COMPLAINT FILED ON: 30.03.2010

       DISPOSED ON:08.03. 2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

8^th DAY OF MARCH 2012

  PRESENT :-     SRI. B.S. REDDY                 PRESIDENT

                        SRI.A.MUNIYAPPA                  MEMBER              

COMPLAINT NO.713/2010

O R D E R

SRI. B.S.REDDY, PRESIDENT

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to pay compensation amount of Rs.2,00,000/- with interest at 18% p.a. and cost of litigation on the allegations of deficiency in service on the part of OP.

The case of the complainant to be stated in brief is that:-

2. The complainant is the mother of the deceased Pandiyan @ Pakkirisamy. During his life time, the complainant’s son Pandiyan taken policy from OP bearing policy No.071602/31/08/01/ 00007626 valid from 07.08.2008 to mid night 06.08.2009.  The son of the complainant had obtained learning licence from RTO office.  On 24.06.2009 at about 20.30 hours when the son of the complainant was riding two wheeler Hero Honda bearing Reg. No. KA-02-EW-5510 with the pillion rider Tyagaraj and was proceeding to Bangalore from Pondichery near at Chikkari Medu Bus stop NH-7. A.K. Rajamnickam without observing the traffic rules and regulation suddenly wanted to cross the road, the vehicle of the complainant’s son dashed against that Rajamnickam and the son of the complainant fell from the vehicle on the road divider and sustained bleeding injuries, when taken to the hospital he died. Tamilnadu Police had falsely registered the case against the deceased. The complainant made requisition to the OP to pay compensation and however the OP failed to pay the same.  OP being the insurer cannot deny the legal rights of the complainant.  OP is liable to pay compensation amount of Rs.2 lakhs. Under these circumstances the complainant was compelled to approach this Forum seeking the reliefs stated above.

3. On appearance, OP filed version admitting that the son of the complainant insured the Hero Honda vehicle bearing No.KA-02-EW-5510 the liability of the OP’s terms and conditions. The policy also covers the risk of personal accident risk to the owner cum rider of the motor cycle in a sum of Rs.1,00,000/.  The complainant was requested to submit the claim form and all other relevant documents.  The complainant submitted some all the documents and on verification its notice that the rider of the motor cycle drive the same without having valid effective driving licence. Which is contraversion of the policy conditions and follows of section 3 of the central motor rules. Hence OP is liable to any compensation. The rider cum owner of the motor cycle had only learner licence to drive motor cycle, he was not taking permanent/valid and effective driving licence to drive the motor cycle. As per Rule-3 of the Central Motor Vehicle Rules, the learners licence holder should be accompanied with a instructor who is having a valid and effective driving licence to drive motor cycle with gear in a public place but in this case no such instructor was present on the pillion as on the date of accident as per the police documents. Further as per Rule-3 of the Central Motor Vehicle Act, the vehicle should be put on ‘L’ plat board in front and rear side, but in the case on hand, no such ‘L’ plate board was present at the time of accident and hence it is clear that the rider/owner of motor cycle has violated the Rule-3 of the Central motor Vehicles Rules and terms and conditions of the policy, hence OP is not liable to pay any compensation and the complaint is liable to be dismissed.

4.In order to substantiate the complaint averments, complainant filed affidavit evidence and produced copies of the documents. Administration Officer of OP filed affidavit evidence in support defence version.

5. Arguments on both sides heard.

6. Points that arise for our consideration are:-

Point No. 1 :- Whether the complainant has      Proved the deficiency in service on the part of the OP?

   Point No. 2 :- If so, whether the complainant is

          entitled for the relief’s now claimed?

      Point No. 3 :- To what Order?

7.         We record our findings on the above points are:-

     Point No.1:- Negative

            Point No.2:- Negative

            Point No.3:- As per final Order.

R E A S O N S

8. The complainant being the matter of the deceased S.Pandiyan claims compensation of Rs.2,00,000/- in respect of the policy taken by her son which was valid from07.08.2008 to 06.08.2009 in respect of his motor cycle bearing registration No.KA.02-EW-5510. The OP has produced the copy of the policy issued. The terms of the policy provides that any person including insured entitled to drive the vehicle provided that a person driving holds an effective driving licence at the time of accident and he is not disqualified from holding or obtaining such a licence provided also that the person holding an effective learners licence may also drive the vehicle and such person satisfies the requirements of Rule-3 of Central Motor Vehicle Rule-1989. The maximum liability under the policy is Rs.1,00,000/-.

          The deceased Pandiyan was holding only a learners licence as such OP repudiated the claim as Pandiyan has not complied Rule-3 of Central Motor Vehicle Rules while riding the motor cycle. The FIR translated copy produced by the complainant reveals that at the time of accident there was no any pillion rider of the motor cycle but in this complaint it is stated that one Tyagaraj was pillion rider who was having a valid driving licence. On the basis of the same, the learned counsel for the complainant contended that Rule-3 of the Central Motor Vehicle Rules is complied as there was a pillion rider holding valid driving licence.

        It may be noted tat the copy of FIR in Crime No.247/2009 registered by Tamilnadu Police in respect of the accident in question on the basis of complaint stated to have been filed by one Jayavelu on 25.06.2009 is silent regarding the presence of the pillion rider on the motor cycle at the time of accident. We are unable to accept that Tyagaraj V was pillion rider at the time of accident. In case if he was pillion rider he would have been the first person to file the complaint about the accident and his name could have been found in the FIR as a pillion rider.

        Rule-3 of the Central Motor Vehicle Rules provides that the provisions of Sub-Section-1 of Section-3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as,-

a)    such person is the holder of an effective learner’s licence issued to him in Form 3 to drive the vehicle;

b)   such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and

c)    there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter “L” in red on a white background as under-

Note:-The painting on the vehicle or on the plate or card shall not be less than 18 centimeters square and the letter “L” shall not be less than 10 centimeters high, 2 centimeters thick and 9 centimeters wide at the bottom:

Provided that a person while receiving instructions or gaining experience in driving a motor-cycle (with or without a side-car attached) shall not carry any other person on the motor-cycle except for the purpose and in the manner referred to in clause (b).

        Even assuming that Tyagaraj V was the pillion rider at the time of accident, he cannot be considered to be an instructor sitting in such a position to control or stop the vehicle as provided under Rule-3(b) and there was no any “L” board to the vehicle as provided under Rule-3(c) of the central motor vehicle rules. Therefore, we are of the view that the deceased while holding learner licence to drive motor cycle had not complied rule-3 of the Central Motor Vehicle Rules as such it cannot be said that he was holding an effective driving licence at the time of accident, to make the OP liable for the insured amount of Rs.1,00,000/-.

9. The learned counsel for the complainant relied on 2009 ACJ 433 Ram Sukh and others V/s Gyan Chand and others , 2009 ACJ 1184 Anaal Automobiles V/s Ashish Kumar Shukla and others, ILR 1999 KAR 2101, the Oriental Insurance Company Va/s Mohammed Sab Ali Sab Kaladagi & others and 2004 ACJ 2042 National Insurance Co. Ltd. V/s Ajij Ul-Haq and another, in support of the contention that learners licence is valide licence and insurance company is liable for the insured amount. We have gone through the facts of all the cases and all these cases relates to 3^rd party risk and not in respect of own damage case. We are not disputing the fact that in case of a 3^rd party risk irrespective of person not holding a driving licence at the time of causing accident the insurance company is liable to pay the comepsnation to the injured and claim the same from the RC owner of the vehicle. In case of own damge case the principles laid down in the above rulings cannot be made applicable. In view of the admitted facts that the deceased Pandiyan the son of the complainant had a learners licence and had neither the ‘L’ board on the motor cycle nor was accompanied by a duly licenced trainer, there was a clear breach of Rule-3 of the Rules-1989. Therefore, OP was justified in repudiating the claim. The complainant failed to prove deficiency in service on the part of the OP. The complaint is devoid of merits, the same is liable to be dismissed. Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 08^th day of March 2012.)

MEMBER                                            PRESIDENT

Cs.