COMPLAINT FILED: 28.05.2008<br /> <br /> <br /> <br /> 06th SEPTEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1196/2008<br /> <br /> <br /> COMPLAINANT M. Satish,<br /> S/o. Muninanjappa,<br /> Aged about 35 years,<br /> R/o # 654/1, 2nd Block,<br /> Peenya 1st Stage,<br /> Bangalore.<br /> <br /> <br /> Advocate (P. Mahesha)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY The Branch Manager,<br /> The Oriental Insurance Company Limited,<br /> CBO VII: No. 44, <br /> Anantha Complex,<br /> Peenya – Tumkur Road, NH-4,<br /> Bangalore – 58.<br /> <br /> <br /> Advocate (Manoj Kumar. M.R.)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.1,36,000/- and pay the same along with interest and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant is the R.C. Owner of the vehicle bearing No. KA-20-A-3099. The unladen weight of the said vehicle is 3240 kgs. OP covered the insurance of the said vehicle which is inforce up to 26.02.2008. Unfortunately the said vehicle met with an accident on 14.10.2007 at Krishnagiri. A complaint was lodged. In the said accident the vehicle suffered severe damages, then the complainant intimated the OP about the accident and the damages caused to the vehicle, left the vehicle to the authorized service station for repairs. Towards the repairs complainant spent nearly Rs.1,36,000/-. When complainant made the claim to OP to settle the said amount, his demand was repudiated by the OP on 15.02.2008 on the ground that the driver of the said vehicle did not possess valid and effective driving licence as on the date of the accident. The said repudiation is illegal and unjust. Complainant driver did possess the valid and effective driving licence to drive the vehicle in question. Though complainant made repeated requests and demands to OP to settle the claim, it went in vain. He even got issued the legal notice, again there was no response. Thus he felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the vehicle in question is MGV not LMV. The registration certificate discloses the gross vehicle weight (GVW) as 8720 kgs. Hence it is not an LMV. On the receipt of the information from the complainant about the accident and damages, OP appointed the Surveyor and Surveyor has assessed the loss and damages and gave his report. On verification of the driving licence belonging to the one Sidda Gangappa who is alleged to be the driver of the said vehicle on the alleged date of accident, it was confirmed that he has got a licence to drive LMV and not the MGV the vehicle in question. Under the circumstances OP after due verification of all the records and documents repudiated the said claim. During the course of investigation it was also revealed that the said vehicle was carrying oxygen cylinders weighing about 4000 kgs, that fact is suppressed by the complainant. Complainant wants to rely on a bare entry with regard to unladen weight being shown as 3240 kgs. The goods carrying capacity of the insured vehicle is only 5480 kgs. The claim of the complainant is false and frivolous. Complainant violated the terms and conditions of the policy by entrusting the said vehicle to the driver who did not possess the valid and effective driving licence to drive the said vehicle. It is at the fault of the complainant he has suffered some monetary loss. For that OP cannot be blamed. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents including the photographs and Surveyor’s report. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-20-A-3099. OP covered the insurance for a period from 15.09.2007 to 14.09.2008. It is also not at dispute that the said vehicle had GVW 8720 kgs and unladen weight of the said vehicle in question is 3240 kgs. According to the complainant on 14.10.2007 the said vehicle met with an accident at Krishnagiri. Even that fact is not at dispute. At the time of the alleged accident one Sidda Gangappa was the driver of the said vehicle. According to the complainant his driver did possess the valid and effective driving licence to drive the said vehicle.<br /> <br /> 7. According to the complainant after the accident he intimated the said fact to the OP and left the vehicle for repairs to the authorized service station, thereby he incurred repair charges of Rs.1,36,000/-. He made the claim with the OP, but OP repudiated the claim on 15.02.2008 on the ground that the driver of the said vehicle did not possess the valid and effective driving licence to drive the vehicle in question. Complainant felt that the said repudiation is unjust, improper and without due application of mind. <br /> <br /> 8. The driving licence extract is produced, it shows that the said driver was permitted to drive the LMV including the transport vehicle which is valid from 03.03.2006 to 02.03.2009. So one thing is made clear that the driver was permitted to drive LMV including the transport vehicle. The fact that the said vehicle had unladen weight of 3240 kgs is also not at dispute. Even if it is held that the said vehicle found carrying oxygen cylinder at the time of the accident weighing about 4000 kgs, but still the gross weight will be 7240 kgs which is below 7500 kgs so as to treat the vehicle as LMV.<br /> <br /> 9. Under such circumstances we find the contention of the OP that as the vehicle gross weight being 8720 as noted in the policy, the said vehicle cannot be treated as LMV appears to be not correct. Of course it is LMV, but still on going through the driving licence the driver was permitted to drive the transport vehicle under the category of LMV also. As already observed by us, the total unladen weight of the said vehicle including the so called load at the time of the accident does not exceed 7500 kgs. So taking into consideration all these facts and circumstances, we are of the view that the claim of the complainant can be considered as non-standard claim and basing on the report of the surveyor, he is entitled for the relief. <br /> <br /> 10. The surveyor report produced by the OP is not disputed by the complainant. According to the surveyor the net assessed loss is Rs.91,058.75. So when 75% of the surveyor assessment can be awarded, complainant is entitled to claim nearly Rs.72,000/- towards the said damages. OP having not settled the said claim caused both mental agony and financial loss to the complainant. Here we find the deficiency in service on the part of the OP. As already observed by us, in the interest of justice we find it is a fit case to consider the claim of the complainant as non-standard claim and grant the relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to settle the claim for Rs.72,000/- and pay the same together with interest at the rate of 9% p.a. from the date of repudiation till realization and litigation cost of Rs.1,000/- to the complainant. This order is to be complied within 4 weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 06th day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br />