BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-77/2009
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
Rajani Kanta Set, aged about 35 years,
S/O- Sesadeb Seth,
R/O-Qrs. No-HA-4,Commissioner’s Colony,
P.O-Dhanupali,P.S/Dist-Sambalpur. …..Complainant
Vrs.
- Oriental Insurance Co. Ltd.,
Divisional Office,
P.S-Sambalpur Town,Post Master,
P.O/Dist-Sambalpur.
2. M/S- Tata Motors Limited,
24, Homi Mody Street,,Fort Mumbai. …….O.Ps
Counsels:-
- For the Complainant:- Sri P.K.Mishra, Advocate & Associates.
- For the O.P-1 :- Sri B.K.Purohit, Advocate & Associates
- For the O.P-2 :- Sri A.K Sahu, Advocate & Associates.
DATE OF HEARING : 01.03.2021, DATE OF ORDER : 08.03.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant is the owner of one Tata Sumo Motor vehicle bearing registration no-Or-15-J-7781 who by the way of self-driving earns his livelihood. He got the said vehicle through finance from Tata Motors ltd, Mumbai. It was insured with the O.P-1 with payment of premium of RS 14,244/- towards own damage and all other legal liabilities of third part workman and was issued a policy vide-No-345600/2007/6189 valid from 27.03.2007 to 26.03.2008. The vehicle met with an accident on dtd.09.07.2007 and the same was intimated to the O.P-1 and subsequently a claim was filed. The claim was registered vide no-31/2008/132. Surveyor and loss assessor were engaged to assess the loss. Thereafter the accident vehicle was taken to the Genuine Automobiles near city Railway station Sambalpur for repairing and the total loss was assessed at Rs.5,58,000/- . As the repair cost of the vehicle was very high the O.p-1 was agreed to claim total loss of the vehicle. All necessary documents relating to vehicle were submitted with the O.P-1. But on dtd.05.01.2009 the O.P-1 repudiated the claim on the ground that the driver was having a driving licence to drive light motor vehicle. Which was not appropriate to drive the insured vehicle? A driver named Ranjan Kumar Deep having driving licence No-5497/2004 issued by the RTO Sambalpur authorising him to drive light motor vehicle which is less than 7500 kgs. The repudiation of the claim by the O.P-2 is purely illegal and beyond the provision of Law. Due to the repudiation of the claim by the O.P-1 the Complainant is put to mental agony, harassment, loss of money, etc. For which he is required to be compensate. As the said vehicle is a financed vehicle it also burdened to the complainant a lot. Hence finding no other way the complainant has constraint to seek relief from this commission as prayed.
According to the version of the O.P-1 is that he is the Insurer of a Tata Sumo bearing Registration no-OR-15-J-7781 and one passenger carrying commercial vehicle package policy of Insurance bearing no-345600/2007/6189 was issued in favour of the Insured Rajani Kanta Seth. As per the driver clause of the policy, the vehicle can be driven by any person including the insured provided that he holds an effective driving licence at that time of accident and he is not disqualified from holding or obtaining such licence. After the accident the Surveyor has surveyed the vehicle and assessed the loss and submitted the report and the Insured also submitted all required documents. The final Surveyor assessed the loss at Rs. 1,97,000/-. At the time of survey it was ascertained that Ranjan Kumar Deep was driving the vehicle at that relevant time of accident having DL No-5497/2004 issued by RTO, Sambalpur. On verification of the said Driving License with the concerned authority it was found that he was not authorised to drive a passenger carrying light motor vehicle (Transport Vehicle) rather he was holding a DL to drive Light Motor Vehicle at the time of accident. Hence the claim was repudiated by the O.P-1 because the vehicle was driven by a driver having ineffective driving licence and intimated the same to the Insured on dtd. 05.01.2009. Hence there is no deficiency in rendering services by the O.P-1. He denies that the cost of parts for repair was assessed at Rs.558000/- by the repairer and the O.P-1 was agreed to that. The vehicle was registered as maxicab, insured as passenger carrying commercial vehicle and in order to drive the vehicle, permit and driving licence are required. As the Insured violated the terms and conditions of Insurance, the O.P-1 has rightly repudiate the accident claim. Hence he may be discharged from all allegations made by the Complainant.
According to the version of the O.P-2 the Complainant petition is based on false statements as the Complainant is a regular defaulter of loan. Due to non–compliances of the pre-repossession notice the O.P-2, the hypothecated vehicle was repossessed and subsequently sold and written off the dues after realisation of amounts after sale of the vehicle. The Complainant had deposited some post date cheques with the O.P-2 towards repayment of loan were regularly dishonoured due to insufficient funds in the bank account. In this way 36 (Thirty Six ) nos. of cheques were dishonoured by the concerned bank raising a bank charges to Rs.13,456.50/- as agreed by the Complainant. The O.P-2 engaged collection agency to collect the same with payment of charges Rs 400/- and Rs1200/- and ultimately he repossessed the vehicle and paid the repossession charges of Rs.20,500/- .The Complainant has opted to finance of insurance for which the O.P-2 has paid Rs.3,245/-. The Complainant is well acquainted with the terms and conditions of loan. Again all the allegations made in the Complaint petitions are relating to the O.P-1 Insurance Company only and are not the concern of the O.P-2. The OP-1 states that the reliefs have been claimed by the Complainant is against the O.P-2 and not against the O.P-1 and he has wrongly impleaded them as parties. Again he added that the O.P-1 is only the financier of the Tata Sumo as well as vehicles and no way he is liable for the omission caused by the Insurance Company. He states that the allegation of the Complainant is that the O.P-2 has committed deficiency in service in settlement of claim by violating the IRDA guidelines.AS the Complainant has no and cannot have any grievance against the O.P-1 the Complainant has failed to prove any cause of action in this case. Hence the name of O.P-1 is to be struck off from the petition of the Complainant.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act.2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a one Tata Sumo from the O.P-1 and got it insured from O.P-2 on payment of premium as consideration. But going through the verdict given by Hon’ble Supreme Court of India in the case of “NIRMALA KOTHARI ….. APPELLANT(S) VERSUS UNITED INDIA INSURANCE CO. LTD.” vide civil appeal no-1999-2000 of 2020, when the question on the validity of driving licence arises, we have to consider the extent of care/diligence expected of the employer/insured while employing a driver? Another question arises on the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving license. In the case of “United India Insurance Co. Ltd. vs. Lehru & Ors.” the Supreme Court has taken the view that “the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licensed.” It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of “Pepsu RTC vs. National Insurance Co.” “In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the license was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. In the case of “National Insurance Co. Ltd. vs. Swaran Singh & Ors.” (SCC pp.341, para 110) specifies that, “Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either the insured or the third parties”. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. In the present case it no established that the Complainant has knowingly authorised/allowed to the driver to drive the vehicle. Again the eligibility of the driver to drive a transport vehicle comes to question. Section 2(21) defines light motor vehicle as under:- 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 unladen weight of any of which, does not exceed 7500 kilograms. In the present case the unladen weight of the Tata Sumo is 1735 kgs. In the case of “National Insurance Company Ltd vs Annappa Irappa Nesaria & Ors” on 22 January, 2008, Hon’ble Supreme Court of India has made a distinction was made in the legal position which existed before 28.3.2001 i.e. the date of amendment of the form and subsequent thereto. It was opined that before 28.3.2001 “there was no necessity for the holder of a license to drive light motor vehicle to obtain an endorsement to drive transport vehicle of that class. He could drive transport vehicle of Light Motor Vehicle category on the basis of holding a license to drive light motor vehicle.” Again in the case of Nagashetty v. United India Insurance Co. Ltd. & Ors., 2001 8 SCC 56, the view taken by this Court was that when a driver is holding a license to drive 'light motor vehicle', he is competent to drive a 'transport vehicle' of that category without specific endorsement to drive the transport vehicle. Basing on the above direction by the Hon’ble sc we can hold that the complainant deserves to avail the benefit of insurance claim and the repudiating the claim the O.P-1 have committed Deficiency in Service. The Deficiency against the O.P-2 is not established. Hence we order as under.
ORDER
The complaint petition is allowed. The OP-1 is directed to reassess of loss due to the accident of the Tata sumo and compensate the loss. The O.P-1 is further directed to pay Rs.20,000/-as litigation costs. This amount shall be paid by the OP-1 to the Complainant within a period of one month from the date of receipt of a certified copy of this order, failing which the OP shall pay interest @ 9% per annum on this amount from the date of filing the complaint, i.e., 21.10.2009 till its realisation."
Order pronounced in the open Court today i.e, on 8th day of March 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-Sd/-
PRESIDENT
