By Smt. Padmini Sudheesh, President
The complainant’s case is as follows:
The complainant had taken a package policy for his Swaraj Mazda vehicle numbered KL-8/L-9207 from the respondent insurance company. The said policy No. is 441100/2005 and the policy period was from 11/8/04 to 10/8/05. As per the policy the said vehicle is having full coverage and compensation for all losses sustained as per Own Damage. On 9/6/05 at noon the said vehicle met with an accident by hitting a Lorry numbered TN-38/Q0459. The accident occurred due to the brake down of tyre rod end. The complainant spent Rs.70,000/- for the repair of the vehicle. When the complainant informed the accident in the respondent company, the surveyor came and assessed the damages. Subsequently the complainant applied for the claim with all documents. But the respondent rejected the claim on the ground that the driver does not possess a valid driving licence to drive the class of vehicle. But the said accident has no connection with the driving licence or carelessness of the driver sisncet it happened only due to breakdown of the tyre rod end. The said driver is has LMV licence and badge and also has permission to drive a vehicle having weight upto 7500kg.. During the accident the vehicle had a weight below 7500kg.. So there is no policy violation on the part of the complainant and the complainant is entitled to get the full amount he had spent. Hence this complaint.
2. The counter filed by the respondent is that:
The respondent denies all the averments in the complaint. The driver of the vehicle at the time of the alleged accident does not have a valid driving licence to drive the same and which is a violation of the terms and conditions of the policy. The gross weight of the vehicle bearing No.KL-8/L 9207 is 8800 kgs. A driver having LMV licence is licensed to drive the vehicle having gross vehicle weight upto 7500kgs. If the gross vehicle weight exceeds 7500 kgs. a driver possessing HGV or HPV is only authorized to drive the same. As per Section 2(21) of Motor Vehicles Act LMV means “a transport vehicle or omni bus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which does not exceed 7500 kgs”. As per Section 2(16) of the Motor Vehicles Act heavy goods vehicle means “any goods carriage the gross vehicle of which or a tractor or a road roller the unlade weight of either of which exceeds 12000 kgs. As per section 2(23) Motor Vehicles Act “medium goods vehicles means any goods carriage other than a light motor vehicle or a heavy goods vehicle”. The insured has suppressed the material facts in the claim form and has fraudulently stated that unlade weight registered weight as 5835. The weight of the good carried shown in the claims also not correct. The gross vehicle weight registered is 8800 kgs. The claim of the complainant was repudiated since at the time of the alleged accident the driver was only authorized to drive LMV and Autorickshaw not the medium goods vehicle. The vehicle bearing Reg.No.KL-8L-9207 being the medium goods vehicle, the above said driver was not authorized to drive the same, since that being a violation of the terms and conditions of the policy, the respondent is not liable to indemnify the complainant. The driver of the vehicle is a necessary party. Therefore the complaint is bad for non-joinder of necessary parties. The loss sustained by the complainant will come to Rs.20,490 only. The rate of interest claimed by the complainant is excessive and not entitled for any interest. Hence dismiss.
3.Points for consideration are:
1) Is there any deficiency in service?
2) Whether the complainant is entitled for the amount claimed?
3) Other reliefs and costs ?
4.The evidence consists of ExhibitsP1 to P6, deposition of PW1 and Exhibits R1 to R16.
5.Points: The complaint is filed to get the repairing charges of the vehicle met by an accident. The case of complainant in brief is that the vehicle KL-8/L-9207 Swaraj Mazda owned by the complainant involved in an accident due to the brake down of tyre rod end. Due to the accident the vehicle sustained heavy damages. The vehicle had full coverage of the insurance policy with respondent and after the repair the complainant duly applied for the claim. But it was refused by the respondent.
6.In the counter the respondent stated that the accident was not due to the brake down of tyre rod end of the vehicle. The driver of the vehicle who was driving the vehicle at the time of alleged accident was not having valid driving licence to drive the same. They also disputed the gross vehicle weight.
7.According to the complainant the accident was due to the brake down of tyre rod end of the vehicle. The complainant produced Exhibits P1 to P5 to substantiate his case. Exhibit P1 is the copy of General Diary extract of the Nedupuzha Police Station. It is stated in the General Diary that the control of the steering lost due to brake down of the tyre rod end of the front right wheel of the Lorry. The respondent contented that the accident was not because of the brake down of the tyre rod end. According to them the accident was due to the driving of the vehicle by a disqualified driver. The respondent produced Exhibit R1 to R16 documents to prove his case. There is nothing produced by the respondent to show that the accident was not due to the brake down of tyre rod end of the wheel. The complainant produced general diary extract of Nedupuzha Police Station and in which the cause of accident is explained. There is no other records or evidence brought to them to prove otherwise.
8.One of the main contention raised by the respondent at the time of accident is that the driver does not have a valid driving licence to drive the class of vehicle. The claim was repudiated on this ground as per Exhibit P2. Exhibit P3 is the particulars of driving licence of the driver. It shows that he was licensed to drive LMV+A/R+Badge. Exhibit R2 is the same document produced by the respondent . In a reported decision of Jammu and Kashmir High Court produced by the complainant, it was held that Swaraj Mazda is light motor vehicle. It was also held that licence for driving light motor vehicle should bear endorsement that driver is competent to drive passenger service vehicle. So it can be considered that the driver who hold a light motor vehicle licence is entitled to drive such class of vehicle which was included in the accident.
9.Another contention raised by the complainant is the weight of the vehicle. The company stated that gross weight of the vehicle bearing Registration No.KL-8 9207 is 8800 Kgs. A driver having light motor vehicle licence is licensed to drive the vehicle having gross weight up to 7500 kgs. If the gross vehicle weight exceeds 7500kgs only a driver possess Heavy Goods Vehicle or Heavy passenger Vehicle is authorized to drive the same. As per the Motor Vehicles Act light motor vehicle means “a transport vehicle or Omini bus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which does not exceed 7500 kgs.”. It is true that the exact weight of the vehicle is not stated in the complaint. It is stated in the complaint that the weight of the vehicle at the time of accident was below 7500 kgs.. During examination of PW1 it is deposed that at the time of accident there were 30 bags of rice in the vehicle. Each bags contains 7 kg. of rice. During cross examination it was asked about the weight of the vehicle. He deposed that registered weight of the vehicle was 8800 kgs.. He also deposed that the gross weight of the vehicle was 5800kgs. Both are different. As per Section II(21) the gross vehicle weight of a light motor vehicle does not exceed 7500kgs. Here the gross weight stated by the complainant is 5800kgs. So the vehicle comes under light motor vehicle and the driver is entitled to drive such class of vehicle. More over the Police did not register crime against the driver. The only thing recorded by the Police in General Diary is the brake down of tyre rod end. The respondent has no case that after influencing the police such things were made. So there is nothing to disbelieve the case of complainant. So the complainant is entitled to get the insurance claim from the respondent.
10.In the complaint it is claimed that he has spent Rs.70,000/- to repair the vehicle. He also claims Rs.70,000/- with 18% interest. Exhibit R7 is the report submitted by the Surveyor. The Surveyor has assessed the loss as Rs.20,490/-. As per estimate for the repairs labour charge comes to Rs.50,700/- and cost of parts comes to Rs.24,000/-. But the Surveyor assessed labour charge as Rs.15,000/- and depreciate cost of parts allowed as Rs.6,490/-. As per Exhibit R14 the labour charge for cabin full leveling and setting come to Rs.28,000/-. But the amount assessed by the surveyor is Rs.10,500/-. The charges for both side front door leveling , shaping and setting as per Exhibit R14 as Rs.8,500/-, but the surveyor assessed it as Rs.2500/-. The charges required for the cabin upholstery work and cabin painting totally deleted by the surveyor. The surveyor simply reduced from the amount estimated by the repairer without stating any reason. Some charges totally deleted. The reason for doing such things did not explain by the surveyor. Exhibit R15 is the re-inspection report submitted by the surveyor shows that some parts he has stated specifically are replaced with new one. But the cost of the same did not explain and will not come in the loss assessment of the surveyor. So the complainant is entitled to get back the amount stated in Exhibit R14. In Exhibit R7 it is also stated that as per estimate of repair the labour charges come to Rs.50,700/- and cost of parts come to Rs.24,000/-. In the circumstance the complainant is entitled to get this amount. There is deficiency in service on the part of respondent in disallowing the claim of complainant.
In the result the complaint is allowed and the respondent is directed to pay Rs.74,700/- (Rupees Seventy four thousand and seven hundred only) with interest at the rate of 9% from 13/10/2005 till realization with cost Rs.500/- (Rupees Five hundred only) within two months from the date of receipt of copy of this order.
Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 3rd day of February 2010.
