O R D E R

Sri. Santhosh Kesavanath P., President.

Case of the petitioner's is as follows:

Petitioner is the owner of the vehicle bearing registration No. KL.5.V.8177, 2006 model, Tata ACC CLB, Goods carrier Petitioner purchased said vehicle for earning his livelihood as a means of self employment. The petitioner had taken comprehensive insurance policyby paying Rs. 10,112/-being the premium for the goods carrying commercial vehicle with the opposite party. The policy is valid from 27..2..2007 to 26..2..2008. According to the petitioner as per the policy conditions the opposite party will indemnify the petitioner, insured, aganst the loss or damage to the vehicle . On 12..4..2007 insured vehicle met with an accident at Puthenpura kavala, Pampadi and severe damage was caused to the vehicle. The petitioner intimated the accident to the opposite party and preferred the claim. The vehicle was entrusted with M/s. Popular Mega Motors, Kottayam for repairing the vehicle.Surveyor, deputed by the opposite party

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assessed the damage as Rs. 10,579/-. The petitioner repaired the vehicle by spending an amount of Rs. 44,353.38. On 10..6..2007 the opposite party repudiated the claim of the petitioner on the ground that the driver, who drove the vehicle, at the time of accident, was not holding a valid driving licence with badge. According to the petitioner at the time of accident driver has valid licence to drive LMV with badge with effect from 8..5..2006. The petitioner states that act of the opposite party in repudiating of the claim of the petitioner is a clear deficiency of service. So, he prays for allowing the claim of Rs. 44,353.38 with 18% interest per annum and also he claim an amount of Rs.10,000/-

as compensation and cost of the proceedings.

Opposite party entered appearance and filed version contenting that petition is not maintainable either in law or on facts . The opposite party contented that they granted the insurance coverage to vehicle as per the terms and conditions of the policy. They contented that independent licensed surveyor assessed the loss sustained to the insured vehicle. The said serveyor done a detailed survey and assessed the loss in the tune of Rs. 36,273.73. According to opposite party at the time of accident, the person who had driven the insured vehicle was not holding an effective and valid driving licence to drive the category of vehicle insured. The driver was holding only autorickshaw badge and he was authorised to drive only that category of vehicle. According to the opposite party the claim of the petitioner was repudiated after proper application of mind, and in accordance with law, relying on the terms and conditions of the policy. So the opposite party contented that there is no deficiency in service on their part. So, they prayed for dismissal of the petition with their costs.

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Points for determinations are:

i) Whether there is deficiency in service on the part of the opposite party?

ii) Reliefs and costs.

Evidence in this case consists affidavit filed by both parties Ext. A1 to A3 documents on the side of the petitioner and Ext. B1 to B5 documents on the side of the opposite parties.

Point No. 1:

Ext. B4 is the copy of the driving license of the petitioner. In Ext. B4 license is issued to the petitioner to drive LMV and autorickshaw badge. The opposite party produced the copy of the certificate of registration of the insured vehicle. Said document is marked as Ext. B5. From Ext. B5 it can be seen that insured vehicle is a Tata ACE CLV goods carrier having weight of 1550 kg. The counsel for the opposite party argued that Ext. B4 driving licence authorised the petitioner to drive transport vehicle with effect from 8..5..2006. As per Section 6 Kerala Motor vehicle rules 1989 any person who holds a driving licence satisfies licensing authority that he had one years experience in driving light motor vehicle. Then only the driver will get an authorisation to drive transport vehicle. Opposite parties counsel argued that from Ext. B4 it can be seen that the driving licencewas issued only on 8..5..2006. So, defanitely at the time of acident the driver of the vehicle is not authorised to drive the transport vehicle. We are of the opinion that said argument of the counsel for the opposite party is not acceptable. Because light motor vehicle is defined under section 2 (21) of the motor vehicle Act 1988 “ In M.V Act light motor vehicle” is defined as the transport vehicle or Omni

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Bus hav ing gross vehicle weight which does not exceeds 7500 kgms. From Ext. B5 it can be seen that the gross vehicle weight of insured vehicle is 1550 Kgms. So, definitely the insured vehicle is a light motor vehicle. From Ext. B4 it can be seen that the licensing auhority has given licence to the driver of the insured vehicle to drive LMV vehicle. So, defanitely the argument of the opposite party that the driver of the insured vehicle has no valid licence at the time of accident is not sustainable. We also relying on the decision reported in 2008 CTJ 1144 by the Hon'ble Karnataka State Consumer Disputes Redressal Commission(Oriental Insurance Company Ltd., and others Vs. Mallikargunayya and another). In the said case Hon'ble Karnataka State Commission stated that since the vehicle in question is used as a goods carriage and also in view of the fact that the driver of the vehicle has got endorsement to drive LMV transport vehicle it can not be said that the driver did not have a driving licence to drive the vehicle at the time of accident. Counsel for the opposite party produced a decision of NCDRC in M/s Benowarilal Aggrawal Vs. National Insurance Company Ltd., reported in 2005 to CPR P. 130 In the said dictum Hon'ble National Commission stated that in the absence of challenge of the surveryors report the claim as assessed by the surveyor is to be looked into. So, we find that the act of the opposite party in repudiating the claim of the petitioner is a clear deficiency in service. Point No. 1 is found accordingly.

Point No. 2

In view of the finding in point No. 1 petition is to be allowed and petitioner is entitled for the relief sought for.

In the result, the opposite party is ordered to pay the petitioner the loss sustained to the petitioner in the tune of Rs. 36,273.23 with 9% interest from the date of

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repudiation till realisation. Opposite party is also ordered to pay an amount of Rs. 2,000/- as cost of the proceedings. Since interest is allowed no compensation is allowed. Order shall be complied with within 30 days of receipt of this order.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 27^th day of November, 2008.