O R D E R

(By Sri. Ganesh Jadhav, President)

1.       THIS IS A COMPLAINT FILED U/SEC.12 OF Consumer Protection ACT, 1986.

2.       The facts germane to the case are that the complainant is owner of TATA ACE Magic H.T. Vehicle bearing Registration No. AP 25-TV-0855 insured with the insurance company of opposite party vide policy No. 050701/31/10/01/00000717 for a period from 17-06-2010 to 16-06-2011. Unfortunately the said vehicle was damaged on 28-05-2011 due to dashed to back side by the driver of R.T.C bus bearing No. AP-29-Z-198 in a rash and negligent manner at Railway gate of Narsannapally village, when the vehicle was stopped at the time, the railway gate was closed. Consequently, the vehicle turned turtle and damaged. The inmates of vehicle received injuries and they were shifted to hospital in 108 ambulance. The vehicle driver yenugupatla Ashok has lodged complaint with police  Devanpally police station on 29-05-2011. The police issued FIR No. 133/2011 against the driver of said R.T.C bus. The complainant has made claim from opposite party under the policy. The surveyor assessed the damages to a tune of Rs. 51,830/- but the opposite party has repudiated the claim on 19-07-2011, stating that the driver of vehicle have not holding effective & valid driving license at the time of accident which required to have a badge to drive a passenger carrying commercial vehicle as per M.V.Act.  The opposite party came to wrong conclusion and repudiated the claim without verifying the driving license.  After the accident, the complainant has roamed around the office of opposite party on several time and requested them to settle the claim.  The complainant has sustained physical strain and mental agony for the attitude of opposite party and got repaired his vehicle with his own money. Hence this complaint, claiming  Rs. 51,830/- towards vehicle damages with interest @ 24% P.A from date of accident till realization besides Rs. 25,000/- as compensation for physical strain and mental agony with costs of Rs. 20,000/- towards case proceedings.

3.                 The opposite party filed its counter and stated that the vehicle bearing No. AP-25-TV-0855 was insured with its company through policy bearing No. 05070/31/10/01/00000717 for a period from 17-06-2010 to 16-10-2011. The liability of opposite party is strictly governed by terms & conditions of the policy under the provisions of Motor Vehicle Act and its Rules. The claim which is not covered the policy, can not be granted. Further stated that the vehicle of the complainant met with an accident on 28-05-2011. A spot Surveyor Sri. Ch. Venkateshwar Rao and a final Surveyor Sri. K. Srinivas Rao were appointed and finally assessed the vehicle damages of Rs. 16,500/-. During the survey, the complainant himself gave a statement in his own hand writing wherein stated that he himself drove the vehicle when an accident occurred.  However, such statement is subject to verification of FIR and other police records. As per police records, one Y. Ashok drove the vehicle at the time of accident. The said Ashok have not holding effective and valid driving license at the time of accident which is required to have a badge to drive a passenger carrying commercial vehicle as per section 3 of M.V.Act. Hence the complainant has violated the terms of policy. The opposite party has repudiated the claim on 19-07-2011. There is no deficiency of service on the part of opposite party. All other allegations are denied by opposite party. The complaint is liable to be dismissed with costs.

4.                 During the enquiry, the complainant filed his affidavit as PW1 and got marked Ex. A1 to A10 documents and closed his evidence. The opposite party filed the affidavit of M. Venkata Krishna Rao, Senior Assistant at Divisional Office, Nizamabab as RW2 after eschew the affidavit of RW1 on 20-08-2013 and got marked Ex. B1 to B11 documents and closed its evidence.         

5.       Heard arguments.

6.       The points for consideration are:-

          i)  Whether there is any deficiency of service on the part of opposite party in            repudiating the claim ?

ii)  To what relief?

7.       POINT NO. 1 & 2:-

          It is not in dispute that the complainant is owner of the TATA ACE  Magic HT vehicle bearing registration No. AP 25-TV-0855 as per Ex.A3 and insured with the opposite party company through policy bearing No. 050701/31/10/01/00000717 for a period from 17-06-2010 to 16-06-2011 as per Ex.A1 (Ex.B1). The vehicle met with an accident on 28-05-2011 as per Ex.A4 & A5(Ex.B10 & B11) during the subsistence of the policy is also not in dispute.

          The spot survey report dated 30-05-2011 in Ex.B6 and an accident intimation letter dated 29-05-2011 in Ex.B3 were disclosed that the complainant has drove the vehicle at the time of accident. But the police records in Ex.A4 (B10), Ex.A5 (Ex.B11), Ex.A6, the claim form in Ex.B1 and final survey report dated 20-06-2011 in Ex.B7 are showing that one Yenugupatla Ashok has drove the vehicle at the time of accident with consent of complainant.  In addition to this, the complainant himself pleaded in his complaint that the said Yenugupatla Ashok has drove the vehicle at the time of accident. The opposite party also stated the driver name Y. Ashok in its repudiation letter in Ex.B2 and the claim was repudiated on a ground that the said Y. Ashok was not holding an effective and valid driving license which required a badge for carrying passenger commercial vehicle as per M.V. Act. Therefore we are in view that the said Yenugupatla Ashok has drove the vehicle at the time of accident with consent of complainant.

          The case of the complainant swirls around the validity of driving license and quantum of damages.  In Order to prove the case the complainant has filed the driving license of said Y. Ashok in Ex.A10(Ex.B9) and the cash bills in Ex. A7 & A8 showing the expenditure incurred by him for repair of damaged vehicle. The opposite party also filed estimation of damages in Ex.B5, spot survey report in Ex.B6, final survey report in Ex.B7 with photographs and re-inspection report in Ex.B8 in support of its contention.

          We have heard the counsel for the parties. The counsel for complainant vehemently  argued that the driving license was issued on 29-01-2010 to said Y. Ashok in Ex. A10 (B9) and the badge will be issued after one year. The said one year period have been completed at the time of accident. Therefore the said Y.Ashok was eligible for driving the transport vehicle though he has not obtained a badge from concerned R.T.A as per M.V.Act. Further argued that the survey reports in Ex.B6, B7 & B8 were not given to the complainant and they are not binding to his case in view of cash bills in Ex. A7 & A8 are adduced for Rs. 51,830/- supporting to the version of complainant. The learned counsel for opposite party has also vehemently argued that the complainant has used the vehicle by violating terms of policy and his claim was rightly repudiated.  Further argued that the Final surveyor assessed the net loss of Rs. 16,500/- in Ex. B7 is nothing but adherence to the terms of policy.

          We have gone through the evidence on record. Admittedly, the vehicle driver Y. Ashok have not holding badge at the time of accident on 28-05-2011 which can be seen from the driving license in Ex.A10(B9). It also can be seen from vehicle registration certificate in Ex.A3 wherein the class of vehicle is mentioned as ‘ Motor cabs-LMV’ with seven seating capacity,  Ex.A2 is contract carriage permit issued by RTA Nizamabad on 19-06-2009 and valid it till 18-06-2014, permitting the vehicle of complainant for carrying passengers in all routes except prohibited in the state of Andhra Pradesh. The FIR in Ex. A4 ( B10) and charge sheet in Ex.A5(B11) have clearly showing that the vehicle of complainant met with an accident on 28-05-2011 while it carrying passengers. Hence we area in opinion, that the vehicle of the complainant is a ‘public service’ vehicle carrying passengers for hire which can be drove by specifically license holder as per section 3(2) of M.V.Act 1988. No doubt the driver Y. Ashok was not holding a badge which specifically required for driving the vehicle at the time of accident on 28-05-2011. Hench the complainant has violated the terms of policy under the provision of M.V.Act 1988 in using his vehicle. However the claim of complainant could be settled on non-standard basis instead of repudiated in toto,  in view of Judgment by Hon’ble  ‘Apex Court’ in ‘Amalendu Sahoo’s case reported in 2010(2) CPJ 9 S.C wherein referred the case of ‘New India Assurance Company Ltd V/s. Narayan Prasad Appaprasad  Pathak reported in 2006 CPJ 144(NC),  where the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. While granting claim on non-standard basis the National Commission set out in its Judgment the guidelines issued  by the insurance company about settling all such non standard claims.

The guidelines are set-out below:-

We have gone through the aforesaid guidelines. It is clear that the claim of complainant could be settled under guideline No. (iii) as non standard basis. Accordingly the complainant is entitled 75%  of the admissible claim.

           It can be seen from Ex.A7 cash bill, there are 10 items were replaced  by showing the worth of Rs. 14,230/- without deducting depreciation as per terms of policy. It is also can be seen from cash bill in Ex. A8, showing the labour charges of RS. 37,600/-. The total comes to Rs. 51,830/-. Both the bills in Ex.A7 & A8 are subject to depreciation, market value of manufacturer and company standard rates respectively in terms of policy.  There must be some cogent and valid reason for discarding the evidence of the surveyors in Ex.B6, B7 & B8. It is well settled law that a surveyors report has significant evidentiary value, unless it is proved otherwise which is observed in a judgment in the case of D.N. Badoni V/s Oriental Insurance Company ltd., reported in CPR 2012 (2) 165(N.C).

Therefore the complainant has not bolstered his case in proving the expenditure incurred by him for repair of damaged vehicle with cogent evidence  in order to rebut the surveyors report in Ex. B6, B7 & B8.  Hence we clap no value to the faint argument for consideration of cash bills in Ex.A7 & A8 for the claim of complainant.

8.            In view of above finding, we are of considered opinion that the admissible claim is only for Rs. 16,500/- as per Ex. B7 in which the complainant is entitled for Rs. 12,375/- i.e., 75% of admissible claim on non standard basis towards damages of vehicle under the policy in Ex.A1(B1). The complainant also entitled interest @ 9% per annum on said amount of claim from the date of repudiation i.e on 19-07-2011 till realization in view of not settled the claim by opposite party.

9.   In the result, the complaint is allowed partly as under:-

1. The opposite party is directed to pay an amount of Rs. 12,375/- with 9% interest per annum from the date of repudiation i.e. 19-07-2011 till realization to the complainant.

2. The opposite party further directed to pay Rs. 1,000/- towards costs to the complainant.

Typed to dictation, corrected and pronounced by us in Open Forum on this the 12^th day of November 2013.