BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt.C.Preethi, Hon’ble Lady Member
Wednesday the 30th day of August, 2006
CC.No. 31/2006
G. Vijaya Kumar, S/o G. Jeevaratnam,
H.No. 63/112, Shareen Nagar, Kurnool.
. . . Complainant
Versus
1) The New India Assurance Co., Ltd., Re-presented by its Divisional Manager,
East Coast Chambers, 1st Floor, 92,G.N. Chetty Road, Chennai - 600 017.
2) The New India Assurance Co., Ltd., Re-presented by its Divisional Manager,
HDCT Complex, Kurnool.
. . . Opposite parties
This complaint coming on this day for Orders in the presence of Sri N.Venkataramana Prasad, Advocate, Kurnool for complainant and Sri Mohammed Ishaq, Advocate, Kurnool for opposite parties No. 2, and Opposite party No.1 called absent set ex-parte, and stood over for consideration till this day, the Forum made the following:-
O r d e r
(As per Smt.C.Preethi, Hon’ble member)
C.C.No.31/2006
1.This Consumer Complaint of the Complainant is filed U/s 12 of C.P. Act, 1986, seeking a direction on the Opposite Parties to pay the Complainant Rs 1,11,411/-, with 12% interest per annum, Rs 25,000/- as compensation for mental agony, Rs 5,000/- as costs and any other relief or reliefs which the Complainant is entitled in the circumstances of the case.
2.The brief facts of the Complainant’s case is that the Complainant has take a Policy for his car bearing No. AP-21 V 7517 from Opposite Parties by paying Rs 11,082/- and Opposite Parties issued policy bearing No. 710500/31/03/30642 and the policy commenced from 30-12-2003 to 29-12-2004. On 14-08-2004 the Complainant car met with accident and the car was badly damaged and car was registered against the Complainant in Cr.No. 124/04 dated 15-08-2004. The Opposite Parties conducted spot survey and the Complainant submitted estimation for Rs 1,48,004/- along with relevant documents for settlement of claim. On 05-08-2005 the Complainant received a letter from Opposite Party informing that they are not entertaining the claim of the Complainant. Lastly the Complainant submit that the repudiation of claim by Opposite Party is with any valid reasons and the Complainant is entitled to receive the claimed amount from the Opposite Parties.
3.The Complainant in substantiation of his case relied on the following documents (1) Sales invoice dated 15-02-2005 bearing No. 4767, besides to the Sworn Affidavit of the Complainant in reiteration of his complaint averments and the above documents is marked as Ex.A1 for its appreciation in this case. The Complainant caused interrogatories to the Opposite Party and suitablely replied to the interrogatories caused by the Opposite Party.
4.In pursuance to the notice of this Forum as to this case of the Complainant the Opposite Party No.1 were set exparte and Opposite Party No.2 appeared through their standing counsel and contested the case by filling denial written arguments.
5.The written arguments of Opposite Party admits the Complainant has taken a policy for his vehicle bearing No. AP21 V – 7517 as private, car V1 policy bearing No. 710500/31/30642 and got his vehicle registered as passenger company commercial vehicle, a transport vehicle without information the Opposite Party the Complainant paid additional premium requirement. It further submit that the Complainant was the owner cum driver of the said vehicle at the time of accident and was not holding effective Driving License to drive the same. The vehicle was registered as transport vehicle and the effective Driving License required to drive the same in LMV-Transport with PSV Badge, where as the Complainant was possessing Driving License LMV-Non Transport vehicle only. Thus the Complainant owner cum driver knowingly and deliberately drove the vehicle even though he was not holding effective Driving License inviolation of policy terms and conditions and Motor Vehicle Act and Motor Vehicle Rules. Thus the things no deficiency of service on part of Opposite Party and if at all the Complainant is entitled to only Rs 86,000/- assessed by insurance surveyor and lastly seeks for the dismissal of complaint with costs.
6.The Opposite Party in support of their case relied on the following documents viz (1) Attested Xerox copy of policy issued to the Complainant (2) Attested Xerox copy of Driving License of the Complainant (3) A X C of Tourist Permit dated 22-01-2004 (4) A X C of permit of the vehicle (5) A X C of Registration Certificate (6) Motor Survey Report of K. Srinivas, dated 03-09-2004 (7) Motor Survey Report (Final) of E. Mukund dated 09-02-2005 (8) Reinspection by E. Mukund (9) Motor own damage claim from complaint (10) Repudiation letter dated 07-04-2005, besides to the sworn affidavit of the Complainant in reiteration of his complaint avesnment and the above documents are marked as Ex. B1 to B10 fits appreciation in this case the Opposite Party caused interrogatories to the it and sutablely replied to the interrogatories caused by the Complainant.
7.Hence, the point for consideration is to what relief the Complainant is entitled alleging deficiency of service on Opposite Party ?:
8.The Ex.B10 is the repudiation letter dated 07-04-2005 addressed to the Complainant by Opposite Party. It repudiates the claim of the Complainant firstly on the ground that the vehicle has been insured as a private car where as it is a commercial vehicle as per the Registration Certificate Book and secondly the driver at the time of accident does not hold valid Driving License to driver the captioned vehicle.
9.The first contention of Opposite Parties is that the vehicle of the Complainant is a commercial vehicle and the policy issued was for private vehicle, where as on the other side the Complainant alleges that hand collected additional premium for covering him commercial vehicle and the Opposite Party in their written version in para 3 admits the Complainant paid additional premium required. But the policy issued to the Complainant was for private car. Policy B Package (Ex.B1). From the above admission of Opposite Party what appears is that the Opposite Party collected the required additional premium for covering the commercial vehicle of the it but issued private car policy vide Ex.B1, it is only a mistake on part of Opposite Party for issuing wrong policy and the Complainant has nothing to do with it. Hence, the said contention of Opposite Party is rejected.
10.The second contention of Opposite Party is that the drivers at the time of accident is not holding valid Driving License to drive the captioned vehicle, but one thing is clear that the driver was having a license to drive a light motor vehicle and it is not the case of the Opposite Party that the driver is not having any license at all. The Supreme Court held in AIR 1996 Supreme Court Page 2054, that it more number of passengers were carried than the number permitted in letter of insurance policy, it is only an irregularity and not a fundamental breach so as to afford to the insurer to eschew liability altogether. Therefore unless the breach is fundamental but only irregularity it cannot be resisted by insurance company. In another case the Tanil Nadu State Consumer Disputes Redressal Commission, Chennaiwhere the driver had only licence to drive Light Motor Vehicle but found the driving the vehicle as taxi for him lively hood without having necessary badge to drive tourist vehicle, it was herd that failure to have badge is only an irregularity and cannot be resisted by the insurance company. Thus, in this present case the driver had an effective Driving Licence but without necessary badge, further he was not disqualified from holding or obtaining such a licence. It at all what was required was not a separate or special licence but a badge and may b e an endorsement. Merely, the failure on part of the driver to have a badge or an endorsement cannot absolve the insurance company of their liability with the above position of law the citation relied by the Opposite Party reported in 2006(2) APLJ page 22 Supreme Court has little relevancy for its appreciation in this case.
11.Now coming to the question of damages the Complainant claimed a sum of Rs 1,11,411/- which was spent for repair of the his vehicle, but the Complainant failed to produce any bill or any other cogent material for granting the said claim amount. As against to it the Opposite Party in their written version in para 6 admits that a survey was carried out and the final surveyor E. Mukund submitted his report on 09-02-2005 and assessed the net loss to Rs 86,000/- only. Therefore in the absence of any evidence placed by the Complainant, the final survey report and assessment E. Mukund is accepted.
12.Hence, there is deficiency of service on part of Opposite Party and the Opposite Party is liable to pay a sum of Rs 86,000/- to the Complainant with 12% interest and costs.
13.In the result the complaint is allowed directly the Opposite Parties to pay to the Complainant a sum of Rs 86,000/- with 12% interest per annum for the date of Complaint i.e., 17-03-2006 along with Rs 2,000/- as costs within a month of receipt of this order. In default the Opposite Parties shall pay the supra awarded amount with 18% interest per annum from the date of default till realization.
Dictated to the stenographer, transcribed by her corrected and pronounced by us in the Open Forum this the 30th day of August, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of Exhibits marked for the complainant:-
Ex. A.1 Sales invoice dated 15-02-2005 bearing No.4767.
List of Exhibits marked for the opposite parties:-
Ex.B.1 Attested Xerox copy of policy issued to the Complainant.
Ex.B.2 Attested Xerox copy of Driving License of the Complainant
Ex.B3 Attested Xerox copy of tourist permit dated 22/01/2004
Ex.B4 Attested Xerox copy of permit of the vehicle
Ex.B5 Attested Xerox copy of Registration certificate.
Ex.B6 Motors survey report of K.Srinivas dated 03/09/2004
Ex.B7 Motors survey report (Final) E. Mukund dated 03/09/2005
Ex.B8 Reinspection by E. Mukund
Ex.B9 Motor own damage claim form
Ex.B10 Repudiation letter dated 07/04/2005
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri V.Venkataramana Prasad, Advocate, Kurnool.
2. Sri Mohammed Ishaq, Advocate, Kurnool.
- The Divisional Manager New India Assurance company Limited, East Ckost Chambers 1st Floor, 92, G.N Chetty Road, Chennai-600017
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
