BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 405/2005 Filed on 30.11.2005

Dated : 30.07.2010

Complainants:

1. Prasannakumari, W/o late R. Shajikumar, residing at P.S. Sadanam, (Thirppallykonathu Veedu), Ayiroorppara, Ayiroorppara P.O, Pothencode, Thiruvananthapuram.

    

2. Reshma Shaji, D/o late R. Shajikumar, (Minor) ..do....

    

3. Ajishma, D/o late R. Shajikumar (Minor) ..do....

    

4. L. Saraswathy, M/o late R. Shajikumar, ..do..

    

(By adv. P. Salimkhan)

Opposite party:

M/s Oriental Insurance Co. Ltd., Divisional Office No. II, St. Mary Villa, Ulloor, Medical College P.O, Thiruvananthapuram.

(By adv. V. Manikantan Nair)

This O.P having been heard on 08.06.2010, the Forum on 30.07.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

1^st complainant is the wife of late Shajikumar. 2^nd and 3^rd complainants are his minor children and 4^th complainant is the mother of the deceased. The 1^st complainant's husband late Shajikumar was the registered owner of Hero Honda Dawn Motor Cycle (new vehicle) with engine No. 03 M 27 E 35436 and Chassis No. 03 M 27 E 36204. The 1^st complainant's husband took comprehensive insurance policy for his vehicle from the opposite party vide police No. 442300/2004/23128, I/C No. 1824726, valid from 23.01.2004 to 22.01.2005. A separate premium amount of Rs. 50/- was collected by the opposite party for covering accident benefits for a sum of Rs. 1,00,000/- to the legal heirs of the registered owner cum rider of the vehicle in the event of a motor vehicle accident. The 1^st complainant's husband died in a motor vehicle accident on 14.03.2004 when he was riding the above said motor cycle. The 1^st complainant had submitted a claim form for making necessary reimbursement for the death caused to her husband in the accident. The 1^st petitioner submitted the relevant documents with the requisite information that is required in response to the opposite party's letter bearing No. Motor(OX) claim dated 09.07.2004 vide letter No. Nil under reference. However the opposite party has intimated that the husband of the 1^st complainant was holding the driving licence bearing No. 2089/89 authorizing him to drive LMV GHV and HPG. He was not authorized to ride motor cycle with gear. The opposite party has invented new definition that owner insurer holding the effective driving licence only is named as owner driver for the purpose of this section. The opposite party has not made clear about which section and what type of Act. The opposite party also regretted its inability to entertain the claim and the 1^st complainant's file was closed away “as no claim”. The opposite party's action of rejecting the 1^st complainant's claim is quite illegal and is against the facts and principles of the provisions of the contract agreement between the opposite party and late Shajikumar. The 1^st complainant issued an advocate notice calling upon the opposite party to pay the personal accident compensation amount of Rs. 1,00,000/-. After accepting the advocate notice the opposite party sent a reply notice stating unsustainable contentions. Hence this complaint.

Opposite party, the Oriental Insurance Company Ltd., filed their version. In the version opposite party admitted the accident and the existence of policy. The reason for repudiating the claim is that the insured, deceased owner-driver was not holding an effective driving licence, to drive the motor cycle which was involved in the accident. There is no dispute regarding the personal accident cover policy. The opposite party states that compulsory personal accident cover shall be applicable under both liability only and package policies. The owner of insured vehicle holding an effective driving licence is termed as owner-driver for the purpose of this sector. Opposite party further states that as a public institution this opposite party is not liable to pay each and every claim over looking policy conditions. Since the insured deceased-owner-driver was not holding an effective driving licence to drive a two wheeler at the time of accident which is a requirement as per the proviso 1 clause(c) above stated, opposite party could do nothing, but to repudiate the claim of the complainant. Hence they pray for the dismissal of the complaint.

The complainant and opposite party filed proof affidavits and examined them as PW1 and DW1. From the side of complainant 7 documents were marked as Exts. P1 to P7. From the opposite party's side 4 documents were marked as Exts. D1 to D4.

The points that would arise for consideration are:-

1. Whether the complainant's husband was holding a valid driving licence at the time of accident to drive the motor cycle involved in the accident?

2. Whether there is deficiency in service occurred from the side of opposite parties?

3. Whether the complainant is entitled to get the reliefs and costs?

Points (i) to (iii):- In this case opposite party has no dispute regarding the existence of personal accident cover policy at the time of accident. Only dispute is regarding the validity of driving licence. The complainant states that at the time of accident her husband was holding a valid licence to drive the motor cycle. But opposite party strongly denied that contention. There is no dispute that the vehicle insured and vehicle involved in the accident is a Hero Honda Dawn Motor Cycle. As per general Regulation 36 personal accident cover under policy. :-A compulsory personal accident for owner-driver, compulsory personal accident cover shall be applicable under both liability and package policies. The owner of insured vehicle holding an effective driving licence is termed as owner-driver for the purpose of this section. In this case the complainant has produced 7 documents which were marked as Exts. P1 to P7. Ext. P1 is the copy of death certificate of Shaji kumar who was the husband of the complainant and the insured in this case. Ext. P2 is the legal heir certificate. Ext. P3 is the copy of certificate of policy. This policy is a package policy for Zone B Motor Cycle, policy period from 23.01.2004 to 22.01.2005. Ext. P4 is the copy of driving licence of Shajikumar. As per this licence the licence holder has the licence to drive light motor vehicle, medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle and heavy passenger motor vehicle. As per Ext. P4 licence, the licence holder Shajikumar has no licence to drive motor cycle. Ext. P5 is the letter dated 09.07.2004 sent by the opposite party to the complainant to produce the documents to process the claim. In that letter the opposite party demanded to furnish driving licence of Shajikumar who was riding the vehicle at the time of the accident. Ext. P6 is the claim repudiation letter dated 12.08.2004. In that letter the opposite party has stated that Shajikumar, the owner-driver at the time of accident was not holding an effective driving licence to drive a motor cycle with gear. Ext. P7 is the lawyer's notice sent by the complainant to the opposite party dated 24.03.2005.

Opposite party has produced 4 documents which were marked as Exts. D1 to D4. Ext. D4 is the copy of two wheeler package policy. As per this document Sec. III personal accident cover for owner-driver, the owner-driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1980 at the time of accident. In this case the complainant's husband was not holding an effective driving licence to drive a motor cycle with gear.

From the above mentioned discussions, we find that the claim of the complainant repudiated by the opposite party is in accordance with the terms and conditions of the insurance policy. Hence the complaint is dismissed.

In the result, the complaint is dismissed.

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 30^th day of July 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 405/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - A. Prasannakumari

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of death certificate.

P2 - Copy of certificate dated 10.01.2005

P3 - Copy of Certificate cum policy schedule.

P4 - Copy of driving licence.

P5 - Copy of letter dated 09.07.2004

P6 - Claim repudiation letter dated 12.08.2004

P7 - Lawyer's notice sent by the complainant.

P7(a) - Postal receipt and acknowledgement card.

III OPPOSITE PARTY'S WITNESS :

DW1 - K.S. Satheesh Kumar

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Claim repudiation letter dated 12.08.2004

D2 - Copy of reply notice dated 30.03.2005

D3 - Copy of General Regulation.

D4 - Copy of two wheeler package policy.

PRESIDENT

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