Date of Filing:15.12.2008<br /> Date of Order:04 .05.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 4TH DAY OF MAY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2697 OF 2008<br /> <br /> G. Prabhakaran,<br /> S/o Late Govindraj,<br /> R/at No. 100, Balaji Nivas, <br /> II Main, 4th Cross, Udayanagar,<br /> Bangalore-16. Complainant<br /> <br /> V/S<br /> Bajaj Allianz General Insurance Co. Ltd.,<br /> No. 31, Ground Floor, TBR Tower,<br /> I Cross, New Mission Road,<br /> Adjacent to Jain College,<br /> Bangalore-24. Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complainant filed under Section 12 of the Consumer Protection Act, 1986.<br /> The brief facts of the case are that, the complainant is the owner of vehicle No. KA-02-D-1808. On 12/12/2007 the vehicle met with an accident. Vehicle was insured with the opposite party company. Policy was in force at the time of accident. Complainant put up claim with the opposite party. Opposite party deputed Surveyor Mr. B. Shivaprakash for ascertaining the damage to the vehicle. The authorised service center which carried out the repairs. issued bill for Rs.1,89,905/-. Bill was sent to opposite party. But instead of making the payment, opposite party refused its commitment and sent letter on 27/02/2008 stating that the complainant was not authorised to drive MGV goods carriage which has resulted in violation of policy terms and conditions under driver’s clause. Complainant got issued legal notice. However, opposite party neither sent the reply nor comply the demand notice. The complainant has prayed that opposite party be directed to pay Rs.1,89,905/- towards the amount incurred for the repairs of the vehicle and Rs.50,000/- as loss of business and Rs.2,000/- towards Advocate’s fee. Hence, the complaint. <br /> 2. Notice was issued to opposite party. Opposite party put in appearance through Advocate and defence version filed contending that, the vehicle is classified as Medium Goods Vehicle (MGV) by the registered authority. The liability of the opposite party is subject to terms and conditions in the policy. The opposite party admitted that complainant informed the accident to the opposite party on 12/12/2007. On receipt of the claim opposite party arranged for survey of the vehicle and Mr. B. Shivaprakash independent surveyor examined the damage and loss. The vehicle was driven by a person not holding effective driving license authorizing him to drive the class of vehicle. This is violation of the policy terms and conditions under driver’s clause. Driver/complainant was not authorised to drive MGV as on the date of accident. Therefore, the opposite party repudiated the claim of the complainant vide letter dated 27/02/2008. The opposite party is not liable to pay Rs.1,89,905/-. Therefore, opposite party requested to dismiss the complaint. <br /> 3. Affidavit evidences of both the parties are filed. Arguments are heard.<br /> <br /> 4. The points for consideration are:-<br /> <br /> 1. Whether the repudiation of the claim by the <br /> opposite party is justified?<br /> <br /> 2. Whether the complainant is entitled for the claim put up by him?<br /> <br /> REASONS<br /> <br /> 5. It is an admitted case of the parties that the complainant had insured his vehicle bearing registration No. KA-02-D-1808 with the opposite party. Copy of the policy is produced. Total sum assured is Rs.5,24,000/-. Period of insurance was from 26/05/2007 to 25/05/2008. The complainant submitted that on 12/12/2007 the vehicle met with an accident and the accident was being caused by another Lorry bearing registration No.TN-39 B-4199. The complainant got repaired the lorry in authorised service center. He has produced tax invoice of the St. Mary’s Auto Garage for Rs.1,89,905/-. The complainant has also produced receipt of the garage to show that he has paid Rs.1,89,905/- towards the repair of the vehicle. The opposite party has not disputed the bills submitted by the complainant. The only defence taken by the opposite party is as per the repudiation letter that the complainant was driving the vehicle at the time of accident and he was authorised to drive the LMV transport vehicle and at the time of accident he was authorised to drive MGV goods carriage vehicle. This is violation of the policy terms and conditions under the driver’s clause. Admittedly, the complainant was having driving license. The DL was valid from 19/12/2006 to 18/12/2009. The complainant had also obtained HTV driving license w.e.f 21/06/2008 to 18/12/2009. As per the RC book the vehicle of the complainant is MGV goods carriage. The contention of the opposite party is that, complainant was not authorized to drive MGV goods vehicle. The complainant was having driving license for LMV transport vehicle. Therefore, on this technical ground the opposite party has rejected the claim. We are of the opinion that this rejection of the claim or repudiation of the claim by the opposite party is only on technical ground. It is not the case of the opposite party that the complainant had no driving license to drive the vehicle. Admittedly, the complainant was having LMV driving license. The opposite party company could have accepted the claim and paid the amount by over looking minor violation of driver clause of the policy. Secondly, as per the case of complainant the accident took place not on account of his negligence or inefficiency to drive the vehicle, but on account of hitting another lorry bearing registration No. TN-30 B-4199. Therefore, the possessing of DL or not possessing of DL was not contributory cause of action. The accident in this case was having no nexus with the driver not possessing requisite type of license. Therefore, the opposite party company shall not be allowed to avoid its liability merely for technical breach of conditions concerning driving license. Even if a breach had taken place in this case it is a minor breach of condition and it is inconsequential in nature. The learned Advocate for the complainant has referred to us a decision of Hon’ble Supreme Court reported in 2004 ACJ 1 in National Insurance Co. Ltd., Vs. Swaran Singh & Others. This is a full Court judgment of Hon’ble Supreme Court wherein their lordships have held as under:- <br /> <br /> “Motor Vehicles Act, 1988, section 149 (2)(a)(ii) – Motor Insurance – Driving license – Defences available to insurance company – Whether – insurance company in order to avoid its liability towards insured has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of the policy regarding driving of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time – Held;: yes; mere absence, fake or invalid license or disqualification of the driver for driving, are not in themselves defenses available to the insurance company:. <br /> <br /> “Motor Vehicles Act, 1988, section 149(2)(a)(ii) – Motor insurance – Driving license – Defences available to insurance company – Driver possessing license for one type of vehicle but found driving another type of vehicle – Whether liability of insurance company would depend upon the fact that driver not possessing requisite type of license was the main or contributory cause of accident or not – Held: yes; insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving license”.<br /> <br /> “Motor Vehicles Act, 1988, section 149 (2)(a)(ii) – Motor insurance – Policy – Breach of – Driving license – Insurance company established breach on the part of insured concerning policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period but the breach was not so fundamental as found to have contributed to the cause of accident – Whether the insurance company exempted from liability – Held: no; Tribunals in interpreting the policy conditions would apply ‘the rule of main purpose’ and the concept of ‘fundamental breach’ to allow defences available to the insurer under section 149 (2) of the Act”. <br /> <br /> <br /> 6. In view of the above authority of law, in this case also it is very clear that the breach if any is not fundamental or important so as to repudiate the claim. Consumer Protection Act is a social and benevolent legislation, it is intended to protect the better interest of the consumers. The insurance company cannot avoid its liability to pay the amount by taking a very technical and inconsequential defense. Taking into consideration of all the facts and circumstances of the case, I am of the opinion that the repudiation of the claim put up by the complainant in this case is wholly unjustified. The complainant has produced estimate of spare parts and labour charges and he has also produced tax invoice and receipt. From all these documents, it is clear that the complainant has spent Rs.1,89,905/- to get the vehicle repaired. The opposite party has not taken any defence or objection in respect of the bills or the estimate produced by the complainant. Therefore, there is absolutely no reason to disbelieve the case of the complainant in respect of amount spent for repair of the vehicle. The bill submitted by the complainant shall have to be accepted. As per the bills and receipt the opposite party shall have to be directed to pay Rs.1,89,905/- to the complainant. The complainant has prayed for grant of Rs.50,000/- towards loss of business, but there is no proper evidence and proof to claim this amount. So, I am of the opinion that, the ends of justice will be met in awarding the claim amount. The opposite party has repudiated the claim by writing a letter on 27/02/2008. From that date the complainant is entitled interest on the claim amount. In the result, I proceed to pass the following:-<br /> ORDER<br /> 7. The complaint is allowed. The opposite party Insurance Company is directed to pay Rs.1,89,905/- along with interest at 12% p.a from 27/02/2008 till payment/realisation. <br /> 8. The complainant is also entitled for Rs.2,000/- towards costs of the present proceedings from the opposite party. <br /> 9. The opposite party is directed to comply the order within 30 days from the date of this order. <br /> 10. Send the copy of this Order to both the parties free of costs immediately as per statutory requirement. <br /> 11. Pronounced in the Open Forum on this 4TH DAY OF MAY-2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> Rhr., <br /> <br />