IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 161/08 DATED 25-07-2008<br /> <br /> ORDER<br /> <br /> Complainant Smt.D.Hombalamma, W/o R.Krishna, R/at Venkateshwara Nilaya, Bastipura Village, Kollegala Taluk, Chamarajanagara District.<br /> (By Sri.C.M.Jagadeesh., Advocate)<br /> Vs. <br /> Opposite Party The Manager, Bajaj Allianze General Insurance Company Ltd., No.3636, Shreehari Complex, Sitavilas Road, Mysore.<br /> (By Sri.K.L.S., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 03.06.2008<br /> Date of appearance of O.P. : 23.06.2008<br /> Date of order : 25.07.2008<br /> Duration of Proceeding : 1 MONTH<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> MEMBER<br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant against the Opposite party with her grievance that she is the registered owner of a vehicle No.KA-10/2784, which was insured from 21.03.2007 to 20.03.2008 as per the policy of indemnity issued by the Opposite party. The vehicle on 07.08.2007 met with an accident on Mysore-Hunsur Road at 10 pm with a goods vehicle as that goods vehicle dashed against this vehicle and went away without stopping as such it was a hit and run accident. That she informed the Opposite party about the accident, then the vehicle was removed from the spot of accident and entrusted to M/s Raja Auto and Diesel Service with intimation to the Opposite party. The estimation given by the service centre was approved and work order was issued and the same was got repaired by incurring expenditure of Rs.98,663/-. Thereafter, the claim was made with the Opposite party who repudiated the claim on the ground that the driver, who was driving the vehicle on the date of accident was not having a valid driving licence, which is illegal and stated that the driver had valid driving licence to drive both Light Motor Vehicle and Heavy Motor Vehicle and thus calling the act of the Opposite party as deficient has prayed for a direction to the Opposite party to pay Rs.98,633/- towards repair charges with interest at 18% p.a. and also loss occurred due to the non-use of vehicle for 3 months with interest and cost.<br /> 2. The Opposite party has filed version through his advocate admitting issuance of an insurance policy, which was valid from 21.03.2007 to 20.03.2008 and stated that he is not aware of the contents of para 3 and holding that averments made in para 4 to 6 of are false without denying the averment of the complainant that the driver had both light motor vehicle and heavy motor vehicle driving licence, has contended that as the driver was driving commercial vehicle possessing of badge was a must, but he was not in possession of badge at the relevant point of time and therefore justifying the repudiation of the claim has further contended that the complainant had failed to produce the effective driving licence despite remainders and thus has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the grievance of the complainant, the complainant and one Mamatha for Opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. We have heard the counsel for the complainant and Opposite party. Counsel for the Opposite party has also filed her written arguments. The complainant has produced the letter of the Opposite party, repudiation letter, copy of the letter she had addressed to Opposite party, an endorsement issued by RTO of Chamarajanagara and the bills for having got the vehicle repaired at Bajaj Auto Service. The Opposite party has also produced copies of the documents as produced by the complainant and Xerox copy of the permit, conditions of tourist vehicles, extract of driving licence and report of surveyor.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the Opposite party has caused deficiency in its service, by repudiating the claim of the complainant?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : Answered in part in the affirmative<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- As narrated by us in brief the grievance of the complainant and the version of the Opposite party, there is no dispute between the parties that the motor vehicle of the complainant met with an accident, which was said to be hit and run on 07.08.2007 at 10 pm and as the result the vehicle of the complainant suffered damages and that had valid insurance commencing from 21.03.2007 to 20.03.2008. The case of the accident and damages caused to the vehicle are also not in dispute. But, it is the contention of the Opposite party that the driver of the complainant namely one Pushparaju did not have valid driving licence as on the date of the accident to drive the vehicle, therefore it has repudiate the claim and thereby the Opposite party has justified himself in his action of repudiating the claim.<br /> 7. Whereas the complainant has contended that the driver Pushparaju had valid driving licence had applied for renewel but the concerned RTO of Chamarajanagar who had issued renewel driving licence to the driver had committed certain mistake regarding the validity period and the same was returned to him for correction who is yet to reissue and requested the opposite party to give some time to produce the same. But it appears that the complainant did not produce the endorsement issued by the RTO of Chamarajanagar in time to the Opposite party and that the Opposite party after waiting for some time for production of valid driving licence appears to have repudiated the claim of the complainant on 02.01.2008 and communicated it to the complainant. It is relevant at this stage to refer to the letter of the complainant dated 30.09.2007 addressed to the Opposite party and the letter of repudiation dated 02.01.2008 sent to the complainant. The complainant in her letter though categorically stated that while the RTO of Chamarajanagar issuing the renewed licence committed certain mistakes, therefore they have given that licence to the RTO for rectifying that mistake and return it thereby requested the Opposite party to give some time to produce the driving licence of her driver. The letter of the Opposite party dated 02.01.2008 reveal that the explanation given by the complainant as referred to above was held as not satisfactory and therefore further holding that the valid driving was not produced proceeded to repudiate the claim and finally repudiated on the same day. The renewed driving licence of the driver of the vehicle is placed before us, wherein it is found that the driver Pushparaju was issued a licence for driving both LMV and HMV w.e.f. 09.04.2007 to 08.04.2010 with this it cannot be said that the driver had no valid driving licence as on the date of accident that was 07.09.2007. Of course if the complainant had placed this endorsement issued by the licensing authority before the Opposite party, the Opposite party would not have repudiated the claim of the complainant on the ground on which it has been done in this case. Therefore, it emerges that the complainant did not furnish this vital documents to the Opposite party in time, which prompted him to repudiate the claim of the complainant. The Opposite party as could be gathered from their contentions have not disputed the endorsement issued by the licensing authority that the driver of the complainant had a valid and effective driving licence as on the date of the accident. Therefore, the repudiation of the claim of the complainant by the Opposite party do not stand for scrutiny and therefore the repudiation could be held has not proper.<br /> 8. Having held that the driver of the complainant had a valid and effective driving licence, the question that crop up for consideration is the quantum of damages. The complainant has produced 2 bills one for repair of the vehicle with replacement of certain parts for Rs.66,315.95 and another bill for Rs.32,340.44 as labour charges and claimed a sum of Rs.98,662/- as damages for the loss she suffered.<br /> 9. Whereas the Opposite party has produced a report of the surveyor who has estimated the cost of spare parts at Rs.11,250/-, given depreciation at 50% as Rs.1,684.24 and added labour charges of Rs.10,224.76 totaling Rs.22,159/- and deducting Rs.1,000/- as policy excess has estimated the total damages at Rs.22,159/- payable to the complainant. As could be seen from the claim of the complainant the documents she has produced and the surveyor report placed before us they have no where specified the actual damage to the vehicle. The estimate and bill produced by the complainant discloses as if assy side wall is valued at Rs.50,636.82 and penalling right site corner is valued at Rs.2,984.20 and in all assessed at Rs.65,247.20/ This same repair is estimated by the surveyor as Rs.4,500/- and near right site corner panel cutting and straitening at Rs.1,500/- as against estimation arrived by the service station at Rs.2,994/-. As stated above though the assessment of damage to the vehicle is not done, but it appears that right side body of the vehicle was totally damaged, therefore to repair it, the complainant has produced estimation of his own and the surveyor has given is own estimate, which have geometrical different. Further, it could be seen that the vehicle was manufactured in the year 2007, which was a brand new vehicle met with accident within few months of its manufacturing the report of the surveyor has not valued the salvage that shows damage was so extensive salvage was not available for valuation. Therefore for such a new vehicle deduct of 50% as depreciation by the surveyor is unsustainable and cannot be allowed. Further, it could be seen that the complainant has produced the bill of the service station claiming labour charges at Rs.33,348.44 though the bill amount is Rs.32,348.44. The labour charges claimed by the complainant on the basis of the bill given by the Auto service personal is exhorbitant and therefore we hold that it is on very higher side. Therefore, having regard to the fact that both parties have failed to place material before us as to the exact and extent of damage caused to the vehicle and in the absence of clinching evidence it is not possible to arrive at a scientific figure of damage that could be awarded. The complainant in the complaint has stated that estimate of damage was approved by the Opposite party, the Opposite party has not denied it. Therefore, it is found that the vehicle was got repaired by the complainant with full knowledge of the opponent and, that being so, we hold that the claim of the complainant cannot be repudiated. However we hold that the quantum of damages claimed by the client is on higher side and the assessment made by the surveyor is a lower side. Therefore taking into consideration the materials placed before us, we propose to award total damages at Rs.60,000/-<br /> 10. The complainant has claimed Rs.78,750/- as loss occurred in the period of 3 months, she has not placed any materials to prove this loss by placing materials as how the loss occurred for 3 months. Further we have held that the complainant did not produce the endorsement of the RTO of Chamarajanagar to the Opposite party despite remainders and there was lapse on her side, therefore she is not entitled for any interest till date and other damages including cost.<br /> 11. The learned counsel representing the complainant in support of his arguments that the insurance company cannot deny the insurance claim of the insured on the ground of the driver was not possessing valid driving licence to drive a particular type of vehicle or in violation of certain conditions of policy relied on the decisions reported in I (2004) Accident Crime Tribunal SC page 2, III (2006) CPJ NC page 319, and a decision of the Karnataka State Consumer Disputes Redressal Commission reported in II (2006) CPJ 245. The counsel for the Opposite party has produced decisions reported in II (2008) TLC page 801 SC, III (2007) CPJ page 13 SC and I (2007) CPJ 278 NC in support of repudiation of claim. These decisions in our view are not relevant to the facts of this case, in view of the fact that the driver on the date of the accident had driving licence. Besides that it could be seen this is a hit and run accident in which the driver had not contributed to the accident as such there is no nexus between the accident and validity of the driving licence and driving by the driver, as such we hold that the Opposite party who should have considered claim of the complainant has failed to do so and thereby answer point no.1 in the affirmative in part and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The Opposite party is directed to pay damages of Rs.60,000/- to the complainant within 60 days from the date of this order, failing which it shall pay interest at 12% p.a. from the date of this order till the date of payment.<br /> 3. Parties to bear their own costs.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 25th July 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> (Shivakumar.J.)Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />