This complaint coming up before us for final hearing on                      31-01-11 in the presence of Sri V.Srinivasa Reddy, Advocate for complainant and of Sri K.Srinivasa Rao, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite party to pay an amount of Rs.60,000/- with interest at 18% p.a. from the date of accident i.e., 07-05-09 till the date of realization, to pay Rs.15000/- towards compensation for illegal and arbitrary repudiation, Rs.10,000/- towards mental agony for causing inconvenience and Rs.5000/- towards expenses and costs.  

The averments of complaint in brief are as follows:

                The complainant is owner of tractor bearing No.AP 07 TW 5207 and it is insured with opposite party company by paying a premium of Rs.1067/- towards risk of own damage and also third party risk.  The period of policy is from 04-05-09 to 03-05-10.  While so on 07-05-09 at about 6 am, the complainant’s tractor started from Athota village with a load of grass to Jonnalagadda village and when the tractor reached Takkellapadu SC colony, one lorry bearing No.AP 07 TT 8629, which was driven by its driver in a rash and negligent manner hit the complainant’s tractor from behind.  Due to the said impact, the complainant’s tractor turned turtle and the tractor was badly damaged.  The matter was reported to the police of Pedakakani and the police registered the case in crime No.181/09 and investigated.  Immediately, the complainant informed occurrence of accident and damage of vehicle to opposite party company and opposite party company appointed a surveyor and the said surveyor conducted survey and submitted his report to opposite party.  The complainant’s tractor was badly damaged and he sustained loss of more than Rs.60,000/- and complainant filed claim application to the opposite party and requested to settle the claim, by submitting all the papers required by opposite party.  But instead of settling claim, the opposite party issued a notice dt.11-09-09 to complainant stating that opposite party is closing claim of complainant on the ground that the driver who drove the insured vehicle at the time of accident is not having valid and effective driving license.  In fact the driver at the time of accident was having valid and effective driving license and moreover, the accident was occurred only due to rash and negligent driving of the driver of lorry, who hit the complainant’s tractor from behind and as such there is no nexus between the cause of accident and the driving license of the driver of complainant.  There was no rash and negligence on the part of driver of tractor and the accident was occurred due to fault of driver of lorry.  The police also filed FIR and charge sheet against the driver of lorry.  The complainant has been facing lot of problems due to non-settlement of claim by opposite party and that the complainant spent huge amount for the repairs of vehicle.  The opposite party did not settle the claim and repudiated the claim arbitrarily and illegally.  As such there is deficiency of service on the part of opposite party company.  Hence, the complainant.

                The opposite party filed its version, which is in brief as follows:

                The complaint is not maintainable either at law or on facts.  There is no deficiency of service on the part of opposite party.  As such, the complaint is not maintainable.  The averments of complaint are all incorrect and the complainant is put to strict proof of the same.  The complainant is not a consumer.  This Forum has no jurisdiction as there is no cause of action to arise consumer dispute.  The liability of opposite party is subject to terms and conditions of policy.  The liability is out of contract of insurance between the insured and insurer.  Immediately after receiving information regarding accident, this opposite party has appointed surveyor to note down the damaged parts on inspection of the same.   Basing on the report of spot surveyor opposite party appointed insurance surveyor to submit final report.  Accordingly he assessed the net loss and valued it as Rs.40,249/-  after depreciation and salvage.  As per the document submitted by the insured, the damaged tractor was registered as LMV transport and the permission issued by RTA is for goods carrying public carrier.  One E.Sreedhar is the driver of vehicle at the time of accident.  The said driver is having a T-T non transport license only and he was not authorized to drive the transport vehicle.   As such the driver of the insured vehicle was not having any valid and effective driving license at the time of accident.  Hence, this opposite party expressed inability to entertain claim and repudiated the same.  The same was intimated to the complainant on 11-09-09.  As such the question of deficiency of service does not arise.  As such this Forum has no jurisdiction to entertain the complaint.  The term of policy is that persons or class of persons entitled to drive, any person including insured provided that a person driving holds an effective driving license at the time of accident.  As such this opposite party acted in accordance with the conditions of policy.  Hence, there is no deficiency on the part of opposite party.  Therefore, the complaint may be dismissed with costs.

                The complainant and opposite party filed their affidavits in support of their versions reiterating the same.  On behalf of complainant Ex.A1 to A8 are marked and on behalf of opposite party Ex.B1 to B7 are marked.

                Ex.A1 is the copy of insurance policy issued by opposite party.  Ex.A2 is the copy of FIR in crime No.181/09 of Pedakakani PS.  Ex.A3 is the copy of charge sheet filed in CC 246/09 under the file of VI AMM, Guntur.  Ex.A4 is the copy of registered notice got issued by complainant to opposite party.  Ex.A5 is the copy of repudiation letter.  Ex.A6 to A8 are the copy of receipts showing the expenditure incurred by complainant for the damages of his vehicle.

                Ex.B1 is the copy of certificate of registration of complainant’s vehicle.  Ex.B2 is he permit obtained for the vehicle of complainant.  Ex.B3 is the insurance policy of vehicle of complainant.  Ex.B4 is the repudiation letter of opposite party issued to complainant.  Ex.B5 is the copy of driving license issued to one Sridhar, the driver of vehicle of complainant.  Ex.B6 is the particulars of driving license issued by Addl. Licensing Authority.  Ex.B7 is the surveyors report.

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled to?

POINT No.1

                The case of complainant is that his tractor bearing No. AP 07 TW 5207, which was insured with opposite party met with accident on 07-05-09 at 6 am at Takkelapadu SC colony and that the accident caused due to rash and negligent driving of the lorry bearing No.AP 07 TT 8629 by its driver and that the said lorry hit the complainant’s tractor from behind and that the tractor was turned turtle and badly damaged, that the said matter was reported to Pedakakani police and an FIR was registered to that effect under Ex.A2 and charge sheet was filed against the driver of lorry under Ex.A3.  The said incident was immediately reported to the opposite party and complainant made a claim with opposite party.  The opposite party appointed a surveyor and the said surveyor issued report under Ex.B7.  The complainant tractor was badly damaged and he sustained loss to a tune of Rs.60,000/-. The opposite party failed to settle the claim of complainant and informed to complainant under Ex.A5 stating that they are closing claim of complainant as the driver of tractor who drove the insured vehicle at the time of accident is not having a valid and effective driving license.  The accident occurred only due to rash and negligent act of the driver of lorry but not due to the fault of driver of insured vehicle.  Hence, there is no nexus between the cause of accident and the driving license of driver of vehicle of complainant.  Hence, the complaint.    

                The case of opposite party is that the driver of insured vehicle at the time of accident is not having valid and effective license and that therefore, they have closed the claim of complainant and informed the same to the complainant under Ex.B4.  Therefore, there is no deficiency of service on the part of opposite party.

                The accident of the insured vehicle is not in dispute.  The claim of complainant is also not in dispute.  The claim of complainant was closed by the opposite party on the ground that the driver of the insured vehicle at the time of accident is not having valid and effective driving license.  As seen from Ex.A2 copy of FIR, accident to the insured vehicle was caused only due to hit of lorry from behind due to rash and negligent driving of driver of lorry.  The charge sheet under Ex.A3 was also filed against the driver of lorry, who caused accident. The lorry hit the insured tractor from its behind and caused damage to the running insured tractor. Therefore, it can be safely concluded that there is no negligence on the part of driver of insured vehicle of complainant and that there is no nexus between the cause of accident and the driving license of driver of vehicle of complainant.  Therefore, it is not material whether the driver of insured vehicle of complainant is holding a valid and effective driving license or not at the time of accident.

                The counsel for complainant relied on a decision reported in 2009 (3) CPR 306 (NC) between United India Insurance Company Ltd. Vs. Gaj Pal Singh Rawat, wherein it was held by National Commission that “whether the driver possessed a driving license or not is immaterial when the accident took place due to no fault on his part.”         

                The facts of said case are that the complainant had insured Maruti car from 06-05-03 to 05-05-04 for a sum of Rs.1,93,166/-.  On 03-12-03 the driver of complainant took the vehicle to Tilwara and at about 4.30pm a stone fell on the car as a result of which driver lost control due to which vehicle fell down in Mandakini river.  FIR was lodged with the police and claim was lodged with insurance company on the next day.  The claim was not settled and the complainant approached District Consumer Forum.  The District Consumer Forum allowed the claim and directed the insurance company to pay sum of Rs.1,93,166/- with 11% p.a. interest thereon from 03-12-04 and 10.75% p.a. interest from 01-03-04.  The insurance company was further directed to pay Rs.3000/- as expenditure incurred by the complainant to go to Dehradun Rs.500/- for telephone expenditure and Rs.3000/- for mental and physical agony.  This order was challenged before the State Commission.

                The State Commission, after placing reliance on the judgment of the Apex Court in National Insurance Company Ltd. Vs. Swaran Singh and Ors. and the case of Jitendra Kumar Vs. Oriental Insurance Company Ltd. and Anr. held that there was no pleading of the opposite party to the effect that accident took place due to any fault of the driver and that neither the fault of driver is alleged nor proved. Therefore, according to State Commission, the issue whether the driver was holding valid driving license or not was not material, in as much as he was driving the vehicle since 1997.  The admitted position was that the driver had a driving license which has expired on 22-04-03 but was not renewed within 30days.  The accident took place on 03-12-03 and the driving license was renewed on 22-07-04.  Taking all these factors into consideration the State Commission came to the conclusion that since the accident had no nexus with the license of the driver, in as much as heavy stone fell on vehicle due to which balance was lost and accident occurred, the claim should be allowed on non-standard basis.  Accordingly, the state commission reduced the compensation by 25% and awarded compensation of Rs.1,44,750/-.  The insurance company was directed to pay interest on the said amount at the rate of 9% p.a. from 15-07-04 i.e., from the date of complaint till the date of actual payment.  Besides, cost of litigation and other expenses were limited to Rs.1000/-.  This order is subject matter of challenge in revision.      

                In revision, the petition was dismissed with an observation that there is no infirmity in the order passed by State Commission and that there is no justification to interfere with the said order. In the said revision petition, the National Commission has also discussed the cases of the Apex Court in case of (1) Jithendar Kumar Vs. Oriental Insurance Company Ltd.  (2) National Insurance Company Vs. Swaran Singh.

                The said decision relied on by the counsel for complainant is aptly applicable to the facts of the present case on hand.

                The learned counsel for opposite party vehemently argued that there is no deficiency of service on the part of opposite party in settling the claim since the driver of insured vehicle is not having a valid and effective driving license at the time of accident and that there is breach of contract of insurance and in support of his contention he relied on the following decisions:

1. IV (2007) CPJ 1 (SC) between United India Insurance Company Ltd. Vs. Davinder Singh wherein the Supreme Court of India held

                    “Renewal of license cannot cure inherent fatality of originally fake license as decision in Swaran Singh case has no application to the cases other than third party risks” 

                    In that case, the driving license of driver is a fake one.  The insured vehicle met with accident on 20-04-04 with a truck and that the insurance company has repudiated the claim.  To avoid its liability, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling condition of policy.

            In the present case on hand, the insurer has failed to prove that the insured was guilty of negligence.  Therefore, the said decision of Supreme Court relied on by the counsel for opposite party is not applicable to the facts of present case on hand.

(2)            2008 (3) CPR 181 (NC) between United India Insurance Company Ltd. Vs. Aravind Kumar Rajak wherein it was held

        (i) Swaran Singh case has no application to cases other than third party risk.

        (ii) If transport vehicle which is being driven by a driver holding license for driving light motor vehicle only without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation.

        The facts of this case are that Maxi Cab bearing registration No.UP 093 E 2334 belonging to the respondent/complainant was insured with the petitioner/opposite party insurance company for all types of risks.  During the currency of policy tanker No.P 9D 0997 while being driven carelessly, collided with the said Maxi Cab near village Jakholi as a result whereof Umesh, driver and six passengers died on the spot.

                The facts of this case are different to the facts of present case on hand.

(3)    2010 ACJ  709 (SC) between National Insurance Company Ltd. Vs. Harbhajan Lal.  Motor Vehicle Act, 1988, Section (2) (a) (ii) – Motor Insurance – Own damage claim – Driving license – fake license – liability of insurance company – insurance company was able to prove that driving license of driver was fake – whether insurance company is liable for own damages claim by the insured – Held: No. 

                In the present case on hand there is no negligence on the part of driver of insured vehicle at the time of accident.  The accident in this case occurred due to rash and negligent driving on the part of driver of lorry, who hit the insured vehicle from behind.  It is not the case of opposite party that there is negligence on the part of driver of insured vehicle.  The insured was not guilty of negligence.  Therefore, the above decisions relied on by the counsel for opposite party are not applicable to the facts of the present case on hand since there is no nexus between the cause of accident and driving license of the driver of insured vehicle.   

                In the case relied on by the counsel for complainant, which is similar to the facts of the present case, the State Commission came to the conclusion that since the accident had no nexus with the license of the driver, the claim was allowed on non-standard basis and the said order of the State Commission was confirmed by the National Commission.  Therefore, we are of the opinion that if the claim of complainant is allowed on non-standard basis, it would meet the ends of justice, since, there is no nexus between the accident and the driving license of driver of insured vehicle and since there is no negligence on the part of the insured, the claim of complainant is liable to be settled by the opposite party.  The opposite party failed to settle the claim of complainant simply on the ground that the driver of insured vehicle was not having valid and effective license at the time of accident even though there is no nexus between the accident and driving license of driver.  Therefore, we find that there is deficiency of service on the part of opposite party.  Accordingly this issue is answered in favour of complainant.

POINT No.2

                The complainant claimed compensation of Rs.60,000/- with interest but as seen from Ex.B7 report of surveyor, the net loss was assessed to a tune of Rs.40,249/-.  The National Commission, New Delhi in New India Assurance Company Vs.  M/s.Sehrawat India (P) Ltd. and another, it was held that “report of statutory surveyor has to be given due importance in arriving at the conclusion about the net loss suffered by consumer unless there is substantial evidence to the contrary.”

                Contrary to the report of surveyor (Ex.B7) the complainant has not placed any substantial evidence to prove his claim.  The complainant filed Ex.A6, A7 and A8 in support of his claim.  The accident occurred on 07-05-09.  Ex.A6 is dt.20-05-09 for a sum of Rs.3500/-, Ex.A7 is dt.23-07-09 for a sum of Rs.43,291/-, Ex.A8 is dt.01-07-09 for a sum of Rs.6,075/-.  There is two months gap between the date of accident and the dates of exhibits Ex.A7 and A8.  Therefore, much reliance cannot be placed on Ex.A7 and A8.  Therefore, the claim of complainant is liable to be settled on the basis of Ex.B7 surveyor’s report on non standard basis.  As per the surveyor, the net loss assessed by him is Rs.40,249/-.  As already discussed above, if it is settled on nonstandard basis, the net loss works out to a tune of Rs.30,000/-.  Therefore, the opposite party is liable to pay the net loss of Rs.30,000/- on non-standard basis.  Accordingly this issue is answered in favour of complainant.

                In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite party is directed to pay an amount of Rs.30,000/- to the complainant towards damages of insured vehicle with interest at 9% p.a. from the date of repudiation i.e., 11-09-09 till the date of realization.
2. The opposite party is further directed to pay an amount of Rs.2000/- towards compensation and Rs.1000/- towards costs to the complainant.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in item No.2 also carry interest @9% p.a. till the date of realization.              

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 4^th day of February, 2011.

          MEMBER                               MEMBER                           PRESIDENT        

   APPENDIX OF EVIDENCE

No oral evidence is adduced on either side

                                        DOCUMENTS MARKED

For Complainants:

For Opposite Party:

                                                                                               PRESIDENT