order dated 27/02/2009<br /> <br /> O R D E R<br /> <br /> M.R. DEVAPPA, PRESIDENT<br /> <br /> Briefly stated the case of the complainant is as follows;<br /> <br /> 1. That the complainant being the registered owner of a Chevrolet Tavera vehicle bearing registration No.KA 12 A 0297 insured the vehicle with the opposite party insurance company under a comprehensive insurance coverage which was valid from 14-1-2008 to 13-01-2009.<br /> <br /> 2. That on 29-08-2008 near Srirangapatna the vehicle coming behind the said vehicle hit against the vehicle belonging to the complainant, due to which the rear end of the vehicle was severely damaged. Thereafter the complainant lodged a claim with the opposite party in proper form enclosing all the documents such as R.C. Books, Drivers License etc. On receipt of the claim petition the opposite party deputed his surveyor who inspected the vehicle on 29-8-2008 and on 4-9-2008. <br /> <br /> 3. That the complainant sought the work order from the opposite party to get the vehicle repaired when work order was give the complainant again requested the opposite party to give the work order immediately as she would have lost a thousand rupees every day, because the said vehicle was being used as taxi for the livelihood of the complainant. Since the complainant did not receive any work order on intimation to the opposite party that she commenced the repair work and got the vehicle repaired and submitted all bills and vouchers to the opposite party through her letter dated 23-9-2008. The complainant incurred expenditure towards repairs to the extent of Rs.35,806/-.<br /> <br /> 4. That the opposite party as such is liable to indemnify the said amount spent by the complainant towards repair charges. But the opposite party failed to settle the claim of the complainant and therefore the complainant got issued notice to the opposite party on 3-10-2008 calling upon to settle the claim of the complainant, but till the date of this complaint the opposite party did not settle the claim which made the complainant to approach the Forum praying for the following relief;<br /> <br /> a) To hold that the respondent is deficient in service.<br /> b) To order the respondent to pay a sum of Rs.35,806/- and the interest on the same at the rate 12% till the amount is realized to the complainant and grant such other reliefs. <br /> <br /> 5. The complainant has enclosed the following documents with the complaint.<br /> <br /> 1. Copy of the Insurance<br /> 2. Xerox copy of the R.C. Book<br /> 3. Xerox copy of the permit<br /> 4. Xerox copy of the Form No.47<br /> 5. Letter dated 9-9-2008<br /> 6. Letter dated 15-9-2008<br /> 7. Letter dated 23-9-2008<br /> 8. Receipt dated 17-7-2009<br /> 9. Receipt<br /> 10. Office copy of the legal notice dated 3-10-2008<br /> 11. Postal receipt and acknowledgement<br /> 12. Letter dated 13-10-2008<br /> <br /> 6. Having admitted the complaint, version notice was sent to the opposite party and later the opposite party appeared through his counsel and filed his version and also the affidavit in lieu of evidence through which he has taken following contentions;<br /> <br /> 1. That it is true that the vehicle bearing registration No. KA 12 A 0297 belonging to the complainant was insured with the opposite party and the liability is in accordance with the terms and conditions and limitation of the policy and if the insured is found to have violated any of the terms and conditions and limitation of the policy the opposite party is liable to indemnify the insured in respect of any loss or liability.<br /> <br /> 2. That the opposite party after receiving the claim form deputed a competent surveyor for spot inspection to survey and assess the loss. Accordingly the surveyor assessed the loss at Rs.17,371/-.<br /> <br /> 3. That the opposite party on perusal of the papers submitted by the complainant noticed that the driver at the time of the alleged accident did not posses valid and effective driving license. That there was no LMV (T) endorsement on the driving license of the driver K.T. Manjunath and he also did not possess PSV metal badge to drive the vehicle as paid driver, as such the driver was not entitled to drive the transport vehicle without badge which amounts to violation of the provisions of the Motor Vehicles Act and the terms of the policy issued. <br /> <br /> 4. That the liability of the opposite party is subject to the terms and conditions of the policy and the provisions of the Motor Vehicles Act 1988. <br /> <br /> 5. That the opposite party wrote a letter dated 16-9-2008 to the complainant asking for clarification and to submit the original vehicle documents for verification and return but the complainant has not responded to the said letter and there after the opposite party sent a letter dated 13-10-2008 through RPAD to the complainant calling upon her to produce the license of the driver at the time of the alleged accident which is valid and effective to drive the vehicle in question. But the complainant has not complied the same and as such the opposite party could not settle the claim and therefore, the claim of the complainant has been pending but in the mean while the complainant has approached the Forum for an appropriate direction to the opposite party.<br /> <br /> 6. That without LMV (T endorsement) in the driving license of the driver K. T. Manjunath and in the absence of metal badge to drive the vehicle, the opposite party could not take any decision, therefore there is no deficiency in service by the opposite party.<br /> <br /> 7. That the opposite party is not liable to pay the amount claimed in the complaint or any amount, as the driver at the time of the alleged accident did not possess valid and effective driving license and therefore the opposite party pray for dismissal of the complaint.<br /> <br /> 7. Having regard to the pleadings of the respective parties the following issues arise for determination;<br /> <br /> 1. Whether the opposite party has committed deficiency in service on his part ?<br /> <br /> 2. To what order ?<br /> <br /> R E A S O N S<br /> <br /> 8. It is revealed from the records that the Surveyor appointed by the opposite party has assessed the loss at Rs.17,371/- but the main contention of the opposite party is that the driver of the vehicle Sri.K.T. Manjunath did not possess the licence with an endorsement that he is entitled to drive LMV transport vehicle and he also did not possess PSV metal badge to drive the vehicle as paid driver as such driver was not entitled to drive the transport vehicle without badge which amounts to violations of the provisions of Motor Vehicle Act and the terms of the policy issued, hence the complainant is not entitled for any amount. <br /> <br /> 9. It is also contended by the learned advocate for the opposite party that there is no deficiency in service on the part of the insurance company for the reasons stated in the previous paragraph. <br /> <br /> 10. As against the above contention, the learned advocate for the complainant submitted that the driver K.T. Manjunath had LMV licence as such he could drive the LMV transport vehicle and of course that he was not having the PSV metal badge but that itself is not sufficient to absolve the liability of the opposite party and he has relied the order passed by this Forum wherein this Forum had an occasion to refer the judgement of the Hon’ble Tamilnadu State Commission which has referred the judgement rendered by the Hon’ble Supreme Court which has been reported in AIR 1996 Supreme Court page 2050.<br /> <br /> 11. It is relevant to refer the judgement rendered by Hon’ble Supreme Court in the above case wherein it is observed that carrying more number of passengers than the permissible one amounts to irregularity and not a fundamental breach so as to afford to the insurer to eschew liability all together. It is pertinent to note that the driver in this case had a driving license and he was not disqualified from holding or obtaining such a license. Merely the failure to have a badge cannot absolve the insurance company of their liability. <br /> <br /> 12. In the instant case the vehicle from behind came and dashed against the vehicle driven by the driver of the vehicle and the driver of the vehicle cannot be held responsible for the accident. But however the fact remain that the driver of the vehicle in question was driving the vehicle without there being an endorsement by the transport authority that he is eligible to drive the transport vehicle and therefore there is lapse on the part of the driver of the vehicle in question belonging to the complainant and therefore there is no impediment what so ever to settle the claim of the complainant as non standard claim and therefore basing on the report of the surveyor appointed by the opposite party who has assessed the loss at Rs.17,371/- can be considered to be the basis for settling the claim of the complainant. <br /> <br /> 13. The learned advocate for the opposite party has relied on the following judgments reported in various journals and took pains to take us to several jugements and the observation made by the learned authorities. In some of the judgements the driver was possessing light motor vehicle was driving heavy motor vehicle (transport vehicle) and therefore the claim of the policy holder was repudiated but those judgement are not applicable to the facts and circumstances of this case. Moreover in those cases the driver was held responsible for the accident but in the instant case for no fault of the driver the accident has taken place the vehicle coming from behind has hit the vehicle driven by the driver of the complainant and therefore the case was relied by the learned advocate for O.P has no application to the facts and circumstances of this case. Therefore, we have chosen to settle the claim of the complainant as non standard claim. The opposite party for having not settled the claim either way has unnecessarily driven the complainant to Forum to seek his grievances redressed though the opposite party is liable to settle the claim as observed by the Hon’ble Supreme Court which we have relied in a case decided by us in complaint No.10/2007. In which case we have followed the dictum of the Hon’ble Supreme Court in a case reported in AIR 1996 Supreme Court page 2054 which has also been referred by the Tamilnadu State Consumer Dispute Redressal Commission. <br /> <br /> 14. It is relevant to observe here that the entire claim of the complainant cannot be allowed. But in view of the fact that there is some violation which do not go to the very root of the claim we proceed to direct the opposite party to settle the claim on non standard basis holding that the opposite party has committed deficiency in service. The decision reported I 2003 206 (N.C) is reproduced here under which supports our view. <br /> <br /> “ The decision reported I 2003 CPJ 206 (NC) – Insurance ‘Non standard claim’, vehicle stolen/ looted by miscreants – claim repudiated as vehicle registered as private car but used as taxi violating policy- Claim allowed by State Commission – O.P directed to settle the claim as non standard claim. It is further observed by the National Commission as follows;<br /> <br /> We have seen the material on record and find that the State Commission has taken pains to explain the reasons as to why they arrived at the conclusion that the car was being used as a taxi. We find it somewhat difficult to accept that when you provide a car for test drive, one does not fill the full tank with fuel. Car wassent to the Hotel. In our view, keeping in view the totality of circumstances, the State Commission was quite correct in arriving at the conclusion it did, and directing the respondent to settle the claim on ‘non-standard basis’ on a value assessed by the Surveyor.<br /> <br /> In another decision reported I (2003) CPJ 92 (NC) the Hon’ble National Commission has observed and held that no nexus found between the violation of policy and accident and therefore, the policy should have been settled on the basis of non standard claim. The Hon’ble State Commission has relied on the decision reported in AIR 1966 SC 644 and followed the dictum of the Supreme Court.<br /> <br /> 15. For the foregoing reasons we answer point no.1 positively and proceed to pass the following order.<br /> <br /> O R D E R<br /> <br /> The complaint is partly allowed. The opposite party is hereby directed to settle the claim as non standard one and pay Rs.17,371/- as assessed by the Surveyor and 10% interest thereon from the day on which the claim of the complainant is repudiated and Rs.500/- as compensation for complainant being put to mental agony and further O.P is directed to pay Rs.1,000/- towards the cost of this proceedings to the complainant. <br /> <br /> The above order shall be complied by the opposite party within sixty days from the date of receipt of the order.<br /> <br /> <br /> Communicate the order to the parties. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 27th day of February 2009.<br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />