CONSUMER COMPLAINT No. 127 / 2008

Mude Ramesh Naik, S/o Pome Naik,
aged about 29 years, Chinna Bidiki, Machireddygaripalli,
T. sundupalli Mandal, Kadapa District. ….. Complainant.

Vs.

1) M/s TML Financial Services Ltd., Mumbai, Rep. by its
Branch Manager, Branch Office, D.No. 2/13, First Floor,
Kotireddy Circle, Kadapa City.
2) ICICI Lombard General Insurance Co. ltd., Rep. by its
Branch Manager, Branch Office, Narapureddy buildings,
Apsara road, Kadapa City. …….. Respondents.

This complaint coming on this day for final hearing on 2-4-2009 in the presence of Sri K. Murali, Advocate for complainant and Sri D. Rajasekhar Reddy, Advocate for R2 and R1 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-
O R D E R

(Per Smt. B. Durga Kumari, Member),

1. This is a complaint filed by the complainant under section 12 of C.P. Act seeking direction to the respondents to pay Rs. 3,47,381/- along with 18% p.a. and to pay Rs. 5,000/- towards transport and other incidental charges, to pay Rs. 97,000/- towards loss of earnings, to pay an amount of Rs. 20,000/- towards deficiency of the service of the respondent and to pay Rs. 15,000/- towards mental agony.

2. The brief facts of the complaint is as follows:- The complainant is the registered owner of TATA Indica Car bearing No. AP 04 TV : 0403. the said vehicle is purchased under hire purchase agreement and hypothecated to R1. the said car was insured with R2 through R1 covering the risk of own damages as well as the 3rd party damages and 3rd party risks. The policy bearing No. 3004/52471008/00/000 under passenger carrying package valid from 8-9-2007 to 7-9-2008. The said card was registered with RTO office, Kadapa as tourist vehicle and the complainant is eking out his livelihood from the car by running for hire to others. The R1 provided loan to purchase the said car and R1 paid insurance premium to R2 on behalf of the complainant and the said vehicle is hypothecated to R1. The complainant further stated that he is the owner cum driver of the said vehicle and engaged passengers to Kadiri of Ananthapur district on 15-5-2008 and on 17-5-2008 and on his return from Kadiri to Kadapa at about 9.30 p.m when the said car reached near 10th turning of Ghat road on Kadiri – Pulivendla main road, suddenly smoke came out from the AC compressor of the car. Immediately the driver put the car road side and got down from the drivers seat and tried to extinguish the flames but the flames were not controlled by him, as a result of which the ca was totally burnt. The fire accident occurred in the dark night in the forest on deep ghat road no one to help to the complainant to put off the flames on his car. On 18-5-2008 the complainant reported the same to Vemula Police station and Head Constable of the said police station visited the place of fire accident and inspected the car and opined that the car was burnt totally due to short circuit in the wires AC compressor. The Sub-inspector of Vemula Police station issued a certificate to that effect stating that the said car was completely damaged in the fire accident. The R2 appointed surveyor to inspect the place to quantify the damages of the car. After the spot survey the said car was brought to Kadapa and kept in Prani Auto Plaza, Kadapa. The complainant submitted claim form to the R2 along with original bills and vehicle documents including driving license. The insurance surveyor opined that the car was completely damaged in fire accident and recommended for totally loss to the complainant. Due to fire accident the complainant was unable to pay installments of loan and the loan amount is not discharged to the R1. the car was damaged completely in the fire accident and the driver of the car was not driving the same with cautiously, with a valid and effective license and the complainant is not violated the terms and conditions of the policy. The complainant further stated that R2 repudiated the claim of the complainant on false and frivolous grounds to escape from their bounden duty to pay compensation. The complainant alleged deficiency of service on the part of R2. Hence, the complaint.

3. The R2 filed its counter and stated that the present complaint is not maintainable either in law or on facts. It is true that the complainant is the registered owner of TATA Indica car bearing No. AP 04 TV : 0403 the said vehicle was purchased under hire purchase agreement and hypothecated to R1. The said vehicle was insured with R2 covering the risk of own damages as well as 3rd party damages, 3rd party risks under cover of the policy bearing No. 3004/52471008/00/000 under passenger carrying package policy. The said policy was inforce from 8-9-2007 to 7-9-2008. The complainant is owner cum driver of the said car, who engaged passengers to Kadiri of Anantapur district on 15-5-2008 while returning back from Kadiri – Kadapa after leaving the passengers at Kidiri at about 9.30 p.m from the said care reached 10th turning of ghat road on Kadiri – pulivendla main road, suddenly smoke came out from the AC compressor of the car. Immediately the complainant / driver took the car to road side and got down from the drivers seat of the car and tried to extinguish the flames but the flames were not controlled by him and it is run by diesel, as a result of which the car was totally burnt. The complainant submitted the claim form to this respondent along with documents the claim form is marked as Ex. B2, which disclose the time of the accident. The complainant was on the wheels of the car he did not put any efforts to put off the fire. The driving license which was submitted by the complainant which is marked as Ex. B3 clearly established that the complainant was having only LMV non-transport driving license at the time of accident. The subjected car is passenger carrying commercial vehicle, the insured himself was the driver of the vehicle at the time of accident. The complainant has violated the terms and conditions of the policy as well as section 3 of M.V. Act and rule 3 of Central Motor Vehicle Act 1989. As per drivers clause mentioned in the policy “any person including the insured, provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner’s license may also drive vehicle and that such a person satisfies and requirements of Rule 3 of Central Motor Vehicle rules 1989”. In Ex. B4 the surveyors report the surveyor has clearly mentioned that the insured has possessed LMV driving license at the material time of accident. The complainant was not having any transport license with badge to drive the transport vehicle at the time of accident. Therefore, the R2 company rightly repudiated the claim of the complainant and as such there is no any deficiency of service on their part. Further the R2 stated that the claim of the complainant is very high and there is no way for the amounts mentioned in the complaint and the respondent mentioned citation reported in 2008 ACJ 627 New India Assurance Co. Ltd., Vs. Prabulal.

4. On behalf of the complainant Ex. A1 to A6 were marked and on behalf of the respondents Ex. B1 to B5 were marked.

5. On the basis of the above pleadings the following points are settled for determination.
i. Whether the complainant is entitled to receive the claim amount from R2?
ii. Whether the complainant is entitled to receive any compensation towards deficiency of service from the respondents?
iii.To what relief?

6. Point Nos. 1 & 2. Heard both sides and perused the records available in the forum and the forum made the following order. The complainant is the registered owner of TATA Indica Car bearing No. AP 04 TV : 0403. The said vehicle is purchased under hire purchase agreement and hypothecated to R1. The said car was insured with R2 through R1 covering the risk of own damages as well as the 3rd party damages and 3rd party risks. The policy bearing No. 3004/52471008/00/000 under passenger carrying package valid from 8-9-2007 to 7-9-2008. The said card was registered with RTO office, Kadapa as tourist vehicle and the complainant is eking out his livelihood from the car by running for hire to others. The R1 provided loan to purchase the said car and R1 paid insurance premium to R2 on behalf of the complainant and the said vehicle is hypothecated to R1. The complainant further stated that he is the owner cum driver of the said vehicle and engaged passengers to Kadiri of Ananthapur district on 15-5-2008 and on 17-5-2008 and on his return from Kadiri to Kadapa at about 9.30 p.m when the said car reached near 10th turning of Ghat road on Kadiri – Pulivendla main road, suddenly smoke came out from the AC compressor of the car. Immediately the driver put the car road side and got down from the drivers seat and tried to extinguish the flames but the flames were not controlled by him, as a result of which the ca was totally burnt. The fire accident occurred in the dark night in the forest on deep ghat road no one to help to the complainant to put off the flames on his car. On 18-5-2008 the complainant reported the same to Vemula Police station and Head Constable of the said police station visited the place of fire accident and inspected the car and opined that the car was burnt totally due to short circuit in the wires AC compressor. The Sub-inspector of Vemula Police station issued a certificate to that effect. Ex. A1 is the Xerox copy of certificate issued by Vemula Sub-Inspector. The said accident was informed to the respondents immediately and R2 appointed a spot surveyor to quantify the damages of the car and after the survey the car was brought to Kadapa and kept in Prani Auto Plaza, Kadapa by paying Rs. 7,000/-. The R2 submitted the claim form along with original bills before R2 instead of settling the claim of the complainant. The R2 repudiated the claim stating that at the time of accident the said driver is not having valid license. Ex. A2 is the Xerox copy of repudiation letter dt. 7-6-2008. The objections taken by the respondent company is that the driver is having LMV motor vehicle and not the transport vehicle license along with badge. So they have repudiated the claim of the complainant. Ex. A3 is the estimation bill issued by Prani Auto Plaza, Kadapa. Ex. A4 is the Xerox copy of Registration certificate. Ex. A5 is the Xerox copy of driving license. Ex. A6 is the Xerox copy of insurance policy.

7. The complainant alleged deficiency of service on the part of the respondents as they have repudiated their genuine claim. The R1 is a formal party to the present complaint and R2 submitted his counter stating that it is true that the complainant is owner of the TATA India car bearing No. AP 04 TV : 0403 which was purchased under hire purchase agreement and hypothecated from R1 that the same was insured with R2 covering the risk of own damage as well as 3rd party property damage and 3rd party risks under covering of the policy bearing No. 3004/52471008/00/000 under passenger carrying package valid from 8-9-2007 to 7-9-2008. The R2 is not denied the accident to the said vehicle. The R2 stated that the complainant has submitted the claim form along with original documents and after perusing the said documents they came to know that at the time of material accident. The said complainant / driver does not possessed valid license at the time of accident the driver of the said vehicle was having only LMV non-transport driving license. But the said car is passengers carrying commercial vehicle. The insured himself was driver of the vehicle at the time of accident, who is having only LMV non-transport driving license but not the transport vehicle license with badge. The complainant has violated the terms and conditions of the policy as well as section 3 of M.V. Act and rule 3 of Central Motor Act 1989. Only one objection was taken by the insurance company that the complainant / driver does the transport license with badge to drive the transport vehicle at the time of accident and they have rightly repudiated the claim of the complainant.

8. Ex. B1 is the Xerox copy of the policy. Ex. B2 is the Xerox copy of claim form. Ex. B3 is the Xerox copy of driving license. Ex. B4 is the Xerox copy of surveyor report. Ex. B5 is the clarification letter issued by Naveen vellanki. The insurance company has appointed one spot surveyor to assess the loss of the said vehicle and the surveyor has submitted his report stating that the car was totally burnt in the said accident and he has assessed net loss assessment, repair loss, total loss and salvage loss basis. The claim settlement on salvage loss basis is quite reasonable compared with repair loss and total loss assessment. The surveyor has recommended for total loss of the said vehicle but still R2 company has repudiated the claim of the complainant. The said accident occurred due to flames came out from AC compressor and at the time of flames the vehicle was run with diesel. The flames were not controlled by the complainant driver. As a result the said TATA Indica car was burnt out in the dark night and no one to help to the complainant. This objection taken by R2 company is that the complainant driver is not having valid license at the time of material accident. But the said accident has not occurred due to the mistake of the driver or any rash and negligent driving. So it is not a fault of the driver it is the short circuit which occurred in the wires of AC compressor as a result of the fire accident occurred. It means there is no involvement of the driver in the said accident. (2003) 6 Supreme Court cases 420 Jitendra Kumar Vs. Oriental Insurance Co. Ltd., held that the Motor Vehicles Act 1988 – S. 149 (2) (a) (ii) – Scope of – Vehicle damaged due to accidental fire – Driver not holding a valid driving license at the time of incident – Liability of insurer – Vehicle (Maruti Van), which was duly insured, caught fire during the drive due to mechanical reasons and not due to any fault of the driver – Held, S. 149 (20 (a) (ii) does not empower the Insurance Company to repudiate a claim for damages incurred due to reasons other than the act of the driver – Therefore, held on facts, Insurance Co. could not have repudiated the claim of the appellant owner solely on the ground that the driver did not have a valid license at the time of the incident in question. We are of the opinion that the insurance company has not applied its mind in repudiating the claim of the complainant. The respondent filed one Supreme Court Judgement New India Assurance Co. Ltd., Vs. Prabhulal which is not applicable to the present case.


9. Point No. 3. In the result, the complaint is allowed. Directing R2 to pay Rs. 3,30,013/- (Rupees Three lakh thirty thousand and thirteen only) towards total loss of the vehicle and Rs. 2,000/- (Rupees two thousand only) towards mental agony and Rs. 1,000/- (Rupees one thousand only) towards costs of the complaint, in favour of R1, who in turn deduct all outstanding dues of loan of the complainant if any and pay the balance. The R2 is directed to comply the order of the Hon’ble Forum within 45 days from the date of receipt of the order.