D.O.F.21. 06.2010
D.O.O. 18.04.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 18th day of April 2012
C.C.No.168/2010
1.T.Balakrishnan,
“Thiruvathira”,
Panankavau,
P.O.Chirakkal 670 011.
2. C.K.Rema,
“Thiruvathira”,
Panankavau,
P.O.Chirakkal 670 011.
3. T.Shilpa,
“Thiruvathira”,
Panankavau,
P.O.Chirakkal 670 011. Complainant
(Rep. by Adv.B.P.Premarajan)
Divisional Manager,
National Insurance Company Ltd.,
Divisional Office,
P.B.No.40,
Opp.Safire Tourist Home,
Bank Road, Kannur 1. Opposite party
(Rep.by Adv.V. K. Rajeev)
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay an amount of `20,927 as compensation for damages caused to the vehicle and `1,00,000 as personal accident compensation to the owner cum driver as per the policy together with `20,000 as compensation for deficiency in service.
The case of the complainant in brief is as follows: Mr.Rahul.T. the son of the complainant, who was having the learner’s licence to drive motor cycle, while traveling with Mr.Deepesh.K met with an accident at 7th Mile near Taliparamba. It caused grievous injury to
Rahul and Deepak which ultimately resulted in the death of Rahul. The Motor cycle bearing NO.KL.13/S-9185 was also damaged seriously. Deepesh, who was holding license was the pillion rider. The deceased Rahul survived father T.Balakrishnan, mother C.K.Rama, and younger sister Shilpa who are dependents and complainant Nos.1 to 3 respectively. The Motor cycle involved in the accident was insured with the opposite party dated 16.12.2008 and valid up to 15.12.2009. As per the policy the vehicle was insured against all damages and personal accident policy to the owner cum driver to the extent of `1,00,000.The complainants submitted claim with necessary documents claiming an Amount of `20,927 as damages caused to the vehicle and `1,00,000 as personal accident compensation to the owner cum driver. But opposite party repudiated the claim on 5.10.2009 on the ground that, the vehicle involved in the accident does not carry ‘L’ board at the time of accident. In fact ‘L’ board was put both in the front side as well as on the rear side of the insured vehicle involved in the accident. The opposite party repudiated the claim without conducting enquiry as to whether the ‘L’ board was fixed on the vehicle. The accident occurred not due to the fault of the deceased Rahul but due to the rash and negligent driving of the Tata Lorry which was colluded against the motor cycle. The criminal case under sections 279, 338 and 304(A) of the IPC is also charged against the driver of the lorry by the SHO Taliparamba. The vehicle was severely damaged in the accident. Complainant spends `20,927 for repairing the vehicle. The repudiation of claim is illegal and without conducting any enquiry. This is a deficiency in service complainant have sustained grave mental agony, trouble and inconvenience due to non-payment of insurance amount. Hence this complaint.
National Insurance company, the only opposite party filed version pursuant to the notice and conducted the case. The brief of the version is as follows: the motor cycle KL.13/39185 was insured with them. They are not liable to pay insurance amount since the insured has violated the provisions of central Motor Vehicles Rules. Opposite party deputed Sr.Ramachandran.P.K to conduct an investigation and also deputed Sri.Ashokkumar.P to conduct a survey to assess the damages caused to vehicle. From the reports of the above persons it revealed that the deceased insured was having only learner’s license. The survey report shows that deceased had not complied Motor Vehicle Rules by displaying letter ‘L’ as specially provided by the statute. The inspection report of Motor vehicle will not show that the motor cycle was bearing the letter ‘L’. The pillion rider Deepesh was not traveling as an instructor though holding valid driving license. The averment that the ‘L’ Board was put up on both the front and rear portion of the vehicle and the same were destroyed in the accident etc. were false. The opposite party also not liable since he had not used the helmet at the time of riding the motor cycle. He sustained fatal head injuries and there was profuse bleeding. The surveyor’s report assessed only `16,528 required to repair the vehicle. The maximum limit towards the insurance amount of insured is `1, 00,000 as per the policy of the claim is allowable. But opposite party is not liable since the insured had committed breach of the policy conditions. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Party?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral evidence of PW1, PW2, DW1, DW2, Exts.A1 to A13, and Ext.X1 to X7 Ext.B1 and B2.
Issue Nos.1 to 3
Admittedly the vehicle involved in the accident insured with the opposite party. The deceased insured had only learner’s license. The insurance claim repudiate on the ground that the insured violated the policy condition
The averment of the complaint is that the repudiation of claim s illegal without reason and unilateral without conducting any enquiry. The accident occurred not due to any fault on the side of the complainant. Complainant fixed ‘L’ Board both on the front and rear portion of the vehicle and the same were destroyed in the accident.
Opposite party on the other hand contended that opposite party is not liable to pay insurance amount since the insured violated the conditions of policy by not fixing up ‘L’ Board while travelling.
It is true that the accident took place on 5.1.2009 and the insured succumbed to the injuries. The repudiation of claim was on two grounds namely non-fixing of ‘L’ board the front and rear side of the vehicle. Ext.A3 is the Insurance policy.Ext.X3 is the claim intimation form.Ext.A12 is the repudiation letter. This is the letter communicated the complainant that the opposite party is not in a position to settle the claim on the ground that the insured vehicle which is involved in the accident does not carry ’L’ board at the time of accident.
On the basis of Ext.A12 repudiation letter the main question to be decided in this case is whether the insured has violated the rule 3 of Central Motor Vehicle Rules 1990 which prohibits the insured from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle and in every case, the vehicle carries ‘L’ plates both in the front and in the rear of the vehicle.
The case of the complaint is that the ‘L’ board was put both in the front side as well as on the rear side of the insured vehicle involved in the accident. Complainant also pleaded that the pillion rider Deepesh K was holding license to drive motor cycle. The averment that the pillion driver was holding the driving licence is not denied by opposite party. PW1 adduced evidence by way of affidavit evidence that the pillion driver Deepesh was holding valid license. In cross examination, PW1 deposed that Deepesh was pillion rider at the time of accident. He has also stated that on verification of X5 it was seen, there was pillion driver as stated in ext.A12 repudiation letter.DW2/Surveyor in his cross examination deposed that “Cu tIÊn pillion rider¡v valid driving licence Dm-bn-cp-¶n-Ã.F¶mWv a\-Ên-em-¡n-b-Xv AXp At\-z-jn-¨n-Ã.….Ext.X5 verify XsN-bvX-Xn pillion riderDv F¶m-Wv Im-WpI”. DW1 stated in this chief affidavit that the case diary reveals that Deepesh who was the pillion rider on the motor cycle and the insured were on their way to meet their clients. Hence it is evident that the driving license of Mr.Deepesh the pillion driver was admitted by opposite party.
Hence the other point, the most important one to be considered is with regard to the ‘L’ board. Complainant alleged that the opposite party repudiated the claim unilaterally without conducting any enquiry as to whether the ‘L’ board was fixed on the vehicle. The learned counsel for the opposite party vehemently argued that the body Mahazar, sceen mahazar and the AMV’s report regarding motor cycle will not reveal that ‘L’ board was affixed on the vehicle. Ext.B2 is the final report of the surveyor. The report says the front portion of the vehicle hit and suffered heavy damage. It is reported even the steering handle was bent. Details of the damage go to show that accident is a major one. Complainants’ case is that the ‘L’ Board was fixed both in the front side and on the rear side and the same destroyed in the accident. Since accident is a major one and the damage suffered is heavy the possibility of loss of ‘L’ Board cannot be ruled out. An enquiry particular to that aspect is highly necessary to determine whether or not the vehicle was carrying ‘L’ board. It is highly necessary in the case in hand because the claim herein is repudiated on the sole reason of absence of ‘L’ board. What is stated in the chief affidavit of DW1/Deputy Manger of Insurance company is that the insured had not complied rule 3(b)_ of central Motor vehicles Rules 1989 .The AMVI’s report in Ext.X7 will also shows that ‘L’ Board was not displayed on the vehicle. Ext.B2 is the final survey report. It contains no discussion about ‘L’ Board. Ext.B2 does not show he has made any enquiry with respect to the ‘L’ Board. Last page of the report after the detailed report side certain items are given under the caption ’Note” as last item. Among those items 6 items are seen written original and the 7th one additionally added as last item by ink pen. The 7th added item is that at the time of inspection there is no ‘L’ board on the vehicle. The very style of adding this item especially as last item reveals first of all that, this is definitely added subsequently. Secondly this item was not considered as an important factor by the surveyor. It is also revealed that he has written this without supporting remarks with respect to the source of information. He did not make any explanation how did he arrive such a conclusion. Under such circumstances it is not possible to accept that part of the report as genuine and authenticated to depend upon to assume that there was no ‘L’ board on the vehicle involved in the accident. In cross examination DW1 deposed that “ XpI sImSp-¡m-¯Xp ‘L’ Board Cà F¶- Im-c-W-¯m-em-Wv.. Case diary ‘L’ board Cà F¶p ]d-bp-¶nÔ. Then it is relevant to think of how did the surveyor assumed that there was no ‘L’ board on the vehicle at the time of accident. He saw the vehicle days after the accident. DW2/Surveyor in his cross examination adduced evidence that “ Rm³ A]-I-S-k-a-b¯v hml-\T ]cn-tim-[n-¨n-«nÃ. Report 5-mT page ‘Note’ F¶ heading 7-ma-Xmbn “ at the time of inspection there is no ‘L’ board with the vehicle” F¶p print sNbvX-Xn-\p-ti-jT Rm³ Fgp-Xn-b-Xm-Wv. AXp BcpT ]d-ªn«p tNÀ¯-X-Ã.. He has also deposed that‘ Insurance officer Bh-i-y-s¸« {]Im-cT cm-aXp FgpXn tNÀ¯-Xm-sW-¶p-]-d-ªm icn-bÔ His own evidence shows that this line added to the report subsequently. Since it is a matter evaluated with prime importance a professional surveyor is not expected to note this as last one as an additional fact for consideration. It is pertinent to note that the most important aspect on which the claim was rejected had been totally absent in the mind of the professional surveyor thorough out the preparation of the report at the first instance. The importance cannot be ignored since it is the sole reason for repudiating the claim. The possibility cannot be rule out that this was added later so as to make it part of the report since that was the most important point upon which the entire case is decided by the opposite party.
The learned counsel for the complainant gives much emphasis to the recent decision of the Kerala High Court in New India Assurance Co. Ltd. vs. Balakrishnan which gives leading guidelines to deal with question of violation and breach of condition. It has categorically pointed out that the law declared by Swaran Singh (2004(1) KLT 781 (SC) it is evident by stating clearly that it is not enough if the violation and contumacious breach are proved. An insurer will not be allowed to avoid its liability towards insured merely on proof of the violation and breach. It is up to the insurer to show that the breach is so fundamental that is found to have contributed to the cause of the accident. The rule of main purpose and fundamental breach is to be important to ascertain whether the breach was such that it can be said to have contributed to the cause of the accident. It is further stated that “Any liability U/s 166 of the M.V. Act is built only on proof of negligence on the part of the owner/ driver. The contribution to the cause of accident cannot certainly be said to refer to that breach of duty under the law of torts. It has to be established that the breach of the condition of the policy was responsible or had contributed to the cause of the accident. That evidently is the mandale of the stipulation in paragraph 102(vi). We understand paragraph 102(vi) of Swaran Sing to mean that violation is to be proved. In addition contumacious breach has to be proved. Further it has got to be proved that the alleged breach of the policy condition was so fundamental and same had contributed to the cause of the accident. We are unable to agree that the insurer can avoid liability to the insured merely on proof of violation or on proof of the breach. It has got to be proved further that the breach was so fundamental and the breach had caused or contributed to the cause of accident.”
The principle laid down in the above decision makes it absolutely clear that the mere violation or breach of condition does not allow the insurer to repudiate the claim until and unless it is proved the alleged breach or violation of policy condition was so fundamental that it found to have contributed to the cause of accident.
Now we are called upon to examine whether or not the fixing ‘L’ Board, the sole reason pointed out to repudiate the claim have contributed in any way to the cause of accident. On going through the entire evidence it cannot be seen that there is any sort of evidence to show that the ‘L’ Board has played any role to contribute the accident in question. What is after all opposite party can contend is that there was no ‘L’ Board at the time of accident, though not proved. Accident has no connection with the ‘L’ Board and one cannot conclude that there would not have the alleged accident if the vehicle was carried ‘L’ Board. Hence the repudiation of claim on the sole reason of non-fixing of ‘L’ Board cannot be justified.
Another point that the opposite party raised is with regard to not wearing of the helmet at the time of riding the vehicle. Opposite party contended that as per rule 237 of the Kerala Motor Vehicles Rules ‘protection head gear is to be worn by any person driving or riding a motorcycle and the gear shall be of the I.S.I. standard. Even if it is proved that the rider was not wearing the helmet at the time of accident the principle laid down in the decision of the above cited case (S.C) does not permit opposite party to be free from liability. The contention of opposite party is that the investigation report of the Thaliparmba police and the post mortem report show that he sustained fatal head injuries and there was profuse bleeding from the cars of the dead body. Opposite party further contended that the deceased Rahul would not have sustained such fatal injuries if he had worn a helmet at the time of the accident. But it is pertinent to note that opposite party did not adduce evidence to the affect that the head injury is the main reason for the death of Rahul. The relevance of head injury arose only if it is proved that insured died out of head injury. There was no attempt on the part of opposite party to prove that was the cause of death. PW2 adduce evidence in box that “ cmlp ss_¡v FSp-¡pw. Rm³ ]n¶n-en-cp¶v instruction \ÂIpw. A]-IS ka-b¯v cp t]cpw helmet [cn-¨n-cp-¶p. hml-\-¯n ‘L’ board” Dm-bn-cp¶p. In the cross examination also he has deposed that “t]meokv At\-z-j-W-¯n cmlp helmet sh¡m-sX-bmWv HmSn-¨Xv F¶p ]d-ªm icn-b-Ã.” This is the evidence on the part of complainant. Since the point in issue is not admitted, opposite party has the burden to prove the same. Whatever it may be, Ext.A5 post mortem certificate does not say the reason for the death is head injury. The opinion as to the cause of death is “died of multiple injuries sustained”. Ext.A4 First information report says only serious injuries and not speak of head injury. Ext.A8 final report says that “tamt«mÀ ss_¡pw bm{X-¡mcpw tdmUn sXdn¨p hoWv Kpcp-X-c-amb ]cn¡p ]änb cmlp F¶ tamt«mÀ ssk¡n HmSn-¨-bmÄ Bip-]-{Xn¡v sImp t]mIth ac-W-s¸-Sm-\pw……..” There is also no mention about head injury. The wound certificate which is part of each diary reveals the following injuries (1 deformity over the right thigh (2) tenderness over the left leg (3) Tenderness over the left shoulder and the doctor has given his opinion that injuries No.1 is grievous in nature and serial No.2 to 3 are simple in nature. Hence it is evident in the light of evidence available on the record that the cause of death cannot be attributed in connection with injuries that caused to head. Thus in this count also the repudiation of claim cannot be justified. On examination of evidence in the light of the above cited decision we have no doubt that the complainant is entitled for personal accident compensation to the owner cum driver as per the policy.
Coming into the question compensation for damages to vehicle it can be seen that the surveyor he who assessed damage submitted report wherein he has assured `16,528 as damage. It includes deduction of 50% for the rubber parts and `50 towards the policy excess and `750 towards salvage value of the vehicle. Complainant claims as damages caused to the insured vehicle is `20,927. The summary of assessment in Ext.B2 shows that the total cost parts `15,895 and total cost of labout `1,433. Out of which policy excess `50 and salvage value `750 deducted. Repair’s estimate was revised by the surveyor and parts allowed after 50% depreciation given under Table A which includes 16 items. Parts at nil depreciation is given under table B with 21 items. Complainants argued that vat amount has not been included in the assessment. It is not correct. The table goes to show that Table ‘A’ with 16 items the total price as per bill including VAT is given as `5,401.99 whereas the dealers price is `4,801.77. That means `601.22 i.e. `5401.99 - `4801.77 = `601.22 is included in VAT. 21 So also in Table B altogether in 21 items the accepted price including VAT is `13,199.75 and the dealers price is `11,727.78. So the VAT amount is `1465.97. The table ‘A’+’B’ consist of `2067.29 as VAT amount. Ext.X2 tax invoice goes to show VAT at 12.50% as `2,105.43. That means altogether a small difference of `38. There is no need to allow this amount since Ext.X2 consists of 65 items. The report of the surveyor seems to be very reasonable and we are of opinion that complainants are entitled to an amount of `16,528 towards damage to the insured vehicle.
In the light of the above discussion we hold that there is deficiency in service on the part of opposite party in repudiating the claim. The complainants are entitled for the personal accident compensation to the owner cum driver i.e. `1, 00,000 and an amount of `16,528 as compensation for damages caused to the vehicle. Complainants are also entitled for `2000 as cost of these proceedings. Hence issues 1 to 3 are answered in favour of complainants and order passed accordingly.
In the result, the complaint is allowed directing the opposite party to pay an amount of `1,00,000 (Rupees One lakhs only) as personal accident compensation to the owner cum driver and a sum of `16,528(Rupees Sixteen Thousand five hundred and Twenty Eight only) along with `2000 (Rupees Two thousand only) as cost to the complainants within one month from the date of receipt of this order, failing which complainants shall be entitled for 12% interest from the date of order till realization. The complainants are at liberty to execute the order as per the provisions of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1.Notorised copy of learner’s license
A2. Notarized copy of Driving licence
A3. Insurance policy
A4.Certified copy of FIR in Crime NO.9/09 of Taliparamba
A5. Post mortum report
A6.Copy of death certificate
A7.Certified copy of inspection report
A8. Certified copy of final report in crime 9/09
A9. Certified copy of judgment tin CC.112 of Taliparamba JFCM
A10. Attested copy of legal heir ship certificate.
A11. Attested copy of tax invoice dt.5.5.09
A12. Copy of repudiation letter issued by OP
A13.Wound certificate issued from Tejasvini Hospital to Deepesh
Exhibits for the opposite party:
B1. Insurance policy with conditions.
B2. Final survey report
Exhibits for the court
X1. Work estimate dt.16.1.09
X2. Tax invoice dt.5.5.09
X3. Claim intimation letter dt. 20.1.09
X4. Personal accident claim
X5. Motor claim
X6. Photo copy of ration card.
X7. Case Diary
Witness examined for the complainant
PW1.T.Balakrishnan
PW2.Deepesh.K
Witness examined for the opposite party
DW1. T.A.Sankaran kutty
DW2. Ashok kumar
/ forwarded by order/
Senior Superintendent
