BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., Hon’ble President
And
Smt.C.Preethi, Hon’ble Lady Member
Wednesday the 21st day of February, 2007
C.C. No.110/2006
Sri. S.Noor Ahmed, S/o. Mohammed Osman, Aged about 54 years, Muslim,
resident of Door No.7/214-A, Osmania College Road, Kurnool. …Complainant
-Vs-
The Divisional Manager, National Insurance Company Limited,
Tula Complex, Gandhi Nagar, Kurnool. …Opposite party
This complaint coming on this day for orders in the presence of Sri. Mohammed Ishaq Advocate, Kurnool for complainant, and Sri. D.A. Anees Ahamed, Advocate, Kurnool for opposite Party and stood over for consideration till this day, the Forum made the following:-
ORDER
(As per Smt C. Preethi, Hon’ble Lady Member)
1. This consumer complaint of the complainant is filed U/S 11 and 12 of C.P. Act, 1986, seeking a direction on opposite parties to pay Rs.92,160/- with 18% interest per annum from the date of accident, Rs.50,000/- towards the loss of income, Rs.25,000/- towards mental agony, Rs.5,000/- as costs, to direct opposite party to insure the vehicle No.AP 37 V 5665 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 is that the complainant is the owner of Tata Indica Car bearing No.AP 37 V 5665 and the said car was insured with opposite party from 09-06-04 to 08-06-05 under the policy bearing No.551001/31/04/6301842. On 21-04-05 the said car met with accident on Panchalingala and Gondiparla road, as hit by a bus bearing No.450, which resulted in damages to the car and case was registered under Crime no.51/05 in Kurnool taluk P.S. The complainant informed about the accident to opposite party and the opposite party thereby appointed a surveyor to inspect the car. The complainant thereafter repaired the damaged car and submitted bills to opposite party and there was no reply from the opposite party till 26-06-06, a letter was received from opposite party repudiating the claim of the complainant stating that the driver Ahmed Basha was not having valid driving license to drive the car of the complainant. The above conduct of opposite party in repudiating the valid claim of the complainant is amounting to deficiency of service and constraint to file this case before the forum.
3. The complainant in support of his case relied on the following documents viz:(1) policy bearing no.551001/31/04/6301842 issued by opposite party to the complainant and (2) Xerox copy of quotation dated:03-05-05 issued by modern auto workers, Kurnool, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 and A2 for its appreciation in this case. The complainant also relied on the six third party affidavits filed. The complainant caused interrogatories to the opposite party and the complainant and six third parties suitablely replied to the interrogatories caused by 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 filling written version.
5. The written version of opposite party admits the complainant as the owner of the Tata Indica V2/2000 bearing No. AP 37 V 5665 passenger carrying vehicle and the said car was insured with opposite party under policy bearing No.551001/31/04 6300001842 and the said car met with accident on 21-04-05. It further submits that one Thara kumar who was traveling in the passenger carrying vehicle gave complaint to the police and he stated that driver and the occupants were in drunken position at the time of accident. On the request of complainant the opposite party arranged spot survey by Sri. Ramesh Babu and final survey by Sri. J.V.S. Kameshwara Rao and the surveyor worked out the liability on cash basis and repair basis. On 23-03-06 post repair inspection was held after the complainant got his damaged vehicle repaired and as per the post repair survey report the loss was assessed was for Rs.35,435/- only as the driver was absconding from the place of accident driving license of the driver was not produced by the insured and at every stage there were delays and as such the requirement and badged number was not produced and after verifying the documents it was found that the driver of the car did not possess badged number which is mandatory for driving passenger carrying vehicle. Hence the opposite party will not be liable to indemnify under the policy. Hence, the opposite party rightly repudiated the claim of the complainant on 26-06-06 as the complainant did not submit badged number of the driver. Lastly it submits that the claim of the complainant for Rs.92,160/- is excessive and if at all the liability of opposite party is only for Rs.35,435/- as per the assessment of post repair survey report and seeks for dismissal of complaint with costs.
6. In substantiation of its case the opposite parties relied on the documents marked as Ex.B1 to B2 besides to the sworn affidavit of the opposite party in reiteration his written version averments. The opposite party also relied on the two third party affidavits. The opposite party and the two third parties suitablely replied to the interrogatories caused by the complainant and caused interrogatories to the complainant.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite party:?
8. It is a case of the complainant that his Tata Indica car met with accident on 21-04-05 and badly damaged. The said car was covered under the policy vide Ex.A1/B1 issued by opposite party and on the claim preferred by the complainant, it was repudiated vide Ex.B18 by opposite party on the ground that the driver at the time of the accident was not possessing valid driving license.
9. There is no dispute about the accident or date of accident or about the facts that extensive damages were caused to the said car. The only point for consideration is whether the driver of the car had valid and effective driving license on the date of accident. The said car was driven by one Ahmed Peeran. The driver had license to drive L.M.V. (Transport – non transport) which was valid from 20-10-2003 to 19-10-06. From the very averments made in the complaint that the complainant was using the said car as source of his livelihood by hiring out the same. In other words he was running the car as a taxi. The driver Ahmed peeran had license no doubt to drive a light motor vehicle but the opposite party alleges in their repudiation vide Ex.B18 that the driver did not possess necessary endorsement badge number as per amendment in the 1988 to motor vehicle Act, 1939. In such circumstances it has to be seen whether liability can be fastened on the opposite party.
10. The policy has been marked as Ex.A1/B1 the relevant clause in the policy says that: any “person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective and valid Learner’s license to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rule, 1989”.
11. The reading of the condition would only show that as they stand their cannot be any prohibition for the driver of the vehicle to drive the said car. In other words there is no prohibition contained in the rules nor there is any condition which imposes any bar upon the driver in such cases to drive the said car. Therefore mere failure to have badge if at all is only an irregularity and it is not a material fact as to invalidity the action. In the decision reported in II to 2004 C.P.J page 284 between National Insurance Company Limited V/s. Velusamy, it was held by the Hon’ble Tamil Nadu State Commission, that when a person is having a driving license and failure to have badge is only an irregularity and cannot be resisted by the insurance company. One thing is clear in this case that the driver was holding a license to drive L.M.V. (transport – non transport) and it is not a case where the driver is not having any license at all. Therefore, unless the breach is fundamental but only an irregularity it cannot be resisted by the insurance company. Further in this case the driver was not disqualified from holding or obtaining such license. If at all what was required was not a separate or special license but a badge number and may be an endorsement. Mere failure to have a badge number or an endorsement cannot obsolve the insurance company of their liability.
12. Now coming to the question of damages. The complainant in his complaint averments sought relief for Rs.92,160/- but failed file substantiating material and in the absence of said material the said relief cannot be granted. The opposite party in their written version averments alleges that if in case of their liability it will be to Rs.35,435/- only as per final surveyor. But as per final survey report in Ex.B7 the surveyor assessed that net loss to Rs.44,875/- after discussions with insurance officers who insured and repairers on cash settlement basis and the insured need not submit any bills towards proof of repairs. Hence, the complainant is entitled to the said amount.
13. The complainant relied on the other decisions reported in 1999 (6) S.C.C. page620 between Gangadhar Marthav V/s. Oriental Insurance Company Limited, 2003 (2) A.L.D. constitute page it between still city securities letter V/s. Innovative Information Technology Visakhapatnam and other and 2002 (3) A.L.T. page 19 has little relevancy for its appreciation in this case.
14. To sum up, following above decisions and discussions the opposite party is at deficiency in service for repudiating the valid claim of the complainant to which the complainant is perfectly remaining entitled and the opposite party is at deficiency of service is not paying the said amount.
15. In the result the complaint is allowed directing opposite party to pay to the complainant Rs.44,875/- with 9% interest from the date of complaint i.e.,
02-08-06 till realization along with costs Rs.2,000/- with in a month of this receipt of this order.
Dictated to the Stenographer transcribed by him, corrected and pronounced in the Open bench on this the 21st day of February, 2007.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite party :Nil
List of exhibits marked for the complainant:-
Ex.A1 Policy No.551001/31/04/6301842 of S.Noor Ahamed (Ex.B1).
Ex.A2 Xerox copy of quotation, Dt:03-05-2005 issued by Mordern Auto
Works, Kurnool.
List of exhibits marked for the opposite party:-
Ex.B1 policy copy (number in 3) No.551001/31/04/6300001842.
Ex.B2 policy terms & conditions (proforma) (No.in 8 pages).
Ex.B3 claim Advice/Intimation, dt:22-04-2005 given by the complainant to
the opposite party.
Ex.B4 Motor Survey Report (spot), dt:03-05-2005 of S.Ramesh Babu along
with(19) Photos & negatives.
Ex.B5 Motor claim form, dt:11-05-05 of the complainant submitted to
opposite party.
Ex.B6 letter, Dt:027-05-2005 of the complainant addressed to opposite party
to settle on cash loss basis.
Ex.B7 Final Survey Report, Dt:11-06-2005 of J.S.V. Kameswara Rao along
with (26) photos & negatives.
Ex.B8 letter, dt:16-09-2005 addressed by complainant to the opposite party.
Ex.B9 letter dt:13-10-2005 of opposite party to the complainant.
Ex.B10 Postal Acknowledgement of complainant as to receipt of Ex.B9.
Ex.B11 letter, dt:15-11-2005 of administration officer addressed to
complainant.
Ex.B12 letter, dt:13-02-2006 of complainant to opposite party.
Ex.B13 letter, dt:02-03-2006 of opposite party addressed to the complainant.
Ex.B14 postal acknowledgement by complainant as to receipt of Ex.B13.
Ex.B15 letter, dt:10-04-2005 of the complainant to the opposite party.
Ex.B16 Bunch of (7) cash bills.
Ex.B17 post Repair Inspection report of the survey A.Nageshwara Reddy,
dt:03-04-2006.
Ex.B18 Driving License extract of driver Ahmed Peeran.
Ex.B19 Repudiation letter dt:26-06-2006.
Ex.B20 postal acknowledgement of complainant as to receipt Ex.B19.
MEMBER PRESIDENT
Copy to:-
1. Sri. Mohammed Ishaq, Advocate, Kurnool.
2. Sri. D.A. Anees Ahamed, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
