BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.22/2018

 Date of filing: 01/02/2018

Date of disposal: 03/12/2018

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay a sum of Rs.6,13,086/- towards IDV of the vehicle by considering total loss with interest till to the entire realization and pay Rs.1,00,000/- towards compensation for mental agony & harassment and Rs.5,000/- towards the cost of the proceedings and any other reliefs etc.,

2.      The facts of the case in brief are that;

          The complainant is the driver in others car and to became owner of his own car and he has purchased Maruti Swift D-zire LDI bearing Reg.No.KA-29/B-4291 for his livelihood in way of self employment and the same is insured with the OP/Insurance Company under policy No. 35101031176340329102 w.e.f. 21-06-2017 to 21-06-2018 and the IDV is Rs.6,13,086 and further the friend of complainant by name Prabhu has requested him that, he needs his vehicle as there is a marriage ceremony in his relatives for that, the complainant out of said friendship has given the said vehicle to his friend and unfortunately on
dtd:09-08-2017, the said vehicle met with an accident at Ankola and due to the said accident, the said vehicle was totally scraped.

          It is further contended that, after the accident, the Nara Automobiles, Maruti Authorized Service Center, Bagalkot has issued the service estimate total bill raised by the service center is Rs.7,03,224/- and the IDV of the vehicle is Rs.6,13,086/- and the said vehicle is under scrape condition and further the complainant had submitted the motor insurance claim form along with all documents on dtd:05.01.2018 to the OP and claiming the insurance amount, but OP has repudiated the claim of the complainant that, the driver is authorized to drive a vehicle of class – Light Motor Vehicle (NT) valid from 05.07.2000 to 04.07.2020 whereas, the insured vehicle is registered with the registering authority with the class of vehicle as – Motor Cab, for which a driving license for the class light motor vehicle (transport) as required to drive the vehicle and further as per the FIR No.245/2017 dtd:10.08.2017 drawn by the Ankola Police Station, the said vehicle was carrying 9 passengers against the seating capacity of 5. In-fact the driver of the vehicle was holding valid license at the time of accident and there is no suppression of cause of accident and further as per the FIR, the total 9 persons were traveling in the car and out of 9 persons, 4 persons are minor aged about 4, 10, 12 and 17 years and including driver 4 persons are elder and No.9 Raju Patil age not mentioned, even assuming only 5 persons are elder and 4 persons are minor and further the OP has dupe the insurance amount and raised baseless grounds and repudiate the claim. Hence, the act of OP clearly attract deficiency in service on the part of the OP. Therefore the complainant is constrained to file this complaint for the relief of damages/compensation caused due to negligence and deficiency in service by OP.

3.      The Forum registered a case and issued a notice to the OP. After service of the notice, the OP appeared through his counsel and filed his written version.

          Brief fact of the Written Version

The OP contended that, the complaint of the complainant is false, frivolous and vexatious. The complainant is not a “Consumer” within the meaning of C.P. Act U/s. 2 (1) (d). The complainant vehicle is registered under commercial use and obtained the taxi permit and he is use to run the said vehicle on rent basis for the purpose of Commercial Purpose. The compliant of the complainant does not fall under the provisions of the C.P. Act and as such the complaint deserves to be dismissed as not maintainable and it is true that the vehicle bearing No. KA-29/B-4291 insured with this OP, the said vehicle met with an accident on dtd: 10-08-2017 at given place and their after the complainant lodged a claim with the opponent in respect of the damages caused to the said vehicle on 04.11.2017 after the gap of 2 month 29 days. Hence, the complainant has violated the policy condition No.1.

It is further contended that, as per the policy terms and condition driver should hold proper and valid effective driving license at the time of accident. In this case, the complainant vehicle car bearing No.KA-29/B-4291 is registered as Commercial Passenger Motor Cab and having permit towards Karnataka State and for driving this class of vehicle persons should hold D.L. of LMV Motor Cab with endorsement of Badge number and further the complainant has violated the policy terms and condition since complainant has handed over his car to family friend Prabhu knowing well that, he was not holding proper D.L. and further the driver Prabhu is holding LMV (NT) D.L. as on alleged date of accident, hence complainant has violated the terms and condition of policy and further in order to prove the driver is not holding effective D.L. OP Insurance Company has obtained the information through RTI from RTO, Navanagar, Bagalkot who submit that, as per the M.V. Act driver should possess D.L. of LMV Motor Cab with passenger badge number on its letter dtd: 28.03.2018 and OP further contended that, as per the R.C. records seating capacity of vehicle is 5 which it include driver, but as on the alleged date of accident vehicle is carrying with excess passenger of 9 persons as against the provision of M.V. Act rules and regulation. So due to the carrying of excess passenger and due to negligent act on part of driver of complainant accident is occurred.

It is further contended that, after receiving the claim from the complainant side regarding the damages claim of vehicle, the OP has engaged the surveyor by name one Bharat L Dharamshi of Hubli, for assessment of damages to the said vehicle. The  surveyor visited to M/s. Nara Automobiles Bagalkot on dtd:04.11.2017 and conducted the surveyor and assessed the vehicle damages and submitted his Motor Spot Survey Report to the OP office on dtd: 05-01-2018, as per the  survey report it is submit that, the vehicle loss was assesses at Rs.4,72,500/- with agreed valued IDV with deduction of Rs.1,40,000/- towards realizable for wreck with R.C. and further the OP while appreciation the vehicle damages claim of complainant it is found that, the complainant has allowed his driver to drive his vehicle who is not holding proper valid D.L. and violated the limitation of us by carrying excess passenger as against the seating capacity.  Hence the said act on the part of the complainant amounts to suppressing the cause of accident and giving fraudulent statement, against the terms and conditions of the policy. Hence the OP had no alternative than to repudiate the claim of the complainant and there is no deficiency of service on the part of the OP and prayed for dismissal of the complaint with costs.         

4.      The complainant has filed his chief affidavit along with documents which are as follows;

The OP also filed his chief affidavit and produced some documents on behalf of them are as follows;

5.      Now on the basis of above said pleading, written arguments, oral and documentary evidence, the following points arises for adjudications are as follows;

1. Whether the complainant has proved that, there is negligence and deficiency in service on the part of the OP for not settling the claim?

2. What order?

6.      Our findings to the above points are as under:

1. In the Affirmative.
2. As per the final order for the following:

R E A S O N S

7.   POINT NO.1:- We have perused the pleadings of the parties, it is an undisputed fact that, the complainant has purchased one Maruti Swift Dzire LDI bearing Reg.No.KA-29/B-4291 for his livelihood on dtd: 21.06.2017 and also he has purchased the vehicle insurance policy with the OP Insurance Company under the policy No. 35101031176340329102 for a period of 21-06-2017 to 21-06-2018 and the IDV of the vehicle is Rs.6,13,086 and also undisputed fact that, on 09.08.2017, the complainant’s above said vehicle met with an accident at Ankola.

On perusing the material facts placed on record that, the surveyor of the insurance company inspected the vehicle and estimated the damages caused to an extent of Rs.4,72,500/-, it is also not in disputed by the insurance co., and the repudiated the claim of the complainant on the ground that, the driver of the Swift Dezire car was having a Light Motor Vehicle License to drive the vehicle and since the vehicle at the time of accident was carrying a passengers against the seating capacity of 5. Hence repudiated the claim of the complainant by the OP.

The crux of the matter is to considered, whether the insured vehicle is entitled for the insurance claim on the basis of the existing driving license in respect of transport license?

The driver of the above said vehicle authorized to drive a vehicle of cars – light motor vehicle (NT) valid from 05.07.2000 to 04.07.2020, hence the driver who was drive the vehicle at the time of accident and as a matter of fact that, the valid driving license for driver a Light Motor Vehicle and there is no record to show that, he was disqualified from holding or obtaining such a license at the time of accident. In view of these facts is the circumstances of the case, it is satisfy that, the policy does not insist on the driver, a license to drive to obtain a specific endorsement to drive a transport vehicle or a non-transport vehicle and OP is raised one more contention that, the said vehicle was carrying 9 passengers against the seating capacity of 5. But, complainant submitted that, as per F.I.R. in the complaint, the total 9 persons were travelling and out of 9 persons 4 persons are minors.

The transport vehicle license had includes to drive the Light Motor Vehicle also. The object of insurance is to meet unforeseen incident occurred and the person should not be is destitute. Hence, the insurance company merely on the technicalities cannot exonerate their liability under the circumstances are reached to conclusion that, the non settling the claim to insured by the insurer, it amounts to deficiency in service. For that proposition the counsel of the complainant has relied Hon’ble Supreme Court reported judgement in Lakhmi Chand V/s Reliance General Insurance Civil Appeal Nos.49-50 of 2016 and another decision reportable of Hon’ble Supreme Court in Civil Appeal No: 5826 of 2011, and another decision reported in the Hon’ble Supreme Court of India Civil Appeal No.15611 of 2017, the Hon’ble Supreme Court of India has held that, when a driver is holding a license to drive “Light Motor Vehicle”, he is competent to drive a “Transport Vehicle” of that category without specific endorsement to drive the transport vehicle.   

          After scanning the pleadings of both parties & the decisions of the Hon’ble Supreme Court, with due respect to the Hon’ble Supreme Court decisions relied by counsel of complainant. The controversy, whether a driver holding a license to drive ‘LMV’ was additionally required to obtain an endorsement to drive a transport vehicle/car has now been set at rest by the Hon’ble Supreme Court in its latest decision dtd: 03-07-2017 in Civil Appeal No: 5826/2011 (Mukund Devangan V/s Oriental Insurance Co. Ltd.). Therefore looking to the above discussion, we relied a decision reported in II 2010 CPJ 9 (SC) in case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., and further in decision of the Hon’ble National Commission, reported in IV (2015) CPJ 468 (NC), it is held that, when the driver has got the license to drive the transport vehicle the mere non-production of badge will pale into insignificant, the section deals with license not with badge, for that proposition of law, we have to go to the definition in Sub-Sec. 2 (21) of the Motor Vehicle Act, which defines “Light Motor Vehicle” (LMV) as under:

         ‘Light Motor vehicle’ means, a transport vehicle or omni bus the gross vehicle weight of either of which or a motor car or a  tractor or road-roller the unladen weight of any of which does not exceed 7500 KGs’.

        Admittedly the weight of the said accident vehicle is un-laden weight of the said vehicle which is less than 7500 KGs as per insurance policy bond, it is evident that the basically light motor vehicle is a car or transport vehicle and one the RTO (Road Transport Authority) grants to drive LMV without any endorsement, it is deemed to drive a light motor vehicle and other types of vehicle come under within that definition, because its un-laden weight is less than 7500 KGs.  In our considered view in the above said definitions, and the decisions relied by the complainant, the said vehicle is come under the purview of the LMV and hence there is no violation of terms and conditions of the policy.

So, looking to the facts and circumstances of the case, in our consider view that, the complainant has complied and fulfill the terms and condition of the policy by lodging the complaint in respect of accident before the police as well as  intimated to the OP/Insurance company. Therefore, there is no any breach or violation of policy terms and condition by the complainant.

             Even though there is no badge or endorsement on the driving license as contended by the OP, the Insurer cannot be repudiate the claim of complainant in toto and the claim should be settled as per the survey report and further as per the available evidence on record, OP side surveyor conducted the survey and assessed the vehicle damages and submitted the survey report that, the vehicle loss was assessed at Rs.4,72,500/- with agreed valued IDV with deduction of Rs.1,40,000/- calculated by deduct wreck value of the vehicle is acceptable version. Therefore in our opinion that, the repudiation by the OP is not proper and justifiable, it amounts to deficiency in service on the part of the OP.  Therefore we are of the view that, by applying the above said observations of the Hon’ble Supreme Court and National Commission and following the above said guidelines, this Forum opinion is that, the insurance company cannot repudiate the claim in toto, for the reasons, the complainant has insured his vehicle with the OP insurance company by paying premium and on the date of accident the policy was in force and its ID value is Rs.6,13,086/-. However the OP assessed the loss sustained to the said vehicle by appointing the surveyor to assess the actual loss caused to the complainant’s vehicle and he assessed the loss as per the final survey report, which is marked as Ex.R-5, the liability was worked to be Rs.4,72,500/- deducting of Rs.1,40,400/-. Therefore we are of the considered opinion that, there is deficiency in service on the part of the OP in repudiating the claim in toto.  Now after careful going through the points discussed above, in our considered view that, the  insurance company is held liable to pay as per survey report of Rs.4,72,500/- along with interest @ 9 % p.a. from the date of repudiation of the insured amount,  it is just, proper and equitable  and the complainant is entitled for compensation of Rs.2,000/- towards mental agony and also Rs.2,000/- towards costs of the proceedings. Accordingly, we answer Point No.1 in the Affirmative and proceed to pass the following:

O R D E R

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed with costs.

           The OP shall pay a sum of Rs.4,72,500/- with interest @ 9 % p.a. from the date of repudiation i.e. 05.01.2018 till realization to the complainant towards damages to the vehicle.

          The OP shall pay a sum of Rs.2,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

          The OP is granted 10 weeks time for compliance of this order, failing to which the OP is liable to pay additional interest @ 2% p.a. from the date of this order till its realization. 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Forum on this 03^rd day of December, 2018).