DOF.3.6.08 DOO10.8.08 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan: President K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 10th day of August 2010 C.C.No.139/2008 Nisfal, T .P.C.House, Kaviyor.P.O., Thalassery Taluk (Rep. by Adv.K.Viswan) Complainant Divisional Manager, Oriental Insurance Co. Ltd., P.B.No.8, Jyothi Super Bazar, Thodupuzha, Ernakulam Dist. (Rep. by Adv.P.P.Venu) Opposite parties O R D E R Smt.M.D.Jessy, Member This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to pay the insurance amount of the vehicle belongs to the complainant which was damaged due to an accident on 18.8.07. The case of the complainant is that he is the registered owner of a light motor goods vehicle bearing No.KL.58/4622. The vehicle was insured with the opposite party. The complainant engaged Mr. Abdul Shameer.K as the driver f the vehicle to fly the same for his business purpose. The driver is having a valid driving license to fly light motor vehicle which is valid from 23.4.07 to 22.4.2028 and also having badge. On 18.8.07 at about 11.30 P.M the vehicle met with an accident and sustained heavy damages. Regarding the incident, a crime was registered at Karukachal Police station against the driver. The complainant submitted a claim before the insurer of the vehicle and the surveyors deputed by the opposite party assessed damage of the vehicle at the tune of Rs.1, 90,000. Even though the complainant submitted necessary documents before the opposite party on 20.3.08 the opposite party rejected the claim of the complainant stating that the complainant violated the terms of policy by engaging a driver who is not possessing a valid driving license at the time of accident. The said contention of the opposite party is up sustainable and malafide. The sole intention of the opposite party is to deny the claim of the complainant illegally. This caused deficiency of service on the part of opposite party and complainant suffered financial loss and mental agony for the same. The complainant claims amount of Rs.2, 57,930/- towards compensation for repairing the damaged vehicle and he also claims Rs.50, 000/- for damage and hardship suffered. Hence this complaint. After receiving notice from the Forum opposite party appeared and filed their version contending that the complainant’s claim was rightly repudiated by the opposite party for valid and sufficient reasons. The complaint is premature due to the reason that before approaching the Forum the complainant has to avail remedy under the arbitration clause incorporated in the insurance policy. The opposite party denied the fact that the driver of the vehicle has a valid driving license to fly the complainant’s vehicle at the time of accident. The complainant’s vehicle was goods carrying commercial vehicle. But the driver was licensed to drive motor cycle with gear, autorickshaw and light motor vehicle coming under the class of non transport categories. As per the badge issued to the driver is authorirised to drive a transport vehicle is applicable only to autorickshaw but not on L.M.V. Since the owner of the vehicle violated the terms of policy the repudiation of claim of the complainant by the opposite party is proper and on valid ground. The opposite party further denied the contention that the insurance surveyor Ahmed Kutty has assessed the damage of the vehicle to the tune of Rs.1, 90,000/- and he opposite party never agreed to pay such an amount. The surveyor deputed by the opposite party assessed the loss sustained to the complainant’s vehicle is only Rs.1, 30,000/- . Opposite party is not liable to settle the claim as alleged in the complaint. Hence the opposite party is not liable to pay damage to the complainant. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite parties? 2. Whether the complainant is entitled for the remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1 and Exts.A1 to A6 and.B1 to B3 and Ext.C1 commission report. Issue No.1 It is admitted that the vehicle bearing Registration No.KL.58/4622 is belonged to the complainant and the vehicle is validly insured with the opposite party at the time when the accident occurred. It is also admitted that the vehicle met with an accident on 18.8.07 at Karukachal and sustained extensive damages. The claim preferred by the complainant was denied by the insurer of the vehicle mainly on the ground that the driver of the vehicle was not having valid driving licence at the time of accident and the driver is not authorized to drive LMV Transport vehicle. Ext.A1 is the 1st and 2nd page of the R.C book of the vehicle bearing registration No.KL.58/4622 wherein the description of the class of the vehicle is shown as LMV goods Carriage. Ext.A5 and B2 are the driving licence particular of the driver of the vehicle engaged by the complainant. From Ext.B3 it reveals that the driver of the vehicle had obtained licence to drive motor cycle with gear, auto rickshaw, light motor vehicle from 23.4.07 and he is also eligible to drive heavy passenger motor vehicle and heavy goods motor vehicle from 24.7.08. The badge obtained by the driver of the vehicle is valid from 23.4.07 to 22.4.2010. From Ext.A5 the driver of the vehicle is competent to drive light motor vehicles. Section 2(21) of the Motor vehicles Act defines “Light Motor thus: “Light motor vehicle means a transport vehicle or omnibus. The gross vehicle weight of either of which or a motor car or tractor or road roller. The unloaden weight of any of which, does not exceed 7500 kgms. Here the vehicle involved is LMV goods vehicle having unloadden weight is below 7500 kgs. The vehicle insured by the complainant for his business purpose to deliver goods to various destination with the driving licence issued to the driver of the vehicle is competent drive the complainant’s vehicle. After one year of the date of issue of driving licnece he is eligible to drive heavy goods vehicle and heavy passenger vehicle. The driver of the vehicle is having the valid licence. Ext.A5 shows that the diver is heaving valid license to drive LMV. It can also be seen that the vehicle involved in accident is an LMV. Ext.A1 certificate of registration shows hat the class of vehicle is LMV. Goods Carriage Ext.A5 driving licence reveals that the license is valid from 23.4.07 and valid to 22.4.2027. Ext.B3 also confirms it. B3 also shows that Driver Abdul Shameer is eligible to drive heavy passenger Motor vehicle and heavy goods Motor vehicle from 24.7.08 onwards. It has also shown the Badge validity from 23.4.07 to 22.4.2010. This is a picture in the ordinary course of dealings an owner will have the impression and would believe that the driver is quite competent to drive his vehicle. There is nothing wonderful if an owner/insured bonafide believe that the driver is having valid driving licnece on the verification of Ext.A5. It can not be considered that the insured was of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding the use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time. Apex court made it clear in to discussion reported in CTJ 797 SCDRC 209 that where the owner of the vehicle has satisfied himself that the driver had a licence and was driving competently, there would be no breach of legal provisions and insurance company would not be absolved of its liability to pay the claims of the vehicles involved in the accident. In the case in hand Ext.A5 is quite enough to come into conclusion that the licence is genuine and valid. The ignorance on the part of the owner over and above satisfying with the genuiness of valid and effective driving licence cannot be taken into consideration so as to deny the claim of insurer. The Hon’ble High Court of Kerala in the latest decision Ravendran vs. Sarojini reported in 2010(I) KLT.SN 92(C.No.112) held that “Mere absence, fake or invalid driving licnces or disqualification of the diver for driven at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid liability towards insured, the insurer has to prove that the insured was guilty of negligence failed to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicles by duly licensed drivers…”l It is further pointed out that the insurance companies are, however, with a view to avoid their liability must not only establish the available defense(s) raised in the said proceedings but must also establish ‘breach’ on the part of the owner of the vehicle. Insurer cannot escape its liability merely alleging technical breach of conditions concerning driving licence. The Hon’ble Supreme court in Nation Insurance Co. Ltd., Vs. Swaran Singh and others reported n 2004 ACJ(1) discussed the relevant point when the person has been granted licence for one type of vehicle but at the relevant time he was driving another type of vehicle in page 82 thus: In each case one evidence led before the claim Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of same other unforeseen or intervening causes like mechanical failures and similar other cause having no nexus with driver not possessing requisite type of licnece, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence”. The principle that can be derived from the above point of view has been rightly applicable to the case in hand. Hence the contention that the opposite party herein is not liable to indemnify the insured cannot be accepted. The repudiation of claims by the opposite party amounts to deficiency in service and opposite party is liable to indemnify the insured. Hence issue No1 is found in favour of complainant. Issue Nos. 2 and 3 The case of the complainant is that the denial of claims by the opposite party is illegal. The complainant who is a business man sustained heavy loss due to the delay in settlement of the claims. Complainant assessed an amount of Rs.50, 000/- as compensation for mental harassment and Rs.2, 57,930/- as compensation for the damages sustained to the vehicle. The insurance surveyor Sri.T.K.A.Kutty deposed in his evidence as DW1 that he has been working as surveyor for the last 45 years. He deposed that the report was submitted as part of discharging his official duty. He also deposed as follows: He assessed the damages after seeing the actual damage. Assessment has been done or repair basis, salvage basis and on cash loss basis. The amount of assessment on repair basis is Rs.1, 97,333/- on salvage loss basis is Rs.2, 03,050/- and on cash loss basis is Rs.1, 30,000/-. In the cross examination he has deposed that the insurance company is liable to pay the amount as per the assessment that he has done. Ext.B1 is the report submitted by the surveyor. It is revealed from his remark that nature and cause of accident narrated in the claim form is tallying with the impact visible on the vehicle. The evidence adduced by the surveyor is in tune with his report Ex.B1. Report shows that the net liability on repair basis is Rs.1, 97,331/-, liability on salvage loss basis is Rs.2,03,050/- and on cash loss basis is Rs.1, 30,000/-. The report also stated that based on his assessment he had made discussions with the insurer and finally the insured has agreed for Rs.1, 30,000/- Net, towards full and final settlement for the claim on cash. Loss basis, which in his opening is quite fair and reasonable and he therefore recommended the amount. Ext.C1, the inspection report of the expert commissioner the total expected expenditure is Rs.2, 24,500/-. But this report could not be strengthened by examining the expert before the Forum. He as summoned on the prayer of the opposite party for examination but he did not appear before the Forum in spite of summons. It is therefore unsafe to depend upon his report, whereas Ex.B1 report provides reliable materials and his examination undoubtedly strengthened what he has written in the report. The complainant pleaded that opposite party has agreed to pay Rs.1, 90,000/-. But it is denied by the opposite party. Even then Ext.B1 reveals that the surveyor had discussion with complainant with respect t he settlement. It is pertinent to note that both the parties had not denied this statement. That makes it clear that there is truth in it. Under such circumstances we feel that there is nothing wrong in accepting the recommendation of the surveyor and to come into conclusion that a sum of Rs.1, 30,000/- on cash loss basis is a reasonable amount for the final settlement towards the damage of the vehicle. Thus we find opposite party is liable to pay Rs.1, 30,000/- as compensation for the damage sustained t the vehicle. Together with Rs.5000/- as compensation for causing delay and sufferings. The complainant is also entitled for Rs.1000/- as compensation. The issue Nos. 2 and 3 are also found in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite party to pay Rs.1, 30,000/- (Rupees One lakh Thirty thousand only) as compensation for damages and Rs.5000/-(Rupees Five thousand only) for causing delay and sufferings together with Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.CVopy of the registration certificate of KL.58/4622 A2. policy issued by OP A3.Copy of FIR in crime NO.199/07 of Karukachal police A4.Copy of report of the assistant A5.Copy of driving licence of Abdul Shameer A6.Repudiation letter dt.20.3.08 issued by OP Exhibits for the opposite party B1.Survey report B2.Copy of the policy B3.Driving licence particulars of Abdul Shameer.K. Exhibits for the court C1. Commission report. Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.T.K.A.Kutty /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
