Karnataka

Chitradurga

CC/23/2018

C.K. Sathish, - Complainant(s)

Versus

The Branch Manager, - Opp.Party(s)

P.s. Satynarayana Roa

07 Dec 2018

ORDER

COMPLAINT FILED ON:26/02/2018

DISPOSED      ON:07/12/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO:23/2018

 

DATED: 7^th DECEMBER 2018

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	C.K. Sathish, S/o Late T.S. Krishna Rao, Sapthagiri Nivasa, Saraswathi Oil Mill Compound, Tyagaraja nagar, Challakere. (Rep by Sri.P.S.Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	The Branch Manager, The New India Assurance Company Limited, Vijayashree Building, OPP: Nanjundeshwara Petrol Bunk, DVG Road, Chitradurga.   (Rep by Sri.K.Mohan Bhat, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP to pay Rs.1,50,000/- plus loss of earning to the tune of Rs.2,00,000/-, Rs.2,00,000/- towards mental agony, Rs.20,000/- towards costs and to grant such other reliefs.

2.      The brief facts of the case of the above complainant are that, he is the RC owner of TATA Motor Cab bearing Registration No.KA-16 B-6606, which was purchased on 02.11.2017 and insured the same with OP under policy No.68050231160100007101 for the period from 17.11.2016 to midnight of 16.11.2017.  It is further submitted that, the said vehicle met with an accident on 14.02.2017 in between Imampura and Kurudihalli Lambanihatti village, SH-48 road, Challakere Taluk, Chitradurga, when the driver of said vehicle was coming from Chitradurga to Challakere was dashed to the TATA ACE bearing Registration No.KA-34 A-7498, by that time the driver of the said vehicle stopped by the left side of the road.  By that time, the passenger Bus bearing Registration No.KA-16 C-5005 which was going from Challakere to Chitradurga came in a rash and negligent manner and dashed to TATA ACE car bearing Registration No.KA-34 A 7498 which was coming from Challakere.  Due to the said impact, all these vehicles are damaged and the driver and passengers have sustained grievous blood injuries and the Tata Motor Cab bearing Registration No.KA-16 B 6606 was completely damaged.  Bharamasagara Rural Police have registered a case in Crime No.0059/2017 under Section 279 and 337 of IPC.  The OP is the insurer of the above said vehicle under Policy cum Certificate No.680502/31/16/01/00007401 covering all types of risks to commercial vehicle package by collecting Rs.19,228/- as annual premium from the complainant.  After the accident, the complainant has intimated the same to OP, the OP appointed a surveyor for inspection of the spot and verify the accident vehicle.  After verification made by the surveyor of the OP, the complainant submitted all the necessary documents to the OP for settlement of the claim.  But the OP has not settled the claim of the complainant and given evasive answers on one or the other pretext.  Lastly, the complainant has issued legal notice to the OP claiming for settlement of the damages.  The OP has replied the notice stating that, the driver of the vehicle has no valid and effective DL and the vehicle was not having Fitness Certificate, therefore, the claim of the complainant has been rejected.  The cause of action for this complaint arose when the OP has replied the notice which is within the jurisdiction of this Forum and hence, prayed for allow the complaint. 

  3.    On service of notice, O appeared through Sri.K. Mohan Bhat, Advocate and filed version.  According to the version filed by the OP, it is admitted that, the vehicle of the complainant was having insurance policy with the OP and the policy was in force at the time of accident, but the only point is that, the driver of the vehicle was not having valid and effective DL and the vehicle is not having Fitness Certificate.   Further it is stated that, "Any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, provided also that the person holding an effective learner's license may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989".  As per the DL produced by the complainant, the driver obtained only LMV (N.T) till 08.06.2020.  But he did not possessed DL to drive the motor cab i.e., LMV or for three years with badge.  As on the date of the accident, the driver was not having valid and effective DL to drive LMV Cab commercial vehicle license for three years with badge.  Hence, the complainant knowingly and intentionally violated the policy conditions by entrusting the said vehicle to such person.  As per the documents produced by the complainant, the said LMV cab fitness certificate was valid till 06.11.2016, hence, on the date of accident i.e., 14.02.2017 the vehicle was not having FC, the same is violation of MV Act and Rules and also policy conditions.  As per the documents produced by the complainant, the motor cab had no FC and there is clearly a violation of MV Act u/Sec.56 of MV Act, 1988.  No person shall drive the motor vehicle without having fitness in public place.  In view of all these, the claim of the complainant under the policy is not admissible and hence, the same is rejected.  The same is also informed to the complainant on 31.12.2017 by RPAD and the remaining allegations made in the complaint are denied as false and prayed for dismissal of the complaint.

4.      Complainant herself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-12 were got marked and closed his side. On behalf of OP, one Sri. A.V. Chandrashekaraiah, the Branch Manager of OP has examined as    DW-1 by filing the affidavit evidence and Ex.B-1 to B-10 documents have been got marked and closed their side.  

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OP has not settled the claim of the complainant though the vehicle was having insurance policy and the same was in force as on the date of accident and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

 

         7.       Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

                    Point No.2:- As per final order.

 

REASONS

8.      There is no dispute between the complainant and OP that, the above said vehicle of the complainant was met with an accident on 14.02.2017 near Kurudihalli Lambanihatti village and the vehicle was fully damaged. The vehicle of the complainant is having insurance policy with the OP and the same was in force as on the date of accident.  After the accident, the complainant has intimated the same to the OP.  The OP has appointed his surveyor for assessment of the damage caused to the vehicle.  The main repudiation of the OP is that, the driver of the complainant was not having valid and effective DL at the time of accident and further the OP admits that, the driver was having DL only to drive LMV.  The LMV vehicle is weighed for 7200 KGs, but the vehicle of the complainant is not more than that weight.  Hence, this point is not sustainable under law.  Another point raised by the OP is that, the vehicle of the complainant is not having Fitness Certificate.  As per the documents produced by the complainant as well as the OP, the vehicle of the complainant is having FC at the time of accident.  The vehicle involved in the accident is a commercial vehicle and every commercial vehicle has to be obtained FC from the concerned RTO for every year.  Without the FC, the RTO authority and Police will not permit the vehicle to run on the road.  Hence, this point is also not sustainable.  The main contention taken by the complainant is that, the vehicle is having insurance policy at the time of accident.  The arguments advanced by the Advocate for complainant that, when the policy was in force at the time of accident, the duty of the OP is to settle the claim under the policy.  Here the case is on hand that, the vehicle of the complainant is having valid policy at the time of accident.   Ex.A-5 issued by the R.T.O, Chitradurga, it has been mentioned that, the accident was not caused due to any mechanical defects of above said motor vehicles.  The main contention taken by the OP that, the complainant vehicle was not having fitness certificate at the time of accident, but as per the report of the R.T.O, the accident was not due to any mechanical defects.  Such being the case, the main contention taken by the OP in its version, affidavit and written arguments is not sustainable under law.  

9.      We have gone through the entire documents filed by both the parties.  It clearly goes to show that, the vehicle of the complainant was met with an accident on 14.02.2017 near Kurubarahalli Lambanihatti village and the vehicle was fully damaged.  After receiving the intimation from the complainant, the OP has appointed a surveyor for assessment of the damage caused to the vehicle met with an accident.  The surveyor of the OP has assessed the damage for Rs.2,75,000/-, as per the policy the IDV of the vehicle is of Rs.3,00,000/-.  The surveyor himself assessed the damage for Rs.2,75,000/-, therefore, the repudiation made by the OP is not sustainable under law, which is a deficiency of service on the part of OP for not settling the claim of the complainant.  The bills produced by the complainant shows that, the repair cost of the vehicle is of Rs.5,10,000/-, but the IDV of the said vehicle is of Rs.3,00,000/-.  Therefore, this Forum decided to pass an award of Rs.2,75,000/- i.e., the amount as per the final survey report of the said vehicle.   Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that the OP is hereby directed to pay a sum of Rs.2,75,000/- to the complainant along with interest @ 9% p.a from the date of accident i.e., 14.02.2017 till realization.

It is further ordered that, the OP is hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings.. 

It is further ordered that, the OP is hereby directed to comply the above order within 30 days from the date of this order.

 (This order is made with the consent of Member after the correction of the draft on 07/12/2018 and it is pronounced in the open Court after our signatures)         

 

 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. A.V. Chandrashekaraiah, the Branch Manager of OP by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	FIR
02	Ex-A-2:-	Complaint
03	Ex-A-3:-	Spot panchanama
04	Ex-A-4:-	Charge sheet
05	Ex-A-5:-	Motor vehicle accident report
06	Ex-A-6:-	12 estimate/Bills
07	Ex-A-7:-	CD
08	Ex-A-8:-	12 photos
09	Ex-A-9:-	Legal notice dated 10.01.2018
10	Ex-A-10:-	Reply notice dated 22.01.2018
11	Ex-A-11:-	Letter to complainant by OP dated 31.07.2017
12	Ex-A-12:-	Postal receipt and acknowledgement

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Policy copy
02	Ex-B-2:-	RC
03	Ex-B-3:-	DL of Srinath G
04	Ex-B-4:-	FC
05	Ex-B-5:-	Letter dated 31.07.2017 to complainant
06	Ex-B-6:-	Postal acknowledgement
07	Ex-B-7:-	Letter dated 21.07.2017 to complainant
08	Ex-B-8:-	Special claim note for motor own damage claims
09	Ex-B-9:-	Document verification certificate
10	Ex-B-10:-	Final survey report

 

 

 

MEMBER                                                   PRESIDENT

Rhr**