JUDGEMENT<br /> <br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Malikarjuna Sakri against the two Respondents. The brief facts of the complaint are that:<br /> <br /> The complainant is the owner of Mini Lorry TATA 709 bearing No. KA-36/1998. Respondent No-1 is Insurance Company, Head Office at Chennai and Respondent No-2 is one of its Branch Office at Raichur. The complainant got insured his vehicle- Mini Lorry TATA 709 bearing No. KA- 35/1998 with Respondents under policy No. 412000/31/2008/121 for a period from 02-04-07 to 01-04-08.<br /> <br /> On 09-10-07 during the night hours the lorry was transporting Kirana Goods from Raichur to Lingasugur, near Chickesagur village while trying to avoid dash to bullock cart vehicle had hit to Nala culvert and thereby devoid to about 15 feet deep Nala and damaged heavily. The incident of accident was registered at Hutti police station and same was intimated to the Respondent No-2 on 10-10-07. After the accident the complainant completed all formalities to claim insurance from Respondents and submitted all documents. The Respondent arranged for survey of damages to the lorry accordingly the surveyor conducted survey. After the intimation to the Respondents the complainant got repaired his vehicle. The total repair expenses were Rs. 85,234/-. After repair of his vehicle, on 20-10-07 he lodged his claim along with necessary police records and documents with Respondents to indemnify the loss caused due to his vehicle in the accident. Similarly the complainant has also submitted his claim before the Respondent No-2 on 23-10-07. Thereafter the Respondent once again asked the complainant to produce the documents pertaining to the accident and other things as per the request and suggestions made by the Respondent No-1 the complainant has sent the related documents through letter dt. 03-12-07. The complainant has also sent representation through letter dt. 29-01-08 for immediate consideration of claim also went in vain. The complainant repeatedly requested the Respondents to reimburse the repair expenses. But the Respondents dragged on the matter on one or the other pretext. Many times the complainant made repeated requests to settle his claim but in vain. Finally he got issued a legal notice dt. 17-04-08 and reminder legal notice dt. 22-09-08 which was also went in vain without any response from the Respondent. The Respondents did not settle the claim without any valid reasons. So there is deficiency of service on the part of the Respondents for not satisfying the loss incurred by him. Hence for all these reasons the complainant has sought for direction to Respondents to pay Rs. 85,234/- along with interest at the rate of 18% p.a. from 23-10-07 to till realization and Rs. 25,000/- as cost of litigation.<br /> <br /> 2. The Respondents 1 & 2 appeared through counsel and have filed a common written statement contending that the liability if any, of the Ops to pay compensation is subject to production of valid documents of insured vehicle like valid Driving licence, Survey Reports, Police documents etc., The complainant is guilty of not producing the required documents for the settlement of the above claim and all the request made by this Respondent to the complainant to produce documents has fallen on deaf ear. On the date of accident i.e, 09-10-07 the driver of the vehicle had no DL to drive the type of vehicle involved in the accident which is breach of policy condition.<br /> <br /> Without prejudice to this case it is specifically denied that the complainant has sustained any loss or damage to the vehicle is highly exaggerated, excessive and is without any basis. If at all Forum comes to the conclusion that the complainant is entitled for any compensation the same shall be not more than the amount assessed by the survey report and there is no cause of action. Hence for all these reasons the Respondents have sought for dismissal of the complaint.<br /> <br /> 3. During the course of enquiry the complainant filed his sworn-affidavit by way of examination-in-chief and has got marked (11) documents at Ex.P-1 to P-11. In-rebuttal the Respondents have filed sworn-affidavit of Respondent No-2 by way of examination-in-chief and no documents were got marked on behalf of Respondents. <br /> <br /> 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> <br /> 1. Whether the complainant proves deficiency in service by the Respondents in not settling his claim, as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 5. Our finding on the above points are as under:-<br /> <br /> 1. In the Affirmative. <br /> <br /> 2. As per final order for the following.<br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 6. There is no dispute that the complainant Mallikarjuna Sakri is the owner and RC Holder of lorry TATA 709 bearing NO. KA-36/1998 and it was insured with Respondent Company under insurance policy for a period from 02-04-07 to 01-04-08. It is the case of the complainant that on 09-10-07 during night the insured lorry was transporting Kirana Goods from Raichur to Lingasugur and while moving so it was near by Chikkahesarur village while trying to avoid dashed to bullock cart said vehicle hit to Nala culvert and thereby devoid to about 15 feet deep Nala and damaged heavily. A case was registered with Hutti Police-Station and panchanama was conducted on 10-10-07. The accident was informed to the Respondents who in-turn arranged for survey of damages of the lorry and surveyor who conducted survey. Thereafter he got repaired his lorry incurring expenses of Rs. 85,234/- and there afterwards he lodged his claim with the Respondents by submitting concerned police records and other documents. in-spite of his repeated requests the Respondents failed to settle his claim. So he got issued legal notice on 17-04-08 and reminder legal notice on 22-09-08 to the Respondents. But all went in vain without any response from the Respondents. <br /> <br /> 7. It is the case of the Respondent is that the claim of the complainant is not yet repudiated by the insurance company and it is still under process. The complainant has not produced the valid driving licence of the driver who was at the wheels at the time of the accident. Further it is the case of the Respondent that the driver was not holding valid driving licence at the time of accident to drive a goods vehicle and there is no endorsement in the driving licence of the driver to drive a Mini Lorry/Transport Goods Vehicle which is a breach of policy condition. Therefore the complainant is not entitled for any monetary benefits. If at all the Hon’ble Forum comes to the conclusion that the complainant is entitled for any compensation the same shall not be more than 30,000/- the Net Loss assessed by the surveyor.<br /> <br /> 8. The complainant has produced in all (11) documents at Ex.P-1 to Ex.P-1 namely (1) Copy of Permit, (2) Copy of Insurance Policy, (3) Copy of Panchanama, (4) Copy of Driving Licence of complainant vehicle driver, (5) Office copy of the complainant letter dt. 03-12-07, (6) Office copy of the complainant letter dt. 29-01-08, (7) Office copy of Legal Notice dt. 17-04-08, (8) Office copy of the reminder legal notice dt. 22-09-08, (9) Bill issued by Ramesh Automobiles (True copy), (10) Cash Bill issued by MD. Shaik Hussain, and (11) Survey Report. <br /> <br /> 9. It is the case of the Respondent that the driver of the vehicle in question was not having valid licence to run the vehicle involved in the accident and the vehicle involved in the accident is a transport vehicle. There is a breach of contract. Before coming to the conclusion on this point, we have referred the definitions under section 2 of the M.V. Act wherein definitions regarding (1) Driving Licence, (2) Goods Carriage, (3) Light Motor Vehicle, (4) Motor Vehicle, (5) Transport Vehicle, reads under the clause 10, 14, 21, 28, and 47 respectively as under:-<br /> CLAUSE-10 ‘Driving Licence’ means the licence issued by a competent authority under chapter 2 authorizing person specified therein to drive, other wise than as a learner, a motor vehicle or a motor vehicle of any specified clause or description. <br /> CLAUSE 14 term ‘Goods Carriage’ means any motor vehicle constructed or adopted for use soley for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of goods.<br /> CLAUSE- 21 the term ‘Light Motor Vehicle’ means a transport vehicle or omni bus the gross vehicle weight of either of which or a motor car or road-roller the un-laden weight of any of which, does not exceed 7500 Kgs.<br /> CLAUSE- 28 the term ‘Motor Vehicle’ or ‘Vehicle’ means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted there to from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less then four wheels fitted with engine capacity of not exceeding 25 cubic centimeters. <br /> CLUASE 47 ‘Transport Vehicle’ means a public service vehicle a goods carriage, educational institution bus or a private service vehicle. <br /> From the perusal of the Ex.P-1 i.e, goods carriage permit it is very clear that the capacity of the vehicle in question is 3645 Kgs and the laden weight is 6800 Kgs. From this it is very clear that as per the clause 21 the vehicle in question belongs to the complainant is Light Motor Vehicle because it is carrying the total weight less then 7500 Kgs. It is worth while to note that the Respondent has not produced any document in order to show that the complainant vehicle is carrying more than the permitted weight of goods or the vehicle in question was carrying above 7500 Kgs of weight in the lorry at the time of accident in order to show that it is a Heavy Motor Vehicle. Even for the sake of arguments if we hold that the vehicle of the complainant was a goods carriage as contended by the Respondent and it was a transport vehicle. Even then the driver of the complainant vehicle cannot be said that he is not having valid driving licence to drive the transport vehicle because from the perusal of Ex.P-4 the driving lincence issued by the Motor Driving Licence Authority is clearly speaks about the permission granted to the driver to drive the heavy transport vehicle. The page No-9 of the said Ex.P-4 is very clear that the transporting authority has issued heavy transport driving licence to the driver of the vehicle in-question along with Light Motor Vehicle. In this regard we can find proper endorsement in the said Ex.P-4. Since the driver had a valid licence to drive the heavy transport vehicle and there is an clear cut endorsement in this regard in the said driving licence. Under the said circumstances it cannot be said that the driver of the complainant vehicle was not competent to run the vehicle of the complainant and his driving licence cannot be said that it was invalid one as contended by the Respondent. <br /> The vehicle of the complainant is TATA-709 which is carrying less then 7500 Kgs of goods the documents produced by the complainant in this regard are very clearly discloses the things in question, similarly the driver of the vehicle is having both the Light & Heavy Motor Vehicle driving licence. Under such circumstances we do not find any reasons to believe that neither driver of the vehicle nor the complainant has violated the policy conditions, and in this regard refusing for making the payment in respect of vehicle damage is nothing but a deficiency in service on the part of the Respondent. Hence we hold that the complainant has proved his case as there is a deficiency in service on the part of the Respondent. So Point No-1 answered in the Affirmative.<br /> <br /> POINT NO.2:-<br /> <br /> 10. The complainant has sought for compensation of Rs. 85,234/- along with interest @ 18% PM from 23-10-2007 to till realization, and Rs. 25,000/- towards cost of the litigation. During the course of enquiry, the complainant has called for the survey report from the Respondent and same is marked at Ex.P-11. On perusal of said Ex.P-11 survey report the surveyor has assessed and reported that the total net loss towards damage of the complainant vehicle as Rs. 30,000/- and Rs. 2,500- as towards spot repairs and towning charges. From this it is very clear that the total loss caused to the complainant’s vehicle is in all Rs. 32,500/- but not 85,234/- as contended by the complainant, of course the complainant has produced bills under Ex. P-9 and Ex.P-10 in respect of repair of the vehicle. The Ex.P-10 is the cash bill which discloses that the complainant has spent Rs. 55,000/- towards cost of the material and Rs. 20,200/- towards labour charges, in all the said cash bill discloses Rs. 90,200/- for the repair of the damaged vehicle. The complainant has also led evidence of mechanic one who as repaired the vehicle, by way of affidavit in order to prove is case. No doubt the Ex.P-11 the survey report is an cogent and valid document on which the total loss can be ascertained. But in order to come to the conclusion regarding the total loss of the damages, we have referred the ruling submitted by the complainant, cited in 2002 CPJ II Page No. 420. wherein the Karnataka Hon’ble State Commission has held in Aghana Aqua Farms V/s. Divisional Manager, New India Assurance Company Ltd., that the survey report should be supported by the affidavit of surveyor for its evidentiary value. In the absence of the affidavit it holds no evidentiary value. In the instant case, surveyor’s affidavit is not filed. Under these circumstances we hold that ruling submitted by the complainant is of our Hon’ble State Commission as it is applicable to the instant case of the complainant. So we have considered and accepted the bills submitted by the complainant. Hence we have come to the conclusion that the complainant is entitled to claim to the tune of Rs. 85,234/- towards the damage of the vehicle. As regards to the claim of interest by the complainant at the rate of 18% p.a. is excessive, exorbitant there are no such special circumstances out coming to grant such higher rate of interest, however we have taken into consideration of the entire case of the complainant and the loss sustained by him due to the accident, we are of the view that granting interest at the rate of 9% p.a. is the reasonable rate of interest. Hence it is granted; accordingly we answered Point No-1 & 2. <br /> <br /> 11. We have noticed the deficiency in service on the part of the Respondent as such we have granted an amount of Rs. 3,000/- recoverable by the complainant from the Respondent under the head of deficiency in service, As regards to the cost of litigation is concerned, the complainant is entitled to recover an amount of Rs. 2,000/- towards cost from Respondent.<br /> <br /> POINT NO.3:-<br /> <br /> 12. In view of our finding on Point Nos.1 & 2 we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint filed by the complainant is partly allowed with cost.<br /> <br /> The complainant is entitled to recover a total sum of Rs. 90,235/-which is rounded to Rs. 90,200/- from the Respondent.<br /> <br /> The complainant is also entitled to recover future interest at the rate of 9% p.a. on the total sum of Rs. 90,200/- from the date of the judgement till realization of the full amount.<br /> <br /> The Respondent has to comply this order within (6) weeks from the date of receipt of copy of this order.<br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 14-08-09.)<br /> <br /> <br /> Sd/-<br /> Sri. Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br />