CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of May 2013

Present: Smt. Seena.H.President,

: Smt Preetha.G.Nair, Member,

: Smt .Bhanumathi.A.K.Member Date of filing:26/02/13

C.C.46/13

P.Yousaf,

S/o Hamsakutty,

Pallath House, : Complainant

Kulukkallur,

Palakkad,

Kerala.

(Adv.Swapnalatha)

Vs

1. Divisional Manager,

Oriental Insurance Company Limited,

Jyothi Super Bazar, : Opposite Parties

Thodupuzha.

PIN 685 584,

2. Branch Manager,

Oriental Insurance Company,

Pranavam,

Melepattambi,

Palakkad.

Kerala.

( By Adv.G.Jayachandran)

O R D E R

By.Smt. PREETHA.G.NAIR, MEMBER.

Facts of the case in brief:-

The complainant has taken the policy of the vehicle KL- 52D-402 from the opposite party . On 13/08/12 the vehicle of the complainant met with an accident and the front glass broken due to the accident. The complainant claimed insurance amount from the opposite party. But the opposite party rejected the claim of the complainant on the ground that at the time of accident the driver of the vehicle has not valid driving license. The driving license of the driver of the vehicle was given to RTO for the renewal of license. Due to the delay of getting the license after renewal is the reason for non production of the license at the time of accident. The complainant informed the delay of getting the license after renewal to the opposite party. The insurance taken from 30/09/11 to 24/09/12 with 1^st opposite party. There after the complainant taken the insurance from 30/09/12 to 29/09/13 with 2^nd opposite party. At the time of taking insurance they informed that the claim will be given with the insurance taking any where in Kerala. But the opposite parties had rejected the bonus amount of Rs.8000/- due to the insurance taken from 2^nd opposite party. The complainant had spent money for repairing the broken glass. Also the bus was not ran for two days. The complainant has suffered Rs. 3000/- as compensation for damages and Rs.10,000/- as compensation for mental agony. The complainant and his family lived to run the bus. The act of opposite parties amounts to deficiency in service. Hence the complainant prays an order directing the opposite parties to pay Rs.40,000/- as compensation for deficiency in service.

Opposite parties filed version stating the following contentions. The opposite parties admit the policy of the vehicle KL-52D-402. The policy will be covered only on the strict compliance of terms and conditions stipulated in the policy. The opposite party conducted detailed investigation and found that the complainant has suppressed the material things before the company and filed for claim. The Opposite party is rejected the claim on the ground that at the time of accident the driver of the vehicle was Mr.Ratheesh.K. The validity of his driving license to drive transport vehicle expired on 2/08/12, and the same has renewed only on13/09/12. The alleged date of accident is on 13/08/12. At the time of accident, the driver has no valid and effective driving license to drive a transport vehicle, which is a violation of policy conditions. More over the complainant's vehicle is classified and registered as MPMV stage carriage with valid permit and issued a policy by the opposite parties. As per the policy the driver of a transport vehicle should have been in possession of a valid and effective driving license at the time of accident . So the complainant is not entitled to get any claim amount. There is no deficiency of service. Hence the opposite parties prayed that the complaint dismiss with cost.

Both parties filed with their affidavit Ext.A1 to A3 marked on the side of complainant. Ext.B1 marked on the side of opposite parties. Matter heard.

Issues to be considered are:-

1. Whether there is any deficiency in service on the part of the opposite parties?

2. If so, what is the relief and cost?

Issues I & II.

We perused relevent documents on record. According to the opposite parties at the time of accident the driver has no valid and effective driving license to drive a transport vehicle. The complainant stated that the validity of the driving license expired on 2/08/12 and the same has renewed only on 13/09/12. The alleged date of accident is on 13/08/12. Ext.B1 is the policy issued by 2^nd opposite party to the complainant and the period of insurance on 30/09/12 to 29/09/13. Ext.A2(a) is the copy of policy issued by 1^st opposite party to complainant and the period of insurance on 30/09/2011 to 29/09/12. So there is a valid insurance policy to the vehicle of the complainant at the time of accident. According to the complainant the license of the driver was given to the RTO for renewal at the time of accident.

The apex court held that at the time of accident the original license was given to the RTO for renewal is not a reason to repudiate the claim petition. The driver had a driving license and he had given license for renewal. In the present case one month can be taken for producing the driving license after renewal. So the driver of the vehicle has a driving license and it given to the RTO authorities for renewal. The complainant has not produced evidence to show the cost of repairing the front glass. There is no dispute as to the policy and happening of the accident within the coverage of the policy. The definite contention of the opposite parties is not processing the claim of the complainant is that the driving license of the driver, who has driven of the vehicle at the time of accident expired on 2/08/12 and renewed only on 13/09/12. The alleged date of accident is on 13/08/12. There is no documentary evidence produced to prove that the license of the driver expired on 2/08/12. According to the complainant RTO issued the license on 13/09/12 after renewal. In fact the driver of the vehicle had driving license and at the time of accident the license was in the custody of RTO for renewal. The counsel of opposite parties argued that the license of the driver was renewed after 30 days. But the opposite parties had not produced evidence to show that the reason for renewing the license after 30 days. In short at the time of accident the license of the diriver was in the custody of RTO. Moreover the complainant has not examined by opposite parties. Insurance company cannot avoid its liability on the ground that the person driving at the time of accident was not duly licensed. The policy is a contract of indemnity. The complainant stated that he had incurred Rs.40,000/- as repair charges and compensation for deficiency in service, which was not disputed by the opposite parties. It is settled law that the insurance company can repudiate the claim of the insurer in a case where there is breach of policy conditions. It is material to assess the loss and amount has to be determined at the maximum of 75% of the assessed amount of loss. While treating disqualification of driver to be no fundamental breach of terms and conditions of insurance plolicy where in the claim can be settled on non standard basis. In this case the driver of the vehicle cannot be disqualified as he was having driving license so he does not come in non fundamental breach of term and condition of the insurance policy. Hence we find that the observation made in the case of Amalendu Sahu.V. Oriental Insurance company Ltd.., the insurance company cannot repudiate the claim in toto. In the present case of the complainant has not produced the cost of repair of glass of the vehicle. Hence we cannot apply the principle laid down in the decision that the fundamental breach of terms and conditions of the insurance policy can be settled on non standard basis. Hence we considered Rs.10,000/- as compensation for deficiency in service will meet the ends of justice.

In the above discussion we are of the view that there is deficiency in service on the part of opposite parties.

In the result, complaint partly allowed. We direct the opposite parties jointly and severally liable to pay the complainant Rs. 10,000/- ( Ten thousand only ) as compensation on for deficiency in service and Rs.1000/- ( Thousand only ) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the whole amount shall be carry interest @ 9% per annum from the date of order till realization

Pronounced in the open court on this the 30^th day of May, 2013.

Sd/-

Smt.Seena.H

President

Sd/-

Smt.Preetha.G.Nair

Member

Sd/-

Smt.A.K.Bhanumathi

Member