BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 01^st June 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.74/2013

        (Admitted on 11.3.2013)           

Mr.Shekar Kumar,

S/o DejappaMuger,

Aged 30 years,

4.92.10, Kudripadavu House,

KallaMukooru, Kinnigoli,

Mangalore 11.

                                                               ……… Complainant

(Advocate for Complainant by Sri. VS)

                                                                                                          VERSUS

Universal Sompo General,

Insurance Co.ltd,

City Trade Centre,

Opp: City Hospital,

Kadri, Mangalore 3.

                                                                          …. Opposite Party

          (Advocate for Opposite Party by Smt. HM)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D

 This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          The complainant contends his vehicle No. KA.19 C.7460 Maruthi Omni van insured with Opposite Party met with an accident on 13.6.2010.  Even though FIR was lodged already and intimation was sent to Opposite Party, surveyor was not sent by Opposite Party. Ultimately complainant got the vehicle repaired notice sent to Opposite Party in November 2010 was served and evasive reply was sent.  Hence seeks order against Opposite Party for payment of Rs.71,141/ spent by complainant for repairs with interest and also compensation Rs.25,000/.Complainant has also filed an application under section 5 the Indian Limitation Act seeking to condone delay caused in the application he mentions in the affidavit that due to  is ill health was shifted to Rajiv Gandhi Dental Hospital, Hebbala, Bangalore and he was out of the work for 2 years and could not contact and lodge complaint.

2.    Opposite Party in the version contends the Opposite Party admits coverage toMaruti Omni in question of complainant insured by Opposite Party but as it is passenger carrying commercial vehicle subject to warranties, limitations and conditions stipulated thereon.  On 13.6.2010 Opposite Party appointed One Mr.Naveenkumar P.V.T to assess the damages and he filed his report on 1.7.2010.  when complainant produced the documents called for by Opposite Party learnt oneMr.Uday kumara driver of the vehicle at the time of accident was authorised drive LMV only but the insured vehicle it was passenger carrying vehicle and he was not possessing valid licence on the date of the accident to drive passenger carrying vehicle.  Under general exception mentioned policy in view of the driver not possessing valid licence Opposite Party’s repudiated the claim hence seeks dismissal of complaint.

3.In support of the above complaint the complainantMr.Shekar Kumar,filed affidavit evidence as (CW1)and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C7 as detailed in the annexure here below.  On behalf of the opposite parties Mr.Piyush Shankar,(RW1) Manage legal, Universal Sompo General Insurance Company Limited, Mr. Naveen Kumara PTV, (RW2) Loss Assessor, also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R6 as detailed in the annexure here below.

4.In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

           We have considered entire case filed on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows:

                    Point No. (i): Affirmative

                   Point No. (ii): Negative

                   Point No.(iii): As per the final order.

REASONS

5.   POINTS No. (i):In respect of the limitation as is concerned to complainant alleged that he was ill and out of station for 2 year considering this in our view to allow the application and condone the delay hence IA is allowed and the delay caused by complainant is condoned.  The vehicle of the complainant in question that met with an accident was insured with Opposite Party with coverage is un disputed. Hence the relationship of consumer and service provider between the parties is established. The claim made by complainant tomeet expenses of repairs to the accident vehicle with Opposite Party was repudiated by Opposite Party.  Hence there is live dispute between the parties as contemplated under section 2 (1) (e) C.P. Act. Hence we answer point no. 1 in the affirmative.

6.POINTS NO.(ii): We are required toin the case on hand to answer a very narrow question whether the driving licence of Udayakumarwho admittedly was driving complainant’s vehicle in question to drive Light Motor Vehicle was qualified to drive the vehicle which was registered as Light Transport Vehicle as per the endorsement in the policy.

7.   Ex.C1 is the Driving licence extract of complainant it shows through the period of accident he was R.Udaya Kumar Rao a driver the drive at the time of accident was holding and LMV from 10.10.2003.  Ex.R2 the surveyor report produced by the complainant mentions total loss basis the amount is shown as Rs.1,51,700/.  Ex.R5 is the claim rejection letter on the ground as mentioned earlier as the driver not holding DL driver to PCVL.

8.    The learned counsel for Opposite Party has drawn attention to a reported case of the Apex Court in MukundDewangan V/s Oriental Insurance co.ltd in 2016-(1) T.A.C 673 (S.C.)

Referring to various section of M.V. Act 1988 in this reported case which is decided 11^th February 2016, the question that whether a transport vehicles are excluded from the definition in section 2 (21) i.e LMV was referred to a larger bench by the Apex Court it is held thus:

Motor Vehicles Act, 1988, Section 10, 2 (10), 2 (15), 2 (16), 2 017), 2 (21), 2(23), 2 (24), 2 (26), 2 (29), 2 (47), 2 (48), and 9  Central Motor Vehicles Rules, 1989, Rule 14, Form IV Rules 8, 16,17,34 and 31 motor Vehicles Clarification of Light Motor Vehicles Transport vehicle Distinction  Whether for driver having licence to drive light motor vehicle (LMVs) there is a necessity of obtaining endorsement to drive the transport vehicle when the transport vehicle is of class of light motor vehicle Contents of licence Transport vehicle means a public service vehicle, a goods carriage as educational institution bus or a private service vehicle effect of amendment of section 10 vide Act 54 of 1994 Pre amended position and also after amendment has been effected in forms in 2001 What is meaning to be given to definition of  LMV  as defined in section 2 (21)? Whether transport vehicles are excluded from it? What is effect of amendment made by Act No.54 of 1994 while substituting clauses (e) to (h) of section 10 (2)?  What is effect of amendment of Form IV as to operation of section 10? Question referred to larger bench

9.   Reference was also made by learned counsel for Opposite Party to an order of the National Commission in Reliance General Insurance co.ltd V/s JivabhaiMaladebhaiGodhaniya in revision petition No.1407 of 2014 Order dated 9^th May 2017.  It was held by referring to earlier reported of the case National Commission and also to various case laws of the Apex Court that in circumstances of present the nature it was held that there is breach of the condition of policy when the driver was not possessing a driving licence to drive a commercial vehicle but only a LMV licence that is non- transport vehicle.  The relevant portion reads thus

Considering the overall facts and circumstance of the present case, it is abundantly  that the vehicle in question was a commercial vehicle, but the person who was driving the vehicle at the time of the accident, did not have a valid and effective licence to drive the same.  Considering the distinct requirements laid down in the Motor Vehicles Act, 1988 and the Central Motor Vehicle Rules, 1989 about the grant of licence for commercial vehicles, it is clear that the holder of the LMV licence had no authority to drive the commercial vehicle without proper endorsement from the concerned transport authority.  The detailed analysis of the legal provisions, made in para 10 above about the basic requirements for the grant of licence for transport/non transport vehicles, make it clear that for enabling a person to drive a commercial vehicle, the licencing authority has to ensure that  he fulfils the requisite conditions of age, educational qualifications, medical certificate etc.  Unless a person satisfies the licencing authority on that score and obtains proper authorisation for driving a commercial vehicle, he cannot be stated to be in possession of a valid and effective driving licence.  In the instant case, therefore, there is evidently a fundamental breach of the terms and conditions of the policy for non possession of a proper licence.  It is held, therefore, that the insured is not liable to be granted any compensation by the petitioner under the terms and conditions of the policy.  

10.   In the case on hand as seen from the copy of the insurance policy the driver clause in the policy Ex.C5 reads thus

Any person including insured provided that a person holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence provided also that the person holding an effective learner’s license may also drive the vehicle when not used for the transport of passengers/goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules 1989.

11.   Thus on going through these relied upon by Opposite Party we are of the opinion even though the question as to the validity of interpretation of section 2 (21) of MV Act is referred to larger bench by the Apex Court in Mukund Dewangan referred above, the order of the National Commission in Reliance General Insurance co.ltdas referred above, held the field.  Hence we are of the opinion that the driver of the vehicle was not holding a valid driving licence and there by Opposite Party is not liable to answerthen claim of complainant.  Hence there is deficiency in service on the part of Opposite Party hencepoint no.2 answered in the negative.

 Wherefore the following order

ORDER

                The complaint is dismissed.     

       Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 7dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 1^stJune 2017)

             MEMBER                                              PRESIDENT

(T.C. RAJASHEKAR)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

 Additional Bench, Mangalore                      Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr.Shekar Kumar

Documents marked on behalf of the Complainant:

Ex.C1:Driving licence

Ex.C2: original notice issued by Opposite Party.

Ex.C3: Original Bills.

Ex.C4: CC of FIR

Ex.C5: Copy of policy issued by Opposite Party.

Ex.C6: Copy of sale certificate

Ex.C7: Photo copy of accident.

Witnesses examined on behalf of the Opposite Party:

RW1:Mr.Piyush Shankar, Manage legal, Universal Sompo General Insurance Company Limited

RW2: Mr. Naveen Kumara PTV, Loss Assessor

Documents marked on behalf of the Opposite Party:

Ex.R1: I Claim

Ex.R2: Surveyors report

Ex.R3: correspondence letter by mail.

Ex.R4: correspondence mail.

Ex.R5: claim rejection letter

Ex.R6: claim note

Dated: 01.06.2017                    PRESIDENT