BEFORE THE DISTRICT CONSUMER FORUM :: WARANGAL
Present : Sri D. Chiranjeevi Babu,
President.
And
Sri.Patel Praveen Kumar,
Male Member.
Tuesday, the 14th day of June, 2011.
CONSUMER COMPLAINT No.65/2010
Between:
Vuppa Vijaya, W/o.Rajanbabu,
Age:45 years, Occu:Housewife,
Owner of the vehicle bearing No.Ap 36 X 0124,
R/o.Deshaipet, Warangal.
…Complainant
And
The Royal Sunderam Allianz Insurance Co.Ltd.,
Rep.by its Area Manager,
White House,
Madras. …Opposite Party
Counsel for the Complainant :: Sri.M.Ajay Kumar, Advocate.
Counsel for the Opposite Party :: Sri.T.Ravinder Rao, Advocate.
This complaint is coming for final hearing before this Forum, the Forum pronounced the following order.
ORDER
Sri D. Chiranjeevi Babu, President.
This complaint is filed by the complainant Vuppa Vijaya against the Opposite Party under section 12 of Consumer Protection Act, 1986 for a direction to pay the repairing charges of material cost of Rs.1,77,440/- and Rs.9,700/- totaling to Rs.1,87,140/- as the expenditure for the spare parts and mechanical charges along with interest @ 24% p.a. , to pay Rs.50,000/- towards mental agony and physical strength and expenditure as damages, costs and to pay Rs.45,000/- towards loss of earnings as the Opposite Party is failed to pay the amount in spite of the repeated demands made by the complainant.
The brief averments contained in the complaint filed by the complainant are as follows:
The case of the complainant isthat the complainant is the owner of TATA ACE bearing NO.AP36X124 purchased on hypothecation from Sundaram Allianz Limited and obtained policy from Opposite Party vide cover Note No.01121554 valid from 23-03-2009 to 22-03-2010 by paying Rs.9,700/- as premium which is covering the risks of property, damage at worth of Rs.2,20,500/-. On 17-11-2007 the said vehicle met with an accident in which the vehicle was completely damaged for which a case in Crime No.216/09 was registered U/S 337 IPC by the Police, Kukunoorpally of Medak District. Immediately the accident was informed to Opposite Party and as per their instructions photographs were obtained on the spot and the vehicle was shifted to Jasper Industries Private Limited, Warangal and they have estimated the vehicle at Rs.1,77,440/-for the spares of the vehicle and Rs.9,700/- for repairing of the vehicle and issued permission dated 25-12-2009. As per the estimation the complainant has informed the same to Opposite Party and the Opposite Party has appointed a Surveyor-cum-Investigator who inspected the vehicle and directed the complainant to get it repaired. Accordingly the complainant got the vehicle repaired. Suddenly the Opposite Party informed that they are not going to pay the amount for repairing of the vehicle as the accident occurred due to driver negligence. The acts of Opposite Party amounts to deficiency of service. Hence, filed this complaint praying to direct the Opposite Party to pay repairing charges of Rs.1,87,140/- with interest @24% per annum, to award damages of Rs.50,000/-, to award loss of earnings of Rs.45,000/- with costs.
The Opposite Party filed the Written Version stating that the complainant had taken a Commercial motor policy NO.VGC00020959000100 for Tata Ace Vehicle No.AP36X0124 valid from 23-03-2009 to 22-03-2010 subject to the driver’s clause and limitations clauses on usage.
The Opposite Party further stating that the complainant intimated to the Opposite Party stating that said Tata Ace Vehicle met with an accident on 17-11-2009 as the same was being driven by Penta Raju and a claim was lodged with us in such mishap. Acting upon the intimation this Opposite Party arranged for survey of the damaged vehicle through IRDA licences Surveyor Mr.G.Indra Reddy and ascertained that Mr.Pentra Raju was not holding valid driving licence for driving transport vehicle. The relevant excerpt of the final motor survey report given by statutory surveyor is reproduced below:
G.Indra Reddy (Licence No-SLA/35535)
Vehicle No.AP36X124 date of accident – 17-11-2009
Remarks: The DL holder was not having effective driving licence. The DL holder has not authorized to drive the insured vehicle. He is authorized to drive the LMV (Non Transport) only.
The Opposite Party further stating that the complainant’s driver Mr.Penta Raju did not possess valid and effective driving licence and in spite of the same Mr.Penta Raju had driven the vehicle while the same met with an accident on 17-11-2009. The driver Mr.Penta Raju possessed only licence to drive only Light Motor Non Transport Vehicle while he was driving goods transport vehicle and thereby had violated the drivers clause by driving the vehicle at the time of accident without holding effective driving licence for driving a Light motor transport vehicle and this Opposite Party repudiated the claim of complainant under the driver clause of the policy issued since the Opposite Party’s policy specifically excluded any accidental loss or damage or any liability caused or sustained or incurred whilst the vehicle been driven by a driver other than by driver.
General Exceptions: The company shall not be liable under this policy in respect of (a) any accident loss damage and/or liability caused sustained or incurred whilst the car insured herein is (b) being driven by or is for the purpose of being driven by him/her in the charge of any person other then a driver.
Further the Opposite Party stating that the FIR registered by the Policy authorities mentioned categorically that it was Mr.Penta Raju who was driving the vehicle at the time of accident and the Driver Mr.Penta Raju possessed only licence to drive only Light Motor Non-Transport vehicle while he was driving goods transport vehicle and thereby had violated the drivers clause by driving the vehicle at the time of accident without holding effective driving licence for driving a Light Motor Transport Vehicle and this Opposite Party repudiated the claim of complainant under the driver clause of the policy issued since the Opposite Party’s policy specifically excluded any accidental loss or damage or any liability caused or sustained or incurred whilst the vehicle been driven by a driver other than by driver. The drivers clause as stipulated in the terms policy warranted that the driver driving the insured’s vehicle to hold effective driving licence at the time of accident however in this instant case driver Mr.Penta Raju possessed only licence to driver only Light Motor Non-Transport vehicle while he was driving Light Motor Transport vehicle had violated the driver’s clause by driving the insured’s vehicle at the time of accident without holding effective driving licence and this Opposite Party repudiated the claim of the complainant under the driver clause of the policy issued.
Driver’s clause – Any person including the insured; provided that a person holds an effective driving licence at the time of the accident. Provided also that the person holding an effective learner’s licence may also drive the vehicle when not used for the transport of goods at the time of accident & that such a person satisfies the requirements of Rule 3 of the Central motor Vehicles Rules, 1989.
Further the Opposite Party stating that the Hon’ble Supreme Court in New India Assurance Co.Ltd. Vs Prabhu Lal (I (2008) CPJ 1 (SC)) has held while deciding the validity of driving licence that a driver who was holding driving licence to ply light motor vehicle (LMV) is not entitled to ply heavy motor vehicle/transport vehicle in the absence of necessary endorsement and therefore validated the claim repudiation by the concerned insurance company.
Further the Opposite Party stating that the Hon’ble Supreme Court in Chandra Prakash Saxena (SLP No.17794 of 2004) that when a vehicle involved in accident was a jeep commander made by Mahindra & Mahindra, a passenger carrying commercial vehicle and in view of the fact that the driver was holding licence to drive light motor vehicle (LMV) he could not have plied the vehicle in question and validated the claim repudiation by the concerned insurance company and the Opposite Party requested this Forum to dismiss this case.
The complainant in support of her claim, filed her Affidavit in the form of chief examination and also marked Exs.A-1 to A-18. On behalf of Opposite Party G.Vinay Prakash filed his Affidavit in the form of chief examination and also marked Exs.B-1 to B-6.
Now the point for consideration is:
1) Whether there is any deficiency of service on the part of the Opposite Party?
2) If so, to what Relief?
Point No.1:-
After arguments of both side counsels, our reasons are like this:
At the time of accident, whether the driver of trolley auto was having effective driving licence or not, this Forum has to settle the above point.
At the time of arguments, the counsel for the complainant argued that the driver who drove the accident vehicle at the time of accident, he was having Badge Number and everything, even though he is having LMV MCWG he has toright to drove the vehicle. Further he cited a judgment of Supreme Court i.e.
2011 CTJ 481 (Supreme Court) (CP) In the SUPREME COURT OF INDIA
Rubi (Chandra) Dutta (Mrs.)
Vs.
United India Insurance Co.Ltd.
Insurance – Driving licence –Consumer Protection Act, 1986 – Deficiency in service – Section 2(1)(g) –Section 2(1)(o) –Appellant’s bus suffered extensive damage when it dashed against a tree and turned turtle- While the preliminary survey indicated the loss of Rs.2,90,000/-, the detailed final report computed the same to be Rs.2,72,517.90 – Appellant, however, made a demand of Rs.5,33,782/- - Respondent chose to repudiate her claim stating that she made an unreasonably large claim and that the bus was driven by a person not holding a valid driving licence but holding a fake and fabricated licence – Complaint allowed by the District Forum – Respondent directed to pay Rs.4 lakhs –State Commission on appeal confirmed the finding of the District Forum except that it reduced the sum payable to the appellant to Rs.2,72,517/- Revision by the respondent to the National Commission – Plea of the respondent allowed and thereby the orders passed by the District Forum and the State Commission set aside – Finally, the present appeal – Undoubtedly, at the relevant point of time the driver held a valid driving licence to drive the bus -Relevant facts not carefully dealt with by the National Commission – by upsetting and quashing the findings of the lower Forums it transgressed the jurisdiction conferred on it under Section 21(b) of the Act – There was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than that of the two Forums – order passed by the national Commission set aside and quashed – Respondent held liable to pay Rs.2,72,517/- to the appellant with 9% interest – Appeal allowed.
This judgment filed by the complainant is not applicable to the present case of the facts, because at the time of accident the driver of the vehicle was holding an effective driving licence. In this case at the time of accident the driver of the vehicle was having only LMV driving licence (non transport). The driver has to drove the vehicle only non transport vehicle but not transport vehicle. But as per the facts of the documents i.e. Ex.A-4 F.I.R., Ex.A-5 Panchanama, Ex.A-6 Charge sheet those clearly goes to show that at the time of accident i.e. on 17-11-2009 at around 16.00 hours eye witness boarded in a RTC bus bearing No.AP11 Z3900 of Karimnagar-I Depot at Pregnapur and while proceeding towards Siddipet, on the way at Kukunoorpally village on Rajiv Rahadari Road at around 1615 hours, the driver of the Tata Ace trolley auto bearing No.AP36 X0124 coming from opposite direction in the rainfall and drove his vehicle in a rash and negligent manner due to which skid his vehicle to right side and dashed to the front side of their traveling bus. As a result of which three persons who are inmates of the auto sustained injuries. On enquiry knew the auto driver name as Penta Raju. So as per his evidence, at the time of accident the driver of the vehicle i.e. Penta Raju who was holding licence of LMV driving licence, he was drove the vehicle. So it is no doubt about it on the basis of facts. Other documents clearly goes to show that at the time of accident the driver of the trolley auto was holding only LMV driving licence and the said vehicle is transport vehicle. When the licence clearly goes to show that the licence of the Penta Raju who drove the vehicle at the time of accident, he was having the driving licence only LMV MCWG Non Transport Vehicle and his Badge number is also not given but only reference number is given and he has to drive the vehicle only non transport vehicle, but not transport vehicle.
Further the document i.e. Ex.B-1 shows, Driver : Any person including the insured. Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. In this case, the driver of the vehicle Penta Raju was not having effective driving licence at the time of accident.
Further the Ex.B-2 i.e. Surveyor’s Report, in it also that the driver of the vehicle was holding only a LMV non transport licence.
Ex.B-3 i.e. Extract of Driving Licence of the Penta Raju, it clearly goes to show that it is LMV MCWG non transport vehicle and valid up to 29-12-2028.
Ex.B-4 i.e. Certificate of Registration clearly goes to show that at the time of accident the driver of the vehicle drove the vehicle i.e. good carrier vehicle bearing No.AP36 X0124. So the Ex.B-4 clearly goes to show that at the time accident the driver of the vehicle Penta Raju drove the goods vehicle even though he is not having effective driving licence and Ex.B-5 is the Charge Sheet.
Further the Citation cited by the Opposite Party’s Counsel i.e.
2008(4) CPR 144 (SC) SUPREME COURT OF INDIA
(i) Motor Vehicles Act, 1988 – Sections 2(14) and 2(47) – The vehicle in question, a Tata 709, was registered as a truck, a goods carrier and was described as public carrier – Load carrying capacity was shown to be 4100.00 Kgs. – It was a ‘transport vehicle’ falling under clause (47) of Section 2 of the Act – The District Forum rightly considered the question of liability of the Insurance Company on the basis that Tata 709 was ‘transport vehicle’.
(ii) Motor Vehicles Act, 1988 – Section 3 r/w Rule 16, Central motor Vehicles Rules, 1989 and Form No.6 – In view of the driver holding only a LMV licence without an endorsement to drive transport vehicle, Insurance Company was not liable for paying any compensation.
(iii) Motor Vehicles Act, 1988 – Section 14 – Since the driver’s licence had been renewed for a period of twenty years – Therefore the licence was in respect of ‘a motor vehicle other than the transport vehicle’ and driver was not authorized to drive a transport vehicle – Insurance Company not liable to pay compensation.
This judgment is clearly applicable to the case of the Opposite Party only. The person i.e. driver Penta Raju was holding a LMV MCWG i.e. Non transport vehicle. He has to drive only non transport vehicle but not transport vehicle. As per Ex.B-4, at the time of accident the driver of the vehicle was holding a LMV driving licence and he drove the goods vehicle i.e. transport vehicle. When he drove the transport vehicle at the time of accident occurred, for the repairs & charges of the damaged vehicle, the insurance i.e. Opposite Party is not liable to pay anything.
Further in this case the driver was not authorized to drive the transport vehicle as a driver because the driver was drove the goods vehicle i.e. transport vehicle without having any effective driving licence. So this judgment is applicable to the case of the Opposite Party and the complainant is not entitled to get anything from the Opposite Party. It is clear on the basis of all the facts that the complainant obtained CommercialMotor Policy for Tata ACE valid from 23-03-2009 to 22-03-2010 subject to the driver’s clause and limitations clauses on usage as per Ex.B-1. The driver Penta Raju possessed licence to drive only Light Motor Non Transport Vehicle while he was driving goods transport vehicle and thereby had violated the drivers clause by driving the vehicle at the time of accident without holding effective driving licence for driving a Light motor transport vehicle and this Opposite Party repudiated the claim of complainant under the driver’s clause of the policy issued. So at the time of accident the driver Penta Raju not having effective driving licence.
For the foregoing reasons given by us, we come to the conclusion that we see no grounds to allow this complaint and accordingly this first point is decided in favour of Opposite Party against the complainant.
Point No.2: To what Relief:- The first point is decided in favour of Opposite Party against the complainant this point is also decided in favour of Opposite Party against the complainant.
In the result, this complaint is dismissed without costs.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum today, the 14th June, 2011).
President Male Member
District Consumer Forum, Warangal
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainant On behalf of Opposite Party
Affidavit of complainant filed. Affidavit of Opposite Party filed.
EXHIBITS MARKED
ON BEHALF OF COMPLAINANT
1. Ex.A-1 is the Legal Notice from the complainant’s counsel issued to the Opposite Party.
2. Ex.A-2 is the Postal Receipt.
3. Ex.A-3 is the Acknowledgement.
4. Ex.A-4 is the Xerox copy of First Information Report.
5. Ex.A-5 is the Xerox copy of Panchanama.
6. Ex.A-6 is the Xerox copy of Charge Sheet.
7. Ex.A-7 is the Xerox copy of Certificate of Registration by Transport Department.
8. Ex.A-8 to Ex.A-11 are the Receipts.
9. Ex.A-12 is the Original copy of Tax Invoice
10. Ex.A-13 is the Xerox copy of Driving Lincence of the Penta Raju.
11. Ex.A-14 is the Xerox copy of Motor Vehicle Cover Note by the Opposite Party.
12. Ex.A-15 is the Xerox copy of Computerized Pollution under Control Certificate
13. Ex.A-16 is the Xerox copy of Receipt by eSeva, Municipal Head Office, Warangal.
14. Ex.A-17 is the Xerox copy of Form-38, Certificate of Fitness by Transport Department.
15. Ex.A-18 is the copy of Vehicle repair satisfaction voucher.
ON BEHALF OF OPPOSITE PARTY
1. Ex.B-1 is the Xerox copy of Policy Schedule.
2. Ex.B-2 is the Xerox copy of Private & Confidential Motor Final Survey Report.
3. Ex.B-3 is the Xerox copy of Grant of Issue of Driving Licence by RTA Warangal.
4. Ex.B-4 is the Xerox copy of Certificate of Registration by Transport Department.
5. Ex.B-5 is the Xerox copy of Charge Sheet.
6. Ex.B-6 is the letter dt:29-07-2010 to the complainant from the Opposite Party.
PRESIDENT
