Date of Filing:23.11.2009<br /> Date of Order: 04.06.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 4TH DAY OF JUNE 2010<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2735 OF 2009 <br /> <br /> <br /> Mr. G.K. Keshava Murthy,<br /> S/o G.S. Krishnamurthy,<br /> No.3, Susheela Road,<br /> Upparahalli,<br /> Bangalore . Complainant<br /> <br /> V/S<br /> <br /> The New India Assurance Co., Ltd.,<br /> Divisional Office VII, 5th Floor,<br /> D.J.C. Building, Vokkaligara Bhavana,<br /> Hudson Circle, <br /> Bangalore-27. Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The brief facts of the case are as under, the complainant is the owner of the vehicle TATA Indicab. The vehicle met with an accident on 12-8-2007 at 9.00 A.M. The complainant shifted the vehicle to the garage. The vehicle was damaged totally. The complainant approached the opposite party company for settlement of claim, but his claim has been repudiated. The complainant obtained surveyor reports with photos, the assessment of the surveyor is Rs.3,18,083/-. Therefore, the complainant has prayed that direct the opposite party to pay Rs.4,00,000/- towards the damages and Rs.50,0000 towards compensation for mental agony. <br /> 2. The opposite party has filed defense version stating that, it is true that the complainant is the owner of the Tata Indicab Taxi vehicle bearing No.KA-01-B-4681. The opposite party has admitted that the vehicle has insured with them. The Insured Declared Value is Rs,2,73,200/- , the period of policy was 17-9-2006 to 16-9-2007. The opposite party received premium and service tax of R.10,100/-. The opposite party submitted that the vehicle was met with the accident on 12-8-2007 at 9.00 A.M is denied. The complainant approached the opposite party for compensation but the claim of the complainant is repudiated. The opposite party submitted that the survey was conducted, photographs are taken and survey report was released, it is at the instance of the opposite party only and amount assessed was Rs.2,22,700/- under Salvage Loss Basis and Rs.2,47,700/- under Total Loss Basis. The complainant submitted claim form on 20-8-2007 to the opposite party. The claim was repudiated on the grounds that the driver of the Luxury Taxi does not possess the valid and effective driving license to drive the passenger carrying Luxury Taxi. The opposite party submitted that the driver of the vehicle Mr. Mohana did possess the valid LMV (N/T) license is valid from 28-3-2007 to 27-3-2027, but the vehicle involved in accident is Passenger Carrying Commercial Vehicle / Motor Cab. A letter was sent to the complainant by the opposite party treating the claim as No Claim for non compliance of valid and effective D.L. Ignoring the reasons for not admitting the liability the complainant has chosen to file the present complaint before this Forum. For all the reasons stated above the opposite party prayed to dismiss the complaint. <br /> <br /> 3. The complainant has filed his affidavit evidence. On behalf of the opposite party also filed affidavit evidence. Heard, the arguments on both the side. <br /> 4. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-<br /> <br /> 1. Whether the complainant has proved deficiency of service on the part of the opposite party?<br /> 2. Whether the repudiation of claim by the opposite party is justified?<br /> 3. Whether the complainant is entitled the claim amount?<br /> 4. What order and relief?<br /> <br /> REASONS<br /> 5. It is an admitted case of the parties that the complainant is the owner of the TATA Indicab Taxi bearing No.KA-01-B-4681. The vehicle was insured with the opposite party, the effective date of insurance was 17-9-2006 to 16-9-2007, total premium of amount is Rs.10,100/- was paid. The vehicle met with an accident on 12-8-2007 at 9.00 A.M. The Insured Declared value is Rs.2,73,200/-. The opposite party repudiated the claim on the ground that the vehicle involved in accident is TATA Indicab Taxi KA-01-B-4681. The DL of the driver had no transport endorsement as required U/S. 3 of Motor Vehicle Act. He is not authorized to drive the transport vehicle without badge. The driver of the vehicle Mr.Mohana was having Light Motor Vehicle (N/T) License without any badge. At the time of accident the vehicle was carrying passengers therefore, the opposite party company repudiated the claim lodged by the complainant as not admissible. The opposite party itself has produced DL of the driver Mr.Mohana, the validity of DL was from 28-3-2007 to 27-3-2027, class of vehicle to drive is Light Motor Vehicle (N/T). This DL is produced by the opposite party as Exhibit R-11. Whether the repudiation of claim on this ground is valid and justified shall have to be looked into. Admittedly, the driver of the vehicle was having valid and effective DL on the date of accident. The only objection taken by the opposite party company is driver was not holding Badge to drive passenger vehicle. I am of the considered opinion the repudiation of claim on this ground is not sustainable and not justified. There is absolutely no nexus between the accident and type of DL held by the driver. Non holding badge is not a ground which caused accident. It makes no difference whether vehicle is used by the owner for his personal use or same is used to carry passengers. Therefore, the repudiation of claim is wholly unjustified. It will not satisfy the conscience of Judicial authority. The violation in respect of DL is very insignificant. On this aspect the opposite party company should not have rejected the claim. The Kerala High Court in a case reported 2009 ACJ page 1104 in case b/w P.T. Moidu v/s Oriental Insurance Co, Ltd., and others as held Insurance company can not avoid its liability on the ground that the driver of the vehicle a commercial vehicle, had no badge and thus there was violation of terms of policy. Absence of badge in driving a commercial vehicle is not a ground to deny compensation. Again Delhi High Court in a case reported in 2009 ACJ page No.1971 b/w New India Assurance Co., Ltd., v/s Brijesh Maji and others as under<br /> “Motor Vehicles Act, 1988, section 149 (2) (a) (ii)- Motor Insurance- Driving license-Liability of Insurance company-Driver had licence to drive light motor vehicle-Drier was driving Tata Sumo, a light motor vehicle which was registered and insured as passenger carrying commercial vehicle-Contention that as driver was plying a commercial transport vehicle he was not holding a valid license and insurance company is not liable-Whether the insurance company is exempted from liability-Held:no.(2004 ACJ 1(SC) followed).”<br /> <br /> Again the Tamil Nadu State Consumer Disputes Redressal Commission in a case b/w Oriental Insurance Co., v/s K.Nalraj in III (2009) CPJ 197 held as under<br /> “Consumer Protection Act, 1986-Section 15-Insurance-Motor accident claim-Driving license-Validity of-Complaint allowed-Hence appeal –Contention, driver holding license to drive light motor vehicles only –No endorsement in driving license to drive a maxi cab as required under policy- Contention rejected- Requirement of specific endorsement done away with after 1994 amendment- No difference between different types of transport vehicles- License holder entitled to drive transport vehicles of particular weight can drive all such vehicles irrespective of whether it was goods vehicle or transport vehicle-Order upheld.”<br /> Even the Supreme Court of India in a case reported in 2009 ACJ page 581 it has been held Insurance Co., is not exempted from liability on the ground of the driver holding LMV License, driving LMV and goods vehicle but he was driving passenger vehicle. So, taken into consideration of all the authorities and facts and circumstances also it is a fit case to allow the claim as per the surveyor’s assessment of loss and report the repudiation of claim by the opposite party company in this case is not proper same is unjustified. The learned counsel for the opposite party also submitted some authorities in support of his argument, I have gone through all the authorities carefully, all those authorities are based on a different facts and circumstances, therefore, the said decisions with great respect are not applicable to facts of the present case. The opposite party in the defense version clearly stated that survey was conducted, photographs were taken. The amount assessed was Rs.2,22,700/- under Salvage Loss Basis and Rs.2,47,700/- under Total Loss Basis. This is the figure given by the opposite party itself in the defense version. Therefore, the opposite party shall have to be directed to pay Rs.2,47,700/- under Total Loss Basis as per the surveyor’s assessment. The repudiation of law full claim of the complainant amounts to a deficiency of service on the part of the opposite party. Therefore, the complaint deserves to be allowed. In the result, I proceed to pass the following order:-<br /> ORDER<br /> <br /> 6. The complaint is allowed. The opposite party is directed to pay Rs.2,47,700/- under Total Loss Basis to the complainant. The opposite party is directed to comply the order within 60 days from the date of this order. In the event non compliance of the order within 60 days the above amount carries interest @ 9% p.a. from the date of complaint till payment / realization. <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 4th DAY OF JUNE 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br />