C.C.No.630 of 2007
C/o. V.V.Ramanuja Rao, Advocate,
Shyamalanagar, Guntur. … Complainant
Bajaj Allianz General Insurance Company Ltd.,
Rep. by its Manager,
III floor, VIP Road,
Vishakapatnam – 530016. … Opposite party
This complaint coming up before us for final hearing on 04-11-09 in the presence of Sri V.V.Ramanuja Rao, Advocate for complainant and of Sri S.Satyanarayana, 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 T.ANJANEYULU, PRESIDENT:
This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant claiming sum of Rs.62,933/- in all towards damage of vehicle with interest, mental agony and cost of litigation.
The brief facts of the case are that
The complainant purchased New APE Auto Rickshaw of PIA 6610 make under Hypothecation from Sri Sai Divya Finance Chits, Chilakaluripet and was registered as AP07W 9575 by RTO, Narasaraopet. The vehicle was insured with opposite party for a sum of Rs.1,20,650/- for one year starting from 12-02-07 to 11-02-08 by paying a premium of Rs.3138/-. The opposite party had also issued cover note bearing No.OG-07-1804-1803-00011566. Unfortunately, on 15-05-07 when the complainant was proceeding towards Edlapadu Bridge at about 5.15, a buffalo came from right side across the road, though the complainant blown horn and applied brake, the auto turned turtle. The complainant sustained severe injuries and auto was badly damaged. Thereafter it was informed to opposite party. On giving assurance by opposite party he got it repaired at the cost of Rs.40,000/- from Ramcor 15-16-163, Mehar House, Guntur and obtained cash bill for a sum of Rs.40,000/-. It was also brought to notice of opposite party by submitting all material papers and requested to settle the claim. As per contractual obligation, the opposite party has to indemnify the loss sustained by complainant but they failed to do so. Thus there is deficiency of service on the part of opposite party. The complainant suffered a lot both mentally and physically. As things stood thus, the complainant received a letter from opposite party stating that the claim has been repudiated on the ground that the complainant is not having valid driving license. In fact the complainant had a valid driving license issued by RTA, Narasaraopet which was in force as on the date of accident i.e., the complainant can drive transport vehicle upto 26-06-2010 and the non-transport vehicle upto 13-06-06. As the date of issue i.e., on 27-06-07, the complainant made several requests to settle his claim but the opposite party postponed the matter on one pretext or the other. Finally the complainant got issued legal notice dt.07-09-07 which has been received by opposite party, but kept quite. Hence, the complaint.
The opposite party has filed its version denying all the allegations made in the complaint. It is stated that it has issued cover note in favour of complainant of the vehicle bearing No.AP 7 W 9575, which is valid from 12-02-07 to 11-02-08, the policy is subject to terms and conditions, exceptions and limitations. The complainant is put to strict proof that auto bearing No. AP 7 W 9575 was involved in an accident on 15-05-07 while he was proceeding towards Edlapadu village.
On thorough inquiry, the opposite party came to know that the complainant himself was driving above referred auto and he was not holding valid and effective driving license at the time of accident and not satisfied the requirements of Rule No.3 of Central Motor Vehicles Rules, 1989. As per the particulars obtained from Addl. Licensing Authority, Narasaraopet, the complainant was having only AR non transport as on the date of accident. Whereas, the vehicle is a transport vehicle for which the driver should possess transport endorsement with badge. The complainant known very well that he was not having valid driving license to drive the vehicle and due to lack of experience he himself caused the accident. Therefore, the complainant was disqualified to drive the vehicle at the time of accident and thereby committed violation of provisions of MV Act. Therefore, the opposite party is not liable to pay any sort of compensation to complainant.
By suppressing the real facts, the complainant averred that he was having valid driving license to drive the transport vehicle and the transport endorsement was valid upto 26-06-2010. Hence, the complainant is put to strict proof of the same. In the aforesaid circumstances, the opposite party has rightly repudiated the claim as per the terms and conditions of policy. There is no deficiency of service on their part. The claim amount of Rs.62,933/- under different heads is baseless, exorbitant and exaggerated. Hence, it is prayed to dismiss the complaint with costs.
Both sides have filed their respective affidavits. On behalf of complainant Ex.A1 to A9 are marked. Ex.B1 to B4 are marked on behalf of opposite party.
Now the points for determination are that
1. Whether there is any deficiency of service on the part of opposite party in repudiating the claim?
2. Whether the complainant is entitled for the amounts as claimed?
3. To what relief?
There is no dispute about the complainant owing auto rickshaw bearing No. AP07W 9575 and coverage of insurance and premium from 12-02-07 to 11-02-08. However, the opposite party is called upon to prove strictly that the said vehicle was involved in an accident on 15-05-07 while it was proceeding towards Edlapadu village as mentioned in complaint. This apart opposite party raised dispute that the complainant who himself drove the vehicle does not possess valid and effective driving license of transport vehicle. At least, an endorsement to drive the transport vehicle including badge by the concerned authority. For want of these factors, the claim is said to have been repudiated by their letter dt.17-07-07 vide Ex.B2.
The complainant states that on 15-05-07 in the early hours while he was proceeding to Edlapadu, a she buffalo came across the road, though he was blown the horn and applied brakes, the auto turned turtle, in which he said to have severely injured and the auto rickshaw got damaged extensively. This fact is informed to opposite party and they said to have assured him to get the vehicle repaired and thereafter payment of repair charges would be paid. However, the affidavit of surveyor K.Giri Kumar, who was appointed to assess the damage and loss of auto rickshaw bearing No.AP07W 9575 reveals that he has inspected the vehicle, which met with alleged accident on 15-05-07 and found damage of five parts of vehicle i.e., main frame assly, W/s glass laminated, W/s frame assly, gear cables 2 nos, R.C. gear cable, engine stop control cable & accelerator cable, wiper arm & blade assly, Handle bar and wiper motor assly. He has also estimated damaged parts including labour charges. He has estimated the actual loss and damage to the tune of Rs.26,632/-. There is also a report of the said surveyor vide Ex.B2. It is mentioned in his report that the cause of accident as narrated by complainant corroborates with the nature of loss/damage. Therefore, from the above record, it is made clear that the vehicle in question met with an accident.
The actual dispute in the case is about possession of valid driving license by the complainant. The complainant himself is the owner of vehicle bearing No.AP07W 9575. A certificate of registration vide Ex.A1 issued by Registering Authority, Narasaraopet is available on record. This shows all the particulars of vehicle including date of registration. There is also permit for the said vehicle vide Ex.A2 apart from fitness certificate vide Ex.A3. He has filed original driving license vide Ex.A4, which shows that non-transport (AR) having validity till 13-06-2026, transport (AR) having validity till 26-06-2010, the date of first issue is 14-06-06.
The repudiation letter dt.17-07-07 reads as follows:
(1) On verification of driving license of the driver Mr.N.Ravi, from the concerned RTO it was established that the D/L was not valid at the time of accident.
It also mentioned about rules framed under Motor Vehicle Act and driver clause under policy schedule. After going through all the documents and clarification submitted, they are unable to process claim and the same is stands repudiated. In support of their repudiation letter, they also rely upon opinion obtained from the Additional Licensing Authority, Narasaraopet, Guntur District vide Ex.B3. As per said information, the complainant was first issued license to drive non-transport auto rickshaw with effect from 14-06-06, thereafter transport license for auto rickshaw on 27-06-07, which is after date of accident. Therefore, the opposite party claims that as on the date of accident the complainant was not possessing valid and effective driving license to drive the transport auto rickshaw. In support of their contention they also rely upon a decision reported in 2008 ACJ 627 New India Assurance Company Ltd. Vs. Prabhulal Lal, in which it is held by Apex Court that there was no endorsement for driving transport vehicle as required by the Sec.3 of Act r/w. Rule 16 of the rules and Form.6. Hence, claimant not entitled to claim any compensation from the insurance company.
Further they rely upon a decision reported in AIR 2009 SUPREME COURT 208, National Insurance Company Ltd. Vs. Vidyadhar Mahariwala & Ors., wherein it was observed that the driving license of the driver of vehicle was not in force on the date of accident. The insurance company is not liable for payment of compensation.
On the same plea a decision reported in 2009 (1) CCC 6 (NS), National Insurance Company Ltd. Vs. Meena Agarwal is also relied upon.
Basing on the aforesaid decisions and license possessed by complainant, the learned counsel for opposite party contends that the complainant at least did not obtain an endorsement of licensing authority and badge to drive the transport vehicle.
Thus, the aforesaid material on record replied upon by the insurance company amply shows that the complainant was not having effective valid driving license, as per the terms of policy schedule to drive the transport vehicle as on the date of accident. This is clearly violation of terms and conditions of policy. Therefore, we are of the view that the insurance company has rightly repudiated the claim and there is no deficiency of service on their part. The point is answered accordingly.
POINTS 2 & 3
In view of aforesaid finding the complainant is not entitled for any amount as claimed in the complaint at least for damages of vehicle. Finally the complaint is dismissed.
In the result, the complaint is dismissed. Each party shall bear their own costs.
Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 4th day of November, 2009.