Karnataka

Chitradurga

CC/95/2014

Sri. N.B.Jayarama Reddy S/o. Basava Reddy - Complainant(s)

Versus

The Manager, IFFFCO TOKIO General Insurance Co.Ltd., - Opp.Party(s)

Shri.V.G.Parameshvarappa

18 Nov 2015

ORDER

   COMPLAINT FILED ON :01/09/2014

              DISPOSED ON:18/11/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 95/2014 DATED: 18th NOVEMBER 2015

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

        SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

COMPLAINANT	N.B. Jayarama Reddy, S/o Basava Reddy, R/o Venkatapura Village, Molakalmuru Taluk, Chitradurga Distrct.   (Rep by Sri. V.G. Parameshwarappa,  Advocate)
OPPOSITE PARTIES	The Manager, IFFCO TOKIO General Insurance Co. Ltd., Chitradurga.   (Rep by Sri. K. Mohan Bhat,  Advocate)

SMT.G.E. SOWBHAGYALAKSHMI, MEMBER.

ORDER

 

The complainant filed this complaint U/s 12 of C.P. Act 1986 against the opposite party (here in called OP) to direct the OP to pay Rs.1,60,000/- towards repair of vehicle along with interest at the rate of 28% p.a and compensation of Rs.50,000/-, cost and to grant such other reliefs.

 2.    Brief facts of the complaint is that, the complainant is a registered owner of Tractor and Trailer bearing registration No.KA 16 TA 2901-02.  The said Tractor and Trailer is insured with the OP company under policy No.6182 226369, valid from 01.10.2011 to 30.09.2012, and its insured declared value is for a sum of Rs.4,80,000/-, the said policy covered the own damage risk, the complainant has paid total premium towards the said insurance policy of his vehicle for a sum of Rs.8,535/-.  The OP issued the certificate of insurance, which does not disclose the terms and conditions of policy. 

3.     That on 17.06.2012, when the complainant vehicle travelling from Hosahallikere to J.B. Halli with the load of mud, at about 9-00 AM, the driver B. Hanumantha Reddy driven the vehicle in rash and negligent manner and dashed to the old well and suddenly fell down in the well, caused damage, the said accident occurred within the jurisdiction of Rampura Police Station.  The Rampur police registered a crime in C.C.No.782/2012.  Subsequent to said accident the complainant has intimated the accident to the OP.  The OP has appointed the surveyor for assessment of damage caused to the vehicle.  After the spot survey the complainant has shifted his vehicle to Vinay Agencies (Inventory) dealers for Swaraj Tractors, where he effected the repairs, by investing a sum of Rs.1,60,000/-.  The complainant has invested the said amount by raising loan from his friends and relatives, hence he constrained to pay the interest to them.

4.     The complainant has submitted his claim to the OP, along with all the relevant documents namely copy of FIR, MV report, D.L, R.C, POlicy copy, Original Bills to the OP.  After receipts of all the documents the OP neither settled the claim nor repudiated the claim of the complainant.  The complainant has made several demands and request to settle his claim, in spite of repeated requests and demands the OPs did not settle the claim of the complainant due to the deficiency in service.  The OP in spite of receiving all the documents from the complainant neither settled the claim nor repudiated the claim which shows negligence of the OP, and it amounts to the deficiency in service of the OP, hence the complainant put to irreparable loss and mental agony, and frustration.  Hence, the OP is liable to pay the compensation for the deficiency in service and causing mental agony to the complainant for a sum of Rs.50,000/-.

5.     The cause of action arose on 17.06.2012 date on which the complainant's vehicle damaged in accident, on all the dates of claim submitted to the OP, and demands made by the complainant are all within the jurisdiction of this Hon'ble Forum and prayed for allow the complaint with cos.

6.     On the service of notice, OP appeared through his counsel and filed version.  While admitting the issuance of policy to the complainant bearing No.1-VOZIN9 P400 from 01.10.2011 to 30.09.2012 for tractor-trailer bearing No.KA-16-TA-2901-02, subject to the terms and conditions of the policy and its endorsements and the statutory provisions.  As per the policy that "any person including the insured provided that a person driving holds an effective driving license at the time of accident and he is not disqualified from holding or obtaining such a license.  Provided also that the person holding an effective learners license may also drive the vehicle and that such a person satisfies the requirements of rule 3 of the Central Motor Vehicle Rules 1989". 

7.     It is further stated that, the accident claim intimation letter given by the complainant to the OP-Iffco Tokio General Insurance Co.  The tractor trailer bearing No.KA-16-TA-2901-02 met with an accident on 17.06.2012 and immediately on receipt of the claim intimation on 19.06.2012, they have disputed M.C. Himat Kedar, surveyor to assess the damage to the said vehicle on spot itself.  As per the intimation at the time of accident they have appointed a IRDA licensed surveyor Sri. M.C. Himat Kedar for spot survey to inspect the damages caused to the said vehicle.  The surveyor has inspected the damages caused to the said vehicle due to accident and submitted his report. 

8.     It is true to say as averred in para-1 of the petition, except that the policy copy not disclose the terms and conditions of the policy.  The averments in para-2 of the petition that the complainant repaired for Rs.1,60,000/- are all false, and the petitioner is put to strict proof of the same.  The complainant submitted as estimate from Vijay Agencies on 12.07.2012 and Jayaprakash Khamitkar was deputed for final assessment of loss at repairer premises, and the said surveyor has assessed the loss at Rs.1,17,000/- as per the terms and condition of the Insurance policy and submitted the report to the insurance company, with a remark that the driver of the tractor not having valid and effective driving license to drive tractor-trailer. 

9.     The averments in para-3 of the petition that the complainant submitted D.L of the driver Hanumantha Reddy.  The said driver obtained driving license to drive tractor only.  At the time of accident tractor-trailer was involved.  As per the M.V. Act the said driving must be obtained driving license to drive tractor and trailer.  Hence the complainant knowingly and intentionally violated the policy condition and M.V. Act.  Hence they have repudiated the claim in total on 20.11.2012 and the same sent to complainant by post that, "As on the date and time of accident the driver of the insured vehicle do not possess a valid and effective driving license to drive the vehicle.  (insured driver does not have Tractor Trailer endorsement) In view of the above we express our inability to consider the claim for settlement and are closing the claim as NO CLAIM in our records.  Hence there is no deficiency in service on the part of the opponent.  The other averments in the same para are not admitted, and the petitioner is put to strict proof of the same.  If the Hon'ble District Consumer Forum comes to the conclusion that opponent is liable to pay compensation to the complainant, this Insurance Company they have liable to pay only final report given by the Surveyor to this Insurance Company and not the amount claimed by the complainant in the complaint.  The petition is not maintainable either in law or on fact.  The petition is barred by limitation and prayed for dismiss the complaint with cost. 

10. Complainant himself examined as Pw-1 by filing affidavit evidence and filed documents, the same were got marked as Ex A-1 to A-3.

        11. On behalf of OPs one Shri. V. Jagmohan Rao S/o V.V. Seetharamaiah, General Manager, examined as DW-1 by filing affidavit evidence and filed one document and the same was got marked as Ex.B-1 to Ex.B-4.   

        12. Complainant filed his respective written arguments and oral arguments also heard.

13.   Now the Points arise for our consideration for the decision of the complaint are that:-

 

Point No.1:-Whether the complainant proves that,  he has obtained the insurance policy to his vehicle Tractor and Trailer bearing Registration No.KA-16 TA 2901-02 from OP Insurance Company under Policy No.6182226369 and the policy was valid from 01.10.2011 to 30.09.2012 and he has paid premium of Rs.8,535/-?

 

Point No.2:- Whether the complainant proves that, his vehicle met with an accident on 17.06.2012 at about 9-00 AM and the said Tractor and Trailer and intimated the accident to the OP and submitted all the relevant documents to settle the claim of the complainant and OP repudiated the claim of the complainant and thereby committed deficiency of service and complainant is entitled to reliefs?

 

Point No.3:- What order?

      

14. Our findings on the above points are as below.

 

        Point No.1:- Affirmative.

        Point No.2:- Affirmative.

Point No.3:- As per the final order.

 

                                ::REASONS::

15. Point Nos. 1 & 2:-  We like to discuss the Point No.1 & 2 simultaneously for the sake of convenience.  It is not in dispute that the complainant is a registered owner of Tractor and Trailer bearing registration No.KA 16 TA 2901-02 and the same was insured with the OP insurance company under policy No.6182 226369.  It is not in dispute that the policy was covered for the period from 01.10.2011 to 30.09.2012 for a declared value of Rs.4,80,000/-.  The said policy covered the own damage risk and the complainant has paid total premium for a sum of Rs.8,535/- to the OP.

 

16.   It is not in dispute that, on 17.06.2012, when the vehicle travelling from Hosahallikere to J.B. Halli with the load of mud, at about 9-00 AM, the driver B. Hanumantha Reddy driven the vehicle in rash and negligent manner and dashed to the old well and suddenly fell down in the well and damaged. The Rampur police registered a case in C.C.No.782/2012 and  same has been intimated to the OP and the OP appointed a surveyor for assess the damages caused to the vehicle.  It is not in dispute that, after the spot survey the complainant shifted his vehicle to Vinay Agencies (Inventory) dealers for Swaraj Tractors for the repairs, by investing a sum of Rs.1,60,000/-.  After the repairs, complainant has submitted claim form, along with all the relevant documents namely copy of FIR, MV report, D.L, R.C, POlicy copy, Original Bills to the OP.  But, the OP neither settled the claim nor repudiated the claim of the complainant inspite of several demands and requests.  It is only in dispute that OP has not settled the claim of the complainant and thereby committed deficiency of service towards complainant.

 

17.  To prove the case of the complainant, complainant himself examined as PW 1 by filing affidavit evidence in which reiterated the contents of the complaint and filed 3 documents, the same was got marked as Ex.A-1 to A-3.  Ex.A-1 is the certified copy of FIR.  Ex.A-2 is copy of complaint.  Ex.A-3 is the Motor Vehicles Accident Report. 

 

18.  On behalf of the OP one Sri. V. Jagmohan Rao, General Manager, Iffco Tokio General Insurance Company Davanagere examined as DW-1 by filing affidavit evidence and filed 4 documents, the same was got marked as Ex.B-1 to B-4.  Ex.B-1 is the letter written by the Surveyor to the complainant dated 30.09.2012 and Ex.B-2 is the letter dated 20.11.2012 written by the OP to the complainant.  It shows that the claim of the complainant was repudiated. Ex.B-3 is the copy of D.L pertains to the Driver.  It shows Driver of the vehicle was holding Driving license to drive LMV Tractor only and is valid from 15.09.1995 to 14.09.2015.  Ex.B-3  DL shows that the license is valid up to 14.09.2015.  The accident was occurred on 17.06.2012.  It shows at the time of accident the Driver of the vehicle was holding valid Driving License to drive the Tractor. Ex.B-4 is the Final Motor Survey Report.  It shows the OP surveyor assessed the damages to the complainant vehicle.    

 

19.  On verifying the above documents i.e., Ex.A-1 to Ex.A-3.  Ex.A-1 to Ex.A-3, clearly shows that, the complainant vehicle Tractor and Trailer met with an accident on 17.06.2012 and the said vehicle was fully damaged and Ex.B-4 Final Survey report shows that the surveyor assessed the damages of the complainant vehicle for sum of Rs.1,17,000/- and the vehicle was repaired.   

20.  Complainant advocate argued that, complainant has obtained the insurance policy from the OP insurance company to his vehicle Tractor-Trailer bearing Registration No.KA-16 TA-2901-02 under the Policy No.6182226369 valid from 01.10.2011 to 30.09.2012 and its insured declared value was Rs.4,80,000/- and the said policy covers the own damage risk.  The complainant has paid the total premium of Rs.8,535/- towards the policy of his vehicle and further argued that, on 17.06.2012, complainant vehicle met with an accident and his vehicle was fully damaged.  The complainant has informed the same to the OP insurance company.  The OP surveyor has conducted the spot survey and the surveyor assessed the damages.  The complainant has spent Rs.1,60,000/- towards repairs of his vehicle.  After the repairs, OP surveyor has conducted final survey and submitted his report.  Complainant has submitted all the relevant documents along with claim form to the OP.  After receipt of the documents OP neither settled nor repudiated the claim of the complainant.  The complainant has requested several times to settle the claim.  But, the OP did not settle the claim of the complainant till today.  It shows negligence on the part of OP in settling the claim of the complainant and thereby OP has committed deficiency in service and the attitude of the OP complainant has suffered mentally and financially and prayed for allow the complaint with cost and relied on the following decisions. 

 

ILR 2004 KAR 3562

Smt. Bhimavva and others

Vs.

Shankar @ Adyn & Ors.

"Motor Vehicles Act, 1988 – Section 173 and Section 2(18) – Whether a Tractor is a goods carriage and whether a license issued for driving a tractor could become ineffective the moment the tractor is attached to a trailer – HELD – Tractor is a motor vehicle as defined in Section 2(18) – Trailer is constructed for the purpose of carriage of the goods and when it is pulled by a Tractor, both together constitute a transport vehicle – Tractor – Trailer is a good carriage and the policy of Insurance issued by the Respondent – Insurance Company would cover the liability of the insured qua its employees under the workmen's compensation Act – A license issued for driving a Tractor could not become ineffective the moment the Trailer is attached to a Tractor".       

 

AND

2011 ACJ 476

Parvati Bai

Vs.

Tufan Singh and Others.

"Motor Vehicles Act, 1988 – Section 147 (1) (b) (i) – Motor Insurance – Goods Vehicl – Gratuitous passenger – Liability of insurance company – Death of a labourer travelling in trolley attached to tractor - Insurance company disputes its liability on the ground that deceased was a gratuitous passenger and was not covered – Tractor-Trolley was being used for the purpose for which it was insured – Insurance Company failed to produce policy showing that risk of such person was not covered – Whether insurance company is liable – Held: yes.

 

The above said decisions are aptly applicable to the case of the complainant.

 

21.  On the other hand OP Advocate has argued that, complainant submitted DL of the driver.  The Driver has obtained driving license to drive Tractor only.  At the time of accident the Tractor-Trailer was involved. As per the M.V Act, the Driver must obtain driving license to drive Tractor-Trailer.  Hence, the complainant has violated the policy condition and M.V Act.  OP has repudiated the claim in total on 20.11.2012.   and the same has been sent to the complainant by post and stated that, "As on the date and time of accident the driver of the insured vehicle do not possess a valid and effective driving license to drive the vehicle.  (insured driver does not have Tractor Trailer endorsement) In view of the above we express our inability to consider the claim for settlement and are closing the claim as NO CLAIM in our records.  Hence there is no deficiency in service on the part of the OP.  OP Advocate further argued that, as on the date of accident the policy was in force.  If the Hon'ble District Consumer Forum comes to the conclusion that opponent is liable to pay compensation to the complainant, this Insurance Company they have liable to pay only final report given by the Surveyor to this Insurance Company and not the amount claimed by the complainant in the complaint and complainant is entitled only for a sum of Rs.1,17,000/- as per Ex.B-4. 

 

22.  On perusal of the entire case records, Affidavits and documents and the above said decisions, it clearly shows that, at the time of accident, Driver of the said Tractor-Trailer was holding a valid driving license to drive the Tractor-Trailer and also OP has admitted about issuance of insurance policy to the complainant vehicle and at the time of accident, the policy was in force.  OP has not produced any documents to show that, the Driver of the vehicle has no valid driving license to drive the Tractor-Trailer.  OP has failed to show that, at the time of accident, the Driver of the vehicle has no valid driving license to drive Tractor-Trailer.  OP has not settled the claim of the complainant and there is no proper reasons to repudiate the claim.  Even policy was in force at the time of accident and thereby OP has committed deficiency in service.  Accordingly, we answer the Point No.1 & 2 held as affirmative. 

 

 23.  Point No.3:- As discussed on the above points and for the reasons stated therein, we pass the following:

 

ORDER

 

        The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

 

It is ordered that, OP is directed to pay a sum of Rs.1,17,000/- to the complainant towards the damages caused to his vehicle along with interest at the rate of 6% p.a from the date of filing this complaint till payment.  The OP is further directed to pay the above said amount within two months from the date of this order.

It is further ordered that, the OP is directed to pay a sum of Rs.5,000/- towards mental agony and Rs.5,000/- towards costs of this complaint to the complainant. 

 

Accordingly, complaint is partly allowed. 

 

(This order is made with the consent of President and Member after the correction of the draft on 18/10/2015 and it is pronounced in the open Court after our signatures.)   

 

MEMBER                 MEMBER                         PRESIDENT

ANNEXURES:

Complainant by filing  affidavit evidence taken as PW-1.

Witness examined on behalf of complainant:

                                                -Nil-

On behalf of OPs one Shri. V. Jagmohan Rao General Manager, examined as DW-1 by filing affidavit

Witnesses examined on behalf of OPs:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Certified copy of FIR.
02	Ex-A-2:-	Copy of complaint.
03	Ex-A-3:-	Copy of Motor Vehicles Accident Report

 

Documents marked on behalf of Opponent:

01	Ex-B-1:-	Copies of letters dated 30.09.2012 and 20.11.2012 written to the complainant.
02	Ex-B-3:-	Copy of D.L
03	Ex-B-4:-	Copy of Final Motor Survey Report.

 

MEMBER               MEMBER           PRESIDENT

 

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