Date of filing :27-06-2008 Date of order : 26-02-2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.106/08 Dated this, the 26th day of February 2009 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER K.V.Balakrishnan, S/o.Kuhikoran, Kevees Cottage, Pallam Udma, } Complainant Kasaragod. (Adv.K.E.Rajeevan, Hosdurg) The Manager, Unied India Insurance Company Ltd, } Opposite party. 2nd Floor, Nithyananda(LIC Office) Building, P.B.No.29, Kottachery, Kanhangad.Po. (Adv.C.Damodaran, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT In brief the case of the complainant is that he is the registered owner of the vehicle Scorpio-Turbo 2.6 DX-2WD 7 Str bearing registration No.KL14/E6161. The said vehicle is duly insured with opposite party. The said vehicle met with an accident on 29-8-07 at about 9.00 hrs at Nethravathi bvridge Ullal Village, Mangalore when the vehicle was taking to authorised workshop at Mangalore for periodical service. The vehicle was driven by the personal driver of the complainant. The vehicle sustained damages due to the accident. At the time of accident the driver alone was there in the vehicle. The vehicle was not hired for hire or reward at the time of accident. The accident was duly intimated to opposite party and the surveyor engaged by the insurer assessed the damages. The claim for the own damage along with the repair bill and other necessary documents were submitted to the opposite party. But the opposite party repudiated the claim stating that complainant’s driver has not possessed an effective and valid driving license at the time of accident. The repudiation amounts to deficiency in service. Hence the complaint is filed claiming compensation and costs. 2. Opposite party filed their version. According to opposite party the vehicle was a make of 2005 and hence the plea that it was on its route for periodical service is not true. The driver who was playing the vehicle at the relevant time of accident was not a duly authorized driver since he was not authorized to drive a transport vehicle as per the driving license issued from the licensing authority. Hence there is a flagrant violation of policy conditions and Sec.3 of the Motor Vehicles Act. Since there was no renewal of the driving license authorising him to drive a transport vehicle claim of the complainant was repudiated. According to opposite party the nature of use of the vehicle at the material time of accident is quite immaterial. Since the vehicle was a commercial transport vehicle, the endorsement by the licensing authority authorizing the driver to drive the transport vehicle is a mandatory one as per the provisions of Motor Vehicles Act. The surveyor assessed the damages and in his report he concluded that the driver who drive the vehicle at the time of accident was a paid driver. 3. Complainant filed affidavit in support of his claim. Exts A1 to A6 series marked. For the opposite party P.E. Damodaran the Branch Manager, Kanhangad branch filed affidavit and Exts B1 to B2 marked. Both sides heard and the documents perused. 4. During hearing Rajeevan, the learned counsel for the complainant emphasized much on the proviso clause envisaged U/s 3 of the Motor Vehicle Act. According to him no authorization to drive the transport vehicle is required in the license if the transport vehicle is in one’s own use. According to him the vehicle was not plying for hire at the time of accident as it was going for it’s periodical maintenance. 5. But the learned counsel for opposite party C. Damodaran contended that the ‘own use’ mentioned in Sec.3 of the Motor Vehicle Act means hired for own use as envisaged in the rent a cab scheme provided U/s 75 (2) of the Motor Vehicles Act and not the use of transport vehicle by the owner of the vehicle for his own purpose. He invited our attention to Ext.B1 copy of the policy that would show that it is condition that driver should have an effective driving license. According to him that includes the authorisation to drive a transport vehicle in case of transport vehicles. 6. Indisputably the vehicle involved in the accident is a commercial transport vehicle. The contention of the counsel for the complainant that at the time of accident the vehicle was driven for own use. We find that the above contention cannot be accepted. The vehicle being a commercial cone it is mandatory that the driver should have a badge even if it is used for own use. Effective driving license so far as the commercial purpose is concerned envisages driving license with badge. Hence evidently there is violation of policy condition. The terms of contract of insurance is binding on both parties. The statute envisages that the driver of the commercial vehicle should have the badge. 7. The learned counsel for complainant invited our attention to the judgment reported in CDJ 2008 Kar HC 427 in support of his claim. In which the Hon’ble High Court of Karnataka has held that the Hon’ble Supreme Court has not taken a different view in so far as the question as to whether a person holding a light motor vehicle being enabled to drive a transport vehicle was well, since the definition of light motor vehicle would indicate that it takes within its umbrage both a transport vehicle and a non-transport vehicle. 8. The dictum laid down in this decision is not acceptable in view of the decision of the Hon’ble Suprement Court in the case of New India Assurance Co.Ltd v. Prabhulal reported in I (2008)CPJ 1(SC). In the said decision the Hon’ble Supreme Court while deciding three appeals in which the common question of law has been raised regarding the validity of the driving licenses (including that of light motor vehicles) in the matter of own damage claims has unequivocally held that in the absence of specific endorsement as envisaged U/s 3 of the Motor Vehicle Act, the insurance companies are not liable to honour the claim for damages. 8. In the light of the above discussion we find that there is no deficiency in service on the part of the opposite party in repudiating the claim of the complainant and the complaint is therefore dismissed with no order as to costs. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Photocopy of driving license A2.1-9-07 Motor Survey Report A3.15-01-08 letter sent by OP to complainant. A4. 16-02-08 copy of lawyer notice. A5. Postal acknowledgement A6. series (11 Nos ) cash bills. B1. Certified true copy of the Policy B2. 14-11-07 Private and Confidential Motor Final Survey Report ( K.Kunhiraman) Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
