheels of the Auto on the date of accident was not possessing valid driving license with badge  as per the clarification given by the RTO Nandyal vide Ex B2 dated 13.9.2006 with says driver of the Auto did not obtain badge from RTA and without badge he cannot drive the passenger vehicle , therefore he is not competent to drive the same.
9.      The complainant submitted that the vehicle involved in the accident is an Auto and admittedly the driver of the Auto was possessing driving license to drive Transport and Non Transport (AR).  But the opposite parties repudiated the claim of the complainant vide Ex A1 stating that the person who drove the vehicle at the time of the accident does not hold valid driving license i.e., Auto Rickshaw Transport with Badge No. The opposite parties submitted that Rule 37 of APMV Rules 1987 mandates to display a metal badge on his left breast while on duty. Relying on this rule the learned counsel for opposite parties contends that at the time of accident the driver was not wearing a badge as mandated by Rule 37 and it amounts to violation of terms and conditions of the policy.  Therefore, the opposite party is not liable to pay any compensation.
10.      Now what is required  to be considered is whether non wearing  of the metallic badge as mandaded by  Rule  37 of the size prescribed, showing the name of the driver and the authority of the district which has issued the same to drive the public transport Auto, in any way contributed for the occurrence of the accident.
11.      Admittedly, the driver of the Auto was holding an effective licence and it was subsisting as on the date of accident, the opposite parties contended that the driver was not wearing badge as contemplated under Rule 37 and it amounts to violation of terms and condition of policy cannot be continuanced,  for the simple reason that the purpose of    inssuance of metallic badge is only the identity of the driver and the authority which has issued the driving licence.  By no strech of imagination non wearing of the badge as contemplated Under Rule 37 can be extended to attribute any cause for occurrence of the accident. Therefore, non wearing of metallic badge as mandated by Rule 37 is not violative  of terms and conditions of Insurance policy, and non wearing of badge does not in any way contribute to the occurrence of the accident and at the most it can be held as a technical breach of license under Rule 37, and it cannot be concluded that the accident occurred due to non wearing badge as per the decision of High Court of AP between New India Assurance Company Limited  Vs Bhimavarau  Pratap and other, reported in 2006 ACJ page. 1076.

1.      To sum up, the above discussion and following the above decision, that wearing of the badge on the left or right breast of the driver of a public Transport vehicle, as contemplated Under Rule 37 of the rule is only for the purpose of identification of the driver,  the District Authority which has issued the same and its non wearing does not in any way contribute for the occurrence of the accident. Therefore the complainant is perfectly remaining entitled for the relief sought.
2.    The complainant in this case, has claimed a sum of Rs.53,801/- but the opposite parties has submitted that certain depreciations are to be deducted from the repairs. The Ex B3 final survey report assessed the loss after depreciation to Rs.30,500/-. Thus basing on Ex.B3 the claim has been reduced to Rs.30,500/- which the opposite parties has to pay to the complainant.
   1.      In the result,

          Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the Open bench this the 18^th day of July, 2007.

    Sd/-                                                                                         Sd/-

MEMBER                                                                                 PRESIDENT

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant :Nil                                       For the opposite parties :Nil

List of exhibits marked for the complainant:-

Ex.A1. Repudiation letter, dated 12.12.2006.

Ex.A2. Xerox Copy of bill, dated 5.5.2006, for Rs.41,805/-.

Ex.A3. Xerox Copy of bill, dated mil for Rs. 8,730/-.

Ex.A4. Driving Licence of Mallikarjuna Rao.

List of exhibits marked for the opposite parties:

Ex.B1. Office Copy of letter, dated 16.8.2006 of Opposite party

           To RTO, Nandyal.

Ex.B2. Reply, dated 13.9.2006 of RTO Nandyal to Ex.B1

EX.B3. Xerox Copy of Motor Survey Report,dated 4.6.2006.

            (No.in 4 papers)

Ex. B4. True copy of policy No.051102/31/01385 (No in 4 papers)

              Sd/-                                                                                Sd/-

          MEMBER                                                                       PRESIDENT       

Copy to:-

1. Sri. M. Azmathulla, Advocate, Kurnool.

2. Sri. A.V.Subramanyam, Advocate, Kurnool.

Copy was made ready on:

Copy was dispatched on:

Copy was delivered to parties: