Date of filing: 10.08.2018

                                                               Date of Disposal:29.10.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 29^th DAY OF OCTOBER, 2022

CONSUMER COMPLAINT NO.1348/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Suresh K.R S/o Rajegowda,

Aged about 25 years,

No.47/1, Ananthapura,

Singanayakanahalli Post,

Bangalore-560 064.……COMPLAINANT

(Rep by Sri.Ashok Kumar, Adv).

V/s

New India Insurance Company Limited,

Claim hub, 2-b Unity Building Annexe

Mission Road,

Bangalore-560 027. ……      OPPOSITE PARTY

Opposite party rep by Sri.E.I.Sanmathi, Adv.,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-17 of Consumer Protection Act, 1986 seeking for a direction to the opposite party to pay a sum of Rs.2,00,000/- for delay caused to assess the damage caused to the vehicle and approve the estimate by the service centre and to reimburse the amount spent by the complainant towards expenses incurred for service of the car amounting to Rs.10,45,065/- together with interest at 12% p.a. till the date of payment and a sum of Rs.20,000/- towards litigation cost and such other reliefs as this commission deems fit in the circumstances of the case.    

2. It is not in dispute that the complainant was the owner of Toyota Etios GD BS IV bearing No.KA-04-AA-4315.  Further, it is not in dispute that the said vehicle met with an accident on 18.03.2018 and one Mr.Harish was the driver of the said car during the relevant period.  Further, it is not in dispute that Harish was holding light motor driving licence and the badge incorporated to the said DL issued to drive transport vehicle was expired on 11.05.2017.  Further, it is not in dispute that the vehicle had the insurance coverage issued by opposite party from 30.10.2017 to 29.10.2018.  Further, it is not in dispute that the opposite party had repudiated the claim of the complainant on the ground that the driver of the vehicle was not holding driving licence to drive the transport vehicle.  Further, it is not in dispute that the subject vehicle was a passenger vehicle during the relevant period.  Further, it is not in dispute that since the claim was repudiated, the complainant issued legal notice on 27.06.2018 and the opposite party had replied for the same through letter dt.13.07.2018.  Further, it is not in dispute that on 21.03.2018 the complaint was lodged and charge sheet came to be filed against the driver of the vehicle for the offence punishable under Section-279 and 337 of IPC.  Further, it is not in dispute that total premium for the relevant period was paid of Rs.28,925/-. 

3. It is the further case of the complainant that even though legal notice dt.27.06.2018 been served, the opposite party did not take any steps to assess damage and had rejected the claim of the complainant.  Further, the complainant got repaired the vehicle by incurring expense of Rs.10,45,065/-.  Hence, there is dereliction of duty on the part of the opposite party.  Therefore, the complaint came to be filed.

4. It is the further case of the opposite party that this court has no jurisdiction to grant such relief since it involves recording of elaborate evidence and it is of a civil in nature.  Further, the complainant did not produce valid DL even though it was directed by the opposite party.  Further, the driving licence held by the complainant was in respect of non-transport as per admitted documents produced by the complainant himself and not in respect of commercial passenger vehicle which was involved in alleged accident in question.  Hence, as per the conditions of the policy, the complainant is not entitled for reimbursement and sought to dismiss the complaint. 

5. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P12 documents.  The Senior Divisional Manager of opposite party company has filed affidavit in the form of her evidence in chief.  The Administrative office of opposite party company has filed affidavit in the form of his evidence in chief and got marked Ex.R1 to R6 documents.  

6. Counsels for both the parties have filed written arguments.       

7. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

  8.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative   

Point No.3 :  As per the final order for the following;

REASONS

9.POINT NO.1:- The complainant (PW1) and opposite party (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  The claim of the complainant was repudiated on the ground that during the relevant period the driver did not possess valid driving licence.  Admittedly, the driver was holding light motor vehicle driving licence.  On perusal of EX.P7 copy of DL, it appears that a badge to drive transport vehicle was issued to the driver of the complainant and it reflects in the DL card dt.11.05.2017.  The accident took place on 18.03.2018.  Hence, on the date of accident, the driver was not holding valid driving licence to drive the transport vehicle.  EX.P8 is the Xerox copy of the RC relates to the subject vehicle.  EX.P5 is the Xerox copy of permit in which it appears that the permit was in respect of a contract carriage vehicle and it was valid from 04.11.2015 to 03.11.2020.  Further, in EX.P3 xerox copy of the policy, it is stated that the subject vehicle was a passenger carrying vehicle.  Hence, it was a commercial vehicle. 

10. Further, in EX.R6 extract of the driving licence, it is stated that the licence to drive the transport vehicle was valid upto 11.05.2017.  EX.R6 supports EX.P7 driving licence.

11. It is the contention of the learned counsel for the complainant that even though the complainant was holding light motor vehicle driving licence during the relevant period and as the licence issued to drive transport vehicle has been expired on the date of accident, the driver was permitted to drive the transport vehicle and it was obligation on the part of the opposite party for reimbursement of the expense incurred for the repair of the vehicle.  Contrary to that, it is the contention of the learned counsel for the opposite party that if the driver was permitted to drive the transport vehicle under the licence of light motor vehicle driving licence, he could have obtained endorsement to that effect from the transport authority and could have produced before opposite party.  That has not been complied with the complainant.  Hence, the complainant is not entitled for reimbursement.

12. In support of the contention, counsel for the complainant relies the judgement rendered by the Hon’ble Apex court reported in (2017) 14 SCC 663 in between Mukund Dewangan V/s Oriental Insurance Company Limited.  In the said case, it is held that it is not required to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.  Further, in view of Section-2(15) of IMV Act, the motor car or tractor or roadroller, the unladen weight of any of which does not exceed 7500 kg as defined in Sectin-2(48) of the Act, are also the light motor vehicle.  Further, once a licence is issued to drive light motor vehicle, it would also mean specific authorisation to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, roadroller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg.  In addition to that the counsel has also produced a circular issued by Government of India, Ministry of Road Transport and Highways dt.16.04.2018 stating that the exemption from the requirement to obtain the endorsement for commercial vehicles would apply to light motor vehicle (goods/passenger) also.  Hence, in view of the principles laid down in the said judgement and the circular issued by the Ministry of Road Transport and Highways, we feel the driver of the vehicle during the relevant time was competent to drive the passenger vehicle.  Further, on perusal of EX.R5 xerox copy of vehicles particulars, it appears that the laden weight of the subject vehicle was 1440 kg.  Hence, we feel the opposite party ought to have entertained the claim of the complainant for reimbursement of the expenses incurred.  Hence, we answer this point in affirmative. 

13.POINT NO.2:- The complainant claimed a sum of Rs.10,45,065/-.  The estimate produced by the complainant vide EX.P12 indicates that the total estimation was for Rs.10,45,065.04.  On perusal of the policy vide EX.R1 produced, it appears that the complainant has paid Rs.11,815/- premium for own damage.  The limits of liability of the company was upto Rs.7,50,000/-.  The details of expenses incurred for vehicle towards labour was of Rs.1,60,960/-, towards parts (Approx) was of Rs.8,84,105/-, total Rs.10,45,065/-.  The vehicle was registered in the month of October-2015 and the manufacturing date was October-2015.  Since the accident took place on 18.03.2018 it was within 3 years.  As per Ex.R1 policy, the depreciation for parts of the vehicle exceeding 2 years but not exceeding 3 years shall be 15%.  The opposite party did not dispute the estimation produced by the complainant.  Hence, we feel the complainant is entitled for a sum of Rs.7,00,000/-.  The rate of interest claimed is highly exorbitant and it would meet the interest of justice if interest at the rate of 9% p.a. is levied.  Hence, the complainant is entitled for interest at the rate of 9% p.a. on the above said amount of Rs.7,00,000/- from the date of repudiation i.e., from 20.06.2018. The repudiation cum letter issued was of EX.R3.  Further, the complainant is entitled for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  Hence, we answer this point partly in affirmative.

14.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.7,00,000/- to the complainant with interest at the rate of 9% p.a. from the date of repudiation i.e., 20.06.2018 till realization.

Further, the opposite party is directed to pay a sum of Rs,20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. 

The complainant and opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 29^th day of October, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.Suresh K.R, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. True copy of the FIR in Crime No.143/2018 registered by Nelamangala Police Station for the offence punishable U/s 279, 337 along with the complaint.
2. True copy of the charge sheet filed by the police before the Hon’ble JMFC, Nelamangala.
3. Policy schedule-cum-certificate of Insurance in respect of the policy bearing No.67050031170300001749 issued by New India Assurance Company Limited.
4. Copy of the collection receipt-cum adjustment voucher given by New India Assurance Company Limited.
5. The permit in respect of a contract carriage issued by the RTO.
6. The copy of computerized pollution under check.

7. The copy of the driving licence of Mr.Harish.
8. Copy of the R.C in respect of the vehicle bearing registration No.KA-04-AA-4315.
9. Copy of the certificate of fitness dt.21.11.2017.
10. Copy of the legal notice got issued by complainant to the opposite party insurance company which is dt.27.06.2018. postal receipt and copy of track consignment downloaded from the postal website to show that he legal notice was delivered.
11. Reply notice issued by the advocate for the opposite party to the complainant advocate.
12. The estimate No.BPE18-03427 issued to Toyota.

Witness examined for the opposite party side: 

Smt.Shoba Rajgiri, Divisional Manager of opposite party company has filed her affidavit.

Sri.Gurugubilli Dinesh, Administrative Officer of opposite party company has filed his affidavit.

Documents marked for the Opposite Party side:

1. The attested coy of the policy schedule cum-certificate of insurance in respect of policy No.67050031170300001749.

2.Motor (final survey report) dt.09.06.2018 submitted by Sri.K.G.Shivashankarappa.

3.Copy of the communication letter dt.20.06.2018 issued by opposite party to the complainant calling upon him to produce the documents referred by him.

4. Copy of the reply notice sent by opposite party to the complainant which is dt.13.07.2018.

5. The ‘B’ register extract under rule 48 of KMV rules issued by the RTO and permit area detail.

6. The extract of the driving licence dt.28.05.2019 issued by the ARTO.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•