Madhya Pradesh

StateCommission

A/22/1129

NATIONAL INSURANCE COMPANY LIMITED - Complainant(s)

Versus

DILIP BAGADE - Opp.Party(s)

DEEPESH SHUKLA

19 Sep 2024

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                          

PLOT NO.76, ARERA HILLS, BHOPAL

 

FIRST APPEAL NO. 1129 OF 2022

(Arising out of order dated 19.09.2022 passed in C.C.No.79/2021 by District Commission, Chhindwara)

 

NATIONAL INSURANCE CO.LTD.

THROUGH SENIOR DIVISIONAL MANAGER,

61, SHEVANI TOWERS, ZONE-II, M.P.NAGAR,

BHOPAL (M.P.)                                                                                                           … APPELLANT.

 

                        Versus

 

DILIP BAGADE,

S/O SHRI SOPAN BAGADE,

AMBEDKAR NAGAR, WARD NO.11,

TEHSIL-SAUSAR, DISTRICT-CHHINDWARA (M.P.)                                                 …. RESPONDENT.   

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                :    ACTING PRESIDENT

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

           

COUNSEL FOR PARTIES :

               

             Shri Deepesh Shukla, learned counsel for the appellant.

             Shri Ajay Yadav, learned counsel for the respondent.

 

O R D E R

(Passed On 19.09.2024)

                                The following order of the Commission was delivered by A. K. Tiwari, Acting President:

                        This appeal by the opposite party/appellant-insurance company is directed against the order dated 19.09.2022 passed by the District Consumer Disputes Redressal Commission, Chhindwara (for short ‘District Commission’) in C.C.No.79/2021, whereby the complainant’s complaint has been allowed directing the opposite party-insurance company to pay total net amount of Rs.4,96,010/- to the complainant within one month. Compensation of Rs.5000/- and costs of Rs.1000/- has also been awarded.

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2.                In nutshell, the facts of the case are that the complainant/respondent is the registered owner of dumper bearing registration no. MP-28 H-1883, which was insured with the opposite party/appellant-insurance company for the period w.e.f. 28.02.2020 to 27.02.2021 under comprehensive insurance policy for heavy commercial vehicle for IDV Rs.29,30,000/-. As per the case of the complainant/respondent on 15.02.2021, the vehicle loaded with sand overturned and got damaged. The incident was informed to the insurance company, who appointed a surveyor to assess the loss. It is submitted by the complainant that the insurance company assured the complainant that all the expenses incurred in repairing the vehicle will be borne by the insurance company once the same gets approved by its Jabalpur office.  As per instructions of the insurance company the complainant get the vehicle repaired on his own expenses in which Rs.7,00,000/- were incurred. The claim along with requisite documents and bills was submitted with the insurance company. Ultimately, the insurance company vide letter dated 14.06.2021 repudiated the claim on the ground that the person who was driving the subject vehicle at the time of accident was not having valid and effective driving licence whereas at the time of accident the driver was having learner’s licence accompanied by a person having permanent driving licence. Thus the insurance company has committed

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deficiency in service in repudiating the claim. The complainant therefore approached the District Commission claiming compensation towards expenses incurred to get the vehicle repaired. 

3.                The opposite party/appellant opposed the complaint stating that on intimation of incident, the insurance company appointed Surveyor and Loss Assessor P. G. Bhandari to assess the loss. Also Investigator T. A. Sabjwari was appointed to investigate the matter, who after investigation found that the driver Neelesh Dhurve was not having valid and effective driving licence to drive heavy goods vehicle and since the claim was not payable as per policy terms and conditions, the claim was repudiated and intimation was given to the complainant. In fact, as per dehati nalsi Tarachand S/O Umrao was sitting in the vehicle who lodged FIR with the police. At the time of accident he after uploading the dumper with sand was coming with driver Neelesh Dhurve to Sausar. Near Railway Bridge Neelesh dashed the dumper and Neelesh got injured. At the time of accident except Neelesh and Tarachand no one was there. Since the driver Neelesh possessing learner’s licence was not accompanied by the person having permanent driving licence, there was violation of policy condition. The insurance company has not committed any deficiency in service in repudiating the claim. It is thus prayed that the complaint be dismissed. 

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4.                Heard the arguments advanced by learned counsel for the parties. Perused the record.

5.                Learned counsel for the opposite party/appellant-insurance company argued that the impugned order passed by the District Commission is erroneous as it is not based on the facts and evidences produced by the insurance company. The insurance company vide its repudiation letter dated 14.06.2021 clearly mentioned the reason for repudiation and specified that in the instant case the driver did not satisfy Section 3 of the Motor Vehicles Act, which provides “No person shall drive a vehicle in a public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle.” Thus the order of the District Commission is liable to be set-aside on this ground only. He argued that the District Commission failed to consider that it is clearly mentioned in the policy condition that “A person driving holding an effective learning licence may also drive the vehicle when not used for the transport of goods at the time of accident AND that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules 1989.” He argued that in the complainant’s version that one Siddarth was present in the dumper as an instructor is concerned, his name was not mentioned in FIR and Dehati Nalsi. He argued that the contract of insurance is based on the principle of utmost good faith and always subject matter of compliance

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of all terms and conditions. However, the complainant himself breached the policy conditions and therefore the claim is not liable to be paid. He therefore prayed for setting-aside the impugned order. 

6.                Learned counsel for the complainant/respondent argued that from the evidence available on record it is proved that the driver who was having learner’s licence was accompanied by a person having valid and effective permanent driving licence at the time of accident and therefore the insurance company has committed deficiency in service in repudiating the claim. The District Commission after considering the evidence available on record has rightly reached to a conclusion that the insurance company wrongly repudiated the claim.  He submits that impugned order is just and proper. He prayed for dismissal of appeal.

7.                The complainant has filed his affidavit, affidavit of driver Neelesh Dhurve, affidavit of Siddharth Ragase, Sharad S/O Kisan Rao along with documents C-1 to C-14. On behalf of insurance company an affidavit of Rajendra Prasad, Branch Manager along with documents D-1 to D-6 has been filed.

8.                After hearing learned counsel for the parties and on perusal of the record, we find that it is an admitted position that the subject dumper of the complainant was insured with the opposite party-insurance company for the period w.e.f. 28.02.2020 to 27.02.2021 for IDV Rs.29,30,000/-. It is

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also admitted that on 15.02.2021 the subject vehicle overturned and met with an accident and got damaged. However, the dispute between the parties is with regard to the driver who was driving the subject vehicle at the time of accident was having valid and effective  driving licence and was accompanied by the person having valid and effective permanent driving licence, if he was having learner's licence.

9.                The complainant’s submission is that at the time of accident Neelesh Dhurve who was having learner’s licence was driving the vehicle and he was accompanied by Siddharth Ragase who was having valid and effective permanent driving licence. On the other hand, the insurance company’s contention is that the driver Neelesh Dhurve who was driving the vehicle was having learner’s licence and was accompanied by one Tarachand, labour who was not having valid and effective driving licence. 

10.              In the repudiation letter dated 14.06.2021 (C-14), sole ground of repudiation is that the person who was driving the subject vehicle at the time of accident was not having valid and effective driving licence to drive the vehicle. From D-3 Dehati Nalsi, D-4 FIR and D-5 Final Report, it is clear that one Tarachand, labourer has lodged FIR with the police stating that he is labourer and he is coming in the subject dumper after loading the sand. The subject dumper was being driven by Neelesh Dhurve rashly due to result it met with an accident and he and driver Neelesh Dhurve

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sustained injuries. The Police Officer in the said report has stated during night patrolling he received intimation about accident and when he reached spot he found that the driver Neelesh Dhurve was stucked in the vehicle and he was taken out with the help of villagers and JCB. In the said accident driver Neelesh and Tarachand sustained injuries. There is nothing mentioned in the said reports about presence of Siddharth Ragase as stated by the complainant.

11.              The complainant did not file copy of Dehati Nalsi and FIR. However, the complainant on the strength of statements of Neelesh Dhurve (C-10) and Siddharth Ragase (C-11) tried to convince that though Neelesh Dhurve who was driving the vehicle at the time of accident was having learner’s licence but he was accompanied by one Siddharth Ragase who was having valid and effective driving licence to drive the vehicle. However, this fact was nowhere mentioned in the Dehati Nalsi and FIR. On going through the statement of Neelesh Dhurve (C-10) we find that he has stated that in order to save the cattle on road, the accident took place, whereas Tarachand has stated in FIR that Neelesh Dhurve was driving the vehicle rashly. Further he has stated he was driving the vehicle and Siddharth Ragase was sitting beside him and after accident Siddharth Ragase fled away from the spot.  Similarly in the statement of Siddharth Ragase (C-11) he has stated that Neelesh was driving the

 

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vehicle and he was sitting beside him and after accident since he did not injure he fled away from the spot. How it is possible that such an accident took place in which the driver was stucked and the driver and Tarachand sustained injuries and Siddharth Ragase had no injury and he fled away from there. Thus this story appears to be an afterthought.  

12.              As per Motor Vehicles Act, it is necessary that person having learner’s licence driving the vehicle must have accompanied by a person having valid and effective permanent driving licence. In the instant matter it is not proved that the driver Neelesh Dhurve having learner’s licence was driving the vehicle and he was accompanied by a person having valid and effective permanent driving licence.

13.              From D-3 Dhati Nalsi, it is very well proved that the Neelesh Dhurve having learner’s licence was driving the vehicle and he was not accompanied by a person having valid and effective permanent driving licence. Thus there was violation of Motor Vehicles Act as also the policy terms and conditions and in such circumstances, the insurance company has rightly repudiated the claim. 

14.              In view of the aforesaid, we find that the District Commission has erroneously held the opposite party-insurance company liable to pay the claim to the complainant/respondent more particularly when he was

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not entitled to get the same. In our considered view, the impugned order cannot be sustained and is hereby set-aside. Consequently, the complaint is dismissed.

15.              In the result, this appeal is allowed.  No order as to costs.

 

              (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Acting President                                  Member