Date of Filing      :12.12.2018

                                                                                                                 Date of Disposal: 19.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,B.Com.                                                                      ....MEMBER-II

CC. No.56/2018

THIS TUESDAY, THE 19th DAY OF JULY 2022

 

Mr.P.S.Chalapathy, S/o.Sivaiah,

No.39, R.S.Road, Teachers Colony,

Kavaraipettai, Gummidipoondi – 601 202.                                ……Complainant.

                                                                                       //Vs//

1.M/s.Reliance General Insurance Company Limited,

   Reliance Centre, 19, 

   Walchand Hirachand Marg Ballard Estate,

   Mumbai -400001.

 

2.The Claims Manager, 

   Reliance General Insurance Company Limited,

   4th Floor, No.6, Hadows Road, 

   Nungambakkam, Chennai.                                            ..........Opposite parties. 

 

Counsel for the complainant                                       :   M/s.V.Chandra Sekar Reddy, Advocate.

Counsel for the opposite party                                   :   Mr.T.V.Suresh, Advocate. 

                         

This complaint is coming before us on various dates and finally on 04.07.2022 in the presence of M/s. V.Chandra Sekar Reddy, Advocate counsel for the complainant and Mr.T.V.Suresh Advocate, counsel for the opposite parties  and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite party /Insurance Company in repudiating the claim for the vehicle damage made by the complainant along with a  prayer to pay an amount of Rs.9,30,487/- being the estimate to repair the damaged vehicle with interest at the rate of 24% per annum from the date of claim till realization and to pay a sum of Rs.2,00,000/- towards compensation for mental agony caused to the complainant due to the deficiency in service on the part of the opposite parties along with cost of the complaint along with cost of the complaint. 

Summary of facts culminating into complaint:-

 

The crux of the complaint was that the complainant’s car bearing Registration No.TN-18AY-4401 was insured with the opposite party and the same met with an accident on 31.03.2017 between Readhills and Kavarapetal in which the car got damaged. At request of the complainant on intimation the opposite party’s insurance surveyor assessed the damaged vehicle and issued a report and the amount to be paid as per the report given by the surveyor was for Rs.9,30,487/-.  Thus the complainant submitted relevant documents along with claim application to the opposite party but the claim was repudiated on the ground that there was a breach of driver clause of the Motor Insurance Policy and provisions of Motor Vehicles Act.  Hence aggrieved the present complaint was filed alleging negligence and deficiency in service along with prayer for direction as follows;

To pay a sum of Rs.9,30,487/- being the damages of the said vehicle along with interest at 24% per annum from the date of claim till realization;

To pay a sum of Rs.2,00,000/- towards compensation for mental agony and suffering caused to the complainant with cost of the proceedings. Defence of the opposite party:

The 2nd opposite party filed version which was adopted by the 1st opposite party.  The 2nd party contended that the alleged claim of damage for Rs.9,30,487/- is not a genuine one and further submitted that when the opposite party scrutinized the documents submitted by the complainant it is found that the license of the driver Sri Dillikumar (D/L No.TN182014000098 L.A. authorized to drive LMT-NT class of vehicle) who was driving the Nissan car at the time of accident was not having Licence with batch number to drive Transport Vehicle and thus it is to be considered that he was not having a valid license at the time of accident.  The opposite party also quoted the following rules;

“As per Motor vehicle Act (a) No person shall drive a motor vehicle in any public place unless he holds an effective and valid 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 or motor cycle) hired for his own use or rented under any scheme made under sub- section (2) of Section75) Unless his driving license specifically entitles him to do so.

Further as per policy schedule under driver 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 Vehicles Rules, 1989.”

Thus the opposite party submitted that there is a clear violation of the terms and conditions of the contract of insurance and thus they repudiating the claim was a valid one and sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to A8 were filed. On the side of opposite parties proof affidavit was filed along with documents marked as Ex.B1 to B7. 

Point for consideration:

Whether the alleged deficiency in service against the opposite parties in repudiating the Insurance claim made by the complainant was proved by him successfully and if so to what relief the complainant is entitled?? 

Point;

On the side of the complainant the following documents were filed in support of his allegations;

The Aadhaar card of the complainant was marked as Ex.A1;

The Registration Certificate of the vehicle in the name of complainant was marked as Ex.A2;

The insurance certificate along with policy schedule was marked as Ex.A3;

The FIR dated 07.04.2017 with respect of accident that occurred on 31.03.2017 was marked as Ex.A4;

The Insurance Surveyor Report dated 13.03.2018 was marked as Ex.A5;

The repudiation letter issued by the opposite party to the complainant dated 19.12.2017 was marked as Ex.A6;

Legal notice issued by the complainant to the M/s. Reliance General Insurance Company Limited, Mumbai dated 07.04.2018 was marked as Ex.A7; 

Legal notice issued by the complainant to the Claims Manager dated 01.08.2018 was marked as Ex.A8;

On the side of the opposite parties the following documents were filed in support of their contention;

The FIR dated 07.04.2017 with respect of accident that occurred on 31.03.2017 was marked as Ex.B1;

The Registration Certificate of the vehicle in the name of complainant was marked as Ex.B2;

Driving Licence of the complainant was marked as Ex.B3;

The inspection made by the motor vehicle inspector was marked as Ex.B4;

The ALL INDIA TOURIST PERMIT in the name of the complainant was marked  as Ex.B5;

The copy of insurance report was marked as Ex.B6;

The terms and conditions was marked as Ex.B7;

Heard the oral arguments adduced by both parties and perused the written arguments filed by them.  The crux of the arguments made by the learned counsel appearing for the complainant was that the complainant is the absolute owner of the Nissan Car bearing Registration No.TN-18AY-4401 insured with the opposite party under the policy No.9910972338000038 commencing from 11.02.2017 till 10.02.2018 and when the vehicle met with an accident the vehicle was under insurance cover. It is submitted by him that as per the Surveyor’s Reports the complainant’s car got damaged worth to the tune of Rs.9,30,487/- and the opposite parties are bound to pay the said claim amount to the complainant.  It is submitted by the complainant that when there are minor violations in the policy conditions the opposite party cannot repudiate the claim in entirety.  

On the other hand the counsel for the opposite party cited the relevant clause of the insurance policy and argued that the driving license of the driver who drove the car is not valid at the relevant period and the same has is to be considered as violation of the policy terms and conditions. Thus, he argued that the complainant is not entitled to any relief from the opposite party. 

It is seen that the vehicle met with an accident on 31.03.2017 which aspect was not denied by the opposite party and further even the insurance coverage for the vehicle was also not disputed by the opposite party.  However the only reason quoted by the opposite party for repudiation of the claim was that the driving license possessed by the driver at the time of accident was not a valid license for the reason that he possessed only a license to drive LMV without batch number for transport vehicle.

The counsel for the complainant had submitted the following judgements in support of their contention that mere minor fault in the terms and conditions will not be preclude/disentitle the owner of the vehicle in claiming any damages. The opposite party had filed the decision rendered by the Supreme Court in Beli Ram Vs Rajinder Kumar & Another dated 23.09.2020 in C.A.No.7220-7221/2011

In the decision rendered by the Supreme Court in Nirmala Kothari Vs United India Insurance Company Limited dated 04.03.2020 the Court had held that while the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and in such circumstances the insurance company cannot escape the liability in the following words;

“While hiring a driver the employer is expected to verify if the driver has a driving licence.  If the driver produces a licence which on the fact of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy.  It would be reasonable to place such a high onus n the insured to make enquiries with RTOs all over the country to ascertain to veracity of the driving licence.  However, it the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable”. 

 In that decision the Apex Court had held that when the driver had been driving competently there was no reason for the owner to doubt the veracity of the driver’s licence. Further in the decision rendered by the Apex Court in B.V.Nagaraju Vs Oriental Insurance Company Limited dated 20.05.1996 the issue as to whether breach of carrying persons in a goods vehicle more than the number permitted in terms of the insurance policy is so fundamental a breach so as to afford ground to the insurer to eschew liability altogether has been discussed. Further in that decision it has been held that the terms of policy of insurance must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle.  In another citation rendered by the NCDRC,  in New India Assurance Company Limited Vs Smt. Malti Bhikhabhai Bhoya dated 16.04.2013 it has been held that if there is any breach of warranty or condition of policy including limitation as to use, complainant is entitled to get 75% of admissible claim on non-standard basis, but Insurance Company is not entitled to repudiate claim in toto. 

However, in the present case the breach of policy condition is so fundamental that it has to be viewed seriously.  Hence the decisions discussed above could not be made applicable to the present facts of the case for the reason that the driver without batch number and without having licenced to drive the transport vehicle was to be considered as a person driving the vehicle without valid license. Hence, when there is violation of the insurance conditions that no person shall drive a motor vehicle in any public place and no person shall drive a transport vehicle unless his driving license specifically entitles him to do so as per the established rules the reason attributed by the opposite party that the insurance claim could not be honoured as the driver was not having a valid license cannot be ignored.  Thus, the opposite party has clearly stated and proved by evidence that the driver at the time of accident did not possess the required license i.e., LMV -T and hence they could not be saddled with the liability to indemnify for the damages caused to the vehicle in the accident. 

Further we also could not show any indulgence in this case by awarding the amount of 75% on non standard basis based upon the decision rendered by NCDRC in New India Assurance Company Limited Vs Smt. Malti Bhikhabhai Bhoya dated 16.04.2013, as in present case the damage was not assessed as per the established principle.  It is seen that the surveyor‘s report produced by the complainant for the assessment of damages caused to the vehicle was not prepared by the Insurance Surveyor or any independent surveyor but the surveyor is requested by the complainant to assess the damages as per of the version of surveyor himself.  In such circumstances we have no other option but to hold that the complainant has failed to prove any deficiency in service on the part of the opposite parties in repudiating the claim of insurance made by the complainant for the damaged vehicle and hence he was not entitled to any relief. This point is answered accordingly.

 

In the result, the complaint is dismissed.  No order as to cost. 

 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 19th day of July 2022.

 

-Sd-                                         -Sd-                                                             -Sd-

  MEMBER-II                               MEMBER I                                               PRESIDENT

 

 

 

List of document filed by the complainant:-

 

Ex.A1 ............ Aadhar card of the complainant. Xerox

Ex.A2 The Registration Certificate of the vehicle in the name of complainant Xerox

Ex.A3 11.02.2017 The insurance certificate along with policy schedule Xerox

Ex.A4 07.04.2017 FIR copy Xerox

Ex.A5 13.03.2018 Surveyor’s Report. Xerox

Ex.A6 19.02.2017 The repudiation letter issued by the opposite party to the complainant. Xerox

Ex.A7 07.04.2018 Legal notice issued by the complainant to the 1st opposite party. Xerox

Ex.A8 01.08.2018 Legal notice issued by the complainant to the 2nd opposite party. Xerox

 

List of documents filed by the opposite party;

 

Ex.B1 07.04.2017 FIR Copy. Xerox

Ex.B2 ............... The Registration Certificate of the vehicle in the name of complainant. Xerox

Ex.B3 ............... Driving licence. Xerox

Ex.B4 ............... A.I.R. Copy Xerox

Ex.B5 ............. All India Tourist permit. Xerox

Ex.B6 .............. Policy copy. Xerox

Ex.B7 .............. Terms and conditions. Xerox

 

 

 

 

        -Sd-                                                       -Sd-                                                  -Sd-

MEMBER-II                                             MEMBER I                                    PRESIDENT