Karnataka

Chitradurga

CC/392/2019

Sri B.N.Prasanna Kumar, S/o Ningappa, - Complainant(s)

Versus

The Branch Manager, The National Insurance Company Ltd., - Opp.Party(s)

Sri.Thippeswamy.N

15 Jan 2021

ORDER

COMPLAINT FILED ON:10/07/2019

DISPOSED      ON:15/01/2021

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC. NO:392/2019

DATED: 15th January 2021

PRESENT :-     Smt. H.N. MEENA .                         …. PRESIDENT

                                B.A., LL.B.,               

                             Smt. B.H. YASHODA.                       ....MEMBER

                     B.A., LL.B.,

                               Smt. B.U. GEETHA.                                …. MEMBER

                               M.COM. LLB. P.G.D.C.L.P

 

……COMPLAINANT/S	Sri. B.N. Prasanna Kumar, S/o Ningappa, Aged about 40 Years, R/o Jogi Matti Road, Chitradurga. (Rep., by Sri.Thippeswamy N. advocate)
V/S
..OPPOSITE PARTY	The Branch Manager,  The  National Insurance Company Limited, Branch Office, Jagaluru Mahalingappa Towers, 1st Floor, B.D. Road, Chitradurga.   (Rep., by Sri.                            B.M. Ravichandra. advocate)

 

Pronounced on 15^th January 2021.

Written by Smt. H.N. MEENA, President.

ORDERS

1.   This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by B.N. Prasanna Kumar the Complainant against the Opposite party (for short ‘OP’) praying to award Rs. 3,50,350/- with 12% interest and also  cost of the proceeding - etc.

 

 

The complaint:-

  2.  The brief facts of the complaint are that the complainant is the registered owner of the TOYOTO Etios G.D Car bearing No.KA-34-A-9955 and he insured his vehicle with the OP, to that effect the OP have issued a policy bearing No. 610301311510004410 valid from 12/08/2018 to 11/08/2019. On 28/04/2019  while travelling in the above said vehicle, on NH 13 near Bangarakkananagudda Village Toll Gate, Jagaluru Taluk, the said vehicle met with an accident due to the said accident  the vehicle was damaged.  In this regard Jagaluru police have registered the complaint under their station  Crime No. 62/19 on the same day. On the same day, the complainant has intimated about the accident to the OP Company. The surveyor and loss assessor inspected the vehicle before the police station and M.S. Car Tinker works Davanagere and took photos. The M.S. Tinker works have issued quotation to the complainant for a sum of Rs. 1,88,350/-. The complainant incurred Rs. 3,000/- towing charges and parking charges of Rs. 10,000/- paid. The complainant submits  the required documents for the settlement of claim before the OP. After receiving the requisite documents submitted by the complainant  and survey report for the settlement of claim, the Op have not settled the claim of the complainant. Instead of settlement the OP sent a repudiation letter to the complainant on 19/06/2019. In the said repudiation letter the Op stated that “at the time of the accident the captioned vehicle was driven the Mr. Rajeev. A Driver was not holding a valid  and effective licence to drive motor cab at time of loss”.

3.     The Op is aware of well settled principles of law. The Op has repudiated the claim of the complainant is highly illegal, improper and further the act of the op is against to the well established principles of law and natural justice. The Op has made deficiency in service towards the complainant and committed an unfair trade practice. Due to the illegal act of the complainant has suffered from loss and mental agony. Hence the present complaint filed by the complainant.

4.   After hearing on admission the complaint was admitted and notice was ordered to be issued to the OP  to file its written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OP has appeared through its counsel and filed written version.

  Defense:

5.     In the written version the OP has admitted the issuance of policy and its validity. He contended that policy issued to the complainant is subject to terms and conditions enumerated in the policy and also inconformity with the provisions of Motor Vehicle Act-1988, the terms and conditions of contract is binding on the both the parties.

6.     The OP further stated that the policy issued to the complainant is under commercial vehicle carrying package policy to the Motor Cab vehicle bearing Reg., No. KA-34-A-9955 for the period 12/08/2018 to 11/08/2019 in the name of V.N. Prasanna Kumar S/o Ningappa the said policy covers own damage for an amount of Rs. 3,41,667/- (IDV) and also cover the risk of one WC employee i.e. paid driver, compulsory PA to owner cum driver for an amount of Rs. 2,00,000/- and the said policy was in force for the terms and conditions of policy and M.V. Act and confirmation of 64 VB.

7.     Further stated that Op insurance company he appointed one Sri. Sheik Mohammed, Surveyor and loss assessor for the conducting final survey, for the that he has conducted the final survey and given his report and in the said report he has net assessed loss is of Rs. 64,266/- and also complainant has given claim form with police papers, driven license and the said claim form was duly signed by one V.N. Prasanna Kumar.

8.     Further stated that date of the accident driver of the said vehicle is one Rajeeva A S/o Halu Naika who is the drive of the vehicle bearing Reg. No. KA-34-A9955 on the date of accident dated 28/04/2019 and he had DL to drive LMV Non Transport vehicle from 17/07/2008 to 16/07/2028 and also Transport vehicle from 06/01/2017 to 01/01/2017 and he was not authorized to drive LMV Cab on the date of accident since the driving license was expired on 01/01/2017 to drive Transport vehicle and also which is violation of Motor Vehicle Act condition of Sec.3,8 and 9 and also violated general exception 3(b).

9.     Further stated that on  receipt of the papers and claim form that on 19/06/2019 opponent insurance company has repudiated the claim of the complainant stating at the time of accident the captioned vehicle was driven by Sri. Rajiva A, driver was not holding a valid and effective driving licence to drive Motor cab at the time of loss and the company is unable to process the claim due to breach of driver clause of the motor insurance policy and provisions of MV Act, hence the claim stands repudiated and thereby the complainant has violated policy terms and conditions. Hence on the above material Op has expressed their inability to settle their claim and hence he prayed for dismissal of the complaint. 

 

 

  Evidence:

10.   The complainant got himself examined as PW-1 by filing his affidavit as a part of examination in chief and also got Ex.A-1 to A-6 marked and closed the evidence.

11.    On behalf of OP one Kumuda Krishnamurthy  got himself examined as RW-1 by filing his  affidavit as a part of examination in chief and documents marked as EX- B 1 to B 11 and closed the evidence.

Arguments:

12.   We have heard the complainant as well as counsel of OP and perused the written arguments filed by both side advocates.  

13.   The points that arise for our determination are ;

1. Whether the complainant proves that deficiency of service on the part of opponent?
2. Whether the complainant proves that he is entitled for the relief sought?
3. What order?

 

14.   Our finding on the above points are as under;

        Point No.1: In the Affirmative

        Point No2: In the Affirmative

        Point No3: As per final order,

 

Discussion and Reasoning:

Point No.1 and 2:

15.   The OP without disputing the issuance of the insurance policy to the vehicle of complainant and its validity as on the date of accident repudiated the claim of the complainant to pay claim amount. It is the case of the complainant that he is the owner of the vehicle passenger carrying package policy to the Motor Cab  bearing No.KA-34-A-9955  and he insured his vehicle with the OP, valid from 12/08/2018 to 11-08-2019. On 28/04/2019 the complainant with his driver Rajeeva A S/o Halu Naika  while travelling in the above said vehicle, on NH 13 near Bangarakkananagudda Village Toll gate, Jagaluru Taluk, the driver lost his control over the vehicle and dashed the someone vehicle, as a result of which the car was completely damaged to the maximum extent.

16.  The OP has not disputed the accident. His contention is that at the time of alleged accident driver Rajeeva A S/o Halu Naika  who was holding a license to drive LMV was not authorized to drive a Four wheeler vehicle as on the date of accident and hence he justified the repudiation of claim.

17.   Therefore, the question which requires consideration is whether a driver having learner’s license can be regarded as ‘authorized driver’ having valid driving license.

18.  On perusal of EX- B1 copy of the policy and its terms and conditions it reflected that, the insurance policy provided thus “ provided that a person holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining a such license. Provided also that the person holding an effective learning license may also drive the vehicle when not used for the transport of passengers at the time of accident and that such person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules 1989”. 

19.  The contention of the OP is that the driver who driving the vehicle at the time of accident he was holding learning license. The learning license which inter alia provides that the person has license to drive throughout India as a learner subject to the provisions of Rule 3 of Central Motor Vehicle Rules 1989, the motor vehicle of the following described, namely, LMV only.

20.  The Hon’ble Apex Court in the case of National Insurance Company Limited VS Swaran Singh and others held that “ it cannot be said that a person holding a learning license is not entitled to drive the vehicle. He would be within the purview of ‘duly licensed’.  The Hon’ble Apex court also held that “ if a vehicle at the time of accident was driven by a person having a learning license, the insurance company would be liable to satisfy the decree”.

21.  Learning license is granted under the rules framed by the Central Government or the State Governments in exercise of their rule making power. Conditions are attached to the learning license would, thus, also come within the purview of ‘duly licensed’ as such a license is also granted in terms of the provisions of the Act and the Rules framed there under.

22.  Motor Vehicle Act 1988 provides for grant of learner’s license. A learner’s license is, thus, also a license within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the license, he would not be a person who is not duly licensed resulting in conferring a right on the insures to avoid the claim. It cannot be said that a person holding a learner’s license is not entitled to drive the vehicle. 

23.  The contention of the OP is that the vehicle bearing No. No.KA-34-A-9955 insured with the company under private commercial vehicle passenger carrying package policy at the time of accident the driver Rajeeva A was holding a license to drive LMV and not authorized to drive the 4 wheeler. The OP counsel also relied on the judgment reported in AIR 1996SC1150 and Judgment passed by Hon’ble SC in Civil Appeal No. 3486 of 1986 on 04/12/1995.

24.   On behalf of the OP is of not much assistance as per the following discussion. 

Section 2(21)MV Act 1988 provided for definition for Light Motor Vehicle as under.

“Light Motor Vehicle means a transport vehicle or omnibus 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 7,500/- kilograms”.  Thus in case of a transport vehicle, gross weight has to be less than 7500 kgs to qualify as light motor vehicle.

25.    Copy of the policy is produced by the complainant and the OP marked as EX- A 3 as well as EX-B1.  As per EX- A 2 Gross vehicle weight is 1015 kgs.  According to EX- A 3  Rajeeva driver of the vehicle  having license for LMV till 17/07/2008 and NT till 16/07/2028.  Section 2(21) of Motor Vehicles Act, 1988 reads as under:-

“Light motor vehicle means a transport vehicle or omnibus, 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 7,500 kilograms.”

26.  As per the EX A -2 RC, vehicle in question is Toyata Etios and registered unladen weight of vehicle in question is 1015 kg. A perusal of Driving License EX-A 3  reveals that the Class of vehicle has been mentioned on it as “LMV ”. Hence, the vehicle in question clearly falls in the category of Light Motor Vehicle (LMV) and the licence for Light Motor Vehicle is valid to drive the vehicle in question. In this regard, the support can be sought by the law laid down by the Hon'ble Supreme Court in Appeal (civil) 574 of 2008, titled National Insurance Company Ltd. Vs Annappa Irappa Nesaria & Ors, decided on 22.01.2008 wherein it has been held at page 2:

“11. Section 2(21) defines light motor vehicle and Section 2(23) defines medium goods vehicle as under:-

 

Light motor vehicle means a transport vehicle or omnibus, 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 7,500 kilograms. Medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle.

27.       Section 3 of the Act is in the following terms : Necessity for driving licence (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motorcab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do.

 

28.  The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989.

 

The word\023 Form\024 has been defined in Rule 2(e) to mean a Form.

Appended to the rules. \023I Apply for a licence to enable me to drive Vehicles of the following description :

(d) Light motor vehicle

(e) Medium goods vehicle

(g) Heavy goods vehicle

(j) Motor vehicles of the following description ....

After amendment the relevant portion of Form 4 reads as under :-

 

Apply for a licence to enable me to drive vehicles of the following description :

(d) Light motor vehicle

(e) Transport vehicle

(j) Motor vehicles of the following description

 Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.

Clause (e) provides for transport vehicle which has been substituted by G.S.R. 221(E) with effect from 28.03.2011. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed here-in-before, light motor vehicles also found place therein.

 Light Motor Vehicle is defined in Section 2(21) and therefore, in view of the provision, as then existed, it included a light transport vehicle.”

 

29. From what has been noticed here-in-before, it is evident that transport vehicle has not been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time, to cover both, light transport carriage vehicle and light goods carriage vehicle.

 

30.  A driver who had a valid licence to drive a light goods vehicle, therefore, was authorized to drive a light goods /transport vehicle as well. Keeping in view the aforesaid law laid down by the Hon'ble Supreme Court,  the driver of the vehicle in question was holding a valid driving license at the time accident

31. Moreover, the Hon’ble Supreme Court in the case of Oriental Insurance Company Limited VS Sony Cherijan 1999 CTJ 556 (SC) (CP)=(1999) 6 SCC 45 held that “ The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly constructed to determine the extent of liability of the insurer. The insured cannot claim anything more than that what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein”.

32.  The complainant stated that on the date of accident he has intimated to the OP regarding the accident but they did not settle the claim amount, non settling the claim amount is deficiency of service on the part of the OP.

33.  The OP stated that on intimation given by the complainant, they have approached Surveyor and loss Assessor, who has conducted the survey and submitted the report assessing the net damage at Rs.64,266/-. On perusal of EX- B 9 it shows that the surveyor has assessed loss caused to the tune of Rs. 64,266/- Hence it is the duty OP Insurance Company to settle the actual loss caused to the vehicle when the insurance policy is in force.

34  The complainant alleged that surveyor appointed by him has assessed total loss of the vehicle is Rs. 64,266, but in-spite of receipt of all the documents the OP not settled the claim. 

35.   The surveyor appoint by the OP Company vide his survey report has assessed loss caused to the vehicle to the tune of Rs. 64,266/-. The complainant has not challenged the survey report.

36.  In the case of Ashu Textiles VS New India Assurance Company and another III(2009) CPJ 272 (NC) Hon’ble National Commission observed that the surveyor’s report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report.

37.   In Khaimibhai and Sons VS New India Assurance Co.Ltd., IV (2011) CPJ 458 (NC) Hon’ble National Commission observed that “ it is to be noted that it is in accordance with the requirement of law that a surveyor or is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss given a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order”.

38  In the case of Ankur Surana VS United India Insurance Co.Ltd 1 (2013) CPJ 440 (NC) Hon’ble National Commission observed that “ it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the For a below unless cogent reasons are recording for doing so”.

39.   The OP insurance Company has appointed surveyor and he inspected the vehicle and gave his report. The surveyor was appointed by the Insurance Company itself and the surveyor is an independent person and the surveyor’s report is a valuable document and it cannot be brushed aside lightly without any material to the contrary on record. In the instant case the complainant has not denied the survey report submitted by surveyor and also failed to produce any contrary document to the survey report.

40.    The allegation of the complainant is that non settlement of claim by the OP is amounts to deficiency in service. The OP without denying the validity of policy simply denied the claim of the complainant on the baseless ground . The surveyor appointed by the respondent company assessed the loss caused to the vehicle is Rs. 64,266/-. Hence, it is the duty of Insurance Company to settle the actual loss caused to the vehicle when the insurance policy is in force. Hence the act of the OP Insurance Company amounts to deficiency in service towards the Complainant. Accordingly we answer point No.1 as affirmative.

Point No.2:

41.  As the complainant has proved deficiency in service on the part of the OP  he is entitled for Rs. 64,266/-, damage claim,  for loss earning of Rs. 10,000/- along with interest, compensation for mental agony and cost of the proceeding as per the final order. Accordingly we answer point No.2 as partly in the affirmative.

Point No.3: -

42. In view of the discussions made under Point No.1 and 2,      we pass the following; 

    // ORDER //

                The complaint is partly allowed.

The opposite party is directed to pay Rs. 64,266/- to the complainant along with interest @ 10 % per annum from the date of accident of the vehicle within six weeks from the date of receipt of the copy of this order. OP shall also pay Rs.20,000/- to the complainant as compensation for deficiency of service, mental agony and also cost of the proceeding within six weeks from the date of receipt of the copy of this order. Op also directed to pay Rs.10,000/- towards loss of earnings to the complainant.  In case of non-compliance of the order the entire amount shall carry interest @ 10% per annum till its realization.

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(This order is made with the consent of Members after the correction of the draft on 15/01/2021 and it is pronounced in the open Court after our signatures)

 

 

 

(B.H. Yashoda)                (B.U. GEETHA)                                         (H.N. Meena)                                                          

   Lady Member                     MEMBER                                         President.

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:-Complainant by filing affidavit evidence.

Documents marked on behalf of Complainant:

Ex-A-1:-	Copy of the FIR
Ex-A-2:-	RC Book
Ex-A-3:-	DL
Ex.A-4:-	Policy copy
Ex.A-5:-	Quotation
Ex.A-6:-	Repudiation letter

DW-1: Smt. Kumuda Krishna Murthy, National Insurance Company Limited, branch Office, Chitradurga, by way of affidavit evidence.

Documents marked on behalf of OP.

Ex-R-1:-	Policy copy
Ex-R-2:-	Intimation letter dated 08/05/2019
Ex-R-3:-	RC
Ex.R-4:-	Driving Licence
Ex.R-5:-	Fitness certificate
Ex.R-6:-	Permit
Ex.R-7:-	FIR
Ex.R-8:-	Original claim Form
Ex.R-9:-	Survey report dated 26/05/2019
Ex.R-10:-	Letter company dated 19/06/209
Ex.R-11:-	Acknowledgement card

 

 

 

Lady Member                        MEMBER                                         President.