Date of Filing: 14-01-2016 Date of Final Order: 22-02-2018
Sri Asish Kumar Senapati, President,
This is an application u/s 12 of the C.P. Act, 1986.
The Complainant, Sri Sunirmal Routh, S/o. Late Ahibhusan Routh, has filed the present case u/s 12 of the C.P. Act, 1986 praying for issuing direction upon the O.P. Nos. 1&2 to pay Rs.2,32,450/- as repairing cost of the vehicle, Rs.10,000/-from the O.P No.3 as remaining due amount till today, Rs.4,200/- as shifting cost of the vehicle, Rs.50,000/- for deficiency in service, Rs.20,000/- as compensation for mental pain & agony and Rs.15,000/-as litigation cost.
Briefly stated the facts of the case can be gathered from the Complainant is that the vehicle of the Complainant bearing Registration No. WB-64 K/1067, Chasis No.MA3EWDE1S764183 and Engine No. K10BN7383191, has been insured with the O.P. Nos.1 & 2 i.e. Bajaj Allianz General Insurance Co. Ltd. viz. First Party Insurance Policy No. OG15-2404-1801-00004963 and valid from 12/09/2014 to 11/09/2015. During the validity of the said Insurance Policy, the said vehicle was met with an accident with one Motor Cycle being No. WB-74-M/5479 and after collision the said vehicle dashed with a tree and the vehicle was badly damaged. After the accident one F.I.R lodged was lodged with Falakata P.S vide Case No.1207/14 dated 30/12/2014 U/Ss 279/338/304 A IPC and the G.R. Case is pending before the Ld. C.J.M. Court, Alipurduar. The damaged vehicle along with its papers was sized by the Falakata P.S.
After releasing the vehicle from Falakata P.S, the damaged vehicle was placed for repairing at the O.P. No.3 i.e. Prova Automobiles, Chakchaka, Cooch Behar on 31/01/2015 as per verbal instruction of the Insurance Company and the repairing cost of the vehicle was Rs.2,42,450/- vide Bill Invoice No.013430 & 006792 dated 25/03/2015 & 13/04/2015 respectively. The Complainant came to know from the Prova Automobiles that the Insurance Company has refused to bear the said repairing cost of the damaged vehicle as the said vehicle was driven by the driver who had no valid license. But it is pertinent to mention that at the time of accident the vehicle was driven by an authorized driver namely Kumar Chhetri, S/o. M. Kumar Chhetri of Gurung Basty, Siliguri having its valid Driving License bearing No.7319890254763 valid from 01/04/1989 to 12/01/2018. Thereafter, the Complainant sent a Lawyer’s notice to the Insurance Company to meet up the repairing cost of the damaged vehicle and advised Prova Automobiles to release the said vehicle in favour of the Complainant but the Insurance Company did not pay any heed.
The Complainant stated in his complaint that the vehicle has been insured on the full market price of the Company which valued at Rs.4,06,000/- and if the vehicle be fully damaged due to any accident, the Insurance Company is bound to pay entire assured sum as per terms and conditions of the Policy. In such case, the vehicle was partly damaged due to such accident and the Insurance Company is bound to pay the repairing cost within the limit of the assured sum. As there was no response from the Insurance Company, the Complainant paid Rs.2,32,450/- as the repairing cost of the vehicle to Prova Automobiles and the balance amount of Rs.10,000/- remains due till today. On the other hand, the shifting cost of the damaged vehicle from Falakata P.S to Prova Automobiles, Chakchaka, Cooch Behar was Rs.4,200/- which have to bear by the Insurance Company but the Insurance Company did not pay any heed to it.
Thus, finding no other alternative the Complainant has filed the present case against the O.Ps seeking reliefs and compensation as incorporated in the prayer portion of the complaint.
In the present case the notice upon the O.P. No.1 & 2 had been duly served. On behalf of the O.P. No.1 & 2, the Ld. Advocate, Sri Pasupati Nath appeared by filing W/V and contested the case contending inter-alia that the present case is not maintainable in its present form as well as in law.
The prime contention of this O.P. Nos.1 & 2 is that after claim intimation, the O.Ps have appointed IRDA licensed surveyor to assess the loss. The said surveyor has assessed the loss to tune of Rs.2,29,436/- subject to terms and conditions of the Policy and submitted his survey report and the O.Ps’ liability will not be more than loss assessed by surveyor, but in present case, driver of insured vehicle was not having valid and effective license.
Hon'ble National Commission passed judgment citation i.e. III (2014) CPJ 508 (NC) wherein it is reiterated that “if driver of vehicle was not possessing the valid driving license to drive particular type of vehicle at the time of accident, Insurance Company is not liability to reimburse the damages to vehicle”. Hence claim of Insured is deserved to be dismissed.
This answering O.Ps further contented that as per the verification of the original driving license bearing No. WB-73-19890254763 in the name of Mr. Kumar Chettri, Son of Late M. Kumar Chettri issued by the licensing authority, Siliguri to drive LMV - T only and having validity from 01/04/1989 to 12/01/2018 (as per extract copy) from RTO. The license was valid throughout the period except from date 17/10/2014 to 12/01/2015 whereas the said vehicle made with the alleged accident on 29/12/2014. Therefore, it is evident that at the time of accident the driver was not holding a valid and effective driving license required to drive the vehicle which mention in the insurance policy and as well as the registration certificate.
It is pertinent to mention here that as per motor vehicle Act “(a) No person shall drive a motor vehicle in any public place unless he holds an effective 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 subsection (2) of section 75 unless his driving license specifically entitles him so to do”.
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 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”.
It is also to be mentioned here that the alleged accident was caused on 29/12/2014 whereas the alleged F.I.R was lodged before the Falakata P.S on 30/12/2014 i.e. one day after the alleged accident but no clarification was made therein due to lodging the F.I.R in late. Furthermore, the Complainant has not lodged any F.I.R in respect of alleged damage of his vehicle. It appears from the Seizure List there was no whisper of the damage of the vehicle was found, so question of the payment of such damage of the vehicle was not arise.
The O.Ps further stated in their W/V that no verbal instruction was given to the Complainant for repairing of his vehicle at Prova Automobiles, Chakchaka, Cooch Behar on 31/01/2015, after submission of the claim by the Complainant the O.Ps came to know about the fact of accident. The Complainant has violated the terms and conditions by not furnishing any information about the alleged accident to the answering O.Ps immediately. Therefore, the present Complainant is not entitled to get any relief from the answering O.Ps.
By narrating their version the O.Ps prayed for dismissal of this case with cost as the present case is concocted and has been filed to harass the O.P. Nos.1 & 2.
The O.P. No.3 has contested the case by filing W/V contending inter-alia that the present case is not maintainable. The main contention of the O.P. No.3 is that on 31/01/2015 the Complainant had send the damaged vehicle bearing No. WB 64-K/1067 for repairing at Prova Automobiles. After repairing the said vehicle, the Complainant has received the vehicle with full satisfaction. So the allegations made in the complaint are totally false and fabricated story.
It is pertinent to mention here that the repairing cost of the said vehicle of Rs.2,42,450/- and when the Complainant has taken the said vehicle from the O.P. No.3, he had deposited the said amount through cash and two cheques amount Rs.2,00,000/- and Rs.10,000/- and one cheque of Rs.10,000/- has been dishonoured for payment stopped. Therefore, there was no deficiency in service and unfair trade practice adopted by the O.P. No.3.
By putting all these, the O.P. No.3 has prayed for dismissal of the case with sufficient cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the evidence on affidavit of the parties along with relevant documents. Perused also the written argument filed by the parties and heard the argument advanced by the Ld. Agents of the parties at length.
Point No.1.
The Ld. Agent for the Complainant submits that the Complainant is a consumer of the OPs as he had hired the services of the OPs on payment of charges.
In reply, the Ld. Agent for the OPs has stated nothing on this point. On perusal of the materials on record and on hearing the submission of the Ld. Agents of both sides, we hold that the Complainant is a consumer of the OPs in terms of Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The Ld. Agent for the Complainant has submitted that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum.
In reply, the Ld. Agent for the OPs has not raised any objection regarding jurisdiction of this Forum. On a careful consideration over the matter, we find that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum. Thus, this point is disposed of in favour of the Complainant.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant has submitted that the Complainant is the owner of the vehicle No.WB-64K-1067 and the vehicle was insured under the OPs vide Policy No.OG-15-2404-1801-00004963. It was urged that the policy was valid from 12.03.14 to 11.09.15 and the vehicle met with an accident on 29.12.14 and the fact was reported to Falakata PS on 30.12.14. It was argued that one Kumar Chettri was the Driver of that vehicle on 29.12.14 having Driving License No.7319890254763 and the license was valid from 01.04.1989 to 12.01.2018. He argued that the vehicle was repaired at the workshop of the OP No.3 at a cost of Rs.2,34,000/- but the Insurance Co. had repudiated the claim of the Complainant by issuing a letter dated 05.06.15. He contends that the repudiation of the claim of the Complainant by the OP No.1 is baseless and the OP No.1 & 2 had deficiency in service. It is argued that insurance claim cannot be rejected on the ground of lack of driving license. He drew our attention to a decision reported in 2015 (2) CPR 397 (NC) wherein it is held that the insurance claim cannot be out-rightly rejected on the ground of lack of driving license. He also drew our attention to a decision reported in 2004 ACJ 457. He submitted that the OP Nos.1 & 2 may be directed to settle the claim and to pay the charges of repair of the damaged vehicle to the Complainant. It was urged that the Complainant is entitled to get compensation for deficiency in service, mental pain and agony and for litigation cost.
In reply, the Ld. Agent for the OP Nos.1 & 2 submitted that the vehicle of the Complainant being No. WB-64-K/1067 was duly insured under the OPs during the period from 12.09.14 to 11.09.15. He argued that the Complainant alleged that his vehicle met with an accident on 29.12.14 and he claimed for insured sum for repair of his vehicle. It is urged that the OP Nos.1 & 2 duly investigated the case through their IRDA Licensed Surveyor to assess the loss and he assessed the loss to the tune of Rs.2,29,436/- subject to terms and conditions of the Policy. It was argued that the surveyor had reported that the Driver of the insured vehicle had no valid license on the date of incident. He drew our attention to the Driver’s Clause of the Policy (Annex. B), wherein it is stated that 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. It was argued that the Driver Kumar Chettri had driving license valid throughout the period from 01.04.1989 to 12.01.2018 except from 17.10.14 to 12.01.15 and the license was renewed on 13.01.15 (Annexure 1). He drew our attention to Section 15 of the Motor Vehicles Act, 1988 wherein it is said that in any case, where application for renewal of license is made more than 30 days after the date of its expiry, the driving license shall be renewed with effect from the date of its renewal. It was contended that Kumar Chettri did not apply for renewal of his driving license within 30 days from the date of expiry i.e. from 16.10.14 for which the license was renewed on 13.01.15. It was urged that the Driver of the vehicle No. WB-64K-1067 had no valid and effective license on 29.12.14 for which the OP Nos.1 & 2 have rightly repudiated the claim of the Complainant. In this respect, he drew our attention to a decision reported in (2010) 3 SCC (Cri) 992 wherein it is held that “As it stands proved that the driver did not have an effective and valid driving licence on the date of accident, the National Commission’s direction to Appellant Insurance Company to pay Compensation to the Respondent owner of the vehicle cannot be sustained. The Appellant was not liable to indemnify the Claimant for the loss suffered by him in the accident of the insured vehicle”.
It was argued that the decisions referred by the Ld. Agent for the Complainant are not at all applicable in the present case as most of the decisions are in connection with 3rd party insurance claim. He prayed for dismissal of the complaint with cost.
The Ld. Agent for the OP No.3 has submitted that the Complainant raised no consumer dispute between the Complainant and the OP No.3. It was argued that the OP No.3 had repaired the damaged vehicle as requested by the Complainant and it is not the case of the Complainant that the OP No.3 had any deficiency in service. He prayed for dismissal of the complaint against the OP No.3.
Admittedly, the Complainant is the owner of the vehicle No.WB-64K-1067 and the vehicle was covered under an Insurance Policy with the OP No.1 having its Policy No. OG-15-2404-1801-00004963 from 12.09.14 to 11.09.15. It is the specific case of the Complainant that the vehicle met with an accident on 29.12.14 and the vehicle was damaged. Admittedly, Falakata PS case No.1207/14 dated 30.12.14 was started U/Ss 279/338/304 A IPC. Admittedly, one Kumar Chettri was the Driver of the vehicle No.WB-64K-1067 on 29.12.14 at the time of accident.
It is the case of the OP Nos.1 & 2 that they appointed one IRDA Licensed Surveyor who submitted a report after survey assessing loss of Rs.2,29,436/- subject to terms and conditions of the Policy. It appears from the Driver’s Clause as mentioned in the policy premium certificate that “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’’. In the present case, Kumar Chettri had a driving license being No.7319890254763 and it was valid from 01.04.1989 to 12.01.18 but the driving license extract of Kumar Chettri issued by Licensing Authority, MV Department, Siliguri dated 31.03.15 goes to show that license was valid throughout the period from 17.10.14 to 12.01.15 and it was renewed on 13.01.15 (Annexur 1). Therefore, it is clear that Kumar Chettri had no valid driving license on 29.12.14 i.e. on the date of accident. Now the question is whether lack of valid driving license is a ground for repudiation of claim of the Complainant or not.
We have gone through the decisions referred by Ld. Agents of both sides. On a careful consideration and with due regards to the decisions referred by Ld. Agents of both sides, we have placed our reliance on the decision reported in (2010) 3 SCC (CRI) 992 wherein it is held that “As it stands proved that the driver did not have an effective and valid driving licence on the date of accident, the National Commission’s direction to Appellant Insurance Company to pay Compensation to the Respondent owner of the vehicle cannot be sustained. The Appellant was not liable to indemnify the Claimant for the loss suffered by him in the accident of the insured vehicle”.
Therefore, we are of the considered view that the Insurance Co. has rightly repudiated the claim of the Complainant by its letter dated 05.06.15 by assigning the reason for repudiation of the claim. We hold that the Complainant has failed to establish any deficiency in service on the part of the OP Nos.1 & 2. We also find that there is no consumer dispute between the Complainant and the OP No.3. We think that the Complainant is not entitled to get any relief in this case.
The Case was instituted on 14.01.16 and admitted on 25.01.16. This Forum This Forum has taken endeavour to dispose of the case as expeditiously as possible and reasons for delay has duly been explained in day to day orders.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
It is Ordered,
That the Complaint Case No. CC/5/2016 be and the same is hereby dismissed on contest against the O.Ps without any order as to cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
