IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  10^th  Day of  May   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.216/2018

Shamna Shajahan                     :         Complainant

D/o Shajahan.S

Shahina Manzil

Thadathil, Mulavana P.O

Kollam-691503.

[By Adv.A.Sudheer Bose]

V/s

1.           The Authorized Signatory   :         Opposite parties

ICICI Lombard General Insurance

Company Ltd.

ICICI Lombard House,414-

Veer Savarkar Marg,

Near City Vinayak Temple

                 Prabhadevi,Mumbai

                 Maharashtra-400 025.

2.           The Investigations Manager

M/s ICICI Lombard GIC Ltd.,

                  3^rd Floor,Kannankeri Estate

                  3^rd Floor,Shanmugham Road

Marine Drive, Cochin-682031.

[By Adv.S.Dileep Kumar]

3.          M/s Nippon Motor Corporation

Pvt.Ltd. Thazhuthala

Kannanalloor, Kottiyam

                  Kollam.

                [By Adv.B.Dilip]

FINAL ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed under Section 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          The complainant  is the owner of a brand new Toyota Ethios Liva car bearing Reg.No.KL-02-AZ-1770.  The 1^st opposite party is the insurer of the car, and 2^nd opposite  party is the authorized claim settlement officer and 3^rd opposite party is the authorized dealer and service agent of  Toyota vehicle.  The new car vas delivered to the complainant through the 3^rd opposite party at Kottiyam, Kollam.  The 1^st opposite party has insured the car to the complainant and issued policy No. TIL 10350867 after receiving premium of Rs.32143/-.  The amount was received and the policy was issued by the 3^rd opposite party.  The period of  cover of the policy starts from 28.09.2016  and ends on 27.09.2017.  It was a private car package policy covering own damage premium and also 3^rd party liability. As per the terms of the policy the insurer is liable to compensate his property damage and also to indemnify her against all 3^rd party injury and damages.  Even before the purchase of the new vehicle, the complainant had applied for driving license to the licensing authority and accordingly the RTO, Kollam has issued Learner’s License on 19.08.2016, which was valid up to 18.02.2017.  Ever since the issue of learner’s license the complainant had been driving the car with the help and guidance of her father Sri.Shajahan who is a pucca license holder.  On 05.11.2016 the complainant had been driving her car from east to west of the Nedumancavu-Kollam road along with her father on the left seat.  At that time a pedestrian abruptly crossed the road.  Inorder to avert a major accident the complainant twisted the vehicle to the right side of the road and happened to hit on the compound wall situated in the right side of the road, by which the complainant’s car got damaged.  The pedestrian also sustained injuries and she was taken to hospital.  Upon this motor accident the Ezhukone police have registered a crime vide FIR No.1948/2016.  The police have also prepared vehicle mahazer, noting the nature and extent of various property damages sustained by the car.  The vehicle was also tested by the AMVI who have rightly noted the damages sustained by the vehicle due to the accident.  Since the vehicle sustained various property damages it was taken to M/s.Nippon Toyota, Kottiyam, Kollam which is the authorized service centre of Toyota cars.  The accident was reported to the opposite party insurer on time and accordingly the insurer had deputed the surveyor.  The surveyor inspected the vehicle at the workshop and as per his recommendations the vehicle was repaired at total cost of Rs.1,17,540/-.  The complainant paid the entire repair cost to M/s.  Nippon Toyota on 20.05.2017 and taken back the vehicle.  On 12.11.2016 the opposite party sent letter to the complainant directing her to produce the license of her husband Mr.Aneesh.  On the wrong notion that he was the co-passenger of the subject vehicle at the time of accident.  In reply on 19.12.2016 the complainant informed the opposite party that her father Mr.Shajahan was in the front seat and was guiding the driver as a co-passenger and the said Shajahan was a valid license holder.  Along with this reply the complainant has also sent the photocopy of the driving license of her father Mr.Shajahan.  But even after the receipt of the said clarification and production of the driving license of her father, the opposite party repudiated the claim  vide letter dated 04.02.2017.  The reason for repudiation alleged by the opposite party is that the complainant was not accompanied by a person duly licensed to drive a vehicle and it was not carrying ‘L’ plate on the vehicle.  Actually ‘L’ sticker was affixed on the car at the time of accident.  But that fact was not noticed by the police at the time of preparing the mahazer, which was prepared 4 days after the accident.  The reason for repudiation raised by the opposite party is not tenable either law or on facts.  The complainant as the driver of the vehicle had been observing the provisions of the learner’s license by accompanying a puca license holder, who is none other than her father.  It is the father who accompanied  as the instructor and co-passenger in the vehicle at the time of accident.  Since the learner’s license issued by the Licensing authority is also a valid license as recognized by the provisions of law, it cannot be held that the vehicle was driven by an unlicensed driver.  Even the FIR and charge sheet prepared by the police also does not indicate any penal provision against the driver for absence  of license.  Hence the repudiation of claim made by the insurer on the ground of absence of license is not justifiable.  It is only an attempt on the part of the insurer to wriggle out from their liability.  As stated earlier the policy issued by the opposite party is a comprehensive policy which covers own damages also.  Hence the opposite party insurer is liable to reimburse the entire repair cost paid by the complainant from her own pocket.  The act of repudiation of claim by the opposite party amounts to deficiency in service and unfair trade practice as contemplated  under the Consumer Protection Act.  The complainant is entitled to reimburse the repair cost of Rs.1,17,514/- with interest and  cost.  The complainant has suffered both mental agony and damages which is estimated at the minimum extent of Rs.50,000/- for legal purpose.  On 14.07.2017 the complainant caused to issue lawyer notice to the opposite party claiming the reimbursement of Rs.1,17,514/- and also compensation to the tune of Rs.50000/- for the mental agony and sufferings of the complainant.  The opposite party received the notice vide postal acknowledgment.  But the opposite party neither paid the amount nor sent any reply so far.  Hence the complainant has no other remedy but to approach this Forum for justice.

          The opposite parties entered appearance and  resisted the complaint.  The 1^st and 2^nd opposite party filed a joint written version and 3^rd opposite party filed independent version.  The contentions of the 1^st and 2^nd opposite party in their joint version are as follows.  The  complaint is not maintainable either in law or on facts.  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.  The complainant has approached this forum with material suppression of  facts inorder to make unlawful gain to her by misusing the authority of this Forum.  However it is admitted that 1^st opposite party had issued a package policy for the complainants vehicle bearing Reg.No.KL-02 AZ/1770 for a period commencing  from 28.08.2016 to 27.08.17.  The complainant had reported  a claim with the opposite party stating that the insured vehicle met with an accident on 05.11.2016 while she was driving the vehicle through Nedumankavu-Kundara road.  On receipt of the claim intimation from the complainant,  the opposite party  appointed a licensed insurance surveyor and loss assessor Mr.Laibish 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.  The  said surveyor  has conducted a survey of the damaged vehicle at the workshop  at Nippon Motor Corporation Pvt.Ltd., Prakkulam, Kottiyam were the damaged vehicle was kept for repairs after the accident.  The surveyor submitted the survey report before the opposite party assessing the net loss to a sum of Rs.82,994/- subject to its admissibility of the claim as per the terms and conditions of the policy.  As per the information furnished by the complainant, she was driving the insured vehicle at the time of accident.  The complainant was holding only a learners license issued by the competent authority  at the relevant time of accident.  The opposite party thereafter appointed an investigation agency M/s Scouts, Vittila, Cochin for conducting an investigation as to the entire details of the claim reported by the complainant.  The investigating agency conducted detailed investigation and submitted their investigation report dated 12.12.2016 before the opposite party.  As per the report submitted by the investigator,  the complainant Shamna Shajahan was driving the insured vehicle, who was holding a learners license at the time of accident.  As per the information gathered by the investigating agency the complainant and her spouse Mr.Aneesh.M.B alone where present in the insured vehicle at the time of accident and there were no third person present in the vehicle  other than the complainant and her husband.  It is further reveals in the investigation that the vehicle did not displayed the letter ‘L’  either at the front or the rear side of the vehicle at the material time, when the vehicle was driven by a person holding learners license only.  The investigating agency got reliable information that the complainant and her husband alone where inside the vehicle at the time of accident and no other passengers were travelling in the insured vehicle at the material time.  The opposite party on receipt of the investigation report had sent a letter to the complainant, requesting her to produce the driving license copy of Mr.Aneesh.M.B, who was the only co-passenger in the insured vehicle at the time of accident, for verification of the opposite party.  The complainant thereafter sent a reply to the opposite party stating that one Mr.Shajahan who is none other than the father of the insured was in front seat as a co-passenger in the insured vehicle at the time of accident, who was holding a valid driving  license and she was driving the vehicle as per the instruction and supervision of  Mr.Shajahan at the relevant time.  The complainant in fact deliberately planted Mr.Shajahan as a co-passenger in the insured vehicle at the relevant time for the reason that the actual co-passenger Mr.Aneesh.M.B was not holding a valid and effective driving license at the time of accident. It  is amply evident from the investigation conducted by the opposite party that the complainant was driving the vehicle in violation to the terms and conditions of the policy and the statutory provisions of the Motor Vehicles Act.  The opposite party therefore took a decision to repudiate the claim of the complainant on sound legal basis after due application of mind and sent the repudiation letter to the complainant on 02.04.2017.  Since the repudiation was made by the opposite party as per the contract conditions of the policy and also as per the statutory provisions of the Motor Vehicles Act, no deficiency in service can be attributed against the decision of the opposite parties.  The claim advanced by the complainant against the opposite parties is not legally sustainable and is liable to be dismissed.  The claim advanced by the complainant for an amount of Rs.1,17,514/- towards the loss alleged to have sustained to the complainants vehicle is not at all admissible.  The actual loss suffered to the complainants vehicle has been properly assessed by a licensed surveyor and loss assessor to the tune of Rs.82,994/- as per the terms and conditions of the policy.  The further claims advanced by the complainant towards mental agony and sufferings are also liable to be discarded and are not legally sustainable.

          Additional contentions of the 3^rd opposite party in the separate version are as follows.  The complainant had purchased a brand new Toyota Etios Liva Car from  3^rd opposite party and took insurance policy from 1^st opposite party.  While the said vehicle is under policy coverage, met with an accident causing serious damages to the vehicle.  The said vehicle was fully repaired by 3^rd opposite party for a total estimate cost of Rs.1,17,540/-.  The vehicle  was taken back by the complainant after paying the said amount under full satisfaction.  There is no specific allegation of  any deficiency in service or unfair trade practice on the part of the 3^rd opposite party.  So the 3^rd opposite party is not liable for any of the relief sought for in the complaint.

          In view  of the above pleadings  the points that arise for consideration are:-

1. Whether the repudiation of the claim by the opposite party No.1&2 is sustainable?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?
3. Whether the complainant is entitled to get reimbursed the repair cost of Rs.1,17,514/- with  interest and costs?
4. Whether the complainant is entitled to get compensation for the mental agony as claimed in the complaint?
5. Relief and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&2 &Ext.P1 to P15 documents.Opposite parties have not adduced any oral evidence.But 1^st opposite party got marked Ext.D1 to D3 documents.

Both sides have filed notes of argument.

Point No.1 to 4

          For avoiding repetition of discussion of materials these 4 points are considered together.  The following are the admitted facts in this case.  Complainant is the owner of brand new Toyota Etios Liva car bearing Reg.No.KL-02-AZ-1770 insured with the 1^st opposite party by paying Rs.32143/- as annual premium.  It is a private car package policy covering own damage premium and also 3^rd party liability.  There is also no dispute with regard to the fact that the said car met with an accident on 15.11.16 within the validity period of the above insurance policy and the said vehicle sustained heavy damage.  After the accident the car was taken to the 3^rd opposite party authorized service centre.  The surveyor deputed by the 1^st opposite party insurance company inspected the vehicle and as per his instruction the vehicle was repaired.  A sum of Rs.1,17,540/- was paid by the complainant as repairing charges.  There after the complainant  lodged a claim with 1^st opposite party for the said amount which was repudiated by opposite party No.1&2 on the ground that the complainant who was driving the car at the time of accident was holding only a learners license and therefore the  insurance company is not liable to honor the claim.

          According to the complainant  at the time of accident her father who was holding a valid license was also travelling in the front seat and guiding her as a co-passenger.  Even though this fact was intimated to the opposite party,  they ignored the same and repudiated the claim.  Hence the complainant claimed re-imbursement of the repair cost of Rs.1,17,514/- and also seeks compensation to the tune of Rs.50000/-.

          According to opposite party No.1&2 the damage assessed by surveyor is only Rs.82994/-.  The main contention of the above opposite parties is that the complainant was holding only learners license and the complainant was plying the vehicle by carrying his husband Aneesh alone that too without displaying ‘L’ board which is against the provisions of the Central Motor Vehicle rules.  As per the above rules a holder of  learners license shall  be accompanied by a puca driving license holder and as per the investigation report the complainant was driving the vehicle in violation of the terms and conditions of the policy.  Hence the repudiation claim is legal and valid.  Now we shall consider whether the complainant has violated the terms of the insurance policy while driving the vehicle with a learners license.  The learned counsel for the complainant by relying on the dictum laid down by the Division Bench of the Hon’ble High Court in 2004(1)KLT 781(SC), AIR 2004 SC 2874 and also on the basis of another full bench decision of Hon’ble High Court  reported 2015(1) KLT 1(F.B) has argued that the insurance company cannot be absolved from the liability in a case where the rider is holding only a learner’s license, and not accompanied by a licensed instructor as contemplated under Rule 3 of the Central Motor Vehicles Rules.  It is further pointed out in the above decision that Supreme Court in another case in unequivocal terms declared that the learner’s license is also a valid license for the purpose of determining whether the Insurance Company is liable or not.  The learned counsel for the complainant has further pointed out the dictum laid down by the Full Bench of the Hon’ble Supreme Court in National Insurance Company Vs Swaran Singh reported in 2004 (1) KLT 781(SC) that  Mere absence, fake or invalid license or disqualification of the driver for driving, are not in themselves defenses available to the insurance company. 

          In view of the above two dictums laid down by the Hon’ble Supreme Court and High Court and also in view of the oral evidence of PW1&2 it is further to be pointed out that  though PW1 was holding only learners license at the time of accident.  PW2 Shajahan who is none other than the father of PW1 and having valid driving license was accompanying her by sitting at the front seat itself and necessary instruction to the complainant to drive the vehicle through the public road and that the complainant who was holding only a learners license at the time of accident is not a valid defence to the insurance company to repudiate the claim.

          Though the complainant would claim Rs.1,17540/-, the loss assessor of the insurance company has assessed the loss to the tune of Rs.82994/-.  As it is found that the repudiation of the claim lodged by the complainant is not sustainable, she reimbursed the repair charge as assessed by the loss assessor deputed by the Insurance Company.  It is also brought out in evidence that the repudiation of the claim which  ought to have been allowed by the insurance company has caused much mental agony apart from financial loss to the complainant.  Therefore she is also entitled to get reasonable compensation.  The points answered accordingly.

In the result complaint stands allowed directing the opposite party to reimburse the loss assessed by the surveyor deputed by the Insurance Company to the tune of Rs.82994/- with interest at the rate of 6% per annum from the date of complaint till the date of payment  within 45 days from the date of this order.

The opposite party no.1 &2 are also directed to pay compensation of Rs.25000/- to the complainant for the mental agony sustained by her within 45 days. 

Opposite parties No.1&2 are also directed to pay Rs.5000/- as costs of the proceedings.

          If the opposite party failed to comply with the directions within 45 days from today the complainant is at liberty to recover Rs.82,994+25000 along with interest @ 9% and costs Rs.5000/- from the date of complaint till realization from opposite party No.1&2 and from their assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  10^th day of  May  2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Shamna Shajahan

PW2  :         Shajahan

Documents marked for the  complainant

Ext P1:        Copy of policy No.TIL 10350867 dated 28.09.2016.

Ext P2:        Copy of driving license  of Shamana Shajahan

Ext.P3:        Copy of driving license of Mr.Shajahan dated 30.12.2009.

Ext.P4 series:        Certified copy of FIR.

Ext.P5         :Certified copy of vehicle mahazar.

Ext.P6         :Certified copy of final report.

Ext.P7 series:Original receipts.

Ext.P8         : Copy of vehicle mahazar.

Ext.P9         : Copy of letter dated 12.11.2016 issued by the Investigation Manager, ICICI Lombard.

Ext.P10       :Copy of reply letter dated 19.12.2016 of the complainant.

Ext.P11       : Copy of lawyer notice dated 14.07.2017.

Ext.P12       : Copy of postal acknowledgement.

Ext.P13       : Copy of claim repudiation letter dated 04.02.2017.

Ext.P14       : Certified copy of award from DLSA, Kollam.

Ext.P15       : Original driving license of Mr.Shajahan.

Witnesses Examined for the opposite party:-Nil

Documents marked for the opposite party:-

Ext.D1        : Attested copy of policy with conditions.

Ext.D2        :         Copy of survey report

Ext.D3        :Copy of investigation report.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent