Karnataka

Bellary

CC/147/2019

Sri Ramanna - Complainant(s)

Versus

The Manager, National Insurance Co Ltd - Opp.Party(s)

N Suresh

21 Nov 2020

ORDER

FILED ON:	06-12-2019
ORDER ON:	21-11-2020

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

C.C.No. 147 of 2019     

 

Present :-  

 

     (1)  Shri.A.H.Malaghan. B.com. LLB.(Spl),  …… President.

 

     (2)  Shri.H.Veera Shekar. B.A. LLb.(Spl),    ……. Member.

 

     (3)  Smt. Marla Shashikala. B.com. LLB.      .…… Member.

 

 

 

 

 

 

 

DATED THIS THE 21^st DAY OF NOVEMBER- 2020

 

 

 

 

 

 

COMPLAINANT   By-Shri.N.Suresh,    Advocate, Bellary. //VS//	Sri. Ramanna. S/o. Duggappa, Age: 38 Years, R/o. Belgurki Village, Madsirwar Post, Sindhanur Tq, Raichur Dist.
RESPONDENT/S   By-Smt. P.Rama Devi,  Advocate, Ballari.	The Manager, National Insurance Company Ltd., Parvathi Nagar, Ballari Division, Ballari.

 

 

 

// O R D E R //

 

Per Shri.A.H.Malaghan.

 

 

         This is a complaint filed by the complainant against the respondent U/Sec-12 of the Consumer Protection Act 1986 seeking vehicle damage from Opponent.  

 

 

 

 

              2.    The complaint in brief is that the complainant is the owner cum driver of the Swift Dezire LDI Tour bearing Reg.No.KA-36/B-4829  and the respondent have issued a commercial vehicle package policy bearing policy No.61070031181342339867 valid from 31-08-2018 to 30-08-2019.  The complainant and his family members are totally depending on the income of the said vehicle and the complainant earned Rs.2,000/- per day for his livelihood.  On 07-12-2018 at about 11.00 am., while he driving vehicle towards Temple at Veerapur village, Sindhanur Tq, by driving slowly and on proper side, and while taking the vehicle for upper side of the Temple, all of sudden, the vehicle was upside and come to contact with hard substance there by its two doors, front portion mudgad and the other parts of the vehicle were completely damaged. Immediately, the complainant has intimated to the respondent company, the respondent company has sent Surveyor to inspect the vehicle at the spot on 08-12-2018.   The Surveyor had inspected the vehicle and taken photos of the damaged vehicle and assured the complainant to settle their claim immediately.  On 28-06-2019 the complainant has filed claim application and relevant documents to the respondent. But, the respondent company instead of settling the claim, has issued the letter dt:11-04-2019 on untenable grounds and the respondent has issued one more letter dt:21-06-2019 calling upon the complainant to furnish the valid and effective driving license as on date of accident only to escape from their liability.    The complainant has took the vehicle and get repair at KPF Pvt Ltd., Ballari, and he has incurred a sum of Rs.1,60,000/-  the said KPF Pvt Ltd., Ballari, has issued various bills/estimation to the complainant, the same is collected by the Surveyor, assuring the complainant to settle the claim in short period.  The respondent has not settled the claim on untenable grounds only with an intention to escape from their legal liability which amounts to deficiency in service on his part. On these grounds, the complainant has prayed for allowing the complaint.

 

             3.  After service of notice this Consumer Commission, the respondent has appeared through his counsel and filed his written version stating that;

 

              The respondent has specifically denies all the allegations made in the complaint, except those which are expressly admitted that, the complainant has insured his car Swift Dezire, commercial vehicle bearing No.KA-36/B-4829 and the complainant has owner cum driver of the insured vehicle. The respondent has collected huge premium from the complainant is false; premium is calculated and collected depending upon the coverage given and the use of the vehicle etc., as per the insurance terms and norms.  The complainant has delayed in informing the company about the accident.  However, immediately on receiving the information, the Surveyor was appointed by the respondent company to assess the loss. M.Veerabhadrapp, Surveyor, has visited M/s Samarth Automotivez, near Fire Station, Sindhanur, to inspect the damaged vehicle,.  The complainant has informed the company after shifting the vehicle to Sindhanur for repairs.  The said Surveyor has assessed the loss to the vehicle, labour charges, and he has given a report showing net loss at Rs.1,28,000/- on dt:08-03-2019.  The respondent has immediately asked the complainant to provide his Driving License particulars to know if he had a valid driving license to drive the vehicle as on the date of the accident.  There was no response from the complainant and the DL copy obtained by the company through their agent, showed that the driving license of the complainant to drive LMV Cab was issued on 10-02-2015 and lapsed on 09-02-2018.  It did not show any renewals, the date of accident is 07-12-2018.  Therefore, as on the date of the accident, the complainant had no valid and effective driving license. On 11-04-2019 the respondent has written a letter to the complainant, asking him to submit his DL and to inform that whether, he had renewed his DL for LMV Cab and if so to furnish the detail.  There was no response from the complainant.  On 21-06-2019 the respondent has written another letter stating that as the complainant has not responded, it is assumed that he has no valid DL as on the date of the accident and hence repudiated his claim.  On 28-06-2019 the complainant has written a letter to the respondent claiming damages of Rs.1,60,000/- to his vehicle.  In the said letter, on page 2, unnumbered para 3, he admits that his “Badge period had expired” which means to say that the complainant had no valid and effective driving license to drive a cab, a commercial vehicle as on the date of accident.  As per the India Motor Vehicle Act-1988 possession of a valid and proper DL is a must. The complainant being the owner cum driver of the vehicle has violated the law as well as policy conditions. The complainant has not furnished any document to establish his valid and effective DL as on the date of accident.  The complainant has also admitted that he had no valid DL, hence the complaint is not maintainable and liable to be dismissed.  

 

 

          4.      In order to prove the case of the complainant, he has filed is affidavit evidence as PW1 and filed 22 documents.  On behalf of the respondent, one B.Nagendra has filed his affidavit evidence as RW-1 and produced 07 certified documents.

     

          5.       The written argument is filed by the complainant and heard the oral arguments on both sides.  

 

        6.     The points that arise for our consideration are;

1.	Whether the complainant has proved deficiency in service on the part of the respondent in settling his own damage claim?
2.	Whether the complainant is entitled any reliefs claimed in the complaint?
3.	What order?

 

                            

 

 

 

 

 

 

7.   The findings on the above points are as under.  

Point No.1:	In the affirmative.
Point No.2:	Partly in the affirmative.
Point No.3	As per final order.

 

        

 

 

 

 

 

 

   // R  E A S O N S //

 

Point No.1: -

 

          8.   Considering the above case, it is admitted fact that, the complainant is the owner cum driver of the said car and same has sustained damaged in an incident on 07-12-2018 and was covered with insurance policy as on the date of incident issued by the respondent. 

 

          9.     The learning counsel for the complainant has vehemently argued that the complainant has purchased the above said car for earning his livelihood, but unfortunately the said vehicle was met with an accident causing extensive damages.  Immediately after said accident, that the incident was reported to the respondent immediately and then the OP has appointed the Surveyor to assess the loss.  The complainant has incurred huge expenses for repairing the said vehicle, which was repaid at Samarth Automobile, Sindhanur and as per his repair bill/tax invoice the complainant has paid Rs.1,65,274/-. So, the complainant has claimed that the respondent is liable to indemnify the above said the loss caused to his vehicle, as per the said bills.  The learned counsel for complainant further argued that, the driving license held by the complainant was valid and effective as on the date of accident to drive the above said car.  Hence, there is no violation of the policy conditions or any law as contended by the respondent, hence the claim of the complainant against the respondent is maintainable and thereby the OP is liable to make payment of the loss caused to the complainant. 

 

         10.   On the other hand the learned counsel for the respondent has argued that, to drive the above said vehicle the badge is necessary since the said car is commercial vehicle, but as on the date of alleged accident the DL of the complainant was not renewed with badge number which was expired on 09-12-2018 itself without any further renewals.  But, the accident took place on 07-12-2018 and on the said date the above said DL held by the complainant was not renewed.  Hence, it is clearly evident that, the complainant had no valid and effective driving license to drive the LMV Cab vehicle, on the date of alleged accident, hence in view of the said violation of the policy conditions the claim of the complainant are not payable.  Therefore, the complainant is not entitled any reliefs as claimed in the complaint. 

 

           11.   The learned counsel for the respondent further argued that, the respondent has issued several reminders to complainant to submit his valid driving license to drive to drive LMV Cab, but despite of service of the said notice the complainant has not complied the said notices nor produced his valid DL.  The further argued that, as per the Motor vehicle 1988 the possession of the valid and proper DL is a must, but admittedly the complainant has no valid DL as on the date of incident.  Hence, the repudiation of claim on the above said grounds is just and proper and as per the law only and same does not constitute any deficiency of service as contended by the counsel for the complainant.  Because the respondent has taken a legal action in deciding the claim of the complainant as per the terms and condition of the policy and there by the claim of the complainant is not payable by the respondent.  The learned counsel further submitted that even in this case also the complainant has failed to produced the valid DL with his LMV Badge, valid and effective on the date of accident to show that he is having a valid effective DL.  Further the complainant has not produced any cogent evidence in order to establish his case against the respondent. So, mere allegation against the respondent is not a conclusive proof to allow his complaint. 

 

          12.   After care full consideration of the above said arguments of both parties, we perused the documents produced by the both parties, coupled with their evidence affidavits.  The complainant has produced 22 documents including the estimation report, cash receipt, photos of the damaged vehicle, legal notice issued to the op and also letter sent by the OP seeking documents from complainant, copy of Aadhar Card, vehicle documents and also driving license copy of the complainant including the policy copy issued by OP infavour of the complainant. On the other hand the OP also produced 07 documents.  The documents produced by the OP are already submitted by the complainant in this case.  The main reasons for repudiating the claim of the complainant is only for want of driving license of the complainant with LMV Badge.  But in this case the complainant has produced copy of DL having badge No.142 Cab which was valid up to 09-02-2018 only but which was expired as on the date of alleged accident caused on 07-12-2018.  However, the said DL for non transport vehicle is valid up to 31-05-2031.  Therefore, the counsel for complainant as argued that the badge is not necessary for LMV transport vehicle, in view of the Judgment of the Hon’ble Supreme Court reported in AIR 2017 (SC) 3668 between Mukund Dewangan Vs. Oriental Insurance Company Ltd., wherein, it is held that

(A) Motor Vehicles Act (59 of 1988), Ss. 2(10), 2(21), 2(15), 2(47), 2(48), 3, 10 (as amended by Act 54 of 1994) – Central Motor Vehicles Rules (1989),  Rr.8, 14, 17, 34 – Light Motor Vehicles (LMV) Includes transport vehicle as per weight prescribed in S. 2(21) r.w.2(48) – Driver holding LMV License can drive all vehicle of class including transport vehicles – No separate endorsement required to drive such transport vehicles.

          

 Of the careful reading of the above said Judgment the Hon’ble Supreme Court has made it clear that the driver holding the Driving License of the LMV can drive or vehicles of class indicating Transport vehicle.  No separate endorsement is required to drive such transport vehicle.  Even it is case also the vehicle involved in the accident is a transport vehicle and the driving license held by the driver of the said vehicle was LMV which is valid up to 31-05-2031 which was issued on 09-12-2013.  So considering the said driving license held by its driver is authorized to drive transport vehicle of the same class of vehicle.  Under such circumstance, the say of the counsel of the complainant that, the driver complainant, who hold LMV License is authorized to drive the subject vehicle involved in this case is holds good.  Because, the nature and class of both vehicles are one and the same. So, the say of the OP that one must have badge for driving the transport vehicle is not proper and the repudiation of the claim based on the above ground is not justified.  Hence, the repudiation of the claim is liable to be quashed.  So the separate endorsement is required for driving transport vehicle as contended by the OP is wrong in view of the above said Land Mark Judgment of the Hon’ble Apex Court.  So by relying upon the said judgment we also of the view that the repudiation of the license on the ground of driving license of the complainant is wrong and same is liable to be set aside. So, in our view, such action of the OP and repudiating the claim of the complainant is a deficiency of service towards the complainant.  

 

       13.   Considering the any angle the complainant has proved the point No.1.  Hence the same is answered affirmatively.         

           

POINT NO :-2 

                 

       14.    The complainant has claimed Rs.4,72,000/- on various heads of claim but the complainant has not produced any documents and cogent evidence for such higher claim.  But considering the facts and circumstance this case, in the absence of any other contra proof, the complainant is entitled to recover the loss caused to his vehicle as per the loss assessed by the final Surveyor.  On perusal of final Survey report issued by the M.Veerabadharappa, produced by the OP, the net loss of the vehicle comes to Rs.1,28,000/- after deducting the salvage value and other policy excess.  So the said amount of Rs.1,28,000/- is just and proper in respect of loss caused to the said vehicle and for which the OP is liable to pay the same, to the complainant.   In addition to above claim, in our view it is just and proper to award Rs.25,000/- for pain and sufferings suffered by the  complainant and also Rs.5,000/- towards cost the litigation to meet the ends of justice.  Therefore, in all the complainant is entitled to Rs.1,28,000/- + Rs.25,000/- + Rs.5,000/- total Rs.1,58,000/- from the OP and he is liable to make payment of the said amount to the complainant.   Hence, in above terms we answered the Point No.2 partly in the affirmative.  Thus the following order.      

 

 

       // ORDER //

 

         The complaint filed by the complainant U/S 12 of C.P.Act-1986 against the OP is allowed partly with cost.

 

          Consequently the OP is liable to pay Rs.1,58,000/- to the complainant as stated above, along with interest @ 8% p.a., from the date of complaint till its realization,  The OP is given two months time to comply this order.      

 

               

       Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court  this 21st day of November 2020)

 

 

Smt.Marla Shashikala                Sri.H. Veera Shekar         Sri. A.H. Malaghan

        Lady Member.                              Member.                      President,

District Consumer Commission Ballari.      District Consumer Commission Ballari.      District Consumer Commission Ballari.