Telangana

Mahbubnagar

CC/09/9

S. Ram Reddy and another - Complainant(s)

Versus

M/s Bajaj Allianz General Insurance Co.Ltd., through its Manager. - Opp.Party(s)

Sri G. Surender Reddy

29 May 2009

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                 Friday, the 29^th day of May, 2009

                                 Present:-   Sri  T. Ashok Kumar, M.A., LL.B., I  Addl. Dist. & Sessions Judge-cum-FAC President

          Sri P.Venkateshwar Rao, B.Com. LL.B., Member

               Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member                      

C.C.NO. 9  Of   2009

Between:-

1. S. Ram Reddy S/o S. Sunder Reddy, age: 50 years.

2. S. Arunamma W/o S. Ram Reddy, age: 45 years. 

    Both R/o Nandipet village, Addakal Mandal, Mahabubnagar District.                                                                                          

                … Complainants

And

M/s Bajaj Allianz General Insurance Co. Ltd., through its Manager, R/o G.E. Plaza, Airport Road, Yerawada, Pune-411006.

                                                                                                                 … Opposite Party

 This C.C. coming on before us for final hearing on 15-05-2009 in the presence of Sri G. Surender Reddy, Advocate, Mahabubnagar for the complainants and Sri M. Jagannatha Reddy, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:    

O R D E R

 (Sri P.Venkateshwar Rao, Member)

1.        This is a complaint filed on behalf of the complainants under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay Rs.1,00,000/- towards policy amount with interest @ 18% from the date of death and Rs.50,000/- towards damages for causing mental agony to the complainant.   

2.      The case of the complainants in brief is that their son S. Vinod Kumar Reddy had obtained policy for his motor cycle bearing registration   No.AP-22/L-8471 for the period 27.3.2008 to 26.3.2009 and he also paid premium to cover the personal accident risk of owner-driver to the tune of Rupees One Lakh.  While the said motor cycle was being driven by S. Vinod Kumar Reddy on 6.4.2008 it met with accident resulting into the death of the insured owner.  The concerned police registered a case.  The complainants got issued legal notice through their counsel but the opposite party is not paying the amount of Rupees One Lakh which was covered by the policy which the OP was bound to pay.  Hence the complaint.    
3.      The insurance company filed its reply disputing the claim stating that accident information was not given and the claim form was not furnished and that more particularly the deceased owner did not have any driving license as required in terms of policy and in that view of the matter, the complainants are not entitled for the insured sum and that the opposite party had not committed any deficiency in rendering service and hence the complaint is liable to be dismissed.

4. The complainants have filed their evidence affidavit and got marked Exs.A-1 to A-6.

5. The opposite party filed its evidence affidavit and got marked Ex.B-1 on its behalf.

6.  Heard both the parties with reference to their respective contentions.

7. The point which falls for consideration is whether the complainants are entitled to the reliefs as prayed for?     

8.    There is no dispute with regard to the owner of the vehicle and it was insured with OP Company and that the policy was in force as on the date of accident.   We have gone through the respective pleadings of both side.  Before we deal with the contentions raised by the parties on merits, it would be appropriate to examine the relevant provisions of the Motor Vehicle Act, 1988.  Section 3 (1) of the Act requires holding driving license which is material and reads thus:   

     “3. Necessity for driving license (1):

     No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab hired for his own use or rented under any scheme made under sub section (2) of Sec.75 unless his driving license specifically entitles him so to do”.  

                                                                                                                                                                 (Emphasis supplied).

   The Ex.A-5 and Ex.B-1 are one and the same.  Ex.A-5 is the copy of the policy.  The terms and conditions of the policy with regard to driver are reproduced hereunder. 

   Driver’s Clause:  Any person including the insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license provided also that the person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.  

    As per the Act and in terms and conditions of the policy, the driver should possess effective driving license as on the date of accident, then only he or his legal heirs are entitled for the insured amount.  The complainants have failed to file the driving license to show that their deceased son was holding valid driving license to ride the motor cycle as on the date of accident.  The learned counsel for the complainants vehemently argued that it was lost in the accident and that the OP was satisfied at the time of issuing policy itself regarding the owner holding a valid and effective driving license and as such the OP issued the policy and therefore the claim for death of owner-driver could not be defeated on the ground that driving license of deceased owner was not produced.  The learned counsel relied upon the decision of the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission in the case of National Insurance Co., Limited and another Vs. Smt. Mani Devi reported in 2008 (2) CPR, P.160 in support of his argument.   In rebuttal, the learned counsel for the OP argued that the said decision has no applicability to the facts of the case on hand.  We have gone through it.  In that case, apart from the death of the owner-cum-driver the vehicle was also damaged.  The OPs settled the claim with regard to the damaged vehicle and asked the complainants to produce the driving license to settle the personal accidental claim.  Therefore the Hon’ble State Commission held that mere non furnishing of personal accident claim intimation and driving license would not disentitle the claimants to claim the amount under policy as the Insurance Company settled the vehicle damage after due satisfaction only.    In the case on hand there is, no such a situation.   Therefore, we are of the opinion that the said decision is no way helpful to the complainants herein. 

   Further the complainant as well as evidence affidavit is silent with regard to the fact that the deceased owner was holding driving license at the time of accident and it was lost in the accident.   Had it is true they should have obtained authenticated copy of license from competent authority and filed.  It was not done. Therefore, we hold that the arguments of the learned counsel for the complainants hold no water in the said context. Furthermore, as per the decision of the Hon’ble APSCDRC in the case of the R.R. Industrial Products and another Vs. National Insurance Co. Limited reported in 2008 (3) CPJ, P.158, wherein the Hon’ble APSCDRC held that the burden lies on the complainants to show that the driver was holding effective driving license as on the date of accident.  The complainants have failed to file driving license before us to establish that the deceased was holding driving license as on the date of accident.  Therefore, we hold that the deceased owner cum driver of the insured vehicle was not having any driving license as on the date of accident.   

9.    The another contention of the OP is that the complainants have not informed at any point of time with regard to the accident and death of the registered owner and they have also not filed any claim.  In this aspect the learned counsel for the complainants argued that he issued legal notice on 12.11.2008 vide Ex.A-4 and the same was served on the OP vide Ex.A-6.  We have perused the contents of the legal notice.  Nowhere in the legal notice, complaint and evidence affidavits it is mentioned that the accident was informed and the Claim Form was also submitted by the complainants to the OP as required to decide the claim.  The complainants did not file any evidence even before us to show that firstly they informed about the accident and later they submitted Claim Form along with necessary and required documents to enable the OP to decide the claim.  Without following law and complying the conditions of the policy and procedure, the complainants cannot blame the OP for not settling the claim.   Mere issuing legal notice without any prior intimation of accident as well as claim submission will not serve the purpose.   In these circumstances, we are fully agreeing with the contentions of the OP that first of all the owner cum driver of the insured motor cycle was not holding driving license as on the date of accident and secondly the complainants have not informed about the accident and submitted any claim to the OP as such they breached the terms and conditions of the policy and they have filed the complaint without approaching the OP.   In these circumstances, we are relying upon the decision of Hon’ble Supreme Court in the case of Sandari and Others Vs. Susheel Kumar and Others reported in CPJ 2008 (2) P.21 (SC) and also upon the decision of the Hon’ble APSCDRC in the case of R.R. Industrial Products and another Vs. National Insurance Co. Limited reported in 2008 (3) CPJ, P.158, wherein it is held that Insurer can avoid its liability on the ground of violation of conditions of the contract of insurance.  In view of the above case law, facts and circumstances of the case, we are of the considered opinion that the owner of insured vehicle and also complainants breached the terms and conditions of the policy and as such the OP Company is not liable to pay the amount under the policy.  The complainants also failed to establish the deficiency of service on the part of OP and as such they are not entitled for any of the reliefs so prayed.   Hence the complaint is liable to be dismissed.       

10. In the result, the complaint is dismissed but in the circumstances of the case no order as to costs. 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 29^th day of May, 2009.           

 

         MEMBER                                MEMBER                        PRESIDENT (FAC) 

     Appendix of evidence

       Witness examined

For complainants: Nil                                               For opposite party:  Nil

Exhibits marked for Complainants:-    

Ex.A-1:   Copy of FIR, Dt.6.4.2008.

Ex.A-2:   Copy of Inquest Report, Dt.6.4.2008.

Ex.A-3:   Copy of PME Report, Dt.7.4.2008.

Ex.A-4:   Copy of Legal Notice, Dt.12.11.2008.

Ex.A-5:   Xerox copy of Certificate cum Policy Schedule.

Ex.A-6:   Xerox copy of Postal Receipt, Acknowledgment & R.C.  

Exhibits marked for OP.:-   

Ex.B-1:   Certificate cum Policy Schedule issued by OP.

By the Forum:

     - Nil-                                                                                                                                                                                                                                                                                                             PRESIDENT (FAC)

Copy to:-

1. Sri G. Surender Reddy, Advocate, Mahabubnagar for the complainants.
2. Sri M. Jagannatha Reddy, Advocate, Mahabubnagar for the opposite party.