BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 06/2009 Filed on 06/01/2009

Dated: 15..05..2012

Complainant: Arun A.S., S/o R. Sasidharan Nair, Anjali Apartment, Ayoor P.O, Kollam District

(By Adv. V. Suresh Kumar)

Opposite parties:

1. M/s. ICICI Lombard General Insurance Co Ltd, ICICI Bank Towers, Bandra Kurla Complex, Mumbai – 400 051. Represented by its Manager.

2. The Manager, ICICI Lombard General Insurance Co. Ltd., Kannankeri Estate, 3^rd Floor, Marine Drive, Shanmugham Road, Cochin – 680 031.

3. The Manager, ICICI Lombard General Insurance Co LTD, Mekesh Estate, Ground Floor, Vazhuthacaud, Trivandrum.

(Opp. Parties 1 to 3 by Adv. Prasanna Kumar Nair)

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant is the registered owner of a Tourist Taxi, Tavera Car bearing Regn. No: KL-02-X 4428 and a paid driver has also been appointed for it, that on 28/07/2007 complainant was constrained to drive the said car since his driver was laid up, that on that day complainant was driving the car from Trivandrum Airport to his residence at Ayoor, together with his family, that when the car reached at Vamanapuram Hospital Junction, it involved in an accident resulting the death of two children and injuries to a woman, that further serious damages was also caused to the said vehicle, that the said car was insured with the opposite party M/s. ICICI Lombard General Insurance Co. Ltd vide comprehensive insurance policy No. 3004/51056460/00/000 valid from 27/1/2007 to 26/1/2008, that the Venjaramoodu Police had registered a case against the complainant as Crime No. 396/07 and after the legal formalities the said vehicle was removed to a workshop, Modern Automobiles at Nilamel, Kollam, that the Surveyor of the opposite party visited the workshop and assessed the damages caused the vehicle, that the workshop authorities prepared an estimate for a total amount of Rs. 1,68,342/- thereafter the vehicle was repaired by them for a total amount of Rs.1,45,432/-, that the said bills and estimate together with related documents were forwarded to 2^nd opposite party through 3^rd opposite party, that opposite party requested the complainant to submit the valid driving licence to drive taxi, that complainant sent a reply stating that copy of his driving licence was already forwarded together with the bills, but opposite parties sent a letter dated 11/6/2008 to the complainant stating that the matter is treated as 'No Claim' and opposite party shall not have any liability since the complainant does not possess badge that is needed for driving passengers carrying vehicles, that complainant sent a legal notice dated 17/7/2008 to the 2^nd opposite party, but 2^nd opposite party never sent any reply. Hence this complaint to direct opposite parties to pay the bill amount of Rs. 1,45,432/- with 12% interest thereon along with compensation and cost.

2. Opposite parties filed version contending inter alia that the complaint is not maintainable either in law or on facts, that opposite parties acknowledge the existence of insurance coverage as per the above referred policy and the liability, if any of the opposite party is restricted to the terms, conditions and limitations of the insurance policy, that immediately on receipt of the claim form, a Surveyor was appointed by the Company and survey and inspections of the damaged vehicle were conducted, that while processing the claim it was observed that the complainant who was driving the said vehicle at the material time did not have a valid and effective driving license to drive transport vehicle, that complainant has possessing license to drive only light motor vehicle and as such he should not have plied the transport vehicle in the absence of necessary endorsement as required by law and the same is a clear breach of policy conditions, that the vehicle in question was a transport vehicle and hence it should not have been plied by the complainant and in the absence of valid license to drive the said vehicle, the complainant cannot claim any compensation from the opposite parties, that the claim is not admissible, hence the file was closed as 'No claim', that complainant could have used the private purpose if he had availed the exended coverage as per the endorsement No. IMT-34 of India Motor Tariff 2002, that complainant has never paid any additional premium to cover the concerned risk. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether the repudiation of the policy is justifiable?

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

3. Whether the complainant is entitled for compensation and cost?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P17. In rebuttal, the Legal Manager of the opposite party has filed proof affidavit and has marked Exts. D1 to D6 and Surveyor has been examined as DW2.

4. Points (i) to (iii): There is no dispute on the point that the vehicle in question was purchased by the complainant and the same was registered as a tourist taxi. There is no dispute on the point that the said vehicle was insured with the opposite party. There is no dispute on the point regarding the accident also. Complainant's evidence consisted of oral testimony of the complainant and Exts. P1 to P17. Ext. P1 is the copy of the policy schedule. As per Ext. P1 complainant had insured the vehicle under Passenger Carrying Package Policy. Ext. P2 is the copy of the FIR. Ext. P3 is the copy of the Report of Inspection of a Motor Vehicle involved in an accident. Ext. P4 is the copy of the estimates dated 18/8/2007 for Rs. 1,68,342/-. Ext. P5 is the copy of the cash receipt issued from Modern Automobiles for Rs. 1,45,342/- to the complainant. Ext. P6 is the details of spares and mechanical labour issued by Modern Automobiles to the complainant in connection with KL 02 X-4428. Ext. P7 is the letter issued by the opposite party to the complainant to furnish the valid driving licence to drive taxi. Ext. P7(a) is the letter dated 25/10/2007 issued by complainant to opposite party in response to Ext. P7 letter. Ext. P8 is the copy of the driving licence in the name of Sri. Arun. S. On perusal of Ext. P8 complainant is licensed to drive the motor cycle without gear and light motor vehicle. The licence is valid from 2/09/1995 to 01/09/2015. Ext. P9 is the repudiation letter dated 11/06/2008 issued by opposite parties to the complainant stating that during the claim appraisal on verification of driving licence submitted by the complainant, it was found that complainant does not possess the badge which is needed for driving passenger carrying vehicles. Hence they were forced to treat the claim as 'No claim' and opposite party shall not have any liability in respect of the claim relating to own damage to complainant's vehicle. Ext. P10 is the copy of the Advocate notice dated 19/07/2008 issued to opposite party. Ext. P11 series are postal receipts and acknowledgement card. Ext.P12 is the Certificate issued by Dr. R. Rajappan Pillai. Ext. P13 is the copy of the Accident Register Cum Wound Certificate issued in the name of Sasidharan Nair issued by Sree Gokulam Medical College & Research Foundation. Ext. P14 is the copy of Accident Register Cum Wound Certificate in the name of Sindhu issued by Sree Gokulam Medical College & Research Foundation. Ext. P15 is the copy of the Accident Register Cum Wound Certificate in the name of Anjali issued by Sree Gokulam Medical College & Research Foundation. Ext. P16 is the copy of the Ration Card in the name of Kumari Indira. Ext. P17 is the copy of Certificate of Marriage issued by Alayamon Grama Panchayat. In rebuttal, opposite party filed proof affidavit and Exts. D1 to D6 and surveyor has been examined as DW2. Ext. D1 is the copy of the Certificate of Registration. Ext. D2 is the Claim Form for Motor Vehicle issued by ICICI Lombard. Ext. D3 is the copy of the permit in respect of a contract carriage issued by Regional Transport Authority, Punalur. As per Ext. D3 Registration mark is mentioned as M / cab KL.02/x 4428, maximum passenger capacity is 6 + 1, Route / Area for which the permit is valid is All fit roads in Kerala State. Ext. D4 is the Survey Report. On perusal of Ext. D4 it is seen reported by the Surveyor that driver is having no badge while the insured vehicle was a tourist taxi. Ext. D5 is the copy of the India Motor Tariff and it is stated in Ext. D5 that the provisions of this tariff are binding on all concerned and any breach of the tariff shall be a breach of the provisions of the Insurance Act, 1938. Ext. D6 is the copy of passenger carrying package policy. We have heard the learned counsel appearing for the parties and gone through the record of this case carefully. According to complainant a person holding a valid Light Motor vehicle licence is entitled to drive a motor cab which is a transport vehicle, when used for personal use of the person, the special licence under Section 3 of the Motor Vehicles Act is not at all mandatory. According to complainant the motor cab was not used as a transport vehicle to carry passenger for hire or reward and hence Section 3 is not applicable in this case. Even if there is violation, the claim should have not been repudiated in toto but it should have been treated as substandard by referring the decision of Supreme Court of India in National Insurance Company Vs. Annappa Irappa reported in IV (2008) ACC 169 (SC) 2008(1) Supreme 378. According to opposite party the case of the complainant was that complainant was not having a badge to drive a tourist taxi but the said car was driven by him for his own personal and private use and the passengers in the car on the material date and time of accident are his father, wife and sister who had also sustained injuries in the accident and that the opposite parties ought to have found that the absence of badge in driving a commercial vehicle will attract only penal consequences and it is not a ground to deny the statutory liability of paying compensation to the complainant and that opposite parties knowing the very well settled position, with an oblique motive to defeat his claim has purposefully rejected his claim and hence there is deficiency in service. It is in evidence that the vehicle have been registered as a tourist taxi and that complainant was not having a badge to drive a transport vehicle. In Ext. P8 driving licence no endorsement is seen granted so as to enable him to drive a transport vehicle and that the licence was issued on 2/9/1995 upto 01/9/2015 that is, for a period of 20 years. According to opposite paties it is clear from the said licence that it was in respect of a motor vehicle other than the transport vehicle. Opposite party has produced the decision of the Hon'ble National Commission dated 21^st September, 2010 in Revision Petition No. 2394 of 2006 in the case of New India Assurance Co. Ltd Vs. Mr. B. Satyajit Reddy and others. In the said case an Ambassador car was registered under taxi quota and got it insured with the petitioner Insurance Company respondents and their relatives were going to Hyderabad in the said car on personal work and respondent No. 2 was driving the car. He lost control of the car due to heavy rains and the car fell by the side of the road and got badly damaged and causing injuries to its occupants. The learned District Forum observed that "From a reading of Section 3 of the M V Act, it is clear that the light motor vehicle is also a transport vehicle if used as a public service vehicle. In this case since the accident car is registered as per Ext. A3 under Taxi quota, it is undoubtedly a transport vehicle for public service. But under Section 3 of M V Act sub Section (1) to drive a transport vehicle in a public place the driving licence shall specifically authorize entitle the person driving the vehicle, that is transport vehicle. It is seen from Ext. A2 in the said case driving licence of the 2^nd complainant who was driving the accident car that there is no specific authorization entitling him to drive the accident vehicle, which is transport vehicle .......". In the case of a vehicle registered as Taxi car, the person driving such vehicle should possess light motor vehicle transport licenses together with PSV Badge until and unless the vehicle is converted as non transport and the said qualification to driver is warranted and there is no provision for exemption of this. From this also it is clear that the 2^nd complainant has no effective driving licence to drive the vehicle at the time of accident.... In the present case, the accident car was driven by complainant No.2 without specific authorisation and PSV Badge from a competent licensing authority to drive the accident vehicle as required U/s 3 of the MV Act. Therefore it is a clear case of violation of condition of the policy. Therefore we are of the view that the repudiation of the insurance claim of the 1^st complainant under Ext. B1 policy for accident car by the opposite party is just and proper and not arbitrary....." Aggrieved by the said order, the respondent filed an appeal before the Hon'ble State Commission and Hon'ble State Commission allowed the appeal on the ground that since at the time of accident the car was not being used as a taxi but for personal purpose by the respondent, the fact that the driver was not having the licence to drive a commercial vehicle along with P S V Badge is only a minor breach of licence and does not constitute sufficient grounds to deny benefit of coverage of insurance. Aggrieved by the Order of the Hon'ble State Commission, Insurance Company has filed Revision petition before Hon'ble National Commission. Hon'ble National Commission observed that it is clear from Section 3(1) of the M V Act that no person shall drive a transport vehicle unless the driving licence specifically entitles him to do so. In other words, a driving licence does not automatically permit a person to drive a transport vehicle in the absence of a specific authorization for the purpose. The contention of the respondent is that at the time when the respondent No. 2 was driving the vehicle it was not being used as a taxi (transport vehicle) but was being driven for personal purpose. Therefore, the respondent who had otherwise a valid driving licence would be entitled to drive this vehicle when not being used as a taxi. The contention is not acceptable in view of the fact that the vehicle continued to be registered as a transport vehicle, that is, a Taxi for which a specific authorized licence was a statutory necessity. Hon'ble Commission found that the Act of the respondent No. 2 was in contravention of the terms of the policy conditions and hence Insurance Company was right in repudiating the claim. The said decision is squarely applicable to the fact of this case also. Opposite party has also relied on the decision of Hon'ble Supreme Court (2008) 1 SCC 696 in New India Assurance Company Ltd Vs. Prabhu Lal wherein it has been held by the Hon'ble Supreme Court that Driver having valid licence to ply only light motor vehicle – No endorsement therein authorising him to drive a transport vehicle – In such circumstances, owner of the said vehicle, held not entitled to claim compensation from the insurer. Opposite party has also relied on the decision of the Hon'ble Supreme Court in the case of National Insurance Company Vs. Meena Aggarwal (2009) 2 Supreme Court cases 523. The stance of the opposite party is that the Judgement of the Hon'ble Apex Court given in case of Amalendu Sahoo Vs. Oriental Insurance Company Limited II (2010) CPJ 9 (SC) is only applicable in case of breach of warranty / conditions of policy including, "limitation as to use" for which case can be settled on non-standard basis by allowing the payment of claim upto 75% as admissible claim. According to opposite party, in this case there is a fundamental breach of the terms and conditions of policy as such this case cannot be settled on non-standard basis. Hence the contentions of the complainant that the said vehicle herein was used for his personal use and that the passengers in the car were his own family members and the opposite party ought to have been honoured his claim at least on non-standard basis will not hold good. In view of the aforesaid discussions and facts and circumstances of the case and legal position explained above, we are of the view that since the driver of the vehicle herein was only having a licence to drive light motor vehicle and he was not having any licence for driving the transport vehicle at the time of accident. There is a fundamental breach of the terms and conditions of the policy and as such the repudiation of the claim by the opposite party is justifiable and there is no deficiency in service on the part of the opposite party. Complainant has no merits at all, which deserves to be dismissed.

In the result, complaint is dismissed. Parties shall bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of May, 2012.

G. SIVAPRASAD : PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No: 6/2009

APPENDIX

I. Complainant's documents:

P1 : Copy of certificate cum policy schedule policy No: 3004/51056460/00/000

P2 : Copy of First Information Report

P3 : " report of inspection of a Motor vehicle involved in an accident.

P4 : " estimates dated 18/8/2007

P5 : " cash receipt issued from Modern Automobiles for Rs. 1,45,342/- to the complainant.

P6 : The details of spares and mechanical labour issued by Modern Automobiles to the complainant in connection with KL 02X-4428.

P7 : Letter issued by the opposite party to the complainant to furnish the valid driving licence to drive taxi.

P7(a) : Letter dated 25/10/2007 issued by complainant to opposite party in response to Ext. P7 letter.

P8 : Copy of driving licence in the name of Arun

P9 : Repudiation letter dated 11/6/2008 issued by opposite parties to the complainant

P10 : Copy of advocate notice dated 19/07/2008 issued to the opposite party.

P11 : Postal receipts and acknowledge card

P12 : Copy of the certificate issued by Dr. R. Rajappan Pillai.

P13 : " Accident Register Cum Wound Certificate issued in the name of Sasidharan Nair issued by Sree Gokulam Medical College & Research Foundation

P14 : " Accident Register Cum Wound Certificate in the name of Sindhu issued by Sree Gokulam Medical College & Research Foundation.

P15 : " Accident Register Cum Wound Certificate in the name of Anjali issued by Sree Gokulam Medical College & Research Foundation.

P16 : " Ration Card in the name of Kumari Indira

P17 : " Marriage Certificate issued by Alayamon Grama Panchayat.

II. Complainant's witness:

PW1 : Arun. S

III. Opposite parties' documents:

D1 : Copy of the certificate of Registration

D2 : Claim form for Motor Vehicle issued by ICICI Lombard.

D3 : Copy of the Permit in respect of Contract Carriage issued by Regional Transport Authority.

D4 : Survey Report

D5 : Copy of the India Motor Tariff

D6 : Copy of passenger carrying package policy.

IV. Opposite parties' witness:

DW1 : Jayachandran. R

DW2 : Sreejith. V.K

PRESIDENT

ad.