Karnataka

Bidar

CC/42/2015

Shivaraj S/o Tukkappa Mandaknalli - Complainant(s)

Versus

UNITED INDIA INSURANCE CO.LTD GULBARGA - Opp.Party(s)

SUBHASH G

29 Nov 2016

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 42/2015

 

                                                                                                   Date of filing : 23/05/2016

 

                                                                                               Date of disposal : 29/11/2016

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                       (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:                  Shivaraj, s/o Tukkappa Mandaknalli,

                                       Age: major, Occ: Agriculture,

                                          R/o village Koutha-B, Tq.Aurad-B, Dist.Bidar.

 

              

 

 

                                        (By Shri. Subhash G.S., Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-                   1.  United India Insurance Co.Ltd.,

                                              Divisional Office, Gulbarga,

                                                 Represented by it’s Divisional Manager.

                                       

                                         

                                         2.  The Manager,

                                              United India Insurance Co.Ltd.,

                                              Main branch, near Canara Bank,

                                                 Stadium road, Bidar.

 

                                     

 

 

 

                                        (O.Ps By Shri. Mansoor Ahmed Khan,Advocate)   

 

 

                                                

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

              This is a complaint file by the above said complainant U/s.12 of the C.P. Act., 1986, against the O.Ps alleging for deficiency in service on the part of O.Ps.   The gist of the case is as under:

 

2.      Complainant is a native of village Koutha-B, Tq.Aurad-B, Dist.Bidar, He is an agriculturist by profession.  The complainant avers that aspiring improvement of his agricultural operations, he had purchased HMT make Tractor and Trolly Reg.No. KA-38/T-787 and KA-38/T-788, the Tractor and Trolly were comprehensively insured with the O.Ps.,  vide policy no. 240684/31/13/01/00000049.   On 09-12-2013 the Tractor and Trolley turned turtle in the valley at village Aliabad, Dist.Bidar on it’s way from village Andoor to village Koutha-B, Tq.Aurad-B Dist.Bidar and the Tractor and Trolly got heavily damaged.  Thereafter New Town Police registered a case in Cr.no.308/2013 and issued the FIR.  Tractor and Trolly were driven by the son of complainant Mr.Anand and he had a valid driving licence to drive all types of vehicles inclusive of MCWG, LMV, Transport vehicles and PSV Bus.   The complainant got estimation/quotation from M/s Rouf Motors, authorized dealers for HMT Trtactors, Bidar who furnished the same at Rs.4,84,670 and obtained estimation /quotation for repairing trailer from  M/s Vishwa Trailers, Bidar for total sum of Rs. 75,000/-.

 

3.           Thereafter the complainant had reported to the opponents about the accident whereupon their surveyor visited and conducted the survey of the damages caused to both the Tractor and Trolly.  Thereafter the complainant approached to the O.Ps for reimbursement for the loss of Tractor and Trolley and complainant was asked to get the estimate for the due repairs of the Tractor and Trolly and other documents.  After submitting the required documents,   complainant was to agreed to settle his claim at a sum of Rs. 1,60,000/- net on Cash Loss Settlement and as directed by the O.Ps and accordingly the complainant gave a letter dated 14-03-2014.  To consider his claim on Cash Loss Basis Settlement.  After submission of the said letter, the O.P.no.1 issued a letter to the complainant on 01-04-2014 to produce the original R.C Book, original Driving Licence of Mr.Anand and permits. The complainant had submitted all the said documents to the O.Ps as directed.  However, once again the O.P.no.1 issued a letter dt.25-04-2014 directing to furnish the Driving Licence of Mr.Anand s/o Shivraj with further information that the driver should have valid and effective driving licence at the time of the accident i.e. he should have capacity to drive Tractor and Trailor only.  Thereafter the O.P. issued another letter dated 22-05-2014 stating that they observe that as on the date accident, the driver Mr.Anand was not having valid and effective driving licence, he should have a separate endorsement i.e. Tractor and Trailor.  Hence, there has been a violation of policy conditions and   The complainant was not entitled to get the claim and the file is closed as “No Claim”.  This act on the part of the O.Ps is a gross deficiency in service in repudiating the claim of the complainant on the ground of non endorsement of a particular category of vehicle namely Tractor and Trailor when the driver, Mr.Anand has a valid driving licence  at the time of accident indicating all categories of vehicles.  Hence the complainant has approached to this Forum for claiming reimbursement and compensation. 

 

 4.           Entering into defense the O.P no.1  has filed detailed written version and therein has challenged the complaint filed by complainant as misconceived, both in law and on facts and claims it fit to be dismissed, since it is premature one, and on facts also, it is not tenable.   The O.P Company did not dispute the contention of the complainant that he is the registered owner of Tractor and Trailer bearing Reg.No. KA 38-T-787 & KA 38 T-788 and it was insured with O.P Company covering risk of damage to the insured vehicle under package policy.  The O.P. no.1 avers that at the time of accident the driver Mr. Anand was not holding valid and effective driving licence to drive all types of vehicles.  In fact, said Anand was holding driving licence to drive LMV, MCWG transport vehicles and PSV Bus with gear but,  he was not authorized to drive Tractor with Trailer, since there is no endorsement from the RTO in the driving licence issued to said Anand, authorizing him to drive Tractor with Trailer.  As such the driver Mr.Anand was not holding valid and effective driving licence to drive Tractor and Trailer,  there is violation of policy condition,  the policy does not cover the risk when the vehicle is used in violation of permit and policy conditions or it is entrusted to a person who was not holding valid and effective driving licence. due to which, the liability of O.P. Company stands extinguished.

 

5.           In reply to the para no.4 of compliant the  O.P. Company offered the settlement of claim on Cash Loss Settlement Basis to which, the complainant agreed and thereupon the O.Ps Company called upon the complainant to produce original R.C. Book and original driving llicence of driver.  When the complainant produced those documents, in the process of settlement of claim, it was noticed that the driver Anand who was driving the vehicle was not holding any valid and effective driving licence to drive Tractor and Trailer.  The driving licence held by him is in respect of MCWG,LMV, PSVBUS with Badge, and it did not include Tractor and Trailer for this reasons the O.Ps.Company rightly repudiated the claim of the complainant for damages.  Admittedly insurance is a contract between the insured and insurer, and it is subject to certain terms and conditions, and in case of violation of any of the condition, the contract becomes void and un-enforceable.  In this case, admittedly the driver Anand was not holding any driving licence to drive Tractor and Trailer.  The contention of the complainant that LMV includes Tractor also is not correct. Hence, the complaint filed by the complainant be dismissed with costs.

 

 

 

 

 

6.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

 

2. Do the O.Ps prove that, they were justified in refuting the claims of the complainant?

 

3. What order ?

 

 

 

7.           Our answers to the points stated above are as follows:-

 

               1. In the affirmative.

               2. In thenegative.

               3. As per the final order, for the following:

 

 

 

                                                                                            :: REASONS ::

 

8.         Answers to pointNo.1 and 2 are to go together.  The short question to be answered in this case is as to whether Driver Anand on the date of accident was authorised to drive Tractor- Trailer.  Seeing the licence of Anand, we observe that, he was authorised to drive transport vehicle and PSVS w.e.f. 30.07.2013.  Section 2 (16) of the M.V. Act, 1986 defines as follows:-

 

            “Unless the Context otherwise requires Heavy goods vehicle to mean any goods carriage, the gross vehicle weight of which, or a tractor or a road roller, the unladen weight of any of which exceeds 12000Kg”.

 

9.         As per the decision rendered by the Hon’ble Supreme Court in 2008 Kant M.A.C. 311(S.C.) National Insurance Co.Hd. v/s Annappa Irappa Nesria and others, now being relied upon by the complainants side, erstwhile Transport vehicles have later been classified as Medium goods vehicles and Heavy goods vehicles.  However, a Tractor tagged with Trailer has to be construed as a Transport vehicle.  Therefore, the defence of the O.P. insurance company shatters since the driver was having licence to drive a Transport vehicle as on the date of accident.

 

10.       Therefore, we answer the points at 1 and 2 as stated above and proceed to pass the following:-

           

:: ORDER ::

 

 

   

1.  The complaint is allowed in part.
2.  The O.P.s are jointly and severally bound to pay a sum of Rs.2,00,000/- as claimed by the O.P., the I.D.V. of the concerned insurance certificate being Rs.2,50,000/- with 12% interest p.a. from the date of accident till date of realisation.
3. The O.P.s are further directed to pay a sum of Rs.10,000/- as compensation and Rs.5000/- towards litigation expenses.

 

           d)  Four weeks time granted to comply this order.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 29^th  day of  November-2016 )

 

 

             Sd/-                                                               Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                   President.        

 

 

 

 

 

Documents produced by the complainant

1. Ex.P.1- F.I.R. in Cr.NO.308/2013 of Nutan Nagar P.S.
2. Ex.P.2- Statement of one Prakash date: 09.12.2013 before police.
3. Ex.P.3- Crime detail form of Nrtan Nagar P.S.
4. Ex.P.4- Copy of R.C. book of Tractor.
5. Ex.P.5- Copy of R.C. book of Trailer.
6. Ex.P.6- Copy of D.L. of Anand, driver.
7. Ex.P.7- Copy of Insurance certificate.
8. Ex.P.8-  Quotation of M/S Rouf Motors date: 20.12.2013.

             ( For tractor repair).

9. Ex.P.9- Quotation of M/S Vishwa Trailers date: 20.12.201.

                       (For trailer repair).

10. Ex.P.10- copy Letter of complainant to Divisional Manager of
                    opponents date: 14.03.2014.
11. Ex.P.11- Copy of another letter of complainant to Divisional of
                    opponents date 14.03.2014.
12. Ex.P.12- Copy of the letter of opponents to complainant date 01.04.2014.
13. Ex.P.13- Copy of the letter of opponents to complainant date 25.04.2014.
14. Ex.P.14- Copy of letter of opponents to complainant date: 22.05.2014.
15. Ex.P.15- copy of letter of opponents to complainant date: 22.05.2014                 

                    repudiating the claim.

 

 (N.B. In Ex.P.14 and P.15 two different persons have appended signatures

       as Divisional Manager).

 

 

 Document produced by the Opponent/s

 

                           Nil

 

 

            Sd/-                                                               Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                   President.         .          

 

 

 

 

 

 

sb.