Date of filing:19-07-2012
Date of Disposal: 21-04-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU
PRESENT:- Sri S.Niranjan Babu, B.A.,B.L., President (FAC).
Smt.M.Sreelatha, B.A., B.L., Lady Member
Monday, the 21st day of April, 2014
C.C.NO.37/2012
Between:
S.Venkatarami Reddy
S/o S.Narasimha Reddy
Owner of Vehicle No.AP-02-TV-0436
Puletipalli Village, C.K.Palli Mandal
Ananthapuramu District. …. Complainant
Vs.
The Divisional Manager,
United India Insurance Co. Ltd.,
Sapthagiri Circle,
Near Meda Petrol Bunk,
Ananthapuramu. …. Opposite Party
This case coming on this day for final hearing before us in the presence of Sri P.Narasimhulu, Advocate for the complainant and Sri V.Krishna Sharma, Advocate for the opposite party and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Smt.M.Sreelatha, Lady Member:- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite party claiming a sum of Rs.8,22,128-06 towards loss caused to the vehicle, Rs.1,00,000/- towards loss of income as the vehicle was out of road, Rs.20,000/- towards mental agony and Rs.10,000/- towards legal expenses in total Rs.9,52,128/-.
2. The brief facts of the complaint are that :-The complainant has purchased the vehicle bearing No.AP-02-TV-0436 and it was insured with the opposite party on 28-08-2009 and the same was valid up-to 27-08-2010 under Insurance Policy No.051004/31/09/01/00001676. The complainant submits that on 18-03-2010 at about 5.00 A.M. the above insured vehicle with met accident while proceeding on NH 7 Road, Bangalore-Hyderabad Road, near Papireddypalli Village, Somandepalli Mandal. The vehicle was completely damaged. Then the complainant took the above said vehicle to to Prani Auto Plaza Ltd., Ananthapuramu to get repairs and the above said Prani Auto Plaza estimated the loss of vehicle to an extent of Rs.8,22,128-06. The complainant also gave complaint to the Somandepalli P.S. and the same was registered in Cr.No.31/2010 under sections 279 and 304-A I.P.C. Immediately the complainant informed the same to the opposite party alongwith documents. Though the opposite party promised to settle the same, postponing the same on some pretext or the other. Atlast the opposite party repudiated the claim by way of letter dt.13-05-2011 stating that the driver of the above said vehicle is not having valid licence. The opposite party never raised the above objection at the time of issuing policy. The opposite party is unnecessarily delaying the payment. Hence the present complaint. The complainant is entitled the amount with interest @ 18% p.a. as the complainant suffered severe mental agony, which cannot be compensated in terms of money and it is a clear case of deficiency of service on the part of the opposite party and the complainant is entitled the claim as prayed for.
3. The counsel for the opposite party filed a counter denying all the allegations made in the complaint. The opposite party mentioned that the above said vehicle was Passengers Carrying Vehicle for hire and the vehicle is meant for commercial purpose. Hence the commercial transaction do not come under the purview of the Consumer Protection Act. The opposite party has admitted about the taking of policy and also admitting that the Cr.No.31/2010 was registered by Somandepalli P.S. The opposite party denying the estimate given by Prani Auto Plaza Pvt. Ltd., Ananthapuramu. The opposite party denying that immediately he approached the Insurance Company to settle the claim and there was abnormal delay in approaching the opposite party. The opposite party submitted that after the accident spot survey and final survey was conducted to estimate the damages and the same was filed before this Forum. The opposite party requested the complainant to submit the record more particularly driving licence of the driver of the vehicle by name P.Narayana Reddy, who was driving Luxury Taxi at the time of accident. After thorough investigation, it is revealed that the above said driver by name P.Narayana Reddy is not having valid driving licence to drive non-transport category vehicle. The above said driver is having only driving licence of auto. As per the records the driver is not having valid driving licence and the same fact is very well known by the complainant and the same was informed by the complainant at the time of submitting his claim form to the company. Thus the complainant violated the conditions of the policy. Hence the opposite party is not liable to pay any amount. The opposite party further submitted that as per the policy conditions by engaging the driver, who is not having valid driving licence at the time of accident. Hence, the repudiation made by the Insurance Company is valid ground and there is absolutely no deficiency of service on the part of the opposite party and the complainant claimed exaggerated amount and the complainant is not suffered any mental agony as stated by him. As per law in the case of settlement of O.D. claim own damage the driver must possess valid driving licence as it is not a third party claim. Hence prayed to dismiss the complaint.
4. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether repudiation made by the opposite party is valid?
2. Whether there is any violation of policy conditions as contended by the
opposite party?
3. To what relief?
5. In order to prove the case of the complainant, the complainant has filed evidence on affidavit on his behalf and marked Ex.A1 to A4 documents. On behalf of the opposite party, evidence on affidavit of the opposite party has been filed and marked Ex.B1 to B5 documents.
6. Heard on both sides.
7. POINT NO.1:- The counsel for the complainant argued that there is no dispute with regard to insuring the vehicle with the opposite party and issuance of policy by the opposite party and the policy was in force at the time of accident and the policy was marked as Ex.A2. There is no dispute with regard to accident. The complaint was registered by Somandepalli P.S. under Ex.A3. The complainant argued that the opposite party repudiated the claim by saying that the insured vehicle is Luxury Tourist Cab with 6 sitting capacity and the driver must possess valid driving licence to drive the transport vehicle and should have badge as on the date of accident. The driver of the above said vehicle is not having valid driving licence to drive the vehicle. These are the grounds for repudiation by the opposite party. The counsel for the complainant denying the same and he stated that at the time of issuing policy, the opposite party has not verified about the driving licence of the drive. When the claim made before them, then only they will say all the rules to evade the claim. The counsel for the complainant also gave kind attention before the Forum by stating that as per conditions in the policy under Ex.A2 that even L.L.R.holder also can drive the transport vehicle as referred any persons or classes of persons enable to drive.
8. The counsel for the complainant submitted a ruling reported by the Hon’ble Supreme Court of India in Swaran Singh case reported in the year 2004 wherein the Hon’ble apex court observed that “ if a person has been given a licence for particular type of vehicle as specified therein he cannot be said to have no licence for driving another type of vehicle, which is of the same category but of different type. “ For example – if a person is having licence for driving light motor vehicle he can drive either a car or a jeep and it is not necessary that he must possess driving licence both for car and jeep separately. In the above said case, the Hon’ble Supreme Court observed that the liability castes on the opposite party to prove that the driver who drove the vehicle at the time of accident not having valid driving licence to drive the insured vehicle. The Hon’ble Supreme Court also observed that it is depending upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. The counsel for the complainant also relying another ruling reported in Punjab – Haryana High Court in the year 2013, wherein the Hon’ble High Court observed that “ defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. Policy conditions regarding holding of a valid licence by the driver or his qualification to drive during the relevant period , the insurer would not be allowed to avoid the liability towards the insured unless said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. “ Basing on the above rulings the counsel for the complainant prayed this Forum that the repudiation made by the opposite party is not a valid and the complainant is entitled claim as prayed for.
9. The counsel for the opposite party argued that the complaint itself is not maintainable because the insured vehicle is commercial taxi cab. The complainant has not come under the purview of a consumer because he used the said vehicle for commercial purpose. The counsel also submitted that under Ex.A2 and B1 are one and the same, it clearly shows that the insured vehicle was passenger carrying commercial vehicle package policy. In the above policy, a person must hold the valid driving licence to drive the vehicle. Admittedly in the present case, the driver who drove the vehicle is not having valid driving licence. The claim form submitted by the complainant to the opposite party under Ex.B4. The counsel also argued that as per R.T.A. extract i.e. Ex.A3 the driver is not authorized to drive passenger carrying vehicle because he is holding only to drive non-transport vehicle and in the present case the vehicle involved is a transport vehicle. The counsel also argued that as per Ex.A3 i.e. F.I.R.complaint it clearly shows that the accident was occurred only due to rash and negligent act of the driver, who drove the vehicle. The counsel also argued that for claiming own damages the driver must possess valid driving licence. To prove his case the opposite party filed Ex.B1 to B5 and also examined R.T.A. as RW1. He deposed that the vehicle bearing No.AP-02-TV-0436, which is Luxury Tourist Cab and it is a passenger carrying commercial vehicle, to drive, the above said vehicle, the driver must hold driving licence for Motor Cab with badge. As per Ex.B3 the driver cannot drive the vehicle involved in the accident and the driver is not allotted any badge No. to drive the transport vehicle.
10. After perusing the records filed by both the counsels and it is a clear case that the vehicle involved in the accident is Commercial Passenger Carrying Vehicle. As per the policy under Ex.A2 & B1 the 1st condition to drive the vehicle, the person holds effective and valid driving licence to drive category of vehicle insured. Admittedly as per Ex.B4 i.e. claim form to the opposite party the driver is not having valid driving licence to drive transport vehicle and also under Ex.A3 it is clear that the accident was occurred only due to rash negligent act of the driver, who was driving the vehicle at the time of accident. The driver i.e. P.Narayana Reddy is permitted to drive Light Motor Vehicle as per the evidence of R.T.A. Officer. We are relying on the decision reported in 2006(4) ACC page 250 between Kusuma Rai and National Insurance Company. In the above case also the vehicle is commercial passenger carrying vehicle and insured with the opposite party to effect insured vehicle the driver must possess badge or necessary authorization to drive insured vehicle. Ex.B1 is insurance policy issued would also show that the said vehicle was Passengers Carrying Commercial Vehicle. In the present case the insured vehicle was transport vehicle there can be no doubt that the driver was in need of badge or authorization to drive the transport vehicle. The above facts are one and the same to the present case also. In the present case also the vehicle involved in the accident is Passengers Carrying Commercial Vehicle and admittedly driver by name P.Narayana Reddy is not having valid driving licence to drive the transport vehicle. Hence the repudiation made by the opposite party is valid and reasonable ground.
11. POINT NO.2 - With regard to violation of conditions, it is clear from the complaint made by the complainant to the opposite party that the driver by name P.Narayana Reddy is not having any valid driving licence to drive transport vehicle and the same was categorically deposed by the R.T.A. Officer who examined as RW1. The counsel for the complainant tried to convince this Forum that even the L.L.R. Holder can drive the vehicle without passengers, for this R.T.A. Officer denied and no person shall be allowed to drive transport vehicle without holding valid licence and it is a violation. The counsel for the opposite party relying on the following decision reported in:
“ 2012 ACJ Page 1717 of High Court of Karnataka make it clear that difference between driving licence for transport and non-transport vehicles “ driver had licence to drive three wheeler, whereas he was driving three wheeler auto rickshaw, which is a transport vehicle at the time of accident – Endorsement to drive three wheeler transport vehicle was issued to the driver subsequent to the date of accident - whether the driver had a valid and effective licence to drive the offending vehicle on the date of accident and insurance company is liable - held NO “
In the present case is also claim for own damages and it is not a third party liability.
The counsel for the opposite party also relying on the other decision reported in:
“ 2007(3) ALD Page 138 High Court of A.P. – Failure of owner of vehicle to adduce any evidence in support of his plea that driver had a valid licence – opposite party established that driver not having valid licene to drive transport vehicle which was cause of accident - held not liable for payment of compensation.” The counsel submitted that the Swarnh Singh Case rules is not applicable to the present case because the above said two rules are decided by the Hon’ble Supreme Court in the case of third party liability whereas another ruling submitted by the complainant which was held by Panjab- Harayana High Court that the case is civil case and claim for damages. Whereas the case in hand is the case of deficiency of service on the part of the opposite party. In the above referred Panjab-Haryana case while coming to conclusion that the opposite parties are liable to pay compensation, which was observed that the opposite party failed to prove their case beyond reasonable doubt. Whereas in the present case the opposite party examined R.T.A. Officer to prove his case, the person, who is competent to give licence to the persons. As per section 3 of M.V. Act under Ex.B1 & A2 the person must hold valid licence and badge number to drive. The counsel for the complainant argued that at the time of accident there were no passengers in the vehicle, hence non-transport driving licence holder can drive the vehicle and the driver i.e. P.Narayana Reddy was having licence of non-transport vehicle. The complainant failed to prove by interpreting the rule 3 of M.V. Act, as per rule 3 driver must hold driving licence as contemplated or requirement, whereas the counsel interpreted that even L.L.R.Holder can drive transport vehicle without passengers. Admittedly the driver is not having valid driving licence to drive the transport vehicle, it is a clear violation of conditions contemplated under the policy. Hence these two points are answered accordingly in favour of the opposite party and against the complainant.
12. POINT NO.3 – In the result, the complaint is dismissed without costs.
Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 21st day of April, 2014.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOSITE PARTY
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Estimation for Accidental TATA Spacio dt.24-08-2010 issued by M/s Prani
Auto Plaza Pvt. Ltd., Ananthapuramu.
Ex.A2 - Passenger Carrying Commercial Vehicle Package Policy bearing
No.051004/31/09/01/00001676 issued by the opposite party.
Ex.A3 - Attested copy of F.I.R. in Cr.No.31/2010 of Somandepalli P.S.
Ex.A4 - Repudiation letter dt.13-05-2011 issued by the opposite party to the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE EPARTY
Ex.B1 - Passenger Carrying Commercial Vehicle Package Policy bearing
No.051004/31/09/01/00001676 issued by the opposite party.
Ex.B2 - Motor (Final) Survey Report dt.27-09-2010 submitted by G.V.Sudhakar Rao
Insurance Loss Assessor to the opposite party.
Ex.B3 - Grant of Issue of Driving licence issued by Licencing Authority to P.Narayana
Reddy.
Ex.B4 – Motor Claim form submitted by the complainant to the opposite party.
Ex.B5 – Duplicate Certificate of Registration for vehicle No.AP02-TV0436 issued by the
Registering Authority, Ananthapuramu
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
