O R D E R

By Sri. P. Raveendran, Member:

Brief of the complaint :- The Complainant is the wife and legal heir of the deceased Muruganathan, who is the R.C Owner of the vehicle KL-12B-6440 Tata Sumo. The said vehicle is insured with the Opposite Party with a comprehensive policy, covering the own damage as well as personal accident coverage to the owner cum driver for a sum of Rs.2,00,000/-. While so the vehicle met with an accident on 14.12.2007 at about 3 AM and R.C owner died on the spot. The vehicle was used for own purpose of the deceased at the time of accident and not for any commercial purpose. The vehicle was driven by the paid driver Mejo @ Mathew Antony immediately before the accident. When he felt very sleepy he entrusted the deceased to drive for a while and meanwhile the accident was caused. In the accident material damage was caused to the vehicle and the Complainant calculated a sum of Rs.3,00,000/- will be required for the replacement of the vehicle parts. The accident and death was duly initiated to the company but nothing was done by the Company in this regard. Claim form was submitted to the Opposite Party. But the Opposite Party repudiated the claim stating that the deceased was having no license. The order of the Opposite Party is gross negligence, unfair trade practice and deficiency of service. Hence it is prayed that to direct Opposite Party:

1. to pay an amount of Rs.2,00,000/- with 18% interest from 14.12.2007 till the date of payment as the personal accident coverage to the deceased.

2. To pay an amount of Rs.3,00,000/- with 18% interest as the repair charge of the vehicle.

3. To pay an amount of Rs. 25,000/- as compensation and to pay an amount of the Rs.5,000/- as cost of this complaint.

2. Opposite Party appeared and filed version. In the version Opposite Party admitted that the Tata Sumo bearing No. KL 12/B 6446 was insured with the Opposite Party as a passenger carrying commercial vehicle in the name of S. Muruganathan. At the time of accident the insured himself was driven the vehicle without an effective and valid driving license and badge. The driving license of the deceased to drive transport vehicle was expired on 29.7.2007. The accident happened on 14.12.2007. As per policy condition drivers clause, person or class of persons entitled to drive any person including insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured. Hence the claim submitted by the Complainant was repudiated. The other allegation in the complaint is denied. Hence it is prayed to disallow the complaint with compensatory cost.

3. On going through the complaint and version the following points are to be considered.

1. Whether there is any deficiency of service on the part of the Opposite Party?

2. Relief and cost.

4. Point No.1:- To prove Complainant's case she has produced her proof affidavit. She was also produced Exts.A1 to A9. Opposite Party has produced his chief affidavit and Ext.B1 to B4 documents.

5. The citation produced by Complainant are:-

1. 2009 ACJ 1971 of Delhi High court in New India Assurance Co: Ltd., V Brijesh Maji and others.

2. 2000 ACJ 319 of Supreme Court of India in Ashok Gangathar Martha V Oriental Insurance Co: Ltd.,

6. In this case the accident, damage etc are admitted. The contention of the Opposite Party is that the driving license of the deceased (owner cum driver) to drive transport vehicle is expired on 29.7.2007 and the accident happened on 14.12.2007. On the particular date of accident he is not having the driving license to drive a Transport Vehicle. On going through Ext.A3 it is found that Asst. Licensing Authority Wayanad has reissued and authorised to drive LTV from 30.7.2004 to 07.04.2013. That means the deceased can drive L.T.V at the time of accident. According to the complainant. Even though the vehicle is a transport vehicle, at the relevant time of accident the vehicle was used for the own purpose of the deceased and not for any commercial purpose. On perusing Ext.A5 F.I.R it is clear that at the time of accident the deceased and his paid driver Majo were alone in the vehicle. Here we accept the decision of Hon'ble High Court of Delhi decided in New India Assurance Co. Ltd V Brijesh Maji and Others reported in 2009 ACJ P- 1971. While deciding the above case Hon'ble High Court followed the decision of Hon'ble Supreme Court in National Insurance Co. Ltd., V Swaran Sigh reported in 2004 ACJ 1 (SC). In the above case the driver had license to drive light motor vehicle whereas the driver was driving Tata Sumo, a light motor vehicle which was registered and insured as passenger carrying commercial vehicle. Contention that as driver was plying a commercial transport vehicle he was not holding a valid license and insurance company is not liable. Whether the insurance company is exempted from liability, Hon'ble High Court held that no. So we accept the above judgment and we arrived at the conclusion that the complainant is entitled to get claim from Opposite Party. Repudiation of the claim submitted by the Complainant is deficiency of service on the part of the Opposite Party. Point No.1 is decided in favour of the Complainant.

7. Point No.2:- As per Ext.B1 the I.D.V of the vehicle is 2,00,000/-. As per Ext.B2 for

repair cost of spares is Rs. 1,47,390/- and labour charges Rs.28,000/-. Total estimate for repair is Rs.1,75,390/-. That is more than 75% of the I.D.V. The loss deemed to be a total loss. There is no documents before us to show the wreck value of the vehicle. Any how the vehicle is 2003 model. It met with an accident on 14.12.2007. So we come to the conclusion that the wreck value of the vehicle is 50,000/-. So the Complainant is entitled to get Rs.1,50,000/- as repair charge of the vehicle with 9% interest from the date of filing the complaint till the payment is made. He is also entitled to get Rs.1,000/- as cost of this litigation. For getting personal accident coverage to the deceased he has to file petition before appropriate Motor Accident Claim Tribunal.

In the result, the complaint is partly allowed and Opposite Party is directed to pay Rs.1,50,000/- (Rupees One Lakh Fifty thousand only) to the Complainant with 9% interest from the date of filing the complaint till the payment is made. The Opposite Party is also directed to pay Rs.1,000/- (Rupees One thousand only) as cost of this litigation. The order is to be complied within 30 days of receipt of this order.

Pronounced in open Forum on this the day of 27^th February 2010.

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Jnanaguruvammal Complainant.

Witnesses for the Opposite Party:

OPW1. Vijayan. C.K. Manager, United India Insurance Company,

Kalpetta.

Exhibits for the Complainant:

A1 Copy of Passenger Carrying Commercial Vehicle

Package Policy.

A2. Copy Certificate of Registration.

A3. Copy of Driving Licence.

A4. Copy of Letter.

A5. Copy of First Information Report.

A6. Translated Copy of Mahazar.

A7. Copy of Motor Vehicle Accident Report.

A8. Copy of Death Certificate. dt:7.01.2008.

A9. Copy of Post-Mortam Report.

Exhibits for the Opposite Party:

B1. True copy of Certificate of Insurance of Passengers

Carrying Commercial Vehicle.

B2. Motor Survey Report (Preliminary) dt:22.04.2009.

B3. Copy of Personal Accident Insurance Claim Form.

B4. Copy of Personal Accident Insurance – Claimant's Statement.