SMT. G. VASANTHAKUMARI, PRESIDENT.
Complaint filed U/S. 12 of the Consumer Protection Act 1986. Complainant’s case is that the complainant is the registered owner of the Ambassador Tourist Permit Car bearing Reg.No. KL-2 AC.1193 which is operating for his livelihood which was insured with the opp.party as per policy No. 220378233800 2000 valid from 3.10.2008 to 2.10.2009 ,that the vehicle met with an accident on 13.1.2009 at about 10.30 a.m. hit by a motor cycle bearing No. KL2 AA 6052 driven rashly and negligently near Gurumandiram Junction near Kottiyam which resulted serious damages to the car, that after the accident driver Shibu informed the matter
to the Kottiyam Police Station and Kottiyam police has registered Crime No,. 79/2009 only on 27.1.2009 due to the influence of the owner of the motor cycle., that from the date of accident till 28.1.2009 the complainant’s vehicle was kept in the police station and released on 28.1.2009 after registering the Crime and on the same day the complainant entrusted the vehicle to the Marikar Motors, Kollam for the repairs and informed the accident to the opp.party on the date of accident, but the opp.party did not afford any assistance to the complainant for the repairs of the car in appropriate time as per the policy conditions, that on 12.2.2009 Marikar Motors informed the complainant that all the repairs of the car is completed and the complainant is forced to remit Rs. 34,126/- towards the repairing charge and took delivery of the vehicle., that the opp.party violated the policy conditions and did not render service to the customer and thereby the complainant sustained loss of one months income Rs.15,000/- and Rs.3,000/- towards salary of the driver which caused deficiency in service and hence this complaint praying to direct the opp.party to pay Rs.34,126/- with 12 % interest till realization from 13.1.2009 and Rs. 18000/- towards loss of income and salary paid to the driver and compensation of Rs.10000/- and cost of Rs.2000/- to the complainant
Opp.party entered appearance and filed version contenting that the complaint is not maintainable either in law or on facts , that the definition complaint, Complainant , consumer dispute and service as defined in Section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint., that the complainant has approached this forum with unclean hands in order to make unlawful gain , that this opp.party had issued a package policy for the complainant’s vehicle bearing
Reg.No.KL.2 AC1193 Ambassador car for a period commencing from 3.10.08 to 2.10.2009 under policy No.220378233800 2000, that the
vehicle insured under the above policy was a passenger carrying commercial vehicle which come under the category of light motor transport vehicle, that the complainant had reported a claim with this opp.party on 20.1.2009 stating that the insured vehicle met with an accident on 13.1.2009 at a place near Kottiyam Junction in Kollam Alleppy N.H. 47 road, that as per the claim intimation submitted by the complainant one Mr. Shibu A was driving the insured vehicle at the time of accident, that the opp.party on receipt of the claim intimation from the complainant had appointed a Licensed Insurance Surveyor and Loss
Assessor Mr. G. Rajesh for verifying the damages sustained to the vehicle and for assessing the extent of loss in accordance with the terms and conditions of the policy, that the surveyor had conducted the survey of the damaged vehicle at the repairers workshop at Marikar Industries near Cantonment , Kollam where the damaged vehicle was kept for repairs after the accident , that the surveyor has examined the damaged vehicle in detail and had discussion with the repairer and assessed the extent of loss sustained to the damaged vehicle, that the surveyor submitted the survey report before the opp.party assessing the net loss to a sum of Rs. 23,800/- subject to its admissibility as per the terms and conditions of the policy, that the opp.party requested the complainant to produce the necessary vehicular documents including the driving license of the driver Mr. Shibu for verification by the opp.party in order to process the claim , that on verification of the driving license particulars it is found that the driver was holding only light motor vehicle license and a license to drive a 3 wheeler transport vehicle at the relevant time of accident, that the insured vehicle is a light motor passenger carrying commercial vehicle and the driver was not having an effective badge authorizing him to drive a passenger carrying light motor vehicle at the material time of accident., that as per the criminal case records the accident occurred due to the negligent driving of the driver of the complainant’s vehicle who was not competent to drive a light motor passenger carrying commercial vehicle at the time of accident, that as per the drivers clause mentioned in the insurance policy the person driving the vehicle shall hold an effective driving license authorizing him to drive the category of the vehicle insured under the policy at the relevant time of the occurrence, that the type of vehicle insured by the opp.party is a light motor passenger carrying commercial vehicle and therefore, it shall be a mandatory condition as per the driver clause in the policy that the driver should hold a license to drive light motor vehicle with an effective badge authorizing him to drive a passenger carrying light motor vehicle at the time of accident, that as per the license produced he got license to drive light motor vehicle only with effect from 31.10.2008 , that as he was holding license to drive 3 wheeler transport vehicle he is authorized to drive a light motor transport vehicle only after completing one year from the date of obtaining the license to drive the light motor vehicle and so the driver was not holding an effective and valid license to drive a light motor transport vehicle at the relevant time of accident, that the complainant had entrusted the vehicle to the aforesaid driver fully knowing that he was not holding an effective driving license to drive the category of the vehicle insured under the policy as per the terms of the contract, that due to the aforesaid act the insured has willfully violated the mandatory provisions of the driver clause mentioned in the policy and since the insured has committed breach of policy condition opp.party is not liable to indemnify the loss sustained to him on account of the damages sustained to his vehicle and hence the opp.party was constrained to repudiate the claim of the complainant in accordance with the policy condition and statutory provision of the motor vehicle Act, that the decision has been properly intimated to the complainant and there is no deficiency in service on the part of the opp.party and the complaint is only to be dismissed with compensatory cost to the opp.party
Points that would arise for consideration are:
1. Whether there is any deficiency in service on the part of the opp.party?
2. Reliefs and costs.?
For the complainant PW.1 was examined and marked Exts. P1 to P6
For the opp.party DW.1 was examined and marked Ext. D1.
Points:
The crucial question to be considered in this case is whether Mr. Shibu A , the driver of the insured vehicle was holding an effective driving license to drive a Light Motor Transport Vehicle [Tourist Taxi] at the time of accident. It is the admitted case of the parties that ambassador car bearing Reg.No. KL-2 AC/1193 owned by the complainant was insured with the opp.party for a period from 3.10.2008 to 2.10.2009 as per Ext. P2 policy and the vehicle met with an accident on 13.1.2009 and the complainant reported the claim before the opp.party . But according to the complainant the opp.party did not offer any assistance to the complainant for the repairs and hence the complaint. On the other hand according to the opp.party the surveyor deputed by the opp.party assessed the extent of net loss to a sum of Rs.23,800/- and submitted the report with an endorsement that the claim is payable subject to the admissibility of the claim as per the terms and conditions of the policy and on the verification of the driving license of Mr. Shibu.A it is found that he was not holding an effective driving license to drive the insured vehicle which is a light motor transport vehicl at the time of accident . He was holding a license to drive Light Motor Vehicle and a badge to drive the three wheeler Autorikshaw and opp.party therefore repudiated the claim for the reason that the insured was using the vehicle in gross violation of the policy condition and driver clause mentioned in Ext. P2 policy
It is argued by the learned counsel appearing for the complainant that the driver was holding an affective driving license to drive Light Motor Transport Vehicle and the repudiation is not sustainable. Let us examine, whether the driver was holding an effective driving license at the time of the accident. ? Ext. D1 is the driving license particulars of the driver Mr. Shibu.A. who was driving the vehicle at the time of the accident. RTO , Kollam who was examined before the forum as DW.1 would swear before the forum that as per Rule 6 of Kerala Motor Vehicles, a person who obtained license to drive Light Motor Vehicle is eligible to get a badge to drive Light Motor Transport Vehicle only after a period of one year from the date of obtaining license to drive Light Motor Vehicle. The Light Motor Transport vehicle is coming under the category of transport vehicle for which the driver shall hold a badge authorizing him to drive the Light Motor Transport Vehicle. In this case admittedly the vehicle met with an accident on 13.1.2009 . As per Ext D1 Mr. Shibu.A. was holding LMV from 31.10.2008 . DW.1 further deposed that the driver Mr. Shibu.A. was eligible to get a badge authorizing him to drive Light Motor Transport Vehicle only with effect from 30.10.2009 . It follows that Mr. Shibu.A., the driver of the vehicle at the time of the accident was not holding an effective driving license at the time of the accident. Hence his act in driving a Light Motor Transport Vehicle was illegal and such driving was in contravention of the terms of the policy conditions . So in our view the insurance company was right in repudiating the claim.
In the result, the complaint is dismissed, but without cost.
Dated this the 8th day of October, 2012
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I N D E C
List of witnesses for the complainant
PW.1 – Silvester Lukose
List of documents for the complainant
P1. – Copy of R.C. Book
P2. – Copy of Policy
P3. – Copy of FIR
P4. – Copy of bills
P5. – Repudiation letter
P6. – Copy of driving license
List of witnesses for the opp.party
DW.1. – C.K. Ashokan
List of documents for the opp.party
D1. – Driving License particulars
