BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM

Dated this, the 24^th day of January 2018

          CORAM:     1. Sri. P. Madhav Raja, _{B.Sc., M.Li.Sc. LL.M.,}– President

2. Sri. R. Kiran Kumar_{, B.Sc., LL.M.} – Member

C.C. No.42/2014

Between:

          Konakandla Srikanth, S/o. Satyanarayana,

          Age: 32 years, Occu: Owner of Mahindra Bolero Max bearing No.

AP-20-TC-4377, R/o. Karepalli [V&M],

Khammam District.

                                                                             …Complainant

And

          Royal Sundaram Alliance Insurance Co. Ltd.,

          Rep. by its Branch Manager,

          H.No.6-1-215, Shop No.11 to 14,

          WC Complex, Wyra Road,

          Khammam.

…Opposite party

        This C.C. is coming on before us for hearing in the presence of             Sri. Addanki Nageswara Rao, Advocate for complainant; and of                     Sri. B. Gangadhar, Advocate for opposite party; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Sri. P. Madhav Raja, President)

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

2.     The brief facts of the complaint are that the complainant is the owner of Mahindra Bolero Max vehicle bearing No.AP-20-TC-4377 and was insured with the opposite party policy No.0332445 valid from 31-10-2013 to 30-10-2014 to cover the risk of the damages of the vehicle.  On 03-02-2014 the said vehicle met with an accident at about 6:20 A.M. against Indigo car bearing No.AP-20-AQ-6597 at outskirts of Namalapadu Village, as a result the occupants of car sustained injuries, among them one person was died. The Police Garla Bayyaram registered a case of offence under Sec.304/A, 337 of IPC against the complainant under Cr.No.14/2014.  Immediately the complainant informed the same to the opposite party and submitted claim form along with necessary documents.  On 15-02-2014 on the instructions of opposite party the complainant shifted his vehicle to V.V.S. Motors Pvt. Ltd., Khammam (Mahindra Showroom) to get repair of the same.  After verifying the vehicle by technicians of V.V.C. Motors have issued an estimation letter estimating the repairs as Rs.2,89,295/- and the same was informed to the opposite party but the opposite party refused to settle the claim by making false allegations through a letter, dt. 04-04-2014.The complainant is a owner cum driver of the said vehicle having valid driving license bearing DL No.5023/2001/KMM issued by Addl. Licensing authority, valid from 04-09-2001 to 03-09-2021 to drove the LMV vehicle.   As per policy issued by the opposite party in clause IV persons or classes of persons entitled to drive a) Goods carrying vehicle, other miscellaneous type of vehicle, passenger carrying commercial vehicles and tractors. “Any persons including insured provided that a person driving hold an effective driving license at the time of the accident and is not disqualified from holding or obtaining such license”.  “Provided also that the person holding an effective learners license may also drive the vehicle when not used for the transport of passenger or goods or as the case may be at the time of accident and that such a person satisfy the requirements of Rule 3 of the Central Motors Vehicle, 1989”.  But to avoid the claim the opposite party have repudiated the complainant claim on the ground that the driver of the vehicle does not possess a valid driving license to drive the vehicle.  On differing, the complainant got issued legal notice to the opposite party on 24-04-2014 to settle the claim.  As no response have come out, the complainant has filed this complaint before this Forum, claiming the EMI amount of Rs.11,281/- per month and salary and maintenance of his vehicle and family per Rs.7,000/- per month from 03-02-2014 i.e. totally Rs.2,00,000 and repaired cost of Rs.2,89,295/- and towards physical and mental agony Rs.1,00,000/- from the opposite party.

3.      In support of his case, the complainant filed affidavit and documents, which are marked as Exhibits A-1 to A-9.

          In support of his contentions the complainant relied on the following judgments:-

1. Mukund Dewangan Vs. Oriental Insurance Co. Ltd., 2017 ACJ (SC) 2011
2. National Insurance Co. Ltd., Vs. Annappa Irappa Nesaria and Ors. 2008 ACJ (SC) 721.

4.      On receipt of notice, the opposite party appeared through its counsel and filed counter by denying the averments as mentioned in the complaint. 

In its counter, the opposite party submitted that the vehicle was being used for commercial purpose, transporting passengers, therefore, the same proves that the vehicle was intended to make profits as such the complaint is not maintainable within the purview of definition of consumer under section 2(1) (d) of Consumer Protection Act, 1986 and the complainant is running a commercial fleet business for commercial purpose with profit as motive and while doing so his vehicle No. AP-20-TC-4377 met with an accident and in respect of the same the transaction is with profit motive does not come under the deficiency of service as defined under Consumer Protection Act.   The opposite party further submitted that the complainant has taken motor insurance policy No.BGC0332187000100 with respect to Mahindra Bolero Vehicle which is commercial goods carrying transport vehicle is subject to the driver’s clause and limitation clauses on usage.  The opposite party also submitted that the said policy was valid for one year i.e. 31-10-2013 to 30-10-2014.  On 03-02-2014 the said vehicle was met with an accident while driving by the complainant himself and caused extensive damage to the vehicle and claim was lodged.  Mr. Suresh, IRDA licensed surveyor assessed the loss to a tune of Rs.2,07,000/-. It is also submitted that the complainant was having license to drive LMV non-transport only, therefore the complainant had violated the drivers clause by driving the vehicle at the time of accident without holding effective driving license for driving transport commercial vehicles.  On this ground rightly repudiated the claim of the complainant under drivers clause.  Hence, prayed to dismiss the complaint with exemplary costs.  

5.      In support of its case, the opposite party filed some documents, which were marked as exhibits B-1 to B-14.

          The opposite party has relied upon the following judgment:-

1. Sandeep Kumar Vs. Iffco Tokio General Insurance Co. Ltd., and Anr. II (2014) CPJ 505 (NC).
2. Oritental Insurance Co. Ltd, Vs. Seema III (2014) CPJ 112 (NC).

6.      Both the parties have filed Written Arguments, heard oral arguments.  

7.      In view of above submissions, now the point that arose for consideration is,

1)      Whether the complainant is a consumer?

2)      Whether the complainant is entitled as prayed for?

Point No.1:-       

          According to afore mentioned averments and basing on the material available on record, the opposite party has not filed any supporting document except alleging through an averment in the counter that the complainant   is not consumer. The complainant is a driver cum owner of the said Mahindra Bolero Max for transporting the goods. The said vehicle was insured with the opposite party, as such the vehicle itself is medium goods carrier vehicle and the complainant was using the vehicle for his eaking livelihood. In view of this the complainant is set to be a consumer as per the provisions of Consumer Protection Act. 1986 and the point No.1 is answered accordingly in favour of the complainant.

Point No.2:-

It is an admitted fact that the said Mahindra Bolero Max bearing No. AP-20-TC-4377 was having insurance coverage of the opposite party policy and on 03-03-2014 at about 6:27 A.M at the outskirts of the Namalapadu village met with an accident.  Since, the said vehicle is having insurance coverage the complainant claimed insurance coverage for the said vehicle by submitting the necessary documents and on the advise of opposite party shifted the said vehicle to the V.V.C Motors Pvt. Ltd, at Khammam.  The IRDA licensed surveyor estimated the loss and damages of the said vehicle to a tune of Rs.2,07,000/-. But the opposite party has repudiated the said claim on the ground of drivers clause, that the complainant is having Light Motor Vehicle license. The Hon’ble Supreme Court of India Division bench in Civil Appeal No.5826 of 2011 dt. 03-07-2017 in Mukund Devangan Vs. Oriental Insurance Co. Ltd., categorically observed that

“Motor Vehicles Act, 1988, sections 3 and 10 (2) (d) – Driving license – Light motor vehicle – Whether a person holding driving license to drive “light motor vehicle” is competent to drive transport vehicle or Omni-bus, the gross vehicle weight of which does not exceed 7,500 kg or a motor car or tractor or road-roller, the un-laden weight of which does not exceed 7,500 kgs. – held: yes, no separate endorsement on the license is required to drive a transport vehicle of light motor vehicle class; a license issued under section 10 (2) (d) continues to be valid after amendment vide Act 54 of 1994 in MV  Act and in Form 4 under rule 14 (1) of Central Motor Vehicles Rules, 1989, w.e.f.                28-3-2001

And also observed further by the Lordships that

          “Motor vehicles Act, 1988, section 2 (21) read with sections 2 (15) and (48) – Light Motor vehicle – Whether a ‘light motor vehicle’ as defined in section 2(21) would include a transport vehicle as per the weight prescribed in section 2 (21) read with sections 2(15) and 2 (48) – Held: yes; such transport vehicles are not excluded by virtue of Amendment Act 54 of 1994”.

          By observations of the lordships it is made clear that any Light Motor Vehicle driving license holders can drive the transport vehicles which are less than 7500 kgs. in un-laden weight. Since, the complainant vehicle un-laden weight is 2,450 kgs and complainant is holding valid light motor vehicle driving license. In view of the above said citations we are of opinion that the complainant is holding valid driving license to drive the said vehicle and is entitled for the damages caused by the accident from the Opposite party.  The IRDA licensed surveyor has estimated the costs of the damages was Rs.2,07,000/- i.e. exhibit B-10. The said vehicle was with the V.V.C. Motors Pvt. Ltd from the date 15-02-2014 and the complainant could not make any sort of repairs to his vehicle and the complainant have averred in the complaint about his loss of lively hood, but not filed any supporting document.  Hence it is not considered and the rest is amounts to be the deficient services of opposite party and are liable to pay the damages, costs and for mental agony to the complainant. Therefore, the point No.2 is answered accordingly in favour of the complainant.    

8.      In the result, the complaint is allowed in part, directing the opposite party to pay Rs.2,07,000/- towards the repairs and damages of the said vehicle   and Rs.5,000/- towards costs to the complainant, within a month with interest @ 9% per annum from the date of complaint (i.e. dt.08-09-2014). And also directed to pay Rs.20,000/- towards mental agony.

           Typed to dictation, corrected and pronounced by us in the open forum, on this the 24^th day of January, 2018.

Member                 President

                                                                       District Consumer Forum,

             Khammam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant                                                    For Opposite party  

       None                                                                          None

DOCUMENTS MARKED:-

For Complainant                                                    For Opposite party

Member                 President

                                                                      District Consumer Forum,

             Khammam.