Per Mr.Narendra Kawde – Hon’ble Member:
1. This appeal takes an exception to an order dated 10th August, 2010 passed in Consumer Complaint No.133/2009, by the District Consumer Disputes Redressal Forum, Kolhapur. The District Forum upholding the contentions of Complainants who are Respondents, rendering deficiency in service in not settling the payable insurance claim on account of the Complainant’s father, directed Appellant/Opponent to pay an amount of `1,00,000/- together with interest @9% per annum effective from 19.11.2008 and also directed to pay an amount of `2,000/- for mental agony and `1,000/- towards costs of the litigation. Aggrieved thereby the Appellant/Opponent Insurance Company preferred this appeal on the ground that the driving licence was not produced for settlement of claim and therefore, Insurance claim was rightfully rejected.
2. Heard Mr.S.R. Singh, Advocate for the Appellant and Mr.Jayantr Bardeskar, Advocate for the Respondetns.
3. Admitted facts are that the vehicle called Bajaj Platina was insured under Policy No.-G 08-2005-1802-0001380 for a period from 31.10.2007 to 30.10.2008. Under the said insurance policy insurance cover to the owner-cum-driver to the extent of `1,00,000/- was provided by charging additional premium of `50/- per annum. The insured was father of the Complainant Nos.1 and 2. The insured met with an accident which was so fatal that insured himself and his wife died in the said accident. The accident took place on 05.04.2007 i.e. during the validity period of insurance policy. Accident occurred due to rash and negligence driving of the truck running in the opposite direction. During the said vital accident the driving licence was lost and after making frantic efforts could not be traced out. The Complainants who are the daughters of the deceased insured filed the insurance claim under the said policy for release of insurance claim of `1,00,000/- as the insured died in an accident. The Appellant/Opponent insurance company repudiated the insurance claim as the original driving licence was not submitted along with other documents required for settlement of the claim. Request of the Complainants to submit a copy of the driving licence which was in possession of the Appellant/Opponent Insurance Company as it was submitted prior to issue of the policy, was also rejected. Aggrieved with the repudiation and the non-cooperative attitude of the Appellant/Opponent Insurance Company, the Complainants have filed consumer complaint before the District Forum. The District Forum allowed the consumer complaint and passed order as mentioned in paragraph no.1, supra.
4. Aggrieved with the impugned order the Appellant/Opponent Insurance Company preferred this appeal contending that the Complainants failed to submit original driving licence of the deceased insured and in the absence of production of licence on record the claim payable under the policy cannot be settled.
5. Heard Advocates of parties. The Ld.Advocate of the Appellant submitted that Appellant/Opponent Insurance Company is ready and willing to settle the claim on production of the original licence. However, after making all efforts the Complainants could not trace the original driving licence and even their efforts to obtain copy from the Appellant/Opponent Insurance Company and the copy from the Regional Transport Office (RTO) also could not succeed. The Ld.Advocate for the Appellant argued that the policy is issued subject to terms and conditions and observance and fulfillment of the terms and conditions as endorsed in the policy is binding on both the parties, as it is a contract between the parties. However, no explanation could come forward from the Appellant/Opponent about verification and availability of driving licence prior to issue of policy as stipulated under terms and conditions (Section III –Personal Accident Cover for Owner – Driver) provides that the Insurance Cover is subject to 1 (a)(b)(c), which is as follows:
(a) The Owner-driver is the registered owner of the vehicle insured herein;
(b) The Owner driver is the insured named in this policy.
(c) The owner-driver holds, an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989, at the time of the accident.
It is unlikely that without verification of driving licence, policy was issued by Opponent Insurance Company.
6. Specific query from the bench about the possession of the copy of the original driving licence which was verified by the Opponent Insurance Company could have been spared for the Complainant and also acted upon as the situation narrated for loss of original licence appears to be bonafide. By doing this act of grace, the Opponent Insurance Company should have inspired confidence in themselves.
7. The Ld.Advocate for the Appellant/Opponent Insurance Company relied on the decision of the Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. V/s. Laxmi Narain Dhut, reported in (2007) 3, Supreme Court Cases 700. Case related to indemnity on account of the third party insurance claim and interpreted construction of terms and conditions of policy as they are. Case on hand differs as the copy of original licence was duly verified prior to issue of policy. Complainant could not produce original licence as insured father (of Complainant) died in an accident and licence was not traceable. The Ld.Advocate for the Complainants/Respondents submitted that insurance is a contract based on utmost good faith of the parties. All the possible efforts to trace the original licence proved futile. As provided in the terms and conditions of the policy Section III - (c) 1(a)(b)(c) the insurance cover was extended to the owner-driver after verifying original driving licence along with other papers, which is very much in the custody and on record of Appellant Insurance Company. The request to act upon the said documents was not entertained and the Ld.Advocate for the Complainant is relied on the judgement of the Hon’ble Bombay High Court in First Appeal No.100 of 1999, in the matter of New India Assurance Company Ltd. V/s.Arvind P. Kulkarni. It was held that the Appellant insurance Company did not discharge the burden by making efforts to obtain the driving licence from the competent authorities. Here insurance company neither denied availability of verified copy on record nor stated what efforts were made to trace/obtain original driving licence. In the case on hand the Insurance Company has issued the subject insurance policy only after verification of the driving licence, which was lost in the fatal accident that took lives of insured and his wife (parents of the Complainants). In this case, Insurance Company though possessed the record of driving licence prior to issue of Insurance Policy could have acted on the available record as no efforts have been made by the Insurance Company to obtain licence from the concerned authority. Not only that, the request of the Complainant to spare copy of the said record also turned down which would have facilitated the Complainants to obtain record from the competent authorities i.e. RTO on the basis of such copy. Depriving Complainant to receive genuine insurance claim arising out of accidental death will amount to grave injustice.
8. The District Forum has considered all the facts and circumstances of the case and passed the impugned order holding deficiency in service against the Appellant/Opponent Insurance Company. In view of the aforesaid observations, order of the District Forum under challenge needs no intervention and therefore, question of invoking the appellate jurisdiction of this Commission to entertain this appeal does not arise. We hold accordingly and pass the following order:
O R D E R
Appeal stands dismissed.
No order as to costs.
Inform the parties accordingly.
Pronounced on 22nd March, 2013.
