State Consumer Disputes Redressal Commission
United India Insurance Company Ltd vs Sri. M R Ashok Kumar on 16 September, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED: 16/09/2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SMT. RAMA ANANTH : MEMBER Appeal No. 196/2011 1. United India Insurance Company Ltd Mandya Branch, though its Bangalore Regional Office, 5th Floor, Krishi Bhavan Nrupathinga Road, Bangalore-560009, rep.by its Manager Sri.Thimma Naik. (By Shri/Smt B C Seetharam Rao) .. Opposite Parties before the DF .....Appellant/s -Versus- 1. Sri. M R Ashok Kumar Major, S/o L.Raju, Residing at no.525,7th Cross, Sri.M.V.Nagar, Maddur Town and Taluk, Mandya. (Svd.,) . Complainant before the DF .....Respondent/s ORDER
HONBLE JUSTICE K.RAMANNA : PRESIDENT This appeal is filed by the OP against the order dated 07.12.2010 passed by the DF, Mandya in complaint No.98/2010 whereby the complaint filed by the respondent came to be allowed and directing the OP 1 to pay a sum of Rs. 1,99,720/- and Rs. 5,000/- for mental agony and Rs. 3,000/- towards vehicle repair charges and litigation expenses of Rs. 5,000/- from the date of receipt of the same within 30 days. Failing which it is liable to pay interest at 9% p.a on the entire amount till date of realization. Being aggrieved by the same, it has come up with this appeal on various grounds.
2. Appellant also filed an application under Section 5 of the Limitation Act to condone the delay of a day in preferring this appeal supported by an affidavit of its Manager, namely Thimma Nayak explaining the delay satisfactorily.
3. In spite of service of notice, the respondent remained absent. He has not appeared either in person or through counsel.
Therefore, we have secured the LCR, heard the arguments and perused the records.
4. In view of the above said facts, the points for consideration are;
1. Whether the appellant has shown sufficient and reasonable grounds to condone the delay of a day in preferring the appeal?
2. Whether the DF is justified in allowing the appeal?
3. If so, what order?
5. Point No.1:- As far as the delay of a day is concerned, the affidavit filed in support of the I.A. I under Section 15 of the Limitation Act has been clearly explained. Delay of a day is bound to occur. Therefore, we are convinced that the appellant has explained the delay satisfactorily and it is sufficient and reasonable. Hence, I.A.I is allowed by condoning the delay of a day.
6. Point No. 2:- As could be seen from the materials, the respondent being an owner of the vehicle that is passenger carrying vehicle No. KA 11-8377 and it was insured with the appellants branch office at Mandya and the insurance policy issued covered the risk of third party as well as the passengers and driver. But during the subsistence of the policy, that is on 29.12.2009 the vehicle met with an accident and the vehicle was badly damaged. Therefore, he filed a complaint to award a sum of Rs.1,99,720/- towards vehicle repair charges, Rs.3,800/- towards transportation or towing of the vehicle to the garage and since he could not use the vehicle on road for a period of three months thereby he sustained a huge loss and also suffered mental agony.
7. Therefore, OP is liable to pay the aforesaid amount together with cost and interest. There is no dispute with regard to the involvement of the vehicle in an accident on 29.12.2009 and a criminal case is registered by the K.R. Puram Police at Crime No. 225/2009. This fact has been duly informed by the respondent to the appellant and its branch office. Of course the defence taken by the appellant before the DF at the time of accident one M.N. Kumar was the driver of the vehicle and he was not holding a valid driving license to drive the said vehicle which is passenger carrying vehicle, which is a transport vehicle. Of course in para-3 of the impugned order, the DF has observed that, the OP in its version has contended that, K.N. Kumar has holding a license for the period of 16.09.2004 to 05.09.2024 and the policy was in force and the license was in force. He was holding two types of license to drive the transport vehicle and light motor vehicle, it is not correct. The vehicle involved in the accident is a passenger carrying commercial vehicle. Even if a person possesses driving license to drive the LMV like Cab, he must possesses an endorsement from the authorized RTO then drive the vehicle, no such endorsement has been produced by the respondent. Of course, the respondent examined the driver H.N. Kumar as CW-2.
The evidence of CW-2 clearly indicates that, the vehicle bearing No. KA-11-8377 belongs to the respondent/complainant and the said vehicle met with an accident on 29.12.2009 while proceeding from K.R. Puram to Marathalli for leaving the vehicle to pickup party. The accident took place near Mahadevapura due to rash and negligent driving of the lorry bearing No. RJ 01/GA 2577. He was holding a valid license No. KA-05 20040014012 Badge No. 688/2005. But he has not whispered about the period of his driving license. Xerox copy of the driving license, produced before the DF discloses that his license is a LMV license which is valid from 06.09.2004 and LMV Cab from 25.01.2006. Therefore, the vehicle involved in the accident is a passenger carrying vehicle, its seating capacity is 12 as mentioned in the insurance policy.
8. The Honble Supreme Court in a case of Oriental Insurance Company Ltd., Vs. Anagod Kol and others reported in AIR 2009 SC 2151 distinguished between the LMV and Transport vehicle may be a light motor vehicle for the purpose of driving the same, license is to be obtained. So in this behalf, a reference may be made to a decision reported in the case of Loku Ram Vs. New India Assurance Co. Ltd., reported in 2011 (3) CPR 19 by the State Commission, Shimla by relying on the judgment of the Honble Supreme Court in the case of National Insurance Co. Ltd., Vs. Meena Aggarwal (2009) 2 SCC 523 and in the case of National Insurance Company Vs. Prabulal reported in 1 (2008) CPJ 1 (SC) wherein it has been held that;
If a driver of the vehicle that is Maxi Cab which was registered as a tourist taxi, was only having a license to drive LMV which is not a transport and he was not having any valid and effective driving license to drive light motor commercial vehicle at the time of accident. As there was no endorsement on the license as such there is a fundamental breach of terms and conditions of the policy.
9. In the instant case also, the H.N. Kumar who was the driver of the vehicle involved in this accident is a passenger carrying commercial vehicle whose capacity is 12, but no endorsement is obtained from the concerned authority.
Therefore, we are of the firm opinion that, the DF has not followed the law laid down by the Honble Supreme Court.
On the strength of the decision of the Apex Court that is in Prabulals case held that, without obtaining and endorsement from the competent RTO to drive the commercial vehicle, the person who was holding LMV license even if it is a transport vehicle. Therefore, the impugned order is perverse, incorrect and liable to be set aside. Accordingly, we pass the following:
O R D E R Appeal is allowed. The impugned order under challenge passed by the DF, Mandya in C.C.No. 98/2010 dated 17.12.2010 is hereby set aside and the complaint filed by the respondent is dismissed.
The amount in deposit made by the appellant shall be refunded to it.
PRESIDENT MEMBER Rhr**