THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 25th day of February, 2015
C.C.No.36/2012
Between:
1. G.Maddileti(Died),
Represented by his L.R’s.,
2. G.Parvathamma,
W/o Late G.Maddilety,
Aged about 31 Years, House Wife,
3. G.Mahesh Babu,
S/o Late G.Maddilety,
Aged about 12 Years,
4. G.Siva,
S/o Late G.Maddilety,
Aged about 10 Years,
5. G.Mani,
S/o Late G.Maddilety,
Aged about 6 Years,
All are resident of H.No.10/98, B, Boyapeta,
Panyam Village and Mandal,
Kurnool-518 001. …Complainants
(Amended as per Order in I.A.No.37/2013 dated 04.06.2013)
-Vs-
1. The Branch Manager,
M/s Bajaj Allianz General Insurance Company Limited,
Represented by its Branch Manager,
Shop No.10,11,13, D.No.40/356/A,
III Floor, Alankar Plaza,
Kurnool-518 002.
2. M/s Bajaj Allianz General Insurance Company Limited,
Represented by its Regional Manager,
Regional Office, Macmet Building,
10-B, O.C. Ganguly Sarani,
Kolkata-700 020. …OPPOSITE PARTIES
This complaint is coming on this day for orders in the presence of Sri.A.Prabhakara Reddy, Advocate for complainants 1 to 5 and Sri.A.V.Subramanyam, Advocate for opposite party No.1 and opposite party no.2 called absent and set exparte and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member,)
C.C. No.36/2012
1. This complaint is filed under section 12 of Consumer Protection Act, 1986 praying:-
- To directing the opposite parties to pay damages of Rs.1,47,940/- as estimated by its surveyor to complaint Nos2 to 5 (As per Order in IA No.37/2013 dated 04.06.2013).
- To grant future interest at 12% per annum from the date of filing application till the realization.
- To grant compensation of Rs.20,000/-.
- To grant costs of the compliant.
2. The complainant died on 05.11.2012. The complainants No.2 to 5 are brought on record as legal heirs of complainant No.1 as per order in I.A.No.37/2013 dated 04.06.2013.
The facts of the complainant in brief is as under:- The complainant is the owner of tractor bearing No. AP 21 W800 with trolley bearing No.AP21 W 7998 and it was insured with opposite party under policy No.BZ0800674156. The policy was valid from 17.07.2008 to 16.07.2009. On 08.04.2009 the said vehicle was loaded with stones and was returning to Panyam, at about 12.20 noon near Konidedu village the tractor lost control steering as it was cut accidentally and hit road side tree. As a result the tractor engine was badly damaged. The complainant No.1 informed the same to opposite party and gave a report to the SHO Panyam Police Station. The SHO gave a certificate to the said effect on 09.04.2009. The complainant No.1 submitted the claim form to opposite party with request to settle the claim. The opposite party appointed a surveyor. The surveyor inspected the vehicle and assessed the loss caused to the vehicle. The complainant No.1 requested the opposite parties to settle the claim but the opposite parties had been delaying the same. Finally on 13.04.2009 the opposite parties repudiated the claim on the ground that the driving License of the driver was not valid as he was not authorized to drive commercial vehicles. At the time of accident the vehicle was not being used for commercial purpose. He was carrying the stones for his own purpose. The repudiation of the claim by the opposite party is untenable. There is deficiency of service on the part of opposite parties. Hence the complaint.
3. Opposite party No.1 filed written version stating that the complaint is unjust and neither maintainable in law nor on facts. It is admitted that the opposite party No.1 is the owner of the tractor bearing No.AP21 W 8000 and trolley bearing No.AP21 W 7998 and it was insured with the opposite party No.1 policy bearing No.OG-09-1806-1811-00000754. The policy was valid from 17.07.2008 to 16.07.2009. It is submitted that after receipt of accident information, the opposite parties appointed a surveyor to assess the loss. But after scrutinizing the documents it came into light that the driver of the insured vehicle did not possess valid driving license at the time of the alleged accident. The insured vehicle is registered under Transport vehicle and the trailer registered for commercial purpose but the driver possessed only (Non-Transport) (LMV) driving License. There was a violation of terms and conditions of the policy. The claim of the complainant was repudiated on 13.04.2009 as there was violation of terms and conditions of the policy. It is further submitted that it is barred by limitation. There is no deficiency of service on the part of opposite parties. The complaint is liable to be dismissed.
Opposite party No.2 called absent set exparte.
4. On behalf of the complainant filed Ex.A1 to Ex.A3 are marked and sworn affidavit of complainant is filed. On behalf of opposite parties filed Ex.B1 to Ex.B6 are marked and sworn affidavit of opposite party No.1 is filed.
5. Both sides filed written arguments.
6. Now the points that arise for consideration are:
- Whether it is barred by limitation?
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. POINTS i :- It is the case of opposite party No.1 that the alleged accident occurred on 08.04.2009 and the claim of the complainant was repudiated on 13.04.2009. Any complaint against the said repudiation should be filed within two years from the date of repudiation (i.e.,) on before 11.04.2011. But the complainant filed this complaint in 2012 only, thus it is barred by limitation. Under section 24(a) of Consumer Protection Act the District Form, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the instant case originally the complaint filed in the year 2010 in SR.No.1212/2010 and it was returned for want of some documents. Again on 02.04.2012 it is resubmitted along with condonation of delay in petition I.A.No.36/2012 and this District Forum pleased to condone the delay on 03.04.2012. Hence this complaint is not barred by limitation it is filed within period of limitation.
8. POINTS ii and iii:- Admittedly the complainant No.1 is the owner of the vehicle bearing No.AP21 W 8000 with trolley No.21 W 7998 and it was insured with opposite parties under Ex.B1 photo copy of certificate cum policy schedule bearing No.OG-09-1806-1811-00000754. The said policy was in force from 17.07.2008 to 16.07.2009. It is the case of complainant that on 08.04.2009 the said vehicle was loaded with stones, while returning to Panyam at about 12.20 hrs, when he reached near Konidedu Village, the said tractors steering control was lost as it was cut accidently and hit the roadside tree. As a result the said tractor’s Engine was badly damaged and none were received any injuries in this accident. The complainant No.1 informed the same to opposite parties and also gave report to Panyam Police Station. The Panyam Police Station issued certificate with regard to alleged accident dated 09.09.2009 which is marked as Ex.A3. After the receipt of information the opposite parties appointed surveyor. The said surveyor inspected the damaged vehicle and assessed the loss. The final surveyor report filed dated 11.09.2012 which is marked as Ex.B5. The Bunch of Bills (No.26) are marked as Ex.A2. The opposite parties repudiated the claim of the complainant No.1 on the ground that the driver did not hold a valid and effective driving license to drive Tractor/ Trailer of Transport type. The repudiation letter is marked as Ex.A1=Ex.B6 dated 13.04.2009.
It is the case of opposite party No.1 that admittedly the vehicle of the complainant was a transport vehicle. The driver was holding LMV (Non-Transport D.L). The photo copy of Driving License is marked as Ex.B4 and the permit copy is marked as Ex.B3 and R.C. copy is marked as Ex.B2. The complainant tractor is registered as LMV Transport vehicle and trailor was registered for commercial purpose. Thus he is not authorized to drive commercial vehicle. As per the motor vehicle Act No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him to drive the vehicle.
No person shall so drive a transport vehicle (other than motor cab or motor cycle) hired for his own use or rented under any scheme made under sub-section (2) of section (75) unless his driving license specifically entitles him so to do. It is not the case of the complainant that there is an endorsement on the LMV driving license of the driver that he can drive LMV (Transport Vehicle).
9. It is argued by the learned counsel appearing for the complainant that on 08.04.2009, the said vehicle at the time of accident is not under used for commercial purpose. He was carrying the stones for his own purpose and that LVM non Transport license is sufficient to drive the said vehicle.
The learned counsel appearing for the opposite party No.1 argued that the vehicle of the complainant No.1 was Transport and Commercial vehicle, that the driver was holding license to drive light motor vehicle, that there was no endorsement on the driving license that he could drive the transport vehicle and as such the Insurance company is not liable to pay damages to the complainants. In support of his contention relied on
(a) Decisions reported in Supreme Court of India in civil appeal No.8463 of 2014 Narinder Singh -Vs- New India Assurance Company Limited others.
(b) Revision petition No.4166/2011 National commission ICICI General Insurance and Others -Vs- Sh.Pawan Kurmar.
(c) Revision petition No.396/2009 National Commission -Vs- ICICI Lombard General Insurance and others -Vs- Mainuddin where in it was held that LMV would not include light transport vehicle and on that basis order allowing claim against insurance company was set aside. There is a distinction between LMV and a transport vehicle. Driver License for LMV issued for 20 years and Driving License Transport vehicle issued for 3 years LMV driver is not permitted on to drive transport vehicle unless endorsed by Transport authorities in his Driving License. Hence in this Instant case also the complainant No.1 himself was a driver of the vehicle was not holding valid Transport vehicle driving license at the time of accident.
It is not disputed that complainant No.1 was owner of the vehicle which was insured by opposite parties. It is also not disputed that the driver of the vehicle was holding license to drive LMV/Non-Transport. Now the dispute to be decided is whether at the time of accident, vehicle was driver by a person holding valid driving license.
It is not the case of complainant that there is an endorsement on the driving license that he can drive the transport vehicle. As seen from Ex.B2 and Ex.B4 it is very clear that the vehicle involved in an accident is a transport vehicle and the driver was holding LMV non-Transport driving license, so he could not have plied the vehicle which was registered as Transport and Commercial purpose. In the light of the findings of Apex court and Honourable National Commission we hold that the complainant No.1 violated the terms and conditions of policy and the opposite parties need not pay any amount towards damages to the complainants. The opposite part rightly repudiated the claim of the complainant as the complainant No.1 violated the terms and conditions of the policy. No deficiency of service is found on the part of opposite parties.
10. In the result, the complaint is dismissed without costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 25th day of February, 2015.
Sd/- Sd/-
LADY MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainants:- Nil For the opposite parties:- Nil
List of exhibits marked for the complainants:-
Ex.A1 Repudiation Letter dated 13.04.2009.
Ex.A2 A Bunch of Bills (Nos.26).
Ex.A3 Photo copy of Certificate issued by Sub Inspector of Police, Panyam P.S. dated 09.04.2009.
List of exhibits marked for the opposite parties:-
Ex.B1 Photo copy of Certificate Cum Policy Schedule.
Ex.B2 Form-24, B-Register of Motor Vehicle No.AP21 W 7998.
Ex.B3 Photo copy of Form-PPC, goods Carriage Permit.
Ex.B4 Driving License.
Ex.B5 Indus Insurance Surveyors Private Limited, Motor Final Survey Report dated 11.09.2012.
Ex.B6 Repudiation Letter dated 13.04.2009.
Sd/- Sd/-
LADY MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
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