ORDER
(Passed this on 14th March, 2017)
Shri Shekhar P. Muley, President.
01. By this complaint, the complainant has claimed repair expenses and compensation from the Opposite Party, Cholamandalam General Insurance Company on account of deficiency in its service in respect of his insured vehicle.
02. Complainant owns TATA LPT 909 vehicle bearing No. MH-40-N-266 for his business of transport. By this business he earns his livelihood. The said vehicle was insured with the OP, Cholamandalam General Insurance Company for the period from 20/8/2012 to 19/8/2013. On 31/5/2013 the said vehicle while parked on National Highway No.6 at Somthana, one other vehicle gave dash to it and caused damage. Immediately police report was given on the same day. The vehicle was then brought to Nagpur and after getting estimate of repair cost Rs.2,47,910/- from Harjeet Body, claim was submitted to the Opposite Party on 30/6/2013. As even after two months the Opposite Party did not settle the claim, he wrote a letter to Opposite Party, but no reply was given. This is deficiency in its service. Because of damage of the vehicle he is losing his business of Rs.25,000/- per month. Hence, he has claimed repair expenses under the policy, loss of income Rs. 1.25 lakh, compensation and cost.
03. Opposite Party filed reply and stated that the complaint is filed by suppressing material facts. It is denied that there is deficiency in service. It is further stated that earlier policy of the vehicle was issued in the name of Sk. Irfan Sk. Yusuf for IDV Rs.5.49 lakh for the period from 20/8/2012 tp 19/8/2013. Then the complainant approached to it with a request to change the ownership of the vehicle and policy in his name. Accordingly endorsement was made on 29/9/2012 and the policy was transferred in the name of the complainant for the same period. Accident to the vehicle is not denied nor submission of claim. But necessary documents and estimate were not provided. The claim was repudiated on 3/7/2013 for the reason that the complainant himself was driving the vehicle at the relevant time and he was then not holding valid driving license. Surveyor has assessed the loss to Rs. 47,482/-. Denying any deficiency and other allegations, it is urged to dismiss the complaint.
04. Heard Ld counsels for both the parties. Perused documents and notes of arguments. Upon considering the same we record our findings and reasons as under.
FINDINGS AND RESONS
05. Before proceeding further, it is pertinent to take note of an objection to the W.S. The counsel for the complainant in rejoinder has objected to consider the reply of the Opposite Party on the ground that the same was not filed within stipulated period of 45 days from receipt of notice as provided in Sec 13(2) (a) of the Consumer Protection Act. It is contended this limit of 45 days is mandatory and has to be strictly adhered to. It is further contended the Opposite Party received notice of the complaint long back and W.S. was filed on 19/12/2015, much after 45 days and therefore it should not be considered. He replied on two judgments on this point.
1. New India Assurance Co. Ltd. v/s Hilli Multipurpose Cold Storage Pvt. Ltd. -
AIR 2016 SC 86
2. Zilla Prishad, Chndrapur v/s Bhushan
Wasudeorao Moon- W.P. No. 2211/2016
Bombay H.C decided on 20/6/2016
In both judgments limitation of 45 days for filing W.S has been held to be mandatory and W.S. filed beyond that period was not considered. With due respect, the above judgments are, by a recent judgment of S.C. Reliance Gen Ins. Co. v/s M/s Mampee Timbers And Hardwares Pvt. Ltd in Civil Appeal No. 2365/2017 on 10/2/2017 held that in view of decision pending before a larger bench on this issue,
fora is open to accept W.S. filed beyond the stipulated time of 45 days on suitable terms. Thus presently, limitation of filing W.S. is not to be strictly followed and in appropriate cases delayed W.S. can be accepted. Apart from this, the record does not reveal when notice of the complaint was received by the Opposite Party. Therefore, for aforesaid reasons, we overrule the objection of the complainant.
06. Coming to the merits of the case, it is to be noted that the claim was repudiated on the sole ground that the complainant was driving the vehicle at the relevant time without valid driving license. That amounts to breach of policy condition, hence repudiation is justified. Counsel for the complainant argued that the accident occurred when the vehicle was stationary and therefore question of demanding license was irrelevant and unnecessary. It is contended driving license is necessary to drive a vehicle and not when it is not in use or stationary. However, this contention is denied by the Opposite Party and inviting our attention to the police papers it is contended that the vehicle was not stationary but in use when accident occurred. The complainant himself has given report to police after the accident and he has stated that while he was driving the vehicle from Jalgaon to Nagpur, one tanker coming from opposite direction on new by-pass
road near Khadki bridge gave dash to his vehicle. The accident occurred in the night and he and his conductor could not come out of the cabin of damaged vehicle. From his report it becomes very clear that the accident occurred when the vehicle was in motion and it was being driven by the complainant. In fact, the complainant has not denied that
he was driving the vehicle at the relevant time. In the claim form submitted by him, it is mentioned that while he was driving the vehicle one trailer gave dash to his vehicle.
07. Now the question is whether he was having valid license at the relevant time. The accident occurred on 31/5/2013. The vehicle was a Goods transport vehicle and permit was also given for carrying Goods. The complainant has produced his driving licence. A perusal of it shows it was issued for driving transport vehicle on 25/7/2013. That means the complainant was granted licence for driving a transport vehicle two months after the date of accident. As he did not have valid licence to drive a goods vehicle on the relevant date, he had committed breach of policy condition as well as of Motor Vehicle Act. The Opposite Party has not committed and wrong or deficiency in service by repudiating
his claim on this ground. Therefore the complaint is liable to be dismissed. Hence the following order.
ORDER
- The complaint is dismissed with no order as to cost.
- Copy of the order shall be given to both the parties, free of cost.
