BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy B.Com., LL.B., Member
Thursday the 23rd day of March, 2006
CD No. 157/2005
Anumula Venkateswarlu, S/o. Late A. Subbaiah, Aged 65 years, business,
R/o. D.No. 19/307, Peta, Kurnool.
. . . Complainant
-Vs-
The Divisional Manager,
The New India Assurance Co., Ltd, Kurnool.
. . . Opposite party
This complaint coming on 22.3.2006 for hearing in the presence of Sri M.L. Srinivasa Reddy, Advocate, Kurnool for complainant and SriP. Ramanjaneyulu, Advocate, Kurnool for opposite party, and stood over for consideration till this day, the Forum made the following.
O R D E R
(As per Smt C. Preethi, Hon’ble Member)
1. This Consumer Complainant of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on opposite parties to pay an amount of Rs.1,95,405/- with 18% interest from the date of accident towards damages caused to the vehicle of the complainant, Rs.20,000/- as compensation and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case are that the complainant is the owner of the lorry bearing No. AP 21 6756, which was insured under policy bearing No. 611500/31/04/00982 with opposite parties and the same was valid from 6.9.2004. On 6.7.2004 the said vehicle while proceeding from Kurnool to Beechpalli for transporting water bottles and packets met with accident near Auto Nagar in Kurnool due to rear side tyre was burst and dashed against a Minivan bearing No. AES 6183 and both the vehicles badly damaged. Thereafter the complainant submitted all relevant documents and claimed Rs. 1,95,405/- but the opposite parties repudiated the claim by its letter dt 18.2.2005 stating that claim is closed on the ground that the driver was not holding effective driving licence and the vehicle was used for carrying passenger at the time of accident. But the complainant submits that the vehicle was going with load of water packets along with hamalies and the driver was having LMV licence on the date of accident. Hence, alleges deficiency of service on part of opposite parties for repudiating his valid claim.
3. The complainant in support of his case relied on the following documents Viz (1) repudiation letter of opposite party dt 18.2.2005 addressed to the complainant, besides to the sworn affidavit of the complainant inreiteration of his complaint averments and the above document is marked as Ex A.1 for its appreciation in this case. The complainant also relied on the third party affidavit of M. Sunkanna. The complainant caused interrogatories to the opposite party and suitablely replied to the interrogatories caused by the opposite party.
4. In pursuance to the notice of this Forum as to this case of the complainant the opposite party appeared through their standing counsel and contested the case by filing written version.
5. The written version of opposite party admits the complainant as the owner of the lorry bearing No. AP 21 V 6756 and the same was insured with opposite party under policy bearing No. 611500/31/04/00982. It submits that on 6.9.2004 the labours working in complainant’s factory traveled along with water bottles to take Puskara Snanam at Krishna River near Beachpalli and they are not hamalies, the said accident occurred only due to in experience and negligent driving of the driver and not the act of god. The driver who was on the wheels on the date of accident had no valid and effective driving licence to drive the said lorry, he was having licence only to drive non-transport LMV but not transport and the vehicle involved in the accident is a transport vehicle and the driver must possess transport driving licence to drive the transport vehicle. Hence, there is breach of contract by the complainant and the opposite party rightly repudiated the claim of the complainant and lastly submits that if at all the complainant proves his case beyond reasonable doubt he is entitled to Rs.1,18,400/- only as assessed by Final Surveyor and not as sought by the complainant in his case.
6. In substantiation of his case the opposite party relied on the following documents Viz (1) attested copy of the policy bearing NO. 611500/31/04/00982 along with terms and conditions (2) Original Claim Form No. AC – 4 (3) Survey Report (spot) of N. Narayana Swamy Insurance Surveyor and loss Assessor dt 13.9.2004 (4) Final Motor Survey Report of K. Govindaraja Murthy, dt 11.12.2004 (5) Post repair inspection report of P. Narendra Kishore, dt 24.12.2004 (6) certified copy of FIR in Cr.No. 120/04, dt 6.9.2004 PS, Kurnool and (7) Office copy of the driving licence extract of B. Venkateswarlu, besides to the sworn affidavit of the opposite party in reiteration of his written version averments and the above documents are marked as Ex B.1 to B.7 for its appreciation in this case. The opposite party caused interrogatories to the complainant and third party and suitablely replied to the interrogatories caused by the complainant.
7. Hence the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties.
8. The opposite parties are not denying the complainant as the owner of the lorry bearing No. AP 216756 and he got insured the said lorry with opposite parties and obtained a policy vide Ex B.1. While the said policy was in force the said lorry met with accident on 6.9.2004 near Auto Nagar, Kurnool and the complainant submitted claim form vide Ex B.2 with necessary/ relevant document but to the dismay of the complainant the opposite parties closed the claim of the complainant vide Ex A.1 on the ground that the driver was not holding effective driving licence and the vehicle was used for carrying passenger at the time of accident.
9. The main contention of the opposite party is that the driver of the said vehicle has no valid licence to driver the said vehicle in question and it is amply clear from the licence possessed by the driver, that the licence is for driving Light Motor Vehicle non transport vehicle only and the driver at the time of accident was driving Transport Vehicle, thus there is breach of terms and conditions of the policy. The opposite party contended that the licence of the driver was not having an endorsement authorizing him to drive a Transport Vehicle.
10. It is not disputed that the driver B. Venkateshwarlu was having a licence for driving a Light Motor Vehicle and the lorry is a Light Motor Vehicle, when once the driver is having a licence to drive a Light Motor Vehicle then the nature of that vehicle is whether transport vehicle or non transport is immaterial. But the opposite party strongly alleges that the vehicle the driver was driving was a transport vehicle, hence the driver must possess a transport endorsement licence only, but on the date of accident the driver was possessing a valid driving licence for driving Light Motor Vehicle and there is no material on record to show that he was disqualified from holding such a licence at the time of accident and the policy vide Ex B.1 issued to the complainant is for goods carriage commercial vehicle and the opposite party strongly insist for transport endorsement licence to be possessed by the driver and there is no material as to show that to drive a commercial vehicle, the driver should possess a transport endorsement licence and the policy insists the driver to possess an effective driving licence and the policy no where insists on the driver having a licence to drive, or to obtain a specific endorsement of transport to drive a commercial vehicle.
11. The question in this case is that whether merely because the LMV licence possessed by the driver was not having an endorsement of transport, the icence to drive a LMV becomes in effective. If that argument is accepted then it would lead to absurd results, in other words, a person having a valid driving licence to drive a particular category of vehicle does not become dis-abled to drive that vehicle merely because transport was not endorsed in his licence. When once the driver was having a valid licence to drive a particular category of vehicle namely Light Motor Vehicle, merely because there is no endorsement or authorization to drive a transport vehicle is scored of, it doesn’t take away his ability to drive the vehicle for which he is holding a valid licence, the opposite party cannot be exonerated of its liability to reimburse the damages caused to the vehicle of the complainant.
12. The opposite parties admittedly had not lead any evidence to show that at the relevant point of time the vehicle in question was not LMV. The driver was possessing a LMV licence and the Supreme Court in Ashok Gangadhar Maratha Vs Oriental Insurance Co Ltd reported in 2001 (1) ALJ pg 312 held that if a driver is possessing a licence to drive LMV, the licence would be a valid driving licence for driving a transport vehicle not exceeding the unladen weight prescribed under the definition of LMV. Hence, it is clear that the driving licence possessed by driver B. Venkateshwarlu is valid driving licence to drive the LMV lorry of the complainant.
13. The complainant in support of his case relied on the following judgements (1) High Court of Gujarat, between Bhailalbhai Garbabhai Vasava and anr Vs Munikhan Ismailkhan Sayed repoted in 2003 ACJ pg 1117, it was held that Matador is a Light Motor Vehicle and the driver was holding a valid licence to drive LMV irrespective of the fact that he is not authorized to drive commercial or transport vehicle (2) High Court of Madhya Pradesh between National Insurance Company Ltd Vs Sugan Bai and others reported in 2005 ACJ pg 1547, wherein, it was held that driver was holding a licence to drive LMV and no endorsement to drive transport vehicle and no evidence that the vehicle involved in accident was weighting more than 6,000/- Kgs, hence, the licence possessed by driver is valid licence. (3) High Court of Madhya Pradesh between Vijay Kumar Bansal and anr Vs Vinod Kumar Rai and anr reported in 2005 92) AJR pg 242, it was held that, if a driver is possessing a alicence to drvie a LMV, then the licence would be a valid driving licence also for driving a transport vehicle not exceeding unladen weight prescribed in LMV definition.
14. Following for aforementioned citations and the exhibits marked and having regard to over all consideration there is no hesitation to hold opposite parties have miserablely failed to substantiate that the LMV driving licence possessed by the driver B. Venkateshwarlu was not authorised to drive the vehicle of the complainant. Therefore, in the said circumstances closing of claim by the opposite party is wholly arbitrary and unjust and amounts to deficiency of service on their part and the complainant is remaining entitled to the reliefs claimed with the above position of Law the decision relied by opposite party reported has little relevancy for appreciation in this case.
15. In this case the complainant claimed a sum of Rs.1,95,405/- but the Ex B.4 final survey report assessed the loss after depreciation to Rs. 1,18,400/-. Thus basing on Ex B.4 the claim of the complainant has been reduced to Rs.1,18,400/- which the opposite party has to pay to the complainant.
16. In the result the complaint is allowed directing the opposite party to pay to the complainant Rs.1,18,400/- with 12% interest from the date of accident till realization along with costs of Rs.5,000/- within a month of receipt of this order. In default the opposite party shall pay the supra awarded amount with 18% interest from the date of default till realization.
Dictated to the Stenographer, transcribed by her corrected and pronounced by us in the Open Forum this the 23rd day of March, 2006
PRESIDENT
MEMBER MEMBER
APPENDIS OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of Exhibits marked for the complainant:-
Ex A.1 Repudiation letter of opposite party dt 18.2.2005 addressed to the
complainant.
List of Exhibits marked for the opposite party: -
Ex B.1 Attested copy of the policy bearing No. 611500/31/04/00982 along
with terms and conditions.
Ex B.2 Original Claim Form No. Ac - 4.
Ex B.3 Survey Report (spot) of N. Narayana Swamy Insurance Surveyor and
Loss Assessor dt 13.9.2004.
Ex B.4 Final Motor Survey Report of K. Govindaraja Murthy, dt 11.12.2004.
Ex B.5 Post Repair Inspection Report of P. Narendra Kishore, dt 24.12.2004.
Ex B.6 certified copy of FIR in Cr No. 120/04. Dt 6.9.2004 PS, Kurnool.
Ex B. 7 Office copy of the driving licence extract of B. Venkateswarlu.
PRESIDENT
MEMBER MEMBER
Copy to:-
- Sri M.L. Srinivasa Reddy, Advocate, Kurnool.
- Sri P. Ramanjaneyulu, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
