KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

   APPEAL NOS.518/10 & 630/10

 JUDGMENT DATED: 04-04-2011

PRESENT

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                             : MEMBER

APPEAL NOS.518/10

Jnanaguruvammal,

W/o Late Muruganathan, Surya Nivas,              : APPELLANT

Pallithazhe, Kalpetta Post, Wayanad.

(By Adv: Sri.Celine Joseph)

          Vs.

The Branch Manaer,

United India Insurance Co. Ltd.,

Rawther Building, Near Pinangode                             : RESPONDENT

Road Junction, Main Road, Kalpetta,

Wayanad.

(By Adv.Sri.Jagadishkumar)

APPEAL NOS.630/10

United India Insurance Co. Ltd.,

Branch Office, Kalpetta,

R/by the Sr.Divisional Manager,                        : APPELLANT

United India Insurance Co. Ltd.,

Divisional Office-1, LMS Compound,

TVPM, Dr.N. Mohanshankar.

(By Adv.Sri.Jagadishkumar)

Vs.

Jnanaguruvammal,

W/o Late Muruganathan, Surya Nivas,             

Pallithazhe, Kalpetta Post, Wayanad.               : RESPONDENT

(By Adv: Sri.Celine Joseph)

     COMMON JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:  PRESIDENT

The appellant in Appeal-518/2010 is the complainant and the appellants in A.630/10 are the opposite parties/insurance company in CC.121/09 in the file of CDRF, Wayanad.  The complaint filed claiming own damage expenses of Rs.2.lakhs and personal accident coverage of Rs.2.lakhs was disposed of by the Forum allowing Rs.1,50,000/- towards own damage claim with interest at 9% from the date of the complaint and cost of Rs.1000/-.  The personal accident claim was not entertained on the ground that the jurisdiction in this regard is with the Motor Accident Claims Tribunal.  The appellant/complainant in Appeal-518/10 has disputed the order of the Forum rejecting the own damage claim.  The Appeal-630/10 is filed by the opposite parties contending that the own damage claim cannot be allowed as the driver of the vehicle was not having a proper and valid driving license.

2.      The case of the complainant who is the wife of the deceased RC owner cum driver of the Tata Sumo vehicle contended that at the time of the accident the policy coverage extended to personal accident cover of Rs.2.lakhs as well as own damage coverage.  It is the case that at the time of the accident, the RC owner//husband of the complainant was driving the vehicle as the paid driver felt sleepy and the driving was taken over by her husband who is the RC owner.  The RC owner died at the spot.  The complainant has filed the complaint claiming as Rs.2.lakhs with respect to the personal accident cover and with Rs.3.lakhs, the expenses that would be involved for repairing the vehicle.

3.      The opposite parties have filed version contending that the vehicle involved was a commercial vehicle and that it was the RC owner himself who was driving the vehicle at the time of the accident and that he was not having an effective and valid driving licence and badge.  The driving licence of the deceased to drive transport vehicle expired on 29/7/2007 and the accident took place on 14/12/2007.  Hence the opposite parties have sought for dismissal of the complaint with compensatory costs.

4.      The evidence adduced consisted of the testimony of PW1, OPW1, Exts.A1 to A9 and B1 to B4.

 5.     The Forum has directed the opposite parties to pay 75% of the ID value of the vehicle which would work out to Rs.1,50,000/- as the repair cost would exceed 75% of the ID value.  The Forum has taken the figures of the repair cost from Ext.B2 preliminary survey report wherein the cost of spares claimed is mentioned as Rs.1,47,390/- and labour charges as Rs.28,000/-.  Hence the estimated repair charges altogether would work out to Rs.1,75,390/-.  As already mentioned above the personal accident coverage claim was relegated to the appropriate Motor Accident Claims Tribunal.

6.      It has to be stated at the out set itself that the finding of the Forum that the claim with respect to personal accident coverage cannot be entertained by the Forum is per-se erroneous.  The Forum is having the jurisdiction to consider the claim.

7.      So far as the personal accident coverage is concerned, we find that Ext.A1 policy, copy of the Ext.B1 provides personal accident coverage of Rs.2.lakhs.  In the policy it is mentioned that the owner/driver is covered for bodily injury/death sustained by the owner/driver of the vehicle in direct connection with the vehicle/insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a car driver, caused by violent accidental ete means and subject to the exceptions, conditions and limitations of the policy.  It is specifically mentioned in the policy that the owner/driver shall have an effective driving license in accordance with the provisions of the statute.  It is admitted by the opposite parties in the version itself that the driving license of the owner/driver to drive a transport vehicle expired on 29/7/2007, the accident was on 14/12/2007.   Prior to 29.7.2007 the deceased was having license and badge apparently.  The failure on the part of the deceased to renew the license and badge cannot be taken as a ground to reject the claim in toto.  We find that it has to be taken that the deceased was a person having sufficient experience and competent to drive a transport vehicle.  It was not disputed that the vehicle involved was a transport vehicle.  In the circumstances we find that the personal accident coverage can allowed on non standard basis. Hence the complainant/LRs of the deceased will be entitled for 75% of the amount covered with respect to the personal accident.  Hence the complainant will be entitled for Rs.1,50,000/- towards the personal accident coverage.

8.      So far as own damage claim is concerned, it is admitted by PW1, that the vehicle was not repaired and it is lying in some workshop.  May be the complainant could not raise funds after the death of her husband or for some other reason, the vehicle stands not repaired.  But we find that the inspection of the surveyor as per Ext.B2 survey report is dated:11/8/2008.  As already noted above the date of the accident is 14/12/2007.  There is no reason as to why the surveyor did not inspect the vehicle immediately after the accident.  There is no case for the opposite parties that the accident was not informed to the opposite parties.  Further the assessment made by the surveyor is based on the estimate supplied by the complainant.  The same can only be treated as a guess work in the absence of repairs carried out.  The complainant has claimed cost of spares Rs.1,47,390/- and the cost of spares the surveyor allowed is Rs.25,467.50.  The surveyor has effected depreciation at 50% with respect to a number of items and 35% depreciation for certain other items.  The labour charges has been reduced to Rs.19,950/- against the claim of Rs.28,000/-.  As per Ext.A7 the motor vehicle inspector report the vehicle has sustained extensive damages.  It is evident from Ext.A5 FIR and FIS that the vehicle hit on 2 autorikshaws and turned upside down and the RC owner cum driver died.  We find that in the absence of the driver having an effective authority driving license as mentioned while considering the claim with respect to the personal accident coverage the own damage claim also cannot be totally rejected.   The claim of the complainant can be allowed on non standard basis.  The order of the Forum based on the estimate submitted by the complainant only cannot be approved.  It can also be seen from the copy of the RC produced that the vehicle was purchased in the year 2003 by the husband of the complainant.  In the circumstances on non standard basis we find that it would be reasonable to award a sum of Rs.75,000/- towards the own damage claim.  Both the appeals are allowed in part.  The order of the Forum is modified as follows:-

9.      The opposite parties would be liable to pay Rs.75,000/- towards the own damage claim with interest at 9% from the date of complaint.  The direction with respect to cost is sustained.   The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 4/4/2011, the date of this order.

In the result the appeals are allowed in part as above.

Office will forward the LCR along with copy of this judgment to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

S. CHANDRAMOHAN NAIR : MEMBER

VL.