COMPLAINT FILED ON :04/08/2015

               DISPOSED ON:02/06/2016

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

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

                        SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

SMT.G.E. SOWBHAGYALAKSHMI, MEMBER.

ORDER

The complainant has filed this complaint U/s 12 of C.P. Act 1986 against the opposite parties (here in called OPs) to direct the OPs to settle the claim for Rs.2,54,086/-, the IDV value of the vehicle with interest at the rate of 18% p.a from 20.09.2014 till realization and also to pay a sum of Rs.20,000/- by way of damages for the physical and mental agony and Rs.5,000/- towards costs and to grant such other reliefs.

 2.    Brief facts of the complaint is that, the complainant is the owner of Maruthi Omni bearing Reg. No.KA-16 C 0595 of 2014 model, bearing Engine Number and Chassis No.4712561-1518812 and the same was insured with OP No.2, whereas OP No.1 is the divisional office of OP No.2.  The complainant insured the said vehicle with the OPs under Policy bearing No.35101031146335033268 which was in force for the period from 12.06.2014 to 11.06.2015. 

It is further stated that, on 20.09.2014 by around 6.45 AM, complainant being the owner cum driver of the said vehicle, while moving from Chitradurga to Davanagere on NH-4 road near Heggere bridge, suddenly a stray dog came in-front of the vehicle, and while avoiding the said stray dog complainant's vehicle toppled down and fell over the service road and on account of said impact, the said vehicle got damaged completely. 

It is further stated that, the same has been informed to the OP No.2.  Later OP No.2 deployed one surveyor by name D.V.Sanjay for the survey of the vehicle at the spot of accident.  The said surveyor has informed the complainant to got repair the vehicle in any authorized service center.  Since the vehicle was not in a position to move, same was towed to Nandihalli, Baramasagar.  Later complainant called Shruthi Motors, Davanagere and requested to send any mechanic to repair the vehicle, so that it can be moved.  The authorized person of the Shruthi Motors sent a service provider, to repair the said vehicle and saw the complainant's vehicle in Nandhihalli near Baramasagara and inspected the vehicle and submitted the estimate of repair of the OPs' company surveyor.  Later OPs' have deputed one person by name Basavaraj Halgeri, who is the surveyor, for final survey of the damaged vehicle, who inspected the said vehicle in Nandihalli village and informed the complainant that, the vehicle is completely damaged,  hence it can be taken as a total loss. 

It is further stated that,  complainant has submitted all the required documents to OP as stated by them.  But the OP has sent a repudiation letter on 05.11.2014 by stating a grounds that, complainant has not possessed the valid DL at the time of accident, even though complainant is having a valid DL, the ground stated by the OP is not tenable under the eye of law.  Thereby OPs have committed deficiency in their service and unfair trade practice towards the complainant.  All these leads to complainant to suffer physically, mentally and financially.  Complainant further stated that,  the said vehicle is insured with the OP insurance company by paying premium of Rs.16,446/-, thereby complainant is the consumer to the OPs and said dispute is a consumer dispute. 

It is further stated that,  OP No.2 is having its office and running a business within the jurisdiction of this Forum, hence, this Forum has got power to entertain this complaint and the cause of action for this complaint has arose on 05.11.2014, when OP has sent a repudiation letter hence, the above complaint filed is in time and prayed for allow the complaint with cost.  

3.     On service of notice, the OPs appeared through their counsel and filed version stating that, the complainant has insured the Maruthi Omni commercial vehicle bearing Engine No.4712561 and Chasssis No.1518812 with OP No.2 branch vide Policy No.35101031146335033268 and the same was valid for the period from 12.06.2014 to 11.06.2015.  OP No.2 has issued the policy subject to the terms and conditions of the policy and its endorsement and statutory provisions.  In terms and conditions of the policy any person including insured provided that a person driving holds an effective driving license at the time of accident and he is not disqualified from holding or obtaining such a license provided also that a person holding an effective learners license may also drive the vehicle and that such persons satisfy the requirements of Rule 3 of the Central Motor Vehicle Rules 1989. 

OPs stated that, in this case the complainant has taken contention that the accident occurred on 20.09.2014 and accident intimation given by the complainant to the OP No.2 on 2.09.2014.  At that time the complainant has given information that he himself driving the Maruthi Omni Registration No.KA-16-C-0595 and he was driving the vehicle near Heggere bridge on NH-4 road met with an accident.  After receiving the intimation this OP No.2 appointed the surveyor to submit the report by surveying the vehicle at the spot.  Subsequently this OP deputed one person by name Basavaraj C. Halageri for final survey report of alleged Maruthi Omni.  The said surveyor inspected the damages caused to the said vehicle due to the accident and submitted their report on 18.10.2014.  After receiving the survey report from the said person, this OP asked the complainant to submit the original documents of the said vehicle including the original D.L of the complainant, who was driving the Maruthi Omni at the time of accident in order to process the laws to the damages of the vehicle. 

OPs have further stated that, the Maruthi Omni Reg. No.KA-16-C-0595 registered as a Motor cab and seating capacity of this vehicle is 5.  This is a commercial vehicle.  On 01.10.2014 OP No.1 wrote a letter to the complainant to  produce the DL.  Particulars produced by the complainant clearly discloses that on the date of the accident complainant had not possessed  a valid and effective DL to drive the commercial vehicle.  The complainant had a license to drive LMV 3W cab and 3G goods vehicle only.  The complainant has not obtained endorsement to drive the four wheel commercial vehicle.  The complainant had possessed a different type of license which is not applicable to the class of the vehicle driven at the time of accident.  The complainant has violated the terms and conditions of the policy and M.V. Rules.  Hence OPs are repudiating the claim of the complainant. 

It is further stated that, on the date of the accident claimant has no valid and effective driving license to drive the commercial vehicle i.e., Maruthi Omni.  The complainant has violated the terms and conditions of the policy and M.V. Rules.  Hence, OPs are not liable to pay any compensation to the complainant. 

It is further stated that, without prejudice to the above contentions this OPs/National Insurance Co. Ltd., seeks the permission of this Forum to file additional version if new facts are come to the knowledge of this OP.

It is further stated that, several allegations made in the complaint which are not specifically admitted an which are against the contents of this versions are all false and complainant is put to strict proof of each of such allegations.  Therefore, prayed for dismissal of the complaint with costs.

4 Complainant himself examined as PW-1 by filing affidavit evidence and filed documents, the same were got marked as Ex A-1 to A-3. 

5.     On behalf of OPs one Sri. Anilkumar Prahalad Kulkarni, the Branch Manager, National Insurance Company Ltd., Chitradurga Branch, Chitradurga examined as DW-1 by filing affidavit  and filed documents the same were got marked as Ex.B-1 to B-5. 

        6.    Heard the arguments.

7.     Now the Points that arise for our consideration for the decision of the complaint are that:-

Point No.1:-Whether the complainant prove that, he is the owner of Maruthi Omni bearing Reg. No.KA-16 C-0595 of 2014 model and the said vehicle is insured with OP No.2 and the said policy was in force for the period from 12.06.2014 to 11.06.2015 and the said vehicle was met with an accident on 20.09.2014 while moving from Chitradurga to Davanagere on NH-4 road near Heggere bridge due to the accident the vehicle was fully damaged?

 Point No.2:- Whether the complainant prove that, the complainant has been informed to the OPs about the said accident occurred to his vehicle on 20.09.2014.  Later OPs have appointed the surveyor to conduct the spot survey and final survey and the complainant produced all required documents to OPs but, OPs have repudiated the claim of the complainant on 05.11.2014 and thereby OPs have committed deficiency of their service and entitled for the reliefs?

Point No.3:- What order?

8. Our findings on the above points are as follows.

        Point No.1:- Affirmative.

        Point No.2:- Affirmative

Point No.3:- As per the final order.

::REASONS::

9. Point No. 1 and 2:-  We like to discuss the Point Nos. 1 and 2 simultaneously for the sake of convenience. It is not in dispute that, the complainant is the owner of Maruthi Omni Reg. No.KA-16 C-0595, of 2014 model. The said vehicle is insured with the OP No.2 and the policy No.35101031146335033268 was in force for the period from 12.06.2014 to 11.06.2015.  It is not in dispute that the complainant vehicle met with an accident on 20.09.2014 near Heggere bridge on NH-4 road, due to the accident, the said vehicle fully damaged.  It is not in dispute that the complainant informed the accident to the OPs, the OPs have appointed the surveyor.  The said surveyor conducted the spot survey and final survey to assess the damages caused to the complainant vehicle in the said accident.  It is not in dispute that the complainant has obtained the policy from OPs to his vehicle by paying the premium of Rs.16,446/-.  It is only in dispute that the OPs have repudiated the claim of the complainant and thereby committed deficiency of service and unfair trade practice.  It is only in dispute that the complainant has not holding valid and effective driving license to drive his vehicle at the time of accident. 

10.  To prove the case of the complainant, complainant himself examined as PW-1 by filing affidavit evidence in which he has reiterated the contents of the complaint and filed documents the same were got marked as Ex.A-1 to Ex.A-3. 

11.  On perusal of the complaint, affidavit evidence and the documents, it reveals that, the complainant is the owner cum driver of the Maruthi Omni Reg. No.KA-16 C-0595 of 2014 model, the said vehicle is insured with the OP's insurance company.  The policy was in force for the period from 12.06.2014 to 11.06.2015, it is not in dispute that.  On 20.09.2014 the complainant's vehicle met with an accident near Heggere bridge on Chitradurga-Davanagere NH-4 road due to this accident, complainant's vehicle fully damaged.  Complainant informed the said accident to the OPs.  OPs have deputed the surveyor to conduct the spot survey and also final survey to assess the loss of the damaged vehicle.  After receiving of the information, OPs have appointed the surveyors to inspect the damaged vehicle belongs to the complainant at the spot and also conducted the spot survey and also final survey and survey report was submitted by the surveyor.   This fact is admitted by the OPs and at the time of accident the policy was in force.  Therefore, more discussions is not necessary in this regard/matter. 

12.  On behalf of complainant has filed totally 8 documents, 5 documents are Xerox copies and 3 documents are original, the 3 documents were got marked as Ex.A-1 to Ex.A-3.  On perusal of the Ex.A-1, the fitness certificate with respect to the vehicle bearing Reg. No.KA-16 B-6264, the Autoriksha 3 wheeler, this document is not connected to this case.  Ex.A-2 letter dated 01.10.2014 issued by the OP No.1 to the complainant.  It shows the OP No.1 called upon the documents like IMV report, Panchanama, FIR, Wound Certificate, Driving license extract from Chitradurga RTO towards clarification to process the claim further with respect to the complainant's vehicle Maruthi Omni bearing Reg. No.KA-16 C-0595, which was met with an accident on 20.09.2014 and fully damaged in that accident.  Ex.A-3 repudiation letter dated 05.11.2014 issued by the OP No.2.  It shows OPs have repudiated the claim of the complainant and stating that, at the time of the accident, complainant was having no valid and effective DL to drive the Motor Cab i.e., Maruthi Omni and close the file as "No claim". 

13.  On perusal of the affidavit evidence of complainant and Xerox copies of the documents like RC, insurance policy, Permit, DL and extract of the DL.  The above said documents RC shows that, the complainant is the RC owner of the vehicle bearing Reg. No.KA-16 C-0595 and the insurance policy shows that the complainant obtained the insurance policy to his vehicle bearing Reg. No.KA-16 C-0598 by paying premium of Rs.16,446/- to the OP's company and it shows the policy was valid from 12.06.2014 to 11.06.2015 and the complainant's vehicle met with an accident on 20.09.2014 and on the date of the accident, the policy was in force.  Xerox copy of the permit shows the above said vehicle registered and the Registration mark shows as Motor-CAB and it further shows the area for which is valid and permitted throughout Karnataka State and it shows the date of issuance was on 08.07.2014 by the RTO ie., the Regional Transport Authority, Chitradurga, the date of expiry shows from 07 July 2014 to 06 Jul 2018.  Xerox copy of the DL and the extract of the DL shows the complainant holds the DL on 31.01.2001 which was valid 31.05.2020 (NT) COV class of vehicle LMV NT Car 02.05.2006 and extract of DL shows the validity (Transport) 10.06.2015.  R.DL 18.06.2012.  The DL and extract of DL shows that the complainant was holding 3 type of Driving license 1^st is LMV – N.T Car dated 02.05.2006, 2^nd is 3 Wheeler Cab dated 31.01.2001 and 3^rd is 3 Wheeler Goods vehicle dated 04.04.2007.  Non transport vehicle valid till 31.05.2020.  Transport vehicle valid up to 10.06.2015.  The DL extract is clearly shows that the complainant holding DL for LMV Car.  The complainant's vehicle registered as Motor Cab.  So, the complainant holding an effective and valid driving license to drive the Maruthi Omni at the time of accident. 

14.  Complainant's Advocate vehemently argued that, at the time of accident, the policy was in force and the complainant is the driver cum owner and he was holding an effective and valid DL on the date of accident.  OPs have received the claim form along with relevant documents.  OPs have failed to settle the claim of the complainant and repudiated the claim of the complainant on 05.11.2014 stating that, closed the file as "No claim", thereby OPs have committed deficiency of their service towards the complainant.  OPs have collected the premium from the complainant for a sum of Rs.16,446/- towards the insurance to his vehicle bearing No.KA-16 C-0595, the said vehicle was fully damaged due to the accident occurred on 20.09.2014.  After receiving the information, the surveyors deputed by the OP company submitted a report to them stating that, the vehicle was fully damaged it can be take as total loss  The IDV of the vehicle was Rs.2,54,086/-.  Surveyor assessed for the repair at Rs. 2,06,000/- and in his report, surveyor stated that, the insurer's liability would be Rs.1,85,441/- if admitted.  Ex.B-3, the final survey report submitted by the OP's surveyor stated that the insurer's liability would be Rs.1,85,441/-.  Ex.B-3 shows the OPs are liable to pay the amount of Rs.1,85,441/-.  OPs have no reason to escape from their liability.  OPs have not settled the claim of the complainant, thereby committed deficiency of their service. Due to the act of the OPs complainant suffered mentally and physically and financially and prayed for allow the complaint with cost. 

15.  On the other hand, OPs to prove their case one Sri. Anilkumar Prahalad Kulkarni, the Branch Manager examined as DW-1 by filing affidavit evidence in which they have reiterated the contents of the version and filed documents, the same were got marked a Ex.B-1 to Ex.B-5.  Ex.B-1 the policy copy, Ex.B-2 claim form, Ex.B-3 final survey report, Ex.B-4 permit, Ex.B-5 driving license. 

16.  We have already discussed about the policy, survey report, permit and DL in detail.  OPs Advocate by name Sri. S.N. Pranesh has much argued that, the complainant has not holding effective and valid driving license to drive Maruthi Omni on the date of accident.  Complainant has violated the terms and conditions of the policy, therefore, complainant is not entitled any compensation and the OPs have not committed any deficiency in their service towards the complainant and prayed for dismissal of the t with cost and relied on the following decisions:

1) MAC 2011 KAR Page 632

2) National Commission Judgment in Rev. No.1433/2008 dated 08.04.2009

3) National Commission Judgment in Rev. No.579/2013 dated 06.05.2014

4) State Consumer Disputes Redressal Commission, Haryana 3153/2014

17.  The above said decisions are not applicable.  The facts and circumstances of each case are different to the present case on hand. 

18.  On perusal of the entire case papers and the decisions, it is seen that, the complainant has obtained insurance policy to his vehicle by paying premium of Rs.16,446/- to the OPs and OPs have issued the policy and the same was valid from 12.06.2014 o 11.06.2015.  Complainant vehicle met with an accident on 20.09.2014 on NH-4 road, due to the said accident the vehicle was fully damaged.  The OPs surveyor conducted the spot and final survey and assessed the loss of Rs.2,06,000/- and submitted survey report to the OPs company, the said report got  as Ex.B-3, policy copy marked as Ex.B-1.  As per Ex.B-1, on the date of accident, policy was in force and the IDV of the vehicle was Rs.2,54,086/-.  As per Ex.B-3, survey report, assessed the loss of Rs.2,06,000/- and in that report, mentioned the liability of the insurer is Rs.1,85,441/-.  So, the insurer's liability woulf be a sum of Rs.1,85,441/-  as per Ex.B-3. Ex.B-5 DL, shows that the complainant was holding 3 types of DL and he obtained 1^st LMV-Car on 02.05.2006, validity of the TR on 10.06.2015.  Ex.A-4 permit clearly shows that, the vehicle Maruthi Omni KA-16 C-0595 Registration Mark is motor CAB.  As per the M.V. Act1988, Section 2(21) of the Motor Vehicles Act, 1988 states as follows:-

"2. (21) "light Motor vehicles" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms"

Further, section 2(47) of the Act describes the transport vehicle as follows:-

"(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle"

 Further, section 2(25) of the Act defines a "motorcab" as follows:-

"motorcab" means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward"

From the above definitions, it is clear that a transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private vehicle and it includes a maxicab, motorcab, etc.  The vehicle in the present case is a Maruthi Omni and is admittedly registered as a Light Motor Vehicle/Motorcab".

19.  As per the above section 2(21) of M.V Act, 1988 the LMV-Car includes Motor Cab. 

20.  As per the above sections the Maruthi Omni comes under the LMV and its registration marks is Motor CAB.  As per Ex.B-4, permit.  Therefore, on the date of accident, complainant was holding a valid driving license.  So, OPs are liable to pay the compensation to the complainant as per Ex.B-3 survey report.  OPs have no reason to escape from their liability. Non settlement of the claim of the complainant.  OPs have committed deficiency in their service and unfair trade practice towards the complainant.  The attitude of the OPs shows that, the OPs have committed deficiency of their service.  We have no agitation to say that the complainant is entitled the amount of Rs.1,85,441/- towards the damages of his vehicle and also complainant is entitled for a sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards the cost of this proceedings. Accordingly, we answer Point No.1 and 2 held as affirmative. 

 21.  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/Sec.12 of C.P Act,1986 is partly allowed.

       It is ordered that, the OPs are directed to pay the compensation of Rs.1,85,441/- along with interest at the rate of 6% p.a to the complainant from the date of repudiation of the claim i.e., 05.11.2014 till realization. 

It is further ordered that, the OPs are directed to pay a sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings to the complainant.

  It is ordered that, the OPs are directed to pay the amount of Rs.1,85,441/- with interest at the rate of 6% p.a to the complainant within two months from the date of this order.

Accordingly, complaint is partly allowed.

        (This order is made with the consent of President after the correction of the draft on 02/06/2016 and it is pronounced in the open Court after our signatures.)

MEMBER                                                         PRESIDENT   

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                -Nil-

On behalf of OPs one Sri. Anil Kumar Prahalad Kulkarni, Branch Manager of OP-2 examined as DW-1.  

Witnesses examined on behalf of OPs:

-Nil-

Documents marked on behalf of Complainant:

Documents marked on behalf of OPs:

MEMBER                                                         PRESIDENT

Rhr.