FA 275/2012    against CC 157/2010 on the file of the District Consumer Forum,  

Between :

Bajaj Allianz General Insurance Company Limited,

 Rep. by st Floor,

Near

  …                                            Appellant/Opposite Party

And

Madari Ashok, S/o.

Occ: Advocate, R/o.

Sawaran Street,

Counsel for the Appellant              :           Mr.  

Counsel for the Respondent         :           Party-in-person

Coram           ;          

                              Sri R.      

And

                                    Sri T. Ashok Kumar                ..        

Tuesday, the Nineteenth  Day of March

Two Thousand Thirteen

          Oral Order       :   ( As per Sri T. Ashok Kumar ,

****

01. This is an appeal preferred by the opposite party   as against the orders dated  03.01.2012 in CC on the file of the District Consumer Forum,

02. The brief facts of the complaint are that the complainant is the owner of   the driver of the complainant was going to  and that when the Car reached the outskirts of  avoid the said she-buffalo, the driver of the Car applied brakes suddenly; and  as a result which , the Car turned turtle and fell under the bridge and the inmates of the Car received injuries.  The front portion of the Car was completely damaged. The Police,   to the opposite party and requested to appoint a Surveyor to assess the loss caused to the vehicle. On 22.01.2010 the Surveyor visited the scene offence and submitted his report assessing the net loss at Rs.1,18,743/-. The complainant incurred expenditure of Rs.1,66,942/- towards the purchase of spare parts,  filed a claim petition along with relevant documents vide Claim No.OC-10-1801-1803-00001817 but the opposite party rejected his claim on 28.01.2010 on the ground that the driver was not holding valid driving license at the time of accident. Hence,  the  complaint to direct the opposite party to pay Rs.2,25,000/- along with interest and damages of Rs.25,000/-.

03. OP  filed counter  opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter  are as under :

The complainant is not a consumer as defined in Sec 2 (d) of  Sec 2(1) (e) of the Act and that the contract of insurance does not fall under the purview of sale of goods Act as contemplated in Sec 2(1)( Further, the complainant has committed breach of contract of  terms and conditions of the policy  in respect of delay in intimating about the accident on 07.11.2009 even though it was alleged to have  occurred on 15.10.2009. More over the insured Car was covered under commercial category. Therefore, for driving the same, LMV (Transport) endorsement is required. Whereas the driver Ramesh was holding LMV Non-Transport driving license, which is not sufficient Hence, the opposite party is not liable to pay the same as there is violation of driver’s clause under policy conditions. The damage was assessed by the Surveyor for Rs.69,781/-.. The complainant has suppressed the material facts to the Court, hence he is  not entitled to claim against the opposite party. There is no deficiency in service on the part of the opposite party and that the complaint is not maintainable and hence it is not liable to pay any compensation and thus prayed to dismiss the complaint.

.

04. Both sides filed evidence affidavit reiterating their respective pleadings  and  Ex. A1 to A11  were marked on behalf of the complainant and Ex. B1  to B4  were  marked for the OP.

05. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part and directed opposite party to pay to the complainant a sum of Rs.95, 000/- with interest @ 9% from the date of filing of the complaint and Rs.1,000/- as costs within one month from the date of receipt of this order.

06. Feeling aggrieved with the said order the unsuccessful opposite party   filed this appeal on several grounds and mainly contended that the District Forum failed to see that the driver of the insured vehicle P. Ramesh was not holding an effective valid driving   he e violated the terms and conditions of the policy and further he did not possess  Transport driving

07. Heard the respondent Party in person with reference to his respective contentions in detail and the learned counsel for appellant/OP submitted oral documents.

08. Now the point for consideration is whether the order of the District Forum is sustainable?

09. There is no dispute that the complainant is the owner of the OG-08-1805-1803-00001568 for the period from 25.02.2008 to 24.02.2009 and that on 16.10.2009 while the driver of the complainant was going to  injuries and the car was subjected to damage. The contention of the complainant is that he got repaired the said car by spending Rs.1,66,942/- and he marked Ex. A9 receipt in support of his contention and in such circumstances the complainant claimed   of the complainant is that he  informed about the accident and damage after furnishing the information about the accident and damage a  net loss was assessed at Rs.1,18,743/- whereas, he incurred total expenditure of Rs.1,66,942/- and that  the same was not paid and that the said claim was rejected vide Ex B4 dated 28.1.2010 on the ground that driver of the said car was not possessing valid driving   Op also contended that information about the accident was not given immediately and there is acceptable force  in it.   Ex. B1 reveals that driver of the said car was holding driving   Ex. B2 certificate cum policy scheme discloses that the insured vehicle is commercial vehicle. The substance of  Insurance Co. Ltd Vs.   insurance is not liable to pay compensation in a case of own damage case.    without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation. In another decision of   Assurance Co. ltd Vs.   vehicle in question no doubt is also a Light Motor Vehicle. But it is a commercial vehicle. Since complainant did not have an endorsement to drive a commercial vehicle the complainant is not entitled for any compensation. In another case, between Oriental Insurance Co  Ltd Vs.   2008 ACJ 733 it was held that the insurance company has no liability where the driver did not have valid   Thus all the said decisions cited by the learned counsel for OP  support the contention of the opposite party herein.   In view of the  above discussion, we are satisfied to hold that the impugned order is not sustainable either in law or on facts and the same is liable to be set aside and in such circumstances the decisions refers to in the impugned order are not helpful for the complainant to decide the matter in his

10. In the result, the appeal is allowed setting aside the order of the District Forum. There is no order as to costs in the appeal.

                                                            MEMBER                             

                                                                        DATED   19.03.2013