CC Filed on 30.10.2009<br /> Disposed on 09.06.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 9TH DAY OF JUNE 2010<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 167/2009<br /> <br /> Between:<br /> <br /> <br /> Sri. Ramesha,<br /> S/o. Ramappa,<br /> Aged About 33 years,<br /> R/o. Palligadda Village,<br /> M. Gollahalli Post,<br /> Chintamani Tq.,<br /> Chikkaballapur District.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant.<br /> <br /> -V/s-<br /> <br /> M/s. ICICI Lombard Motor –<br /> Insurance Company Limited,<br /> “Prestige Croniche”,<br /> # 62/1, 2nd Floor, Richmond Road,<br /> BANGALORE-26.<br /> Rep. by its Branch Manager. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Party.<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay a sum of Rs.2,00,000/- to the complainant towards personal accident benefit with costs and interest etc.,. <br /> <br /> 2. The material facts of complainant’s case may be stated as follows:-<br /> That the complainant is the owner of TATA - 407 Tempo bearing registration No. AP-15/W-4304. This vehicle was insured with OP vide policy No.3003/54125259/00/00 for the period from 27.08.2008 to 26.08.2009 including personal accident cover for Rs.2,00,000/- to Owner-Driver. On 09.06.2008 after unloading the tomoto boxes in Bangalore the complainant was returning in his vehicle to his village Polligadda and when the tempo reached a place near Narayanahalli Gate on Bangalore-Chinthamani Road the driver of the tempo lost control due to his high speed as a result of which the tempo was dashed against a bus bearing registration No.AA-34/4357 coming from the opposite direction. Due to the impact the complainant sustained the following injuries:-<br /> (1) Multiple small abrasions over bone forearms. X-ray of both forearms revealed fracture of radius and ulna on both side<br /> <br /> (2) Lacerated wound over right knee 3 x 0.5 cm in to skin deep. The x-ray revealed fracture of tibia and fibula (right side).<br /> <br /> The complainant took treatment and spent huge amount. It is alleged that in spite of the treatment he has not recovered from the injuries and he could not walk a long distance and walk on uneven surface and he could not lift any weight and attend his personal work and thereby he became permanently crippled person and that prior to the accident he was hale and healthy and was a fleet owner –cum- agriculturist earning more than Rs.10,000/- to Rs.15,000/- per month and that for the present he is not in a position to do his earlier avocations resulting in loss of earnings and thereby he suffered permanent total disability so as to work. <br /> <br /> It is alleged that the complainant got issued legal notice dated: 14.07.2009 claiming compensation under personal accident benefit, but the OP neither chosen to comply nor replied the notice till today. Therefore the complainant has filed the present complaint on 30.10.2009.<br /> <br /> 3. The OP appeared and contested the case and filed version. It is admitted that, OP had issued insurance policy as alleged in the complaint. The happening of accident on 09.05.2008 is not disputed. The allegation in the complaint that the complainant suffered total permanent disability due to injuries suffered in the accident is denied. It is contended that, the driver of the Tempo in question was not having valid and effective driving license to drive the said tempo at the time of accident. Further it is contended that, the complainant had not suffered permanent total disablement from injuries sustained in the accident. Further it is contended that the complainant had not intimated the accident claiming personal accident benefit and further that there were six to seven persons travelling in the said tempo at the time of accident contrary to the permitted seating capacity of three. Therefore the OP prayed for dismissal of the complaint.<br /> <br /> 4. The parties filed affidavits by way of evidence and produced required documents.<br /> <br /> 5. We heard the arguments of the learned counsel for the parties.<br /> <br /> 6. From the rival contentions the following points arise for our consideration:-<br /> (1) Whether the repudiation of the claim by OP is illegal?<br /> <br /> (2) If Point No.1 is held in Affirmative to which reliefs the complainant is entitled?<br /> <br /> (3) What order?<br /> <br /> 7. After considering the submissions of parties and the evidence on record our findings on the above points are as follows:-<br /> POINT No.1:- In the Negative<br /> POINT No.2:- Does not arise for consideration <br /> POINT No.3:- As per final order<br /> <br /> REASONS<br /> POINT No.1:-<br /> 8. The OP opposed the claim on the grounds that (a) the driver was not having valid and effective driving license at the time of accident to drive the vehicle in question; (b) that there were six to seven passengers carried in the vehicle in question at the relevant time contrary to the permitted seating capacity; (c) that the permanent partial disablement is not covered under the terms of policy for payment of compensation.<br /> <br /> The complainant in his claim form claiming compensation for the vehicle damage stated that one M. Srinivasa, S/o. Munivenkatappa was the driver of vehicle at the time of accident. In the charge-sheet after investigation the police have shown one Srinivasappa, S/o. Venkatappa, as the driver of the vehicle in question at the time of accident. It is admitted that both the drivers were having driving license to drive LMV (non transport) with the endorsement to drive Heavy Passenger Vehicle as well as Heavy Transport Vehicle at the time of accident. The OP contended that as the driver was not having license to drive LMV (transport) the driving license of any of the drivers is not proper and valid. In the decision citied in I (2008) CPJ 1 (SC) between New India Assurance Company Limited –V/s- Prabhu Lal it is held that, a driver having license to drive LMV only without there being no endorsement as required by Section-3 of the MV Act to drive transport vehicle, cannot drive a vehicle which falls under transport vehicle though it is LMV. In the present case admittedly the vehicle in question was LMV which was also a transport vehicle. Therefore it was contended by OP that the driver was not having valid and effective driving license.<br /> <br /> It can be seen that in the present case the driver was having license to drive LMV (non transport) with the endorsement to drive heavy passenger vehicle as well as heavy goods vehicle. In the decision ILR (2003) Karnataka 3511 between United India Insurance Co. Ltd., -V/s- Bharamappa Doddabirappa Poojari and another, it is held that, a driver who had driving license to drive a light motor vehicle could drive a motorcycle with gear without there being a specific endorsement to drive a motorcycle with gear. The learned counsel for complainant submitted that, on the same analogy a driver having license to drive Heavy Transport Vehicle and Heavy Passenger Vehicle can drive LMV (transport) which also falls under the category of Transport Vehicle. He also pointed out that before issuing license to drive HTV or HPV a person should hold license to drive LMV and only after a particular period the license to drive HTV or HPV would be issued. In view of the above facts, we think that, the driver who had driving license to drive a light motor vehicle with endorsement to drive HTV and HPV could drive a light motor vehicle which also falls under the category of Transport Vehicle. For this reason though there is no specific endorsement to drive Light Motor Vehicle (transport) the driver could drive such vehicle. Hence on this ground the claim could not have been rejected.<br /> <br /> The other ground urged by OP is that contrary to the permitted seating capacity of three persons including the driver, six to seven passengers were being carried in the vehicle in question. That fact is established from the contents of FIR. However it is not shown that the said contravention led to cause accident. Therefore on this ground also the claim could not have been rejected.<br /> The last ground urged is that under the terms of contract permanent partial disablement is not covered for awarding any compensation. The relevant part in the policy is as follows:-<br /> <br /> SECTION IV PERSONAL ACCIDENT COVER FOR OWNER – DRIVER., Subject otherwise to the terms and exceptions conditions and limitations of the policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:<br /> <br /> Nature of Injury Scale of compensation<br /> (i) Death 100%<br /> (ii) Loss of two limbs or sight of Two eyes or one limb and Sight of one eye. 100%<br /> (iii) Loss of one limb or sight of One eye 50%<br /> (iv) Permanent total disablement from injuries other than named above 100%<br /> <br /> Provided always that <br /> The compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 lakh during any one period of insurance.<br /> <br /> This cover is subject to<br /> (a) the owner-driver is the registered owner of the vehicle insured herein:<br /> (b) the owner-driver is the insured named in this policy.<br /> (c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule-3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.<br /> <br /> The policy schedule contains Driver’s Clause as follows:-<br /> 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.<br /> <br /> The reading of the above terms and conditions shows that when the owner himself is not the driver at the time of accident, it appears the driver as well as the owner should have valid and effective driving license to drive the vehicle in question. In the present case the complainant is the owner of the vehicle, but the pleading and evidence is silent whether he was having valid and effective driving license at the time of accident. It appears the complainant should have produced his driving license to establish this fact. <br /> The learned counsel for complainant contended that, permanent partial disablement sustained due to the injuries suffered in the accident, also falls under Clause-IV of the Injuries described in the policy and in the case of partial total disablement the scale of compensation would be reduced to the extent of percentage of partial total disablement to that of permanent total disablement. On the other hand the learned counsel for OP contended that, permanent partial disablement is not at all covered under the terms of contract and there is no question of awarding any compensation for permanent partial disablement. <br /> After considering the rival contentions, we think that the contention of the learned OP is correct. The compensation in the case of personal accident cover is governed by terms and conditions of the policy. If permanent partial disablement is also included in Clause-IV, it would have been specifically provided how to calculate the compensation in the case of permanent partial disablement. In the absence of such term the compensation can be awarded only to the nature of injuries described in Clause-(i) to (iv) stated in the policy. If any injury falls outside the category of injuries (i) to (iv) the Insurance Company is not liable to pay compensation. The learned counsel for complainant relied upon the decision citied in M.F.A. No.15099/2007 (MV), between The Oriental Insurance Co. ltd., -V/s- Sri Parameshwarappa K.H. decided on 11th Day of September 2009 by our Honorable High Court, in support of his contention. But we think this decision does not support such contention. On the other hand it is held in this decision that the liability of Insurance Company should be decided on the terms and conditions of the contract entered between the parties. In this case for certain permanent partial disablement the Claim Tribunal had awarded compensation under Personal Accident Cover as in the case of injuries sustained by third party in motor accident. Therefore the matter was remanded with a direction to decide the liability on the basis of contractual terms. There is an observation in this decision which is as follows:-<br /> In the case on hand, injuries suffered by claimant falls under item No.iv of table viz permanent total disablement from injuries other than named it and iii. The scale of compensation is shown as 100% i.e., Rs.1,00,000/-.<br /> <br /> The learned counsel for the Complainant relied upon the above observation in support of his contention. But we think this observation cannot be taken as the ratio of this decision. As already noted the specific direction in that decision to the Claim Tribunal was to determine compensation with reference to contractual obligations set out in the policy. Therefore we hold that, permanent partial disablement does not attract any liability to pay the compensation by the Insurance Company, in the absence of a specific term for payment of compensation in respect of permanent partial disablement from injuries sustained in the accident. For the above reasons we hold that, the complainant is not entitled to any compensation in respect of the injuries suffered by him in the accident. Hence Point No.1 is held in Negative.<br /> <br /> POINT No.2:-<br /> 9. As point No.1 is held in Negative, Point No.2 does not arise for consideration.<br /> <br /> POINT No.3:-<br /> 10. The following:-<br /> O R D E R<br /> <br /> The complaint is Dismissed. The parties shall bear their own costs.<br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 9th DAY OF JUNE 2010.<br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br />