Date of Filing : 03.07.2018

Date of Disposal : 25.06.2021

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED THIS THE 25^th DAY OF JUNE-2021

PRESENT

Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER

Mrs M.DIVYASHREE : LADY MEMBER

APPEAL NO.995/2018

Mr.Abdul Shukkur

S/o Sheik Ibrahim

Aged about 62 years,

R/at Masjid Complex

Compound, Mahaveer Road,

Kalasa-577124.                               ..Appellant

(By Sri/Smt. Manjula.N.A, Advocate)

1. The Branch Manager

Universal Sompo General

Insurance Co., Ltd.,

Shimoga Branch, 1^st Floor,

Opp.Vinayaka Talkies,

B.H.Road, Shimoga-577201.

2. The Branch Manager

Universal Sompo General

Insurance Co., Ltd.,

Regd., Corporate Office at:

Unit No.401, 4^th Floor,

Sangam Complex,

Andheri Kurla Road,

Andheri (East),

3. The Branch Manager

Universal Sompo General

Insurance Co., Ltd.,

Mangaluru Branch, 1^st Floor,

City Trade Centre,

Opp. City Hospitl Kadri,

4. The Manager

Karnataka Bank Ltd.,

Kalasa Branch, Kalasa,

Mudigere Taluk,

Chickamangaluru District-577124. ..Respondents

(Respondents No.1 to 3 by Sri.B.C.Shivanne Gowda, Advocate)

O R D E R

Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER

1. This is an Appeal filed U/s 15 of Consumer Protection Act, 1986 by the Complainant/appellant herein aggrieved by the impugned order dated 06.06.2018 passed by Dakshina Kannada District Consumer Disputes Redressal Commission, Mangaluru in C.C.No.192/2014. (for short District Commission).

2. The brief facts of the case of the Complainant are that, he insured his vehicle KA-18-A-8828 with OP.1 covering the risk for the period from 23.08.2013 to 22.08.2014. On 05.03.2013 at 2.30 pm the said vehicle met with an accident at Gurupura Bridge situated within Mangaluru Taluk while driving by his driver Mr.Ravindra.K.E and it was intimated immediately to OP.1. The said vehicle was towed to Auto Matrix service centre, Bejai, Mangaluru. One Mr.Mukhesh, the surveyor appointed by OP.1 & 2 surveyed the damages caused to the vehicle and has assessed at Rs.52,607/- as against Rs.75,500/-. He incurred Rs.75,500/- to get repair the vehicle. However, OP.1 repudiated the claim on the ground that insurer violated the Driver’s clause provided under the policy. As such he raised the Consumer complaint U/s.12 of CP Act, 1986 before the Commission below. The OP.1 to 3 put their version. OP.4 being the formal party submitted version stating that, he is not a necessary party which of course accepted by the District Commission. The OP.1 to 3 contended that, the Complainant himself was driving the car when accident took place who was not holding DL (Driving License) is not entitled to claim either Rs.52,607/- assessed by the surveyor or Rs.75,500/- claimed by him. In view of rival contention of these parties, District Commission, in appreciation of evidence of the Complainant, Ex-C1 to C8 and evidence of RW.1 to 3 coupled with R1 to R7 proceeded to dismiss the complaint.
3. It is the above such order is now, in this appeal, on the grounds that impugned order suffers from misconception and is liable to set aside. He contends that, the District Commission has failed to consider that the OPs did not dispute that the Complainant has been having valid DL to drive the LMV and also the license was submitted to the OPs at the time of process of the claim. The District Commission confused as to the contents of the Ex-R4/letter by surveyor to insured in reply. The District Commission wrongly accepted the hear say statement of a infant girl instead of looking in to the documents. The District Commission ought to have appreciated the admissions made by R1 & R2. Thus, on such grounds, the Complainant/appellant would contend that, the impugned order passed by the District Commission is liable to be set aside and his claim made before the District Commission has to be settled by OP.1 to 3.

4. The Commission heard the Learned Counsel for the OP.1 to 4 and we examined the findings recorded by the District Commission.  Now, we have to examine, whether the findings recorded by the District Commission could be maintained or required to be interfered in this appeal ?.

5. At the very outset we have to conclude in so for as Respondent.4 is concerned,  is nothing to do with the dispute between the Complainant and OP.1 to 3, as  such the Commission below is rightly held that the complaint against the OP.4 is not maintainable and rightly   rejected the complaint.

6. Let us examine the documents placed on record before the District Commission, they are consisting of RC in respect of KA-18-A-8828, copy of insurance policy issued by OP in respect of the said vehicle is for the period commencing from 23.08.2013 to 22.08.2014. It is not in dispute that, this vehicle met with an accident on 05.03.2013 at 2.30pm at Gurupura Bridge, situated within the territorial jurisdiction of the Mangaluru taluk. According to the Complainant, the vehicle was being driven by his driver Mr.Ravindra.K.E. In this regard, it would be appropriated herein to make   mention of the statement made in this appeal that the Complainant has been having valid DL to drive LMV and the said license was submitted to OPs at the time of process of claim. However, according to him, at the time of occurrence of accident, the said vehicle was driven by one Mr.Ravindra.K.E. who was also held valid DL. In this regard, it would be appropriated to make the mention of driver’s clause provided under Ex-R1/insurance policy issued to the Complainant by OP.1 “Any person including insured: provided that a person holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence provided also that the person holding an effective learner’s license may also drive the vehicle when not used for the transport of passengers/goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989”. It is to be state herein that, the surveyor of OP.1 assessed the loss at Rs.52,607/- all though the Complainant has incurred  Rs.75,500/- to repair the vehicle from authorised station i.e Auto Matrix service station, Bejai, Mangaluru. The Complainant has stated that, he was holding the DL to drive LMV and he intimated that one Mr.Ravindra.K.E was driving the vehicle at the time of accident. If according to the OPs, the said Mr.Ravindra.K.E was not on the wheel of the vehicle, could have been proved from cogent evidence, as to who was on the wheel as driver if the insured was not on the wheel as driver. In this regard the insurer could have examined the RTA to prove that one Mr.Ravindra.K.E was not holding a DL at the time of occurrence of accident is one thing and could have been proved that he was not on the wheel as a driver but someone else through any of the eye witnesses. Anyhow, the Complainant/appellant being RC holder of the vehicle submitted that he was holding LMV to drive the vehicle,  could have been rebutted by insurer to  could not be found from the impugned order passed by the Commission. If we come to examine the question No.30 posed by the Complainant to R1 was answered affirmatively by OP.1 suffices to hold Mr.Ravindra.K.E was holding the DL to drive the vehicle. If according to the insurer the said Ravindra.K.E was not on the wheel, has to be establish, who was on the wheel other than the RC holder and the said person, since the insured himself has submitted that he was holding DL to drive LMV.

7. In the above such view of the matter, the Commission is of the opinion that, the Commission below failed to appreciate the evidence placed on record as a whole resulting thereby  recording wrong findings. We could see the Commission below  picked  up some evidence here and there in isolation and failed to appreciate  evidence as a whole. It is therefore, findings recorded by the Commission below could not be maintained in this appeal. Accordingly the Impugned order is liable to be set aside.

8. It is found from the records that, the surveyor, assessed the loss at Rs.52,607/- as against the expenditure incurred by the Complainant at Rs.75,500/-. Thus, taking in to consideration of such evidence on record  to avoid further delay in the matter, instead of remanding the matter to Commission below, we found just and proper   to assess the compensation for the damages caused to the vehicle at Rs.52,607/-. Thus with such conclusion, the Commission proceed to allow the appeal.

9.  Consequently ordered to set aside the order dtd.06.06.2018 passed in CC.No.192/2014 on the file of Dakshina Kannada District Consumer Disputes Redressal Commission, Mangaluru and directed OP.1 to 3 do to pay Rs.52,607/- along with interest @ 7% p.a. from the date of claim form submitted by the Complainant to OP.1 till realisation and do to pay Rs.5,000/- towards litigation charges.

10. Send a copy of this Order to the District Commission and parties.

Lady Member                                 Judicial Member

*NSG*