IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 9-10 DATED 24.03.2010<br /> ORDER<br /> <br /> Complainant K.S.Somashekar, <br /> S/o Sidde Gowda, R/at No.148, 2nd Main, Mahaheshwara Main Road, Near Surya Bakery, <br /> Kumbar Koppal, Mysore.<br /> <br /> (By Sri. Sudarshan.V., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Branch Manager, <br /> M/s United India Insurance Company Ltd., DO-V No.25, Shankaranayarana Building, M.G.Road, Bangalore.<br /> 2. Branch Manager, <br /> M/s United India Insurance Company Ltd., O/at Ballal-Ashoka Circle, Chamaraja Mohalla, Mysore.<br /> (By Sri. Jaganath Suresh Kumar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 08.01.2010<br /> Date of appearance of O.P. : 25.01.2010<br /> Date of order : 24.03.2010<br /> Duration of Proceeding : 2 MONTHS <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties claiming Rs.3,50,000/- the damage caused to the vehicle involved in the accident.<br /> <br /> 2. In the complaint amongst other facts, it is alleged that, the complainant had D.L. to drive the LMV from 11.02.2000 to 10.02.2020 and heavy transport vehicle from 24.11.2001 to 23.11.2004, which has been renewed from time to time, particularly on 07.07.2008 upto 06.07.2011. The complainant is the R.C. owner of Maxicab bearing NO.KA-09-A-4555. It is insured with opposite party under policy No.07/0500/31/08/01/0021548 from 17.01.2009 to 16.01.2010. Some persons hired the said vehicle and when the complainant was driving the said vehicle on 03/04.07.2009 within the Thiruragundi Police Station limited in Kerala State, a lorry dashed against it, causing sever damage. The vehicle was transported from the accident spot to Mysore and delivered to M/s Urs Kar Service Centre, Mysore, the authorized dealer and service providers of the M/s Tata Motors, for repairs on 15.07.2009. The incident was reported to the opposite party. The first opposite party through second opposite party appointed a surveyor by name Raghothama who evaluated the damages caused to the said vehicle. M/s Urs Kar Services submitted estimated cost of repairs amounting to Rs.5,01,652/-. All relevant documents were submitted to surveyor. After much delay, on 17.10.2009, complainant received letter from first opposite party rejecting the claim for damages on the ground that, the complainant had no valid driving license as on the date of the accident and treated the claim as ‘no claim’. It is stated that, the opposite parties failed to consider lawful claim of the complainant. The rejection is illegal. The complainant could not carry out the repairs of the vehicle as after much wait, he did not receive favourable reply. The complainant had to remove the said vehicle from the yard of M/s Urs Kar Services and complainant is getting it repaired at his own cost and expenses. Hence, it is prayed to allow the complaint awarding Rs.3,50,000/- with interest at the rate of 18% p.a. and further a sum of Rs.1,00,000/- towards damages for mental agony and the lost sustained loss and cost of the proceedings.<br /> <br /> 3. The opposite parties in the version contended that the complaint is not maintainable either on facts or under law. Certain facts stated in the complaint are admitted. However, it is contended that, it is not mentioned by the complainant, as to how much he has spent for repairs of the vehicle. Rs.5,01,652/- is only estimated cost. It is not true and correct and it is high and exaggerated. It is contended that, complainant has violated the terms and conditions of the policy. He did not have valid and effective driving license to drive a taxi, which is a passenger carrying vehicle. The complainant did not have license specifically authorizing to drive a passenger carrying transport vehicle. A person with a driving license to drive a goods vehicle cannot drive passenger vehicle and similarly the person having driving license to drive a passenger vehicle, cannot drive a goods vehicle, unless he is specifically authorized to drive both. The complainant did not have specific endorsement to drive a passenger carrying transport vehicle at the time of accident as he obtained the same only on 01.10.2009. It is contended that the opposite parties are not liable to pay the amount claimed. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The complainant has filed his affidavit and produced certain documents. The Assistant Manager has filed his affidavit for the opposite parties. We have heard the arguments of both the learned counsel for the complainant and opposite parties and perused the records. <br /> <br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The claim has been repudiated only on the ground that, the complainant who was driving the vehicle had no valid driving license. It is stated that, the vehicle in question is registered as luxury taxi, which is a passenger vehicle. The complainant had no license to drive passenger carrying transport vehicle. A person with a driving license to drive goods vehicle cannot drive a passenger vehicle and similarly person having driving license to drive a passenger vehicle cannot drive a good vehicle unless he has been specifically authorized to drive both vehicles. <br /> <br /> 8. To substantiate the said contention, learned advocate for the opposite parties referred to definition of contract carriage as well as other definitions. He relied on the ruling reported in ILR 1997 Karnataka 2564. In this ruling, the driver with license for heavy passenger motor vehicle was held not authorized to drive heavy goods vehicle. In respect of this decision, advocate for the complainant pointed out that, the vehicle met with the accident, in that case on 20.05.1994, but the various provisions particularly section 10 of the Motor Vehicles Act has been amended by the Act 54/94 with effect from 14.11.1994 and hence, the principle laid down by the Hon’ble High Court of the Karnataka in the said decision is not applicable to the facts of the case on hand as the accident in this case occurred on ¾.7.2009. Further, learned advocate pointed out that, prior to amendment under sub section 2 of section 10 amongst various classes of vehicles at (e), (f), (g) and (h) vehicles were described as <br /> “(e) medium goods vehicle,<br /> (f) medium passenger motor vehicle,<br /> (g) heavy goods vehicle,<br /> (h) heavy passenger motor vehicle,”<br /> <br /> For said classes of vehicle only (e) is substituted describing the class of vehicle “transport vehicle”. Considering this amendment, if the driver had license to drive transport vehicle is sufficient irrespective of medium passenger motor vehicle or heavy passenger motor vehicle.<br /> <br /> 9. Driving license is defined under sub section 10(2) which need not be quoted. As per sub section 22(2) Maxi cab means any motor vehicle constructed or adapted to carry more than 6 passengers, but not more than 12 passengers excluding the driver for hire or reward. Under sub section 25, motor cab is defined to mean any motor vehicle constructed or adapted to carry not more than 6 passengers excluding the driver for hire or reward. Public service vehicle is defined in sub section 35, which means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, motor cab, contract carriage and stage carriage. Then, under sub section 47, transport vehicle is defined, which means a public service vehicle.<br /> <br /> 10. In the case on hand, copy of the R.C. of the vehicle in question, is on record. It is described as Maxi cab. Seating capacity 9 + 1 = 10. There is no dispute that, it is maxi cab and a transport vehicle. <br /> <br /> 11. Copy of driving license of the complainant who was driving the vehicle at the time of the accident, is on record. In the printed license, medium passenger motor vehicle and heavy passenger motor vehicle were there, but same have been scored out by the licensing Authority and it is mentioned, heavy tourist vehicle. So also, the complainant had license to drive light motor vehicle. It is further specifically mentioned, on the right side, firstly that, the license to drive a motor vehicle, other than transport vehicle is valid from 11.02.2000 to 10.02.2020 and thereafter, further it is mentioned, the license to drive transport vehicle is valid from 24.11.01 to 23.11.2004. On 10th page of the license, it was renewed and thereafter, on 11th page there is mention of further renewal of the license for the period 07.07.2009 to 06.07.2011. This is in respect of transport vehicle. Considering this, we are of the opinion that, as on the date of accident, that is, 04.07.2009, the complainant had valid driving license to drive transport vehicle. It is not necessary to repeat the definition of transport vehicle, motor cab and maxi cab, noted here before. Considering these facts, we are of the opinion that, as on the date of the accident, the complainant had valid driving license to drive the vehicle in question. The ruling relied upon by the learned advocate for the opposite party pertains to the accident prior to the amendment and hence, is not applicable to the facts of the case on hand.<br /> <br /> 12. Advocate for the opposite party referred to Rule 12 of the Karnataka Motor Vehicle Rules, 1989 regarding badge of the driver. The badge that the driver of the vehicle has to hold and the license, are different and distinct. The badge is nothing to do with license. Hence, we do not feel it necessary to narrate in detail the said Rule.<br /> <br /> 13. Hence, we are of opinion that, repudiation of the claim by the opposite parties on the ground that the complainant who was driving the vehicle had no valid driving license, will not sustained. No other reasons are put forth to dis-entitle the claim of the complainant.<br /> 14. The fact that the vehicle in question was covered by the policy, is admitted. The accident is also admitted. The complainant has submitted that, the vehicle was delivered to M/s Urs Car Service Centre Pvt. Ltd., Mysore, which is authorized dealer and service providers of the motor vehicles manufactured by M/s Tata Motors for repairs on 15.07.2009 after it was shifted from the accident spot. Also, complainant stated, the matter was reported to the opposite parties with a request to assess the damage. It is admitted by the opposite parties that, in the regular course, insurance claim form was given to the complainant enabling to lodge the same. It is fact that the complainant had preferred the claim to the opposite parties along with required documents. It is stated in the complaint that, the opposite party appointed a surveyor by name one Raghotham, who visited and evaluated the damages when the vehicle was with M/s Urs Kar Services. The fact that, survey was conducted, is admitted by the opposite parties.<br /> <br /> 15. The complainant claims that, M/s Urs Kar Service Centre Pvt Ltd., Mysore, estimated the damage at Rs.5,01,652/-. Copy of the same is placed on record. In respect of this estimation, opposite parties have contended that it is not true and correct and is high and exaggerated. But, admittedly opposite party has not placed the survey report of Raghotham who had conducted the survey and estimated the damage. No reasons are assigned, as to why said report is not produced or withheld.<br /> <br /> 16. The complainant has claimed damages of Rs.3,50,000/- in addition to compensation. In the version, opposite party has contended that, Rs.3,50,000/- is IDV and not actual repair cost. Hence, even according to the opposite parties, atleast Rs.3,50,000/- is IDV. We do consider that more than that, the complainant cannot claim damages and in fact, that much only is claimed by the complainant. Hence, irrespective of the fact that the estimated cost is Rs.5,01,652/-, admittedly IDV Rs.3,50,000/-. Hence, under the circumstances, considering reasonable depreciation particularly taking into estimation submitted by the authorized service centre, we feel it just to award damages of Rs.3,00,000/- to the complainant.<br /> <br /> 17. Accordingly, our finding on the above point is partly in affirmative.<br /> <br /> 18. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite parties jointly and severally are hereby directed to pay a sum of Rs.3,00,000/- damages to the complainant with interest at the rate of 10% p.a. from the date of claim till payment of the entire amount. This amount shall be paid to the complainant within a month from the date of this order.<br /> 3. Further, opposite parties are directed to pay a sum of Rs.3,000/- towards cost of the proceedings to the complainant. <br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 24th March 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />