Date of Filing:17.02.2009<br /> Date of Order:26.05.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 26TH DAY OF MAY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 418 OF 2009<br /> <br /> J.P. Devaraj<br /> S/o. J.L. Puttappa<br /> No. 205, Shivakrupa<br /> Opp. My School, 4th Cross<br /> Lalbagh Road, Bangalore 560 078 Complainant<br /> <br /> V/S<br /> <br /> M/s. The Oriental Insurance Co. Ltd.<br /> Divisional Office, VI<br /> ‘Srinivasa Mansion’, III Block<br /> Jayanagar, Bangalore 560 011<br /> (Represented by its Sr. Divisional Manager)<br /> Represented by its Managing Director/Director Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that on 26.07.2007 complainant’s son J.D.Lokesh died due to road accident. He was riding his two wheeler registered bearing No. KA 51 J 4951 along with one pillion rider, and the motorcycle was insured with the opposite party vide policy No. 421600/2007/50841 for the period of one year valid from 10.08.2006 to 09.08.2007. On 07.08.2007 complainant claimed for damages. On receiving claim form from complainant the opposite party appointed a surveyor to assess the damages and to investigate the claim. The surveyor estimated cost to repair the vehicle Rs. 32,031.58. Opposite party company repudiated the claim by giving reasons that the deceased was not having a valid driving license. Opposite parties conduct shows deficiency in service. Complainant filed complaint No. 1556 of 2008 before the forum and the forum had given opportunity to the complainant to approach with a fresh complaint. Hence, the complaint seeking direction to the opposite party to pay sum of Rs. 1,32,031.58 with interest.<br /> 2. Notice issued to opposite party. The opposite party appeared through advocate and defence version filed stating that the deceased J.D. Lokesh is registered owner of the Motor Cycle, bearing No KA-51-J-4951 and the said vehicle was insured for the period from 10/08/2006 to 09/08/2007 vide policy bearing No.421600/MV/50841/2007 subject to various terms, conditions, exceptions and in any event and in any view of the matter, the legal liability of the insurer, if at all, is governed by the provisions of MV Act and policy of insurance issued by the insurer in favour of the complainant is binding on the parties, therefore, due observance of statutory provisions, terms and conditions of contract of insurance is a condition precedent for admission to any liability. The claim of the complainant was repudiated on the ground that the insured vehicle was covered by package policy Zone-A. The policy included cover for own damage and third party risks in addition to personal accident cover for insured. The driver’s clause in the policy is to the effect that, “provided also that a person holding an effective and valid license to drive the category of the vehicle insured hereunder may also drive the vehicle and that the person satisfies the requirements of Rule 3 of MV Rules 1989”. At the time of accident the insured did not observe requirements of Rule 3 of CMV Rules 1989. There is express breach of driver’s clause. The vehicle was not displayed any “L” board on both sides. For this reason the own damage claim was repudiated. The estimated value for insurance of the vehicle was Rs.32,031.58 ps. The company’s surveyor assessed the loss at Rs.24,754.63 ps only and recommended settlement as per claim settlement Rules. There is no deficiency or negligence in service in handling the claim of the complainant and the same is liable to be dismissed. <br /> 3. Arguments are heard and matter is taken up for orders. Perused the documents. <br /> 4. The points for consideration are: <br /> 1. Whether the repudiation of the claim put up by the complainant is justified?<br /> 2. Whether the opposite party insurance company can be directed to pay the clam amount?<br /> REASONS<br /> 5. It is an admitted fact that deceased J.P. Lokesh was registered owner of motor cycle bearing No. KA-51-J-4151 and said vehicle was insured with the opposite party society. The effective date of insurance was from 10/08/2006 to 09/08/2007. The insurance was covered by package policy Zone-A. Policy included cover for own damage and third party risks in addition to personal accident. The only defence taken by the opposite party is that the insured did not observe Rule 3 of CMV Rules 1989 and there was express breach of driver’s clause. The vehicle was not displayed by “L” board, that was the reason the insurance company repudiated the claim for own damage to the vehicle. It is further case of the opposite party that the insured had not made any personal accident claim and opposite party is fair enough to submit that as and when insured make such claim and the same would be entertained. It is further submitted by the opposite party that company’s surveyor assessed the loss to the vehicle at Rs. 24,754/- only and recommended settlement as per claim settlement rules. As per the defence version it is clear that the insured that is LR’s of the deceased have not put up PA claim. Therefore, the opposite party insurance company is ready and willing to entertain the claim if such claim is put up by the legal representative of the deceased. J.P. Lokesh had died in the motor vehicle accident. The personal accident coverage to the owner/driver was Rs.1,00,000/- in case of death. The complainant is legal heir of deceased J.P. Lokesh. It is submitted that J.P. Lokesh was unmarried. The complainant has produced copy of FIR, copy of PM report. By the PM report it is clear that J.P. Lokesh had died due to multiple injuries sustained in the road traffic accident. As per the policy personal accident coverage to the owner/driver is Rs.1,00,000/-. Therefore, the opposite party company shall have to pay Rs.1,00,000/- to the complainant as per the policy. The opposite party has no dispute whatsoever for payment of PA claim. The only defence taken by the opposite party is that since the legal representative has not put up claim. Therefore, PA claim was not given. However, the complainant has approached this Forum seeking relief. Consumer Protection Act is a social and benevolent legislation intending to safeguard the better interest of the consumers. Since there is no dispute whatsoever the opposite party insurance company can be directed to pay PA claim of Rs.1,00,000/- to the complainant. As regards the damage to the vehicle the claimant has claimed Rs.32,031/-. The opposite party insurance company has appointed surveyor and loss assessor to assess the damage to the vehicle. The surveyor submitted survey report. As per report he has assessed the loss to the vehicle at Rs.24,754/-. The opposite party company should have paid as per the surveyor’s assessment of loss though not the cost of repair claimed by the complainant. The only defence taken by the opposite party in rejecting the claim in respect of damage to the vehicle is that at the time of accident the owner/driver was holding learner’s license. Therefore, as per the provisions of Motor Vehicle Act the claim was not admitted. This defence is not acceptable at all. Admittedly, the deceased J.P. Lokesh was having learner’s driving license. There is no clause in the policy mandating holding of permanent driving license. A person holding learning license is entitled to put up claim. Secondly, the two wheeler vehicle was hit by the KSRTC Bus on account of rash and negligent driving of driver of KSRTC Bus, the accident took place. The police have registered case against the driver of the KSRTC Bus. Therefore, holding of DL is immaterial. Even otherwise as per the authority of Hon’ble National Commission as held in National Insurance Company Ltd., V/s Ramesh Kumar in R.P No.1098/1998 dated 9th May-2004 it has been held as under:-<br /> “INSURANCE: Repudiation of claim on ground of driver holding learning license: No exclusion clause to that effect: Company liable.<br /> Consumer Protection Act, 1986-Section 21(b)-Insurance-Repudiation of claim on ground that Driver holding Learning licence-complaint allowed –Appeal-Confirmed the order-Revision Petition-No clause in policy mandating holding of permanent licence-Company liable. <br /> Facts: Respondent insured vehicle, Swaraj Mazda with petitioner. Due accident suffered heavy damage but claim was repudiated by Insurance Company. Grounds taken before District forum for repudiation was that the driver was holding only learning driving licence and there were four unauthorized passengers in the vehicle during accident. District forum allowed the complaint. State Commission confirmed the order of District forum. Petitioners filed this Revision Petition. <br /> Held: Admittedly, in the present case, the contract or the policy nowhere provides that driver should be holding a permanent driving licence other than learner’s licence. <br /> Result: Revision Petition dismissed. [Vol-1 Page-80] <br /> <br /> 6. So in view of this authoritative judgment of Hon’ble National Commission the repudiation of the claim by the opposite party company for payment of cost of repairs to the vehicle is not justified and same is illegal. The opposite party company is bound to pay the amount as assessed by the surveyor. Another defence taken by the opposite party is that the driver/owner of the two wheeler had not displayed “L” board to the vehicle. This is a very technical defence. There is absolutely no evidence or proof to show that the deceased J.P. Lokesh had not displayed “L” board to his vehicle on the date of accident. Even otherwise this defence is unsustainable in law. On this very inconsequential and minor violation the company should not repudiate the claim of the insured. The opposite party company absolutely not justified in law to repudiate the claim in this case. The complainant being the father of the deceased J.P. Lokesh is entitled to receive the amount since J.P. Lokesh was unmarried. In the result I proceed to pass the following:- <br /> ORDER<br /> 7. The Complaint is allowed. The opposite party company is directed to pay Rs. 1,00,000/- personal accident claim and Rs.24,754/- towards vehicle damage. The opposite party company is directed to pay interest on the above amount at 8% p.a from the date of repudiation of the claim that is 21/02/008 till payment/realisation. <br /> 8. The complainant is also entitled for Rs.2,000/- towards costs of the present proceedings from the opposite party. <br /> 9. The opposite party is directed to send the amount to the complainant directly by way of DD/cheque with intimation to this Forum. <br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. The opposite party is directed to send the amount to the complainant directly by way of cheque / D.D. with intimation to this forum.<br /> 12. Pronounced in the Open Forum on this 26TH DAY OF MAY 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br /> <br /> Rhr. <br /> <br />