Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking Rs.42,850/- towards repair charges of motor bike AP07TA8788 and Rs.50,000/- as damages and Rs.7150/- as costs. 

2.    In brief the averments of the complaint are these:

        The complainant is wife of one Garapati Bikshalu owner of the motor bike AP07AT 8788.  During his lifetime the said Bikshalu obtained insurance policy from the opposite party for the said vehicle with the cover note bearing No.BZ0802049423.  The said policy was valid from 08-06-09 to 07-06-10.   On 23-09-09 at about 11.30 pm the said Bikshalu and one Palakayala Kaleswara Rao were proceeding from Mangalagiri to Koppulakonda on the said vehicle.  Near Pardhasaradhi stone crusher, Sattenapalli, Guntur district the lorry bearing No.AP7 2529 coming in the opposite direction hit the said motor bike.  Due to the collision the said Bikshalu and Kaleswara Rao died on the spot.   The said vehicle was also damaged in the said collision.   The complainant after demise of her husband got the said motor bike repaired by spending Rs.40,000/-.   The complainant being legal heir of the said Bikshalu approached the opposite party several times requested for payment orally for payment of amount covered by the policy.   The complainant on 01-04-10 got issued a registered notice to the opposite party through her counsel who in turn gave reply with false allegations.   Due to the above attitude and behaviour of the opposite party the complainant suffered a lot mentally and financially and they constituted deficiency of service.   The complaint therefore be allowed.   

3.  The contention of the opposite party in nutshell is hereunder:

The complainant is not a consumer and there is no consumer dispute as envisaged under the Consumer Protection Act.   This Forum therefore has no jurisdiction to entertain the complaint.   The opposite party issued the policy bearing No.OG-10-1802-1802-00009171 to one Garlapati Bikshalu in respect of Hero Honda motor cycle bearing No.AP07AT 8788.  The said policy was valid from 08-06-09 to 07-06-10 subject to the terms, conditions, exceptions and limitations mentioned therein.   The complainant has not intimated the occurrence of the accident and damage to the vehicle immediately.   The opposite party came to know about the alleged accident after receiving the legal notice dated 01-04-10.   As per the terms and conditions of the policy any vehicle must be driven by a person holding a valid and subsisting driving license as laid under the M.V. Act.  Any person holding an effective learner’s license may also drive vehicle subject to satisfying the requirements of Rule 3 of Central Motor Vehicle Rules, 1989.                   At the time of accident the said Bikshalu was holding only LLR and thus violated Rule 3 of Central Motor Vehicle Rules, 1989.  Therefore, the opposite party is not liable to pay any compensation or damage for the said vehicle.   The opposite party repudiated complainant’s claim and informed the same on 19-04-10.   The opposite party repudiating complainant’s claim is in accordance with established principles of law and is justifiable.   The opposite party did not commit any deficiency of service.   The complaint therefore be dismissed.

4.  Exs.A-1 to A-13 on behalf of the complainant and Exs.B-1 to B-8 on behalf of opposite party were marked.

5.  Now the points that arose for consideration in this complaint are :

1. Whether the complainant is a consumer?
2. Whether there is a triable consumer dispute?
3. Whether the repudiation of claim by opposite party is just and reasonable?
4. Whether the complainant is entitled to compensation?
5. To what relief?

6.   Admitted facts in this case are these:

          a.    One Garlapati Bikshalu was owner of the motor bike bearing

                No.AP07AT 8788 (Ex.A-12).

        b. The opposite party issued the policy bearing No.OG-10-1802-                1802-00009171 in favour of the said Bikshalu (Ex.A-1 and B-1).

        c.  The said Bikshalu died on 23-09-09 due to hit by the lorry                    bearing No. AP07T  2529 (Ex.A-2, A-6 to A-10).

        d. The said Bikshalu was having learner’s license only and it was                       valid from 13-07-09 to 12-01-10 (Ex.A-11=B-5).

        e. Exchange of notices between the complainant and the                          opposite party

                (Exs.A-3 to A-5).

7.   POINTS 1&2:    The opposite party issued Ex.B-1 policy in favour of Garlapati Bikshalu covering the period from 08-06-09 to 07-06-10 and it was supported by consideration. The complainant is questioning the justification of repudiation made by the opposite party.   The complainant being a legal heir of the insured comes under the purview of a consumer and she raised a triable consumer dispute.   We therefore opine that this Forum has jurisdiction to entertain the complaint and answer these points in favour of the complainant.        

8.   POINTS 3&4:-    The accident took place on 23-09-09 and Garlapati Bikshalu was driving the motor bike AP07AT 8788 at the time of accident as seen from Ex.A-5 FIR.   The said Bikshalu was having a learner’s license only at the time of accident as seen from Ex.A-11(=B5).   It is also not the case of the complainant that her husband (insured) was having driving license at the time of accident. 

        In Ex.B-1 policy the following was mentioned at the column driver:

       “Any person including the insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license.   Provided also that the person holding an effective Learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989”.  

9.     The same was incorporated as warning in Ex.A-11 license issued to the complainant by the concerned authority and it was subject to Rule 3 of Central Motor Vehicle Rules, 1989.   The relevant portion in Rule 3 of Central Motor Vehicle Rules, 1989 is extracted below:

        General.—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         License 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 or the vehicle or on a plate or card affixed to the front and the rear, the letter "L" in red on a white background”.

10.     The complaint as well as her affidavit   was silent whether the said Bikshalu was driving the ill-fated vehicle accompanied or not by a qualified driver.  Driving license has been defined in Section 2(10) of the Motor Vehicles Act, 1988 to mean license issued by a competent authority under chapter-II authorizing the person specified therein to drive otherwise than as a learner, a motor vehicle a motor vehicle of any specified class or description.   Attention of the holder of learners license is drawn to Rule 3 of Central Motor Vehicle Rules 1989 which prohibits from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and in every case the vehicle carries ‘L’ plates both in the front and in the rear of the vehicle.  In the absence of driving license and material particulars of the insured/deceased we have to presume that the said Bikshalu had learner’s license only at the time of accident.  We therefore opine that the deceased violated terms and conditions of the policy issued to him by the opposite party.  

11.   In Bajaj Allianz General Insurance Company Limited vs. Chattersingh Thakur  2012 (4) CPR 67 (HP) the Himachal Pradesh State Consumer Disputes Redressal Commission had followed the decisions rendered in Amalendu Sahoo vs. Oriental Insurance Company Limited II (2010) CPJ 9 (SC) and the decision of National Consumer Disputes Redressal Commission in New India Assurance Company Limited vs. Meera Banolta RP.No.4055 of 2011 dated 14-04-11 and held that the breach is with regard to person authorized to drive the vehicle and the said breach is not only breach of the condition of the policy but is also a breach of law rendering the person liable to punishment with imprisonment or fine or both as per  section 181 of the Motor Vehicles Act, 1989 and dismissed the complaint.  In this case also the insured/deceased was not having valid driving license at the time of accident and not only violated the breach of conditions and but also a rule of law. 

12.   It is not the case of the complainant that she informed about the accident to the opposite party except alleging about her oral claim with the opposite party.  Ex.A-3 notice was silent regarding the complainant intimating the accident to the opposite party.   By not intimating it the complainant denied the opposite party the opportunity of examining the damaged vehicle and assessing the damage.   Therefore the contention of the opposite party about the complainant denying it the opportunity by not informing the accident for assessing damage is having considerable force.  We therefore opine that repudiation of complainant’s claim by the opposite party is justifiable.   Under those circumstances the complainant is not entitled to any compensation in our considered opinion, as the opposite party did not commit any deficiency of service.  We therefore answer these points against the complainant.

13.   POINT No.5:-  In view of findings on points 3 and 4, in the result the complaint is dismissed without costs.             

          Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 10^th day of December, 2012.

         Sd/-XXX                                                            Sd/-XXX                       MEMBER                                                            PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant  :

For Opposite Party  :

                                                                                                Sd/-XXX

                                                                                                PRESIDENT