O R D E R

(By Sri D.Shankar Rao, Member)

1.       The brief-facts set-out in the complaint are that the complainant is an agriculturist and owner of tractor bearing No.AP-23-AD-6736 which is insured with the opposite party vide cover note No.8660873 valid from 20-11-2011 to 19-11-2012.

          The complainant has raised Sugar cane in his field and it was transporting to GSR Sugar Factory through his tractor on 10-01-2012.  After unloading the sugar cane, the tractor was returning, unfortunately when it reached near Narsingraopally X Road at about 2.30 p.m. then the driver of the tractor could not control it, due to which it turned-turtle along with the trailer.  The tractor was damaged badly.  The complainant got it repaired in company show-room at Medak.  He spent an amount of Rs.44,655/- for repairs and incurred miscellaneous expenditure of Rs.10,000/- for shifting the damaged tractor.  It was in garage for about 2 months and sustained consequential loss of Rs.40,000/-.  His sugar cane crop was spoiled. 

          The complainant has sent bills and relevant documents to opposite party with a request to settle the claim.  But the opposite party sent a letter dated 06-02-2012 expressing their inability to pay the claim amount on the ground that the driver of the tractor was not having valid and effective driving license as on the date of accident and the trailer was attached to the tractor. 

          The P.S. Nizamsagar issued FIR No. 4 of 2012 in respect of the accident.  The crime vehicle was inspected by MVI and he issued inspection report.  It reveals that the driver of the tractor namely Challa Navaz Reddy was having valid D.L. vide license No.DLFAP023156842007 valid from 29-09-2007 to 05-07-2025.

          The repudiation of claim on the ground that the driver of the tractor was not having valid driving license and the trailer attached to the tractor is illegal, unjustified, against law, facts and natural justice.  The act of opposite party in non-settlement of claim and prolonging the matter on flimsy ground amounts to gross negligence and deficiency in service.  The opposite party is liable to pay the claim of complainant with interest under the policy along with expenditure and damages towards mental agony besides costs.

2.       The opposite party filed its counter and briefly stated that the chasis No.PY5104B024351 and Engine No.PY3029D293884 of the tractor was insured with the opposite party, later the vehicle assigned Registration mark and number as AP-23-AD-6736.  As per R.C. it is a LMV-non-transport vehicle.  Use of the tractor i.e. insured vehicle for the purpose of drawing trailer for carriage of passengers is strictly prohibited under the policy.  The tractor bearing No.AP-23-AD-6736 of the complainant is insured with the opposite party vide package policy for miscellaneous and special type vehicle policy bearing No.3380/00433583/000/00 for the period from 20-11-2011 to 19-11-2012 subject to terms and conditions of the policy.  The liability of the opposite party is strictly governed by the provisions of motor vehicles Act, Rules, terms & conditions of the policy. 

          In this case as per FIR the insured vehicle stated to be met with motor accident on 10-1-2012, while it was towed with the trolley bearing No.AP-23-T-6668 (which is not insured) with sugar cane load and after unloading the sugar cane at Magi Factory at Munigepally Village of Kalher Mandal,  the driver of the vehicle Nawaz Reddy drove it in rash and negligent manner near Narsingrao Pally X Road as a result of which the vehicle was turned-turtle and the un-authorised occupants of the vehicle received grievous injuries and two persons Rajamani and Khairath Ali died.  Such use of vehicle is absolutely prohibited as per terms and conditions of the policy. 

          Soon-after receipt the intimation, the opposite party appointed Sri Ch. Venkateshwara Rao, an independent surveyor for physical inspection and to note down apparent damages and he submitted report on 13-01-2012.  It is incorrect to state that the complainant incurred an amount of Rs.44,655/- for repairs & other expenditures.  Further the documents made available by investigator and Surveyor reveal that the driver of insured vehicle was not holding driving license to drive the transport vehicle i.e. tractor & trailer which is in breach of Section 3(1) of motor vehicles Act.  Therefore the opposite party has repudiated the claim on 06-02-2012.  The repudiation is legally valid and correct as per terms & conditions of the policy.  All other allegations have been denied by opposite party.  The complaint is not maintainable and fit to be dismissed.

3.       During enquiry the complainant filed his evidence affidavit as PW1 and got marked Exs.A1 to A9 documents and closed his evidence.  The opposite party filed its evidence affidavit of one Eswara Reddy Manager (legal) as RW1 and got marked Exs.B1 to B4 documents and closed their evidence.

4.       Heard Arguments.

5.       The points for consideration are:-

1. Whether there is any deficiency of Service on the part of opposite party in repudiating the claim under the policy ?

          2)  To what relief?

7.       Point No. 1: It is not disputed that the complainant is the registered owner of the tractor bearing No.AP-23-AD-6736 in Ex.A1 (B2) which is insured with the opposite party vide policy No.3380/00433583/000/00 valid from 20-11-2011 to 19-11-2012 in Ex.A2 (B1) document.  It is also not disputed that the tractor was met with an accident on 10-01-2012 near at Narsingraopally X Road under the limits of Nizamsagar police station of Nizamabad district in Ex.A5, A6 & A7 documents.  At the time of accident, the trailer bearing No.AP-23-T-6668 was attached to the tractor also not in dispute.  The tractor was driven by one Challa Nawaz Reddy who had driving license bearing No.DLFAPO23156842007 issued on 29-09-2007 valid till 05-07-2025 in Ex.A8 (B3) at the time of accident also not disputed.

          The dispute is squirreled over the validity of driving license and attachment of trailer to the insured tractor at the time of accident.

          The contention of the complainant is that the driver had valid driving license when the insured tractor was involved in the accident.  The trailer attached to the insured tractor was empty at the time of accident.  Hence the opposite party is liable to pay the claim of complainant under the policy.

          The contention of the opposite party is that the driver of insured tractor was not holding valid driving license to drive the tractor with attached trailer.  Therefore the repudiation of the claim under the policy is legally valid and correct as per terms & conditions of policy.

          The complainant has filed his own affidavit as PW1 evidence and relied upon Exs.A1 to A9 documents to prove his case.

          The opposite party also filed their Manager (legal) Eshwer Reddy affidavit as RW1 evidence and relied upon Exs.B1 to B4 documents supporting to their contention.

          We have heard the arguments of counsel for the parties and perused exhibits on both side.  Ex.A1 (B2) is the R.C. of insured tractor.  Ex.A2 (B1) is the insurance policy issued by opposite party.  Ex.A3 is the repairs receipts.  Ex.A4 is the bunch of 11 photographs showing the damaged tractor.  Ex.A5 is the FIR No.4 of 2012 issued by P.S. Nizamsagar.  Ex.A6 is the M.V.I. report.  Ex.A7 is the charge sheet in Crime No.4 of 2012.  Ex.A8 (B3) is the driving license of Nawaz Reddy.  Ex.A9 (B4) is the repudiation letter dated 06-02-2012 issued by opposite party.

          Ex.A8 (B3) driving license (DL) of Nawaz Reddy showing that the license is issued on 29-09-2007 for driving the motor cycle with Gear (MCWG) and tractor & trailer (T & T) under the class of vehicle.    

          The opposite party has pleaded that the driver of insured vehicle was not holding driving license to drive the transport vehicle i.e. tractor & trailer (T & T) in accordance with the documents made available by investigator and surveyor.  But no documents filed into the case atleast the report of investigator & surveyor are not placed.  No doubt the class of trailer is a transport vehicle.  But driving of tractor & trailer (T & T) is permitting the driving license of Nawaz Reddy in Ex.A8 (B3).  Therefore we are not inclined to accept the contention of opposite party that the driver of insured vehicle was not holding valid driving license to drive the (T & T) tractor & trailer at the time of accident.

          The motor vehicle inspector (M.V.I) report in Ex.A6, criminal case in FIR No.4 of 2012 in Ex.A5 and the police charge-sheet in Ex.A7 are showing that the trolley bearing No.AP-23-T-6668 was attached to the insured tractor at the time of accident.  The complainant also mentioned in his complaint that the insured tractor turned-turtle along with trailer while returning back, after un-loading sugarcane.  The contention of opposite party also similar with the plea of complainant but further stated that the un-authorised occupants of the vehicle received grievous injuries and two persons Rajamani & Khairath Ali died in the accident.  Exs.A5, A6 & A7 are also reflecting that the occupants of two persons Rajamani & Khairath Ali died and two persons Kunchapu Pochaiah and Praveen injured.  However their claims were settled before Lok-Adalath at Nizamabad against the opposite party under the motor vehicles Act.  The present case is filed before the Forum for awarding own damages of the insured tractor but not third-party claims under the policy.  Admittedly the accident took place when the trolley bearing No.AP-23-T-6668 was attached to the insured tractor bearing No. AP-23-AD-6736 while returning back with the 4 persons after un-loading the sugarcane on 10-1-2012 at Narsingraopally X Road under the Police Station limits of Nizamsagar.  Ex.A1 (B2) registration certificate of insured tractor showing that the tractor is light motor vehicle (L.M.V) and non-transport.  It was insured as it is under the insurance policy bearing No.3380/00433583/000/00 for the period from 20-11-2011 to 19-11-2012 in Ex.A2 (B1) for insured declared value (I.D.V.) of Rs.5,60,000/-.   Therefore we inclined to accept the version of opposite party that the insured tractor was used by attaching the transport trolley and carrying the 4 persons at the time of accident is a violation of condition of the policy as to the nature of use of vehicle.  At the same time we are not inclined to accept the act of opposite party in repudiation of the claim in toto under the policy in Ex.A9 (B4).  Eventhat there was a breach of condition of the insurance policy the opposite party ought to have settled the claim on non-standard basis as held by the Hon’ble Apex Court in its judgment between “AMALENDU SAHOO V/s ORIENTAL INSURANCE COMPANY LIMITED” reported in 2010 4 SCC 536 following the guidelines issued by the insurance company about settling all such non-standard claims.

          The said guidelines are set out below:-

          The guideline No. (iii) is applicable to the instant case, the opposite party is liable to pay 75% of the admissible claim of the complainant under the policy.  Accordingly the point No.1 is answered.

8.       Point No. 2: In view of findings in the point No.1, the next issue that what is the admissible claim of the complainant under the policy?

          The complainant is claiming Rs.44,655/- for repairs of the damaged insured tractor plus Rs.30,000/- for deficiency service, Rs.20,000/- compensation towards physical and mental agony and plus Rs.5,000/- as costs of the complaint. 

          The complainant has filed Ex.A3 bills in two number showing that the amount of Rs.44,655/- incurred by him for repairing the damaged insured vehicle.  Though the opposite party pleaded that one Sri.Ch.Venkateshwara Rao an independent Sruveyor was appointed and he submitted report on 13-01-2012 but not placed the same into the case record.  Therefore we are in opinion that the Ex.A3 amount of Rs.44,655/- for repairs of the damaged insured tractor is an admissible claim under the policy in the absence of assessment of damages report of Surveyor and any cogent evidence to rebutting the evidence in Ex.A3.

          The complainant has not adduced any other evidence for other reliefs.  Hence he is only entitled Rs.33,491-25 ps i.e. 75% of the admissible claim of Rs.44,655/- for repairs of the damaged vehicle in an accident under the policy with interest and costs.  Accordingly the point No.2 is also answered.

          In view of findings in point No.1 & 2 we are of the considered view that the opposite party is liable to pay Rs.33,491-25 ps. i.e. 75% of the admissible claim of Rs.44,655/- for repairs of the damaged vehicle in an accident under the policy to the complainant with interest and costs.

9.       IN THE RESULT, the complaint is allowed in part as under:-

1. The opposite party is directed to pay Rs.33,491-25 ps. with 9% per annum from the date of repudiation i.e. 06-02-2012 till realisation to the complainant.

2. The opposite party is also further directed to pay Rs.1,000/- to the complainant towards costs of the complaint.

          Typed to dictation, corrected and pronounced by the Member in Open Forum on this the 31^st day of October 2014.