Date of filing : 26.05.2011
Date of disposal : 22.11.2012
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri T.Sundara Ramaiah, B.Com., B.L., President (FAC)
Smt. M.Sreelatha, B.A., B.L., Lady Member
Sri S.Niranjan Babu, B.A., B.L., Male Member
Thursday, the 22nd day of November, 2012
C.C.No.110 /2011
Between:
S.Beebi Fathima,
W/o S.Ali Akbar,
D.No.4/596,
Bellary Road,
Anantapur. … Complainant
Vs.
1. The Manager-Claims,
Bajaj Allianz General Insurance Company Limited,
D.No.401 & 402, 3rd Floor,, Central Park Building,
Tilak Road,
Tirupati.
2. Bajaj Allianz General Insurance Company Limited,
Rep. by the Manager Claims,
Bajaj Allianz Life Insurance Company Limited,
Taki Towers, R.F. Road,
Anantapur. … Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri D.Raju, Advocate for the complainant and Sri T.Ramakrishna, Advocate for the 1st Opposite Party and the 2nd opposite party called absent and set exparte and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, Male Member: - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.2,56,970/- with interest @ 12% p.a. and with costs of the complaint and grant such other relief or reliefs.
2. The brief facts of the complaint are that: -. The complainant is a permanent resident of Anantapur Town and the registered owner of the vehicle TATA Spacio bearing registration No.AP-02-TV-0156. She was eking out her livelihood by plying the said vehicle. She purchased the vehicle for self employment by borrowing loan from Sundaram Finance Limited. The said vehicle is insured with opposite party vide policy No.OG.11-1808-1803-00000286 with effect from 28.06.2010 to 27.06.2011 for that she paid a premium of Rs.18,751/- to the authorized agent of the opposite party at Anantapur. Subsequently on 28.12.2010 at about 6.45 A.M. at S.U.Valvetti Forest on the road from Tiruvannamalai to Tirukovilore in Tamilanadu within the limits of Veraiyur police Station. The said vehicle was being used for personal purpose of the complainant family to go to Nagur in Tamilanadu from Anantapur and in the said accident three persons died and others were injured as the said vehicle dashed against the road side tamarind tree. And in the said accident the vehicle was badly damaged the same was registered as crime No.531/2010 under sections 279,337,338 and 304 I.P.C. by the Veraiyur police against the driver of the TATA Spacio bearing No. AP-02-TV-0156.
3. After the accident the complainant preferred a claim with the opposite party for the insurance amount for the damage caused to the said vehicle. A surveyor was appointed and the surveyor filed his report to the opposite party but the opposite party through their letter dt.15.02.2011 repudiated the claim on a false ground that the driving license of the driver was not valid but in fact the driver held a valid driving license. The failure of the opposite party to settle the just claim of the complainant is a deficiency of service hence filed this complaint. The complainant being insured her vehicle in a contract of insurance she is a consumer and she is entitled for the benefit of Consumer Protection Act. As the opposite party repudiated the claim she has no other go except to file this complaint against the opposite parties claiming a sum of Rs.2,09,060/- towards the loss of damage to the vehicle, Rs.30,000/- towards loss of earnings for three months, Rs.10,000/- towards mental agony, Rs.5000/- towards litigation expenses and Rs.2910/- towards surveyor fee.
4. Counter filed on behalf of the 1st opposite party, the 1st opposite party filed counter stating that the complainant is not a consumer as defined under section 2 (d) of Consumer Protection Act and the petition filed by the complainant does not come under the purview of Consumer Dispute envisaged in section 2(e) of the Act hence the complaint is liable to be dismissed. The 1st opposite party submits that they have no branch office within the jurisdiction of this Forum as such the present complaint is liable to be dismissed on this ground. The 1st opposite party submits that the policy bearing No.OG-11-1808-1803-00000286 valid from 28.06.2010 to 27.06.2011 for TATA Spacio vehicle bearing No.AP-02-0156. Subject to the terms and conditions, exceptions and limitations thereof and the confirmation of the compliance of section 64-VB of the insurance Act 1938. The opposite party does not admit and denies the allegation of the complainant that the premium amount of Rs.18,751/- was paid at Anantapur to the authorized agent of opposite parties and the policy was delivered at Anantapur to the complainant.
5. The opposite party denies the allegation of the complainant that this opposite party is doing business through their sister concern i.e., Bajaj Allianz Life Insurance Company Limited at Anantapur is totally incorrect and it has nothing to do with the 2nd opposite party activities as both are two different entities. This opposite party denies the allegation of the complainant that on 28.12.2010 at about 6.45 A.M. at S.U.Valvetti Forest on the road from Tiruvannamalai to Tirukovilore in Tamilanadu within the limits of Veraiyur police Station the vehicle of the complainant met with an accident and at that time the vehicle was being used for personal purpose of the complainant’s family to go to Nagur in Tamilanadu and in the said accident three persons died and others were injured and the vehicle was badly damaged.
6. The opposite party submits that the opposite party got surveyed of the insured vehicle. However the vehicle involved in the accident is a transport vehicle ( which is a passenger carrying commercial vehicle) and the driver of the vehicle S.Venkataramudu S/o S.Pedda Venkatappa D.No.5/30, Kunuthur, Dharmavaram, Anantapur District drove the said vehicle as on the date of accident does not possess valid driving licence to drive a transport vehicle. The opposite party submits that L.M.V. licence is of two types one is transport licence and another is non-transport licence. A driver who possess a transport licence can drive passengers carrying commercial vehicle and a person who possess a non-transport driving licence can drive vehicles other than transport vehicles. In the instant case the driver possesses only a non-transport driving licence and the vehicle involved in the accident is a commercial transport vehicle as such it is clear that the complainant who is the owner of the crime vehicle knowing fully aware of the fact that the driver by name S.Venkataramudu has no valid driving licence to drive a transport vehicle, allowed him to drive the crime vehicle and there by violated the terms and conditions of the insurance policy as such the complainant is not entitled for any relief.
7. The opposite party further submits that the policy issued by the opposite party is very clear about the driver’s clause and it is very clear in the policy under the heading of driver that any person including the insured, provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such licence. Provided also that the person holding an effective learner’s licence may also drive the vehicle, when not used for the transport of passengers at the time of the accident and that such a person satisfies the requirement of Rule-3 of the central Motor Vehicle Rules-1989. Thus it is clear that the driver should possess valid and effective driving licence to drive the said vehicle. The opposite party further submits that after verification of the records on the surveyor report confirmed that the driver who drove the said vehicle bearing No.AP-02-TV-0156 on the date of accident does not possess a valid driving licence to drive the said vehicle. Hence, the claim was repudiated vide its letter dt.15.02.2011. The opposite party further submits that the complainant willfully and knowingly handed over the possession of the insured vehicle to the driver who did not possess a valid and effective driving licence as on the date of the accident and therefore has contravened the section 5 of M.V. Act and the rules framed there under. Hence in view of the above breach made by the complainant this opposite party is not liable to pay any compensation to the complainant.
8. The 2nd opposite party called absent and set exparte.
9. Basing on the above pleadings the points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties 1 & 2? If so, whether the complainant is entitled for the amount claimed in the complaint as prayed for?
2. To what relief?
10. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Exs.A1 to A5 documents. On behalf of the 1st opposite party, the 1st opposite party has been filed and marked Exs.B1 to B11 documents.
11. Heard both sides.
12. POINT:- It is a fact that the complainant is a registered owner of the vehicle bearing registration No.AP-02-TV-0156 and the said vehicle is insured under policy bearing No.OG-11-1808-1803-00000286 with the opposite party by paying a premium of Rs.18,751/- and the date of coverage is from 28.06.2010 to 27.06.2011. Subsequently the said vehicle met with an accident on 28.12.2010 at about 6.45 A.M. at S.U.Valvetti Forest on the road from Tiruvannamalai to Tirukovilore in Tamilanadu within the limits of Veraiyur police Station and the said accident was registered as crime No.531/2010 under section 279,337,338 and 304 I.P.C. against the driver of the vehicle by the Veraiyur police. In the said accident the vehicle was badly damaged as the vehicle hit the road side tamarind tree. Subsequently the complainant informed the opposite party about the accident and a surveyor was appointed by the opposite party to estimate the loss of the vehicle and to file his report. The surveyor by name A.Mahaboob Hussain surveyed the accident vehicle and filed his report. In his report he filed the estimation for repairing the vehicle and his personal estimation was Rs.2,09,060/-. After perusing the documents filed by the complainant and the opposite party and after perusing the written arguments filed by the complainant and the opposite party. The complainant in his written arguments filed that the said vehicle was used for their personal use to go to Nagur in Tamilanadu at the time of accident and the driver S.Venkataramudu had a valid driving licence at the time of accident. Hence the opposite party is liable to pay the loss. In support of the complainant argument he filed L.C.ACR 2008(5) S.C.200 Civil Appeal No.574 of 2008 wherein:- Supreme Court observed that a person authorized to drive a light motor vehicle is deemed to have been authorized to drive light transport vehicle also.
13. As per written arguments of the opposite party the L.M.V. licence is of two types one is transport licence and another is non-transport licence. A driver who has got transport licence can drive passenger carrying commercial vehicle and a person who has got non-transport driving licence can drive vehicles other than transport vehicles. In the instant case the driver by name is S.Venkataramudu S/o S.Pedda Venkatappa D.No.5/30, Kunuthur, Dharmavaram, Anantapur District, who drove the said vehicle as on the date of accident does not possess valid driving licence to drive a transport vehicle. Ex.B3 & B7 driving licence of the driver clearly shows that the driver had no transport driving licence as on the date of accident. Further the vehicle involved in the accident is a commercial transport vehicle as per Ex.B8 &B9, which was being used for hire purpose. Hence it requires the transport licence in order to drive the insured vehicle which was not possessed by the driver on wheels, as such there was clear violation of the terms and conditions of the policy and the M.V. Act. As per the Ex.B10 the driver details mentioned by the complainant itself shows that he was well aware that the driver was not possessing valid and effective driving licence to drive the insured vehicle still allowed him to drive the insured vehicle and thereby violated terms and conditions of the insurance policy Further the opposite party submits that soon after receiving the claim from the complainant this opposite party got assessed the loss sustained through the IRDA approved surveyor who submitted his report. In the said report also it is clearly mentioned that the vehicle involved in the accident is a transport vehicle and the driver who drove the said vehicle as on the date of accident does not possess valid driving licence to drive a transport vehicle. The said surveyor estimated the damages at Rs.90,000/- which is marked as Ex.B11. The opposite party further submits Ex.A3 surveyor report filed by the complainant was got prepared by her and on the top of the said surveyor report it is clearly mentioned that “ on request of Mrs. S.Beebi Fatima I have carried out the survey of damaged vehicle” and this opposite party has no knowledge of the said survey report or no information given by the complainant before it was assess by the said surveyor and hence the same is not binding on this opposite party and the same cannot be taken into consideration. Further this opposite party submits that the survey/assessment of the vehicle have to be done in consultation of the other party but this opposite party has no knowledge of such survey and the complainant has prepared it with wrongful intention to gain wrongful from this opposite party which is not binding on this opposite party.
14. Further this opposite party submits that this opposite party refuses to get it assessed by its surveyor then it becomes necessary for the owner to get the damages assessed by a private surveyor. In fact in this case the opposite party appointed surveyor and he inspected the said vehicle and the damages were assessed at Rs.90,000/- only . It seems that Ex.A3 was got prepared only after inspection of approved surveyor appointed by the opposite party as such the same is not genuine one and the same cannot be considered and taken into consideration.
15. The opposite party relied on the following ruling in New India Insurance Company Limited Vs. Prabhu Lal (2008 ACJ627)
The Hon’ble Supreme Court held that a person holding licence to ply light motor vehicle cannot ply transport vehicle unless there is a specific endorsement to that effect as req. by section 3 of the act read with rule 16 of the rules.
16. The complainant’s surveyor report which is marked as Ex.A3 is the surveyor report which is prepared at the request of her and Ex.B5 is the final surveyor report which was conducted by the IRDA authorized surveyor who was appointed by the opposite party hence the final surveyor report of the opposite party is considered. And after considering the arguments of both sides we are of the view that the complainant has violated the terms and conditions of the policy by allowing the driver S.Venkataramudu to drive the vehicle who is not authorized to drive commercial passenger carrying vehicle as he possessed only a LMV licence at the time of accident. Hence the opposite party is not liable to pay the insurance claim amount to the complainant as prayed for. Hence, there is no deficiency of service on the part of the opposite parties.
17. In the result, the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 22nd day of November, 2012.
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT
NIL
ON BEHALF OF THE OPPOISITE PARTIES 1&2
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of F.I.R. in crime No.531/2010 of Tiruvannamali, Veraiyur P.S.
Ex. A2 Photo copy of letter dt.15.02.2011 sent by the Bajaj Allianz General Insurance
Company limited, Hyderabad to the complainant.
Ex.A3 Photo copy of surveyor report.
Ex.A4 Bunch of Photos relating to damaged vehicle
Ex.A5 Photo copy of certificate cum policy schedule bearing Policy No.OG-11-1808-
1803-00000286 issued by Bajaj Allianz General Insurance Company limited,
Pune in favour of the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO. 1
Ex.B1Photo copy of certificate cum policy schedule bearing Policy No.OG-11-1808-
1803-00000286 issued by Bajaj Allianz General Insurance Company limited,
Pune in favour of the complainant.
Ex.B2 Photo copy of certificate of registration relating to Luxury Tourist cab LMV
bearing No.AP-02-TV-0156 issued by Additional Registering Authority
Anantapur in favor of the complainant.
Ex.B3 Driving licence relating to S.Venkataramudu Kunuthur.
Ex.B4 Photo copy of driving licence relating to S.Venkataramudu.
Ex.B5 Final survey report dt.13.02.2011 relating to complainant’s vehicle.
Ex.B6 Repudiation letter dt.15.02.2011 issued by Bajaj Allianz General Insurance
Company limited, Hyderabad.
Ex.B7 Driving licence relating to S.Venkataramudu issued by Additional Licensing
Authority, Anantapur dt.31.10.2007.
Ex.B8 Form 24-B register of Motor vehicle relating to the complainant issued
Additional Registering Authority dt.06.06.2012.
Ex.B9 Photo copy of Form TVP relating to the complainant issued by Regional
Transport Authority, Anantapur.
Ex.B10.Motor claim form submitted by the complainant to the opposite parties.
Ex.B11 Motor loss assessment report dt.21.07.2011 of M.Eswaraiah insurance loss
assessor Anantapur.
MALE MEMBER LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR ANANTAPUR
