KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 755/2005
JUDGMENT DATED:04..03.. 2011.
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The Oriental Insurance Co. Ltd.,
Mavoor Road Junction,
Calicut, R/by its Manager, : APPELLANT
Regional Office, Ernakulam North,
Kochi-18.
(By Adv:Sri.G.S.Kalkura)
Vs.
1. K.P.A.Mani Menon,
Punjakode Kalam,
Thenkurussi (PO), Palakkad.
(By Adv.Sri.M.Narayanankutty & C.Madhavankutty)
: RESPONDENTS
2. Koyanco Motors,
Kotyanco House,
West Hill, Calicut-673 005.
(By Adv:Smt.R.Bindhu)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the 1st opposite party and respondents 1 and 2 were the complainant and 2nd opposite party before the CDRF, Palakkad in OP.27/04. The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 and 2 in connection with repudiation of the insurance claim preferred by the complainant with respect to his insured vehicle which met with an accident on 17/8/2003 and sustained heavy damage. The complainant claimed a sum of Rs.13,230/- towards labour charges, Rs.45,754/- towards cost of spare parts, Rs.2800/- towards towing charges and Rs.15,000/- as compensation for mental agony and sufferings and with cost of Rs.3000/-.
2. The 1st opposite party entered appearance and filed written version denying the alleged deficiency of service. They contended that the complainant/insured committed violation of the policy conditions by permitting to drive the vehicle by a person having no driving license; that the driving license produced by the complainant was a fake license and that the driver of the insured vehicle, Abdul Rahiman was having no valid driving license at the time of the accident. Thus, the 1st opposite party/insurance company justified its action in repudiating the insurance claim preferred by the complainant/insured.
3. The 2nd opposite party, the authorized dealer and service centre of the vehicle filed written version disputing the maintainability of the complaint filed against the 2nd opposite party. It was also contended that the 2nd opposite party repaired the vehicle to the satisfaction of the complainant and that the complainant paid the bill amounts. It was further contended that the 2nd opposite party is an unnecessary party to the complaint and prayed for dismissal of the complaint filed against the 2nd opposite party.
4. Before the Forum below, the complainant filed proof affidavit and Exts.A1 to A7 documents were marked on his side. On the side of the 1st opposite party/insurer, Exts.B1 to B4 documents were produced and marked. The 2nd opposite party filed proof affidavit. On an appreciation of the evidence on record the Forum below passed the impugned order dated:30th December 2004 allowing the complaint and thereby directing 1st opposite party to pay Rs.61,784/- to the complainant with cost of Rs.500/-. The 2nd opposite party was exconerated from the liability. The 1st opposite party is directed to pay the decreed amount within one month of receipt of the impugned order failing which the complainant is entitled to get interest at the rate of 6% per annum on the aforesaid amount from the date of order till realization. Aggrieved by the impugned order, the present appeal is preferred by the 1st opposite party in OP.27/04.
5. When this appeal was taken up for final hearing, there was no representation for respondents 1 and 2. We heard the learned counsel for the appellant/1st opposite party (insurer). He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on Ext.B3 true extract of the DL register issued by Assistant Licensing Authority, Kozhikkode and argued for the position that the driver of the insured vehicle at the time of the accident was not having valid driving license and that the driving license produced by the complainant was a fake one. It is also submitted that the Forum below cannot be justified in dismissing the I.A.184/04 filed by the 1st opposite party to summon the licensing authority to prove Ext.B3 document. He also relied on Ext.B2 survey report submitted by the approved surveyor assessing the loss to the insured vehicle at Rs.44,466/- and submitted that the Forum below has gone wrong in not considering Ext.B2 survey report. Thus, the appellant/1st opposite party prayed for setting aside the impugned order passed by the Forum below.
6. There is no dispute that the 1st respondent/complainant was the owner of the motor car bearing registration No.KL-9K-9514 and that the said motor car was insured with the appellant/1st opposite party, Oriental Insurance Company Ltd. for the period from 29/8/2002 to 28/8/2003. Ext.A1 is the insurance certificate-policy schedule issued by the 1st opposite party/Oriental Insurance Company Ltd. in favour of the complainant/insured insuring the aforesaid vehicle. The insurance coverage with respect to the aforesaid vehicle KL-9K-9514 is not in dispute. Admittedly the aforesaid vehicle met with a road traffic accident on 17/8/2003 on the Thrissur-Palakkad National Highway and in the said road traffic accident, the insured vehicle sustained heavy damage. It is also admitted that the complainant/insured submitted Ext.B1 claim form claiming the repair charge. On getting the claim intimation, appellant/1st opposite party (insurance company) deputed an insurance surveyor. Ext.B2 is the survey report submitted by the approved surveyor, A.K.Krishnakumar. He assessed the total loss at Rs.44,466/-. He has also taken into consideration the depreciation value based on the policy conditions. Thus, according to the approved surveyor, the total loss sustained by the complainant/insured would come to Rs.44,466/-.
7. The Forum below based on Ext.A2 series of bills issued from Koyenko Motors, Kozhikkode (2nd opposite party) allowed Rs.61,784/- by way of repair charges and thereby the 1st opposite party/insurance company is directed to pay the said sum of Rs.61,784/-. A perusal of the impugned order passed by the Forum below in OP.27/04 would make it clear that the Forum below has not considered the loss assessed by the approved surveyor. No reason or ground is stated by the Forum below for ignoring Ext.B2 survey report submitted by the insurance surveyor. It is held by the Hon’ble Supreme Court,(2000) 10 SCC 19 United India Insurance Co. Ltd & others Vs. Roshanlal Oil Mills Ltd & Others) that survey report is an important document and its non-consideration would result in serious miscarriage of justice. The Forum below cannot be justified in ignoring Ext.B2 survey report. Admittedly, as per the survey report, the total loss has been assessed at Rs.44,466/-. It is further to be noted that the complainant has not succeeded in proving Ext.A2 series of bills by adducing evidence regarding payment of Rs.61,784/- towards repair charges. So, the impugned order passed by the Forum below directing the 1st opposite party/insurance company to pay Rs.61,784/- to the complainant/insured is liable to be set aside.
8. The definite case of the complainant in OP.27/04 was that at the time of the accident the vehicle was driven by his driver by name Abdul Rahiman. But the complainant has not produced the driving license or copy of the same. It is true that the complainant produced the driving license of the aforesaid Abdul Rahiman before the insurance company for getting the insurance claim and the said driving license was returned to the complainant directing to produce the true extract of the license from the licensing authority who issued the aforesaid driving license. But the complainant failed to produce the aforesaid true extract from the driving license register maintained by the licensing authority, Kozhikkode. Thereafter, the appellant/1st opposite party/insurance company issued Ext.A3 letter dated:26/9/2003 directing the complainant/insured to produce the original driving license of the driver for verification and return. In A3 letter-it was directed to produce the driving license within 10 days from the date of receipt of the said letter. Admittedly the complainant failed to produce the original driving license for further verification.
9. The definite case of the 1st opposite party/insurance company was that the driving license with No.4318/91 produced by the complainant was a fake license and no such license was issued to the driver Abdul Rahiman by the licensing authority, Kozhikkode. The 1st opposite party much relied on Ext.B1 true extract from DL register issued by the Assistant Lincensing Authority, Kozhikkode. Ext.B3 extract is dated;11/11/2003, which would show that the driving license with No.4318/91 was issued in the name of Cheriyadath Manapattekunhu, S/o Mohammed, Cheriyadath House, Pantheeramkavu, Kozhikkode. It would also show that the license was reissued from 31/3/1999 to 30/3/2004. Ext.B3 document would make it clear that the aforesaid driving license was not issued in the name of Abdul Rahiman. This would in turn give an indication that the license at the first instance produced by the complainant/insured as that of his driver Abdul Rahiman was a fake license.
10. The 1st opposite party/Insurance Company has also relied on B4 investigation report submitted by the insurance investigator, Mr.Haridasan Nair. Ext.B4 report is dated:15/9/2003. It would show that the driving license with No.4318/91 stands in the name of Sri. Mohammed, Cheriyadath Manapattekunhu House, Pantheeramkavu, Kozhikkode and not in the name of Sri. Abdul Rahiman Ponnu Rawther. It is also reported that on enquiry at RTO, Koduvally confirms that the driving license in question was not issued by them and that the proceedings dated:7/3/2003 has been found to be manipulated. So, the available materials and the circumstances would show that the driver of the insured vehicle Abdul Rahiman was not having driving license to drive the vehicle at the time of the accident. Thus, the available evidence would strengthen the case of the 1st opposite party/insurance company that there was no driving license for the driver of the vehicle at the time of the accident and thereby the complainant/insured violated the policy conditions.
A perusal of the lower court records in OP.27/04 would show that the 1st opposite party/Oriental Insurance Company Ltd filed I.A.184/04 seeking the permission of the CDRF, Palakkad to summon the Assistant Licensing Authority, Calicut with DL register containing the particulars of driving license No.4318/91. But the Forum below did not allow the said petition and dismissed the same vide order dated:7/8/2004. The affidavit filed in support of the aforesaid petition would make it clear that the examination of the licensing authority Calicut was necessary for proving Ext.B3 true extract of the driving license register maintained by the licensing authority. But the Forum below dismissed the aforesaid I.A.184/04 stating that no valid reason is stated in the petition. Another ground stated for dismissing the said petition was that the complainant is a senior citizen. It can be seen that the Forum below dismissed the aforesaid Inter locutory Application :184/04 without assigning any valid and sustainable reason. In other words, the Forum below has gone wrong in dismissing the said I.A184/04. But at the same time, the Forum below had found fault with the 1st opposite party/Insurance Company for not proving their case that the driving license produced by the driver of the car is fake. The aforesaid method or approach adopted by the Forum below cannot be upheld. The available circumstances and evidence on record would show that the driver of the insured vehicle was not having valid driving license to drive the vehicle at the time of the accident. If that be so, the 1st opposite party/insurance company is perfectly justified in repudiating the insurance claim. It is now well settled position that the insurance company can very well repudiate the insurance claim, if it is found that the driver of the insured vehicle was not having valid and effective driving license to drive the insured vehicle at the time of the accident.(II (2010) CPJ 22 (SC) National Insurance Company Ltd. Vs. Harbajanlal). It is also to be borne in mind that the owner of the vehicle is not expected to make enquiries with the RTO whether the license of the driver is valid or not, if the driving license on the face of it looks genuine and the driver is found competent to drive. ( (2003) 3 SCC 338, United India Insurance Company Ltd Vs.Lehru and others and also (2007) 3 SCC 700).
11. The complainant in OP.2704 has also failed to prove his case that the driver of the insured motor car was having valid driving license at the time of the accident. We are of the view that this is a fit case to be remitted back to the Forum below for affording sufficient opportunity to the complainant and the 1st opposite party/insurance company to substantiate their respective case as pleaded by them. So, the impugned order passed by the Forum below is liable to be set aside and the matter is to be remanded to the Forum below for fresh consideration and disposal of the same on merits. The Forum below can be justified in exonerating the 2nd opposite party/Koyanco Motors Calicut from the liability to pay compensation to the complainant.
In the result, the appeal is allowed and the impugned order dated:30th December 2004 in OP.27/04 is set aside and the matter is remanded to the Forum below for fresh disposal of the same on merits. It is made clear that the complainant and the 1st opposite party in the OP.27/04 will be at liberty to adduce further evidence in support of their respective pleadings. The parties are directed to appear before the Forum below on 18/4/2011. Parties shall bear their respective costs through out.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
