BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Tuesday the 4th day of November, 2008
C.C.No. 01/08
Between:
M. Laxmi Devi, W/o. M. Sunkanna,
D.No.1/218,Postal Quarters, Modhinabad, Guntakal, Anantapur District.
… Complainant
Versus
The Divisional Manager,
The New India Assurance Company Limited, Kurnool.
… Opposite party
This complaint is coming on this day for orders in the presence of Sri. P. Siva Sudharshan , Advocate, for the complainant, and Sri. Md. Ishaq, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri.K.V.H.Prasad, President)
C.C.No.01/08
1. This case of the complainant is filed U/S 11 and 12 of C.P.Act seeking direction on the opposite party to pay her Rs.1,43,061/- with 12% interest towards the insurance amount , Rs.25,000/- as compensation for mental agony and Rs.50,000/- as cost of the case alleging that her vehicle bearing No.AP 02-U-9924 ( TATA 407 Mini Lorry) covered under insurance policy No.611500/ 31/ 05/ 01525 issued by the opposite party covering the risk to the said lorry from 2-7-2005 to 1-7-2006 met with accident on 31-1-2006 at 5-00 p.m on Thadipatri Muddanur Road the cabin and the total body of the said lorry damaged and its estimate of damage Rs.1,68,775/- was submitted to the opposite party enclosing all the relevant documents and the said was repudiated alleging the driver at the time of accident is possessing a non-transport driving license and as the vehicle was insured under goods carriage package policy and the said being not justifiable caused mental agony and driven for this complaint .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant , the opposite party caused its appearance through his counsel and contested the case filling written version denying its liability. .
3. The written version of the opposite party besides questioning justness and maintainability of the complainants case requiring strict proof of the complaint averments. Even though it admits the accident to the insured vehicle deny the bonafidees of the claim for alleged damage to the vehicle and its estimations as the surveyor final reports assesses the entitleness to Rs.68,500/- only and justification in repudiation as the driver of said vehicle was not possessing transport license for the vehicle covered under goods carriage package policy and so seeks dismissal of the complainants case with cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A11 and her own sworn affidavit , the opposite party side taken reliance on documentary record in ExB1 to B8 and the sworn affidavit of the opposite party and its third parties.
5. Hence, the point for consideration is whether any deficiencies of the opposite party in repudiation of the claim is made out by the complainant holding the liability of the opposite party for complainants claim.
6. From the pleadings and replies to the interrogatories the complainant and the opposite party appears to be very strange persons as while the complainant has insured the said vehicle in replies to the interrogatories of the opposite party she pleads ignorance of everything as to the nature of said vehicle alleging herself as not owner of the said vehicle and the opposite party entertaining the claim submitted by the complainant and repudiated the claim , in written version pleadings pleads ignorance of the status of the complainant and her privy to the accident vehicle and thereby both are remaining unworthy of credit as displaying any sanctity to the truth and there by constraining the consideration the material on record for adjudication of the matter.
7. The Ex.A1 challan-cum receipt issued by traffic police and certificate issued by Sub-inspector of police, Kondapuram P.S of Kadapa District . The said challan cum receipt envisages imposing of a fine of Rs.500/- to Boya Anil -the driver of the vehicle bearing No.AP 0 2U 9924 for contravening Section 180 of M.V.Act on 31-1-2006 at 5-00 p.m. The certificate issued by Sub-Inspector of police, Kondapuram also confirms the same . By the above it remains clear that the said accident to the said vehicle occurred 31-1-2006 at 5-00 p.m at the rash and negligent drive of said vehicle by its driver Boya Anil near Obannapeta cross road and in said accident damage to the cabin and total damage to the body of said vehicle occurred .
8. The Ex.A2 is the Xerox copy of credit bill issued by Meru Auto Mobiles (P) Limited , Kurnool estimating the valuation of damage to Rs.37,650/- . The Ex.A4 is the Xerox of estimation of spares furnished by same automobile agency to the said vehicle to a tune of Rs.1,42,625/- . The Ex.A5 is the estimation of labour charges for effecting the repairs to the said accident vehicle to the tune of Rs.26,150/-. The Ex.A6 is a Xerox receipt dated 2-2-2006 for Rs.2,600/- for toeing the accident vehicle to show room from place of accident . The Ex.A7 is Xerox of spare parts credit bill dated 6-2-2006 issued by the above said automobile company to the accident vehicle for a value of Rs.1,05,411/- . But none of these Ex.A3 to A7 were substantiated by affidavits of the concerned relating to the issue of those documents . While such is so the final survey report dated 4-3-2006 in Ex.B5 in reference to the damages observed vide spot survey report dated 10-2-2006 in Ex.B2 and the photographs in Ex.B5 and B2 works out the entitleness to a tune of Rs.68,500/- after due consideration of the relevant factors relating to depreciations and deductions . In the absence of substantiation of the bonafidees of the claim sought under Ex.A3 to A7 , the final report in Ex.B5 of the surveyor working out the entitleness to Rs.68,500/- based on reasonable appreciation only gets preference for consideration over unsubstantiated claims of the complainant .
9. The Ex.A10 xerox of certificate of registration (R.C) of vehicle No.AP 02U 9924 indicates the complainant ownership on it besides to it as to goods carriage LMV of 2005 model . The Ex.A11 xerox of goods carriage permit issued by RTO , Ananthapur for Transport Department of Government of Andhra Pradesh to said vehicle of the complainant gives permit to said vehicle to carry all goods except prohibited , in all routes in state of Andhra Pradesh except prohibited and the unladen weight and gross vehicle weight in kilograms as 2436 and 5700 kgs respectively . The Ex.B8 xerox copy of the insurance issued to complainants said vehicle envisages the coverage period of insurance from 02-07-2005 to 01-07-2006 and the said policy as a certificate of insurance of goods carrying ( other than three wheeler ) public carrier . Hence there is any bonafidees in the contentions of the opposite party that the insurance to the said vehicle issued was as under goods carriage package policy.
10. The Motor Vehicles Act draws a distinction between Light Motor Vehicle (LMV) and Heavy Goods Vehicle (HGV) in reference to its weights and not any line of distinction as transport and non-transport especially when the LMV is meant as transport vehicle in its definition as under .
Section 2 (21) of MV Act defines LMV as a transport vehicle or omnibus the gross 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 kgs and Sec. 2 (16) of the MV Act holds a vehicle as a heavy goods vehicle the gross weight of which exceeds 12,000 kgs .
11. As per the entries in Ex.A11 the weight of the complainants insured vehicle is only 5700 kgs and hence the said vehicle is remaining undoubtedly as a light Motor Vehicle.
12. The Ex.A8 - xerox of the driving license of Anil.B the driver of said vehicle of the complainant - holds in favour of said driver a license to drive not transport LMV and transport motor cab from 05-08-2004 till 09-02-2009.
13. When definition of LMV in Sec. 2 (21) of the MV Act means it as a Transport vehicle there remains any meaning in issual of a non transport license for a transport vehicle . Hence there remains any material variance even if the driving license was issued as non transport , for the best reasons known to the transport department , to LMV. As such when a license to drive LMV was issued it has to be deemed as license to drive transport vehicle and so the driving license of the driver of complainants vehicle in what ever nomenclature it was issued it remains as a valid driving license for driving LMV . Therefore there appears any prima-facie force in the conduct of the opposite party in holding the driving license of the driver of the insured accident vehicle of the complainant as invalid one and there by grounding it as a cause for repudiation.
14. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Solartech- S – U Vs Oriental Insurance Company Limited reported in 2006 (2) ALD ( cons) 4 NC did not uphold the contention that the driver did not possess a valid driving license to drive a transport vehicle when the case of the complainant is that the driver possessed a valid driving license for LMV and the vehicle in question falls in that category .
15. The Hon’ble National Consumer Disputes Redressal Commission New Delhi in New India Assurance Company Limited Vs Surinder Singh Khurana reported in I (2006) CPJ 43 NC holds violation of Motor Vehicle Act could be termed as mere breach of warranty and when the driving license possessed by the driver of the insured accident vehicle is not an invalid one as authorized to drive LMV – a transport vehicle – there appears any violation of MV Act even in this case of the complainant .
16. The Hon’ble High Court of Madhya Pradesh in Vijay Kumar Bansal and another Vs Vinod Kumar Rai and another reported in 2005 (92) AIR Pg.242 holds that if a driver is possessing a license to drive LMV , then the license would be a valid driving license also for driving transport vehicle not exceeding unladden weight prescribed in LMV definition .
17. The Hon’ble High Court of Madhya Pradesh in National Insurance Company Limited Vs. Sugan Bai and others reported in 2005 ACJ Pg.1547 holds that driver was holding license to drive LMV and no endorsement to drive transport vehicle and no evidence that the vehicle involved in accident was weighing more than 6000 kgs , hence the license possessed by the driver is a valid license .
18. Basing on the above decisions the view taken by this Forum in its order in C.C.157/05 not supporting the repudiation of claim by the insurance company as driver possessed a non transport driving license at the time of accident, was upheld by the Hon’ble State Consumer Disputes Redressal Commission A.P in its order dated 22-11-2007 in F.A.No. 1157/06 against C.D.NO.157/05 of this forum .
19. In the light of the above decisions there appears any merit in the contentions of the opposite party for repudiating the claim on the pretext of the driver of the said vehicle at the time of said accident was possessing a non-transport driving license as nothing much to discredit the above line of thought appears in the material adduced on opposite party side .
20. There being any other reason with the opposite party for repudiating the claim of the complainant except the driver of said insured vehicle of the complainant at the time of said accident was possessing a non-transport driving license and the said observation being not justifiable in the light of the circumstances discussed above the opposite party is remaining liable to pay Rs.68,500/- the value worked out by the opposite party surveyor in Ex.B2 as there is any tenable objection in the pleadings and the evidence of opposite party as to any incorrectness in said worked out entitleness for the damaged occurred to insured lorry of the complainant on account of accident .
21. Hence in the circumstances discussed above the complainant is entitled remaining for an amount of Rs.68,000/- towards damage occurred to the insured vehicle on account of accident .
22. As the opposite party by their unsustainable pleas repudiated the claim and ensured mental agony to the complainant even not considering the worked out amount as per the Ex.B2 besides to driving her to the forum for redressal , the liability of the opposite party lies to compensate the said mental agony and cost of the case to the complainant.
23. Consequently, the case of the complainant is allowed directing the opposite party to pay to the complainant Rs.68,500/- as assessed by the opposite party surveyor in his final report in Ex.B2 towards damage occurred to the insured vehicle of the complainant in said accident, Rs.10,000/- as compensation for mental agony and Rs.2,000/- as cost of this case within a month of receipt of this order. In default the opposite party shall have to pay the supra stated award with 12% interest from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 4th day of November,2008 .
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Certificate issued by Kondapuram PS along with fine
receipt 10340.
Ex.A2. Repudiate letter dated 04-07-2006.
Ex.A3. Xerox copy of credit bill dated 02-03-2006 in workshop labour.
Ex.A4. Estimation of spares dated 06-02-2006.
Ex.A5. Estimation of labour dated 06-02-2006.
Ex.A6. Xerox copy of receipt dated 02-02-2006.
Ex.A7. Xerox copy of credit bill dated 02-03-2006.
Ex.A8. Xerox copy of driving license of Anil.B.
Ex.A9. Xerox copy of policy copy first page.
Ex.A10. Xerox copy of certificate of registration.
Ex.A11. Xerox copy of goods carriage permit.
List of exhibits marked for the opposite parties:
Ex.B1. Motor claim form.
Ex.B2. Survey (spot) report dated 10-02-2006 along with photos.
Ex.B3. Cover note (Xerox).
Ex.B4. Xerox copy of (Registration Certificate) AP 02U9924.
Ex.B5. Final survey report dated 04-03-2006 along with photos.
Ex.B6. Letter dated 09-03-2006 of survey of to OP along with
Photos.
Ex.B7. Extract of driving license of Anil.B
Ex.B8. certificate of insurance of goods carrying public carrier
For policy No.611500/31/05/01525.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
