Filing on:05/10/16

       Disposed on:16/5/17

 [BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DAVANAGERE

CONSUMER COMPLAINT NO:35/2016

                  Dated on this the 16^th day of May - 2017

PRESENT

SRI.T.N. SREENIVASAIAH, B.A., LL.B.                PRESIDENT

 [SMT.JYOTI RADESH JEMBAGI. B.Sc. M.B.A.         MEMBER

SRI.K.N.SHIVAKUMAR. M.Com., L.L.M.                 MEMBER

SRI.T.N. SREENIVASAIAH, PRESIDENT

   : ORDER :

The complainant has filed this complaint against the OP Under Section-12 of Consumer Protection Act-1986 issue direction to pay the damages/compensation of Rs.1,38,238/- alongwith interest at the rate of 18% p.a. from the date of accident till the date of complaint of Rs.20,451/- and further interest till realization alongwith exemplary cost of Rs. 10,000/- in total Rs.1,68,689/- and such other reliefs.

2. Brief averments of the complaint are:-

The case of the complainant in brief is that complainant is the owner in possession of the Mahindra Tractor and Trailer bearing Registration No.KA-17/TB-3751/3752 of 2010 model.  The complainant and his family members were using the tractor and trailer for the purpose of their agricultural work and earning their livelihood. The said vehicle duly insured with the OP as per the policy No. 2408013114P110087592 valid from 24-1-2015 to 23-1-2016.  The said policy covered with package and covers the risk of the owned damages.  The IDV value of the said vehicle is of Rs.3,42,857/-.

It is further stated that, on 4-12-2015 at about 5-00 p.m. one A.K.Mallika S/o Ningappa driving the tractor with trailer from Kempanahalli to Davangere for unloading the paddy bags belongs to complainant. When he was moving from Lokikere, Davangere Road, Near Maruthi Agro Agency, one lorry coming from behind in a rash and negligent manner hit to the trailer due to this the tractor and trailer tappled down with paddy bags in the field.  The driver of the lorry was not stopped the vehicle, due to this accident major portion of the tractor and trailer was completely damaged. 

It is further stated that, the Hadadi Police have registered a case against the driver of the lorry in C.R.No.190/2015 U/s -279, 337 of IPC R/W Section 187 of the IMV Act.  The police have taken the damaged vehicle for further investigation, subsequently the complainant got released the tractor and trailer and shifted the same for repair to Maruthi Motors, Sri Kaleswara Industries, Davangere and also for assessment of the loss.  The complainant submitted all the papers alognwith claim form to the OP and request him to send surveyor for settle the claim and assessed the same.  On intimation the OP has deputed the independent surveyor, the surveyor inspected the trailer and tractor and submitted detailed report to the OP. 

It is further stated that, the OP called upon the complainant for clarification and the complainant furnished all the relevant documents requesting to settle the claim, but OP instead of settling the claim dragon the matter one or the another pretext.  On 16-8-2016 OP has send a letter to the complainant and repudiate the claim on the ground that the driver is only authorized to drive tractor and he is not authorized to drive the tractor and trailer.  The driver has to allowed to travel 4 members of un-authorized passengers against its seating capacity.

It is further submitted that, the repudiation is unjust, unreasonable and is contrary to the contract of insurance and condistions, due to repudiation complainant has sustained huge manitory loss.  The repudiation is also one of the negligent acts done by the OP and there is no basis for repudiation and the very act of repudiation clearly establishes deficiency regarding the service of the policy holder.  Hence, the OP is liable to pay the compensation amount of Rs.1,38,238/-.  The cause of action for the complaint has arise on 4-12-2015 when met with an  accident near Maruthi Agro Agency, Davangere Lokikere Road, Davangere Taluk, within the jurisdiction of this Forum.

          3. The Forum has send a notice to the OP, the OP has appeared through one Sri. S.S.Salimat, Advocate and filed his version and stated that the complaint is not maintainable either in law or on facts, since, there is no part of any deficncy of service from the OP. 

          4. The OP stated that, he has issued a policy bearing no.2408013114P110087592 for the period from                                      24-1-2015 to 23-1-2016 for the vehicle tracor-trailer unit bearing Reg. No. KA-17/TB-3751/3752 subject to terms and conditions and limitations and exclusions of the policy. 

          It is further stated that, the vehicle in question was a tractor-trailer unit.  The Policy was issued to the tractor-trailer unit means the policy issue to the vehcile in miscllaneous and special type of vehcile- package policy and the driver must possesses a valid and defective driving license to drive the  said specific class of vehicle ie., tractor-Trailer unit as on the date of acccident.  But on the date of alleged accident driver A.K.Mallika S/o: Ningappa was possessing driving license for motor cycle with gear from 28-2-2015 and he was also authroised to drive only tractor.  The driver is not having valid driving license for drive the specific class of vehicle.  

          It is further stated that, the vehcile in question was a tractor-trailer unit the said vehcile is meant for agricultural purpose and not for carring the passengers including coolies.  But on the date of accident 3 passengers were carring by violating permit and terms and conditions of the policy. 

          It is further stated that, the deficnecy of service on the part of the OP does not arise.  Since, this OP has not denied the lawful and reasonable claim of the complainant without prejudice to the above contentions the OP has made an arrangement for survey and assess the damage of the vehicle.  The independent licensed survyor Mr. Basavaraj C.Halagere,  assessed the damage of the vehicle for Rs.32,362/- provided if the driver of the vehicle in question is possessed the valid and effective driving license.  The OP has send a repudiation letter to the complainant on this ground only.   The other allegations made in paras-2 to 8 of the complaint are specifically denied as false.  Hence, pray for dismissal of the complaint.

5. The complainant has been examined as PW-1 relying on Ex-A1 to Ex-A15 documents. The OP has been examined one     Sri.Surendra.P.Gonkar, Divisional Manager, as DW-1 and relying upon Ex-B1 to Ex-B6 documents. Written arguments were filed by the both the parties.  Arguments heard.

          6. The points arise for considerations are as follows;

1. Whether the complainant proves that there is any deficiency of service on the part of the OP for settling the claim?
2. To what order or reliefs the parties are entitled?

       7.  Answers to the above points are as under:

1. Partly Affirmative.
2. As per final order  - for the following;

:: R E A S O N S ::

[

8. Point No:1: The undisputed facts reveal that the complainant is the owner in possession of the Mahindra Tractor and Trailer bearing Registration No.KA-17/TB-3751/3752 of 2010 model.  He and his family members were using the tractor and trailer for the purpose of their agricultural work and earning their livelihood. The vehicle duly insured with the OP as per the policy No.2408013114P110087592 valid from 24-1-2015 to                    23-1-2016.  The said policy covered with package and covers the risk of the own damages.  The IDV value of the said vehicle is of Rs.3,42,857/-.

The complainant argued that, on 4-12-2015 at about 5-00 p.m. one A.K.Mallika S/o Ningappa driving the tractor with trailer from Kempanahalli to Davangere for unloading the paddy bags moving on Lokikere, Davangere Road, Near Maruthi Agro Agency, one lorry coming from behind in a rash and negligent manner hit the trailer due to this accident.  The tractor and trailer tappled down with paddy bags in the field, and major portion of the tractor and trailer was completely damaged. 

The complainant further argued that, the Hadadi Police have registered a case against the driver of the lorry in Cr.No.190/2015 U/s-279, 337 of IPC R/W 187 of the IMV Act. subsequently he got released the tractor and trailer and shifted the same to the Maruthi Motors, Sri Kaleswara Industries, Davangere for repair and he submitted all the papers alongwith claim form to the OP and request him to send surveyor for settle the claim and assessed the same.  On intimation the OP has deputed the independent surveyor, the surveyor inspected the trailer and tractor and submitted detailed report to the OP.

The complainant further argued that, the OP called upon the complainant for clarification and he furnished all the relevant documents requesting him to settle the claim, but OP instead of settling the claim dragon the matter one or the another pretext, on 16-8-2016 the OP has send a letter to the complainant, repudiate the claim on the ground that the driver is authorized to drive only for tractor and not for trailer OP stated the driver has to allowed to travel 4 members of un-authorized passengers against its seating capacity.  The complainant has relied upon Ex.A1 to Ex-A15.  Ex.A1 is the insurance policy and the same was covered tractor and trailer.  Ex.A2 is the FIR in C.R.No.190/15 clearly noted that, lorry coming from backside of the tractor and trailer by rash and negligent and hit the tractor and trailer.  Ex-A3 is the complaint given by the one A.K.Mallika son of Ningappa driver of the tractor and trailer to the Hadadi Police and stated that one Nagaraja Son of Govindappa, Koteppa Son of Rudrappa, Suresh Son of Erappa, Nagaraja son of Chandrappa they are the load and unloaders of the Paddy bags they are not the passengers.   Ex.A4 is the spot mahazar as drawn by the Hadadi Police in the Mahazar clearly mentioned that one lorry coming from the backside by rash and negligent and hit the tractor and trailer.             Ex.A5 is the Panchaname drawn by the A.S.I. of Hadadi Police and clearly mentioned the position of the tractor and trailer.  Ex.A6 the spot inspection report of the tractor and trailer  conducted by the inspector R.T.O of Davangere and stated his opinion that the accident was not due to any mechanical defects of the vehicle i.e., tractor and trailer.  Ex.A7 is the “C” report and stated that, the lorry was not trace out and submitted same to the concerned Court.   Ex.A8 is the quotation given by the Maruthi Motors to the complainant and stated how much amount was incurred for expenses of the repair.  E.xA9 is the retail invoice(Cash Bill) issued by the Maruthi Motors for                             Rs.64,425/- Ex.A10 is the delivery challan of Sri. Kaleshwara Industries, estimate bill for Rs.24,900/-.  Ex-A11 is the invoice of Sri. Kaleswara Industries for Rs.13,813/- . Ex.A12 is the R.C. and permit of the complainant. Ex.A13 is the certificate of insurance issued by the OP.  Ex.A14 is the extract of the driving license of Sri. Mallika A.K. and he is having valid driving license for drive the tractor and MCWG vehicle and Ex.A15 is the copy of the photos of the damaged tractor, it clearly shows that the tractor and trailer was fully damaged.

The complainant further argued that, there is no basis for repudiation and the very act of repudiation clearly establishes deficiency regarding the service of the policy holder. Hence, the OP is liable to pay the compensation amount of Rs.1,68,689/- including cost and interest.

          9. The OP argued and admits that, he has issued a policy bearing No.2408013114P110087592 for the period from                      24-1-2015 to 23-1-2016 for the vehicle tracor-trailer unit bearing Reg. No.KA-17/TB-3751/3752 subject to terms and conditions and limitatiions and exclusions of the policy. 

          The OP further argued that, the vehicle in question was a tractor-trailer unit.  The Policy was issued to the tractor-trailer unit means the policy issue to the vehcile in miscllaneous and special type of vehcile- package policy and the driver must possesses a valid and defective driving license to drive the  said specific class of vehicle i.e., tractor-Trailer unit as on the date of acccident.  But on the date of alleged accident driver A.K.Mallika S/o Ningappa was possessing driving license for motor cycle with gear from 28-2-2015 and he was also authroised to drive only tractor.  On the date of accident, the driver is not having valid driving license for drive the specific class of vehicle. 

          The OP further argued that, the vehcile in question was a tractor-trailer unit the said vehcile is meant for agricultural purpose and not for carring the passengers including coolies.  But on the date of accident 3 passengers were carring, violating permit and terms and conditions of the policy. 

          It is further argued by the OP that, the deficnecy of service on the part of the OP does not arise.  The OP has made an arrangement of survey of the vehicle and assess the damage of the vehicle through the independent licensed survyor                           Mr. Basavaraj C.Halagere.  The surveyor assessed the damage of the vehicle for Rs.32,362/-.

The OP has relied upon 6 docuemnts, those documents marked as Ex.B1 to Ex.B6.  Ex.B1 is the served acknowledgment when the OP has send a repudiation letter to the complainant.  Ex.B2 is the letter the OP has send all the original docuemnts send to the complainant.  Ex.B3 is the driving licence of the Mallika A.K. Ex.B4 is the Motor Finance Survey report prepared by the Basavaraj C.Halagere. Ex.B5 is the Motors spot survey report done by the Syed Irshad Ahamed, Insurance Surveyor. Ex.B6 is the insurance policy, on the date of accident the policy was in force. 

10. We have gone through the entire docuemnts, pleadings, version, affidavit and written arguemnts on the both sides it clearly shows that the driver of the tractor and trailer is having valid license for driving the vehicle.  There is no saparate license for driving the trailer.  The trailer is always attached with the tractor.  At the time of driving the trctor with trailer the driver is having valid license for driving the tractor is sufficient.  The OP have not produced any docuemnts to show that the driver must have separate license for driving the trailer.  In this case the driver Sri. Mallika A.K. is having the valid license at the time of accident.  But in this case one lorry coming from the backside and it the trailer there is no any mistake or vilation of the terms and conditions of the policy.  The Hadadi Police also have registered the case against the lorry driver.  The OP has taken only contention the driver of the tractor and trailer was not having valid license for driving the trailer that point is not sustainable under law.  The surveyor of the OP assessed at Rs.32,000/- is not correct, the complainant has produced all the bills for repair of the tractor and trailer those bills has marked exhibits in this case.  The Photos produced by the complainant it clearly shows that entire tractor and trailer was fully damaged.  The OP has taken another plea in his version that the complainant driver was carring 4 passengers in the tractor.  But as per the statement of the driver and reports submitted by the Police it clearly shows that they are not the passengers they are only load and unloaders.  The OP has failed to disprove the case of the complainant. Hence, the OP has committed a deficinecy of service and unfair trade practice. Hence, the point No.1 held in partly affirmative.

11. Point No 2: In view of the above discussion and findings, we proceed to pass the following.

[:: O R D E R ::

1. The complaint filed by the complainant U/s 12 of C.P.Act 1986 is hereby partly allowed.
2. It is ordered that, the OP is hereby directed to pay sum of Rs.1,05,000/-(One Lakh Five Thousand Rupees Only) towards compensation alongwith interest at the rate of 9 % p.a. from the date of accident till realization.
3. It is further ordered that, the OP is hereby directed to pay a sum of Rs.10,000/-(Ten Thousand Rupees Only) towards mental agony and Rs.5,000/-(Five Thousand Rupees Only) towards cost of this proceedings.

4. Further, the OP is hereby directed to comply the above said order within 30 days from the date of this order.

(Order dictated, corrected and then pronounced in the open Forum on 16^th May 2017)

List of documents filed on behalf of the complainant:

List of documents filed on behalf of the OP

                    Witnesses examined for the Complainant/OP