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 11th day of January, 2008
C.C.No. 71/07
Between:
V. Ayya Swamy, S/o. V. Dasappa,
Pullagummi Village, Veldurthy Mandal, Kurnool. … Complainant
Versus
Bajaj Allianz General Insurance Company, Represented by its Authorized Signatory,
608, 609, 6th Floor, Block II, White house, Begumpet, Hyderabad. … Opposite Party
This complaint is coming on this day for orders in the presence of Sri.S.Siva Rama Krishna Prasad, Advocate, Kurnool, for the complainant, and Sri.P.Ramanjaneyulu, Advocate, Kurnool for the opposite party and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Smt. C.Preethi, Member)
C.C.No.71/07
1. This consumer complaint of the complainant is filed under section 12 of C.P.Act 1986, seeking a direction on opposite party to pay Rs.92,875/-, cost 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 complainants case is that the complainant is the owner of the trolley auto bearing No.AP21X3136 and the said trolley was insured with opposite party and opposite party has its branch office at Kurnool. The opposite party issued a policy bearing No.100001935450 after receiving premium of Rs.3,146/- and the policy covers all the risks. On
26-6-2006 at about 10.A.M the said trolley auto while proceeding towards emboy village dashed against lorry which resulted in extensive damages to the said trolley auto and the said trolley auto was placed at Sasya motors, who is the authorized dealer for Ape motors. Immediately, the said accident was informed to opposite party, and opposite party appointed a surveyor. The dealer estimated the repair cost to Rs.42,875/- and final bill was also issued. The opposite party did neither settled the claim nor repudiated the claim, hence the complainant got issued legal notice dated 12-12-2006 and there was no response from the opposite party to this notice also. The complainant was forced to keep the vehicle idle for about one year which caused loss to his business for Rs.25,000/-. Hence, the complainant is entitled to the compensation of Rs.25,000/- and Rs.25,000/- for mental agony. The above conduct of opposite party forced the complainant to approach the forum for reliefs.
3. In support of his case the complainant relied on the following documents viz., (1) certificate issued by sub-inspector of police, Orvakal (PS), Kurnool (dist), (2) office copy of legal notice dated 12-12-2006 , (3) postal receipt dated 12-12-2006 for sending Ex.A2 and (4) Xerox copy of Insurance Policy bearing No.10000193-5450 , besides to the sworn affidavit of the complainant in reiteration of his complaint avernments and the above documents are marked as Ex.A1 to Ex.A4 for its appreciation in this case.
4. In pursuance to the notice of this forum as to this case of the complainant the opposite party appeared through their standing counsel and filed written version.
5. The written version of opposite party denies the complaint as not maintainable either in law or on facts but admits a policy bearing No.0G/06/1801/1803/0000012814 was issued to the complainant, V.Ayyaswamy for his auto bearing No.AP21 X 3136 and the policy commenced from 11-3-2006 to 10-3-2007. It further submits that the person driving the vehicle at the time of the alleged accident has no relation in force as on the date of accident and he was not holding a valid and effective driving license at the time of accident. The complainant handed over the said auto to the said driver and has committed breach of terms and conditions of the policy. The driver who was on wheels on the said auto was holding a non transport license and the insured vehicle is a goods vehicle and the driver should possess a transport license and the complainant allowed the said person to drive the vehicle who did not possess valid and effective license. Hence , the opposite party is not liable to pay any amount as claimed by the complainant. It also submits that, it has no knowledge as to the accident to the complainant’s vehicle and the authorized dealer estimated the repair cost to Rs.42,875/- and also denies that the complainant was forced to keep the vehicle idle for one year and sustained loss for Rs.25,000/- in business, and lastly seeks for the dismissal of complaint with costs.
6. In substantiation of their case the opposite party relied on the following documents viz., (1) policy with terms and conditions, (2) survey report of
E. Mukund, Insurance surveyor and loss Assessor, (3) Xerox copy of license of Dastagiri and (4) letter dated 10/10/2006 of opposite party addressed to the complainant besides to the sworn affidavit of the opposite party and the above documents are marked as B1 to B4 for its appreciation in this case.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on the part of opposite parties:?
8. It is the case of the complainant that he is the owner of the trolley Auto bearing No.AP21X3136 insured with opposite party under policy bearing No. OG/06/1801/1803/0000012814 vide Ex.B1. On 26-6-2007 the said auto met with accident and was badly damaged. On intimation to opposite party, the opposite party appointed a surveyor, and the said surveyor assessed the damages to the said vehicle to Rs.29,000/- and submitted his report vide Ex.B2. There after, the opposite party did neither settled the case nor repudiated it and addressed a letter dated 10-10-2006 vide Ex.B4 to the complainant stating that the driving license is not a valid license and the person is not holding a valid driving license to drive the trolley auto of complainant on the date of the accident.
9. The main contention of opposite party is that the driver Dastagiri of trolley auto had no valid driving license to drive the auto of the complainant in question, as it is amply clear from the license of the driver Dastagiri VideEx.B3, that the license is for driving Auto Rickshaw, Light Motor Vehicle, Non transport and the driver Dastagiri at the time of accident was driving a
Transport vehicle/commercial vehicle and thus there is breach of terms and conditions of the policy. The opposite party contended that the license of the driver was not having an endorsement authorizing him to drive a Transport/ commercial vehicle of the complainant.
10. It is not disputed that the driver Dastagiri was having a license for driving Auto Rickshaw LMV and the complainants vehicle is LMV Auto, when once the driver is having license to drive Auto Rickshaw LMV then the nature of the vehicle whether it is transport vehicle or Non-transport is immaterial. But the opposite party strongly alleges that the auto the driver was driving is a transport/commercial vehicle, hence, the driver must possess a transport endorsement license only, on the date of accident the driver was possessing a valid driving license for driving Auto Rickshaw LMV and there is no material on record to show that he was disqualified from holding such a license at the time of the accident. The policy vide Ex.B1 issued to the complainant is for goods carriage commercial vehicle and the opposite party strongly insist for transport endorsement license to be possessed by the driver, but there is no material on record to show that to drive a commercial vehicle, the driver should possess a transport endorsement license only, the policy insists the driver should possess an effective driving license and the policy no where insists on the driver having a valid driving license to drive or to obtain a specific endorsement of transport to drive a commercial vehicle.
11. The question in this case is that whether merely because the Auto Rickshaw LMV license possessed by the driver Dastagiri was not having an endorsement of transport, the license to drive a Auto Rickshaw LMV becomes ineffective. If that argument is accepted then it would lead to absurd result, in other words a person having a valid driving license to drive a particular category of vehicle does not become dis-abled to drive that vehicle merely because transport endorsement was not there in his license. When once the driver was having a valid license to drive a particular category of vehicle namely Auto Rickshaw LMV, merely because there was no endorsement or authorization to drive a transport vehicle is scored off: it does not take away his liability to drive the vehicle for which he is holding a valid license, the opposite party cannot be exonerated of its liability to reimburse the damages caused to the trolley auto of the complainant.
12. The complainant in support of his case relied on the following decisions, (1) High Court of A.P between The National Insurance Company
Vs Chakali Rangaiah and others reported in 2007 (2) LS Pg 406, where in it was held that a person having learner’s license is to be considered as a person ‘duly licensed’ in terms of Section 149(2) of Motor Vehicle Act. Hence, insurance Company is liable to pay compensation. The other decision is an un reported decision of National Commission between G. Kothainachiar Vs Divisional Manager, United India Insurance Company and others, where in it was held that, the provisions of Motor Vehicle Act was breached by the complainant, but is not the case of the Insurance Company that the policy is a statutory policy. Hence, insurance company liable to pay compensation.
The opposite party in support of their case relied on the unreported decision of National Commission between Abrar Ahmed Ansari Vs New India Assurance Company Limited. The opposite party did not file the full length decision. Hence, cannot be relied and acted upon.
13. To sum up, the above discussion and having regard to over all consideration there is no hesitation to hold that the opposite party has miserablely failed to substantiate that the Auto Rickshaw LMV driving license possessed by the driver Dastagiri was not authorized to drive the complainants auto. Therefore, in these circumstances non settlement of the complainant’s case by the opposite party is certainly amounting to deficiency of service and the complainant is remaining entitled to the reliefs claimed.
14. In this case the complainant claimed a sum of Rs.42,875/-. As seen from Ex.B2 the surveyor inspected the vehicle and assessed the loss to Rs.29,000/-. But the opposite party neither examined the said surveyor nor failed his affidavit to substantiate Ex.B2. At the same time the complainant is claiming Rs.42,875/- towards repair costs, stating the said sum was estimated by the authorized dealer Sasya Motors and the dealer issued final bill to that amount. The complainant has not filed a single document in support of his claim nor examined the authorized dealer. However, as seen from Ex.A1 certificate issued by sub-inspector of police, Orvakal (PS), the auto trolley in question involved in the accident. Hence, under the circumstances we are of the opinion that the complainant might have spent some amount towards effecting repairs. Simply because the complainant has not filed any document that he spent some amount for effecting repairs of the said vehicle, it cannot be presumed that he has not spent any amount. Hence, under the circumstances taking into consideration the facts of the case, we feel satisfied that as a via media measure granting of Rs.35,00/- is quite reasonable. The complainant is claiming Rs.25,000/- for keeping the vehicle idle for one year for effecting repairs, but his claim is not supported by any document. However, considering the circumstances of the case in our considered opinion granting of Rs.5,000/- towards loss of business is quite reasonable. The complainant is claiming Rs.25,000/- towards mental agony, for keeping the vehicle idle. In our considered opinion the claim of the complainant at Rs.25,000/- towards mental agony is on higher side. However, in our considered opinion granting of Rs.2,500/- is quite reasonable and meets the ends of Justice. Thus the complainant is entitled total sum of Rs.35,000+,Rs.5,000/- + Rs.2,500 = 42,500. As the complainant was driven to the forum for reliefs, the complainant is also entitled to costs of Rs.750/-.
15. In the result, the complaint is partly allowed directing the opposite party liable to pay a sum of Rs.42,500/- (Rs.35,000/- + Rs.5,000/- + Rs.2,500/-) 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.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open Forum on this the 11th day of January 2008.
LADY MEMBER I/C PRESIDENT
Appendix of evidence
Witnesses examined
For Complainant: For Opposite parties
- Nil- -Nil-
Documents marked
For the Complainant:
Ex.A-1. Certificate issued by Sub-Inspector of police,
Orvakal Police Station, Kurnool District.
Ex.A-2. Office copy of legal notice, dated 12-12-06.
Ex.A-3 Postal receipt, dated 12-12-2006.
Ex.A-4. Xerox copy of Insurance policy bearing No.100001935450.
For the opposite parties:
Ex.B1 Policy with terms and conditions.
Ex.B2. Survey Report of E. Mukund, Insurance Surveyor and
Loss Assessor.
Ex.B3. Xerox copy of photo copy of Driving license.
Ex.B4 Letter addressed by opposite party to the insured, dated
10-10-2006.
By the Forum:
-Nil-
I/C PRESIDENT
Copy to:-
- Sri. S.Sivaramakrishna Prasad, Advocate,
Kurnool for the complainant.
- Sri. P. Ramanjaneyulu, Advocate, Kurnool for the opposite party.
Copy was made ready on:
Copy was dispatched on :
Copy was delivered to parties:
