Karnataka

Chitradurga

CC/53/2014

Shri.B.N.Nagendrappa S/o. Nagappa - Complainant(s)

Versus

The Branch Manager, ICICI Lombard General Insurance Co.Ltd - Opp.Party(s)

Shri.K.Paniyappa

07 Sep 2015

ORDER

COMPLAINT FILED ON : 17/07/2014

     DISPOSED ON: 07/09/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 53/2014 DATED:  7th September 2015

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

                               

COMPLAINANT	B.N. Nagendrappa, S/o Nagappa, Owner of Tractor-Trailer bearing Reg. No.KA-16/TA-7456-7457, R/o Gollarahatti village, Chitradurga District.   (Rep by Sri. K. Paniyappa,  Advocate)
OPPOSITE PARTY	The ICICI Lombard General Insurance Co. Ltd., Represented by its Branch Manager, The ICICI Lombard General Insurance Co. Ltd., House 414, Veer Savarkar Marg, Near Siddivinayaka Temple, Prabhadevi, Mumbai.    (Rep by Sri. K. E. Mallikarjuna,  Advocate)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OP for direction to the OP to pay Rs.81,817/- towards the damage caused to the vehicle, compensation of Rs.1,00,000/-, interest and cost etc.

2.     The brief facts of the case of the complainant are that, he is the RC owner of Tractor-Trailer bearing Reg.No.KA-16/TA-7456-7457, Engine No.DERJP10431 and Chassis No.WRTK76619110729, the same has been purchased from Mahindra and Mahindra Co., in the month of December-2013 and it was a brand new one.  The said Tractor-Trailer has been insured with the OP under policy No.3008/85619188/00/000 which was valid for the period from 05.12.2013 to 04.12.2013 covering third party risk, P.A for owner cum driver for an amount of Rs.2,00,000/- and also own damage for an amount of Rs.5,66,210/-.  It is submitted that, on 28.01.2014 at about 2-15 PM, the driver by name Srinivasa who was driving the said Tractor-Trailer, near Veerabhadraswamy Temple at Chikkapura village he lost his control and the said Tractor-Trailer toppled down and completely damaged.  After the said accident, he intimated about the accident to the OP Insurance Company through telephone and also intimated to the Chitradurga Rural Police and the said Police registered a case in Cr.No.0036/2014 on 28.01.2014 against the said driver.   The complainant has given a complaint to the OP in writing and after receiving the complaint, OP appointed a surveyor, who surveyed the vehicle in Raghavendra Auto Mobiles at Davanagere and told the complainant to repair the vehicle.  The complainant repaired the said vehicle by incurring an amount of Rs.74,817/- towards the damages and for replacement of the parts.  He has incurred Rs.3,000/- towards toeing charges and also Rs.4,000/- towards labour charges, in all Rs.81,817/- and he has submitted claim form by producing all the necessary papers.  But the OP repudiated the claim of the complainant and on 20.05.2014 OP sent a letter stating that, the Driver has no valid DL and the vehicle was carrying more than the registered seating capacity and it is the violation of policy terms and conditions.  It is submitted that, as per the recent guidelines of the Supreme Court, that when there is violation of the policy terms and conditions and MV Act, OP has to settle the claim on non-standard basis and the insurance company cannot repudiate the claim for only the reason that the driver was not having proper DL and also carrying more than its seating capacity.  Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

        3. On service of notice, OP has appeared through Sri. K.E. Mallikarjuna, Advocate and filed written version and submitted that, the complaint is totally false, frivolous, and misconceived either in law or on facts and the same is to be dismissed in limine.  It is further submitted that, by a letter dated 20.05.2014 it has repudiated the claim of the complainant on the ground that, as on the date of accident, the driver has no valid and effective driving license and at that time, the vehicle was carrying more than the registered seating capacity.  It is further submitted that, the insurance was a contract entered into between the complainant and the OP and the premium was accepted, there should not be breach of any terms and conditions.  The complainant has agreed the terms and conditions of the policy, under the said circumstances, the OP is not liable to pay any compensation.  Even in the event there is a violation of terms and conditions of the policy, even then also the OP is suppose to indemnify the insured means it is nothing but nullifying the contract under the said circumstances there is no meaning in entering into a contract.   In view of the above stated facts for breach of drivers clause of the motor insurance policy, OP has rightly repudiated the claim and etc., and prayed for dismissal of the complaint.

 

        4. Complainant himself examined as PW-1 by filing affidavit evidence and no documents have been marked. 

 

        5. OP has examined one Sri. Anand, Manager (Legal), ICICI Lombard General Insurance Company as DW-1 by filing affidavit evidence and no documents have been marked. 

 

        6. Both the sides have filed written arguments and oral arguments also heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, he is the owner and RC holder of Tractor-Trailer bearing No  KA-16/TA-7456-7457 and it was duly insured with the OP and on 28.01.2014 at Chikkapura village near Veerabhadraswamy Temple it was met with the accident and sustained damages and OP has illegally repudiated the claim and thereby complainant has sustained financial loss and mental agony and OP has committed deficiency of service and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Negative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

 

9. Point No. 1:- It is not in dispute that, complainant is the RC owner of Tractor-Trailer bearing Reg.No.KA-16/TA-7456-7457, Engine No.DERJP10431 and Chassis No.WRTK76619110729 and the same has been purchased from Mahindra and Mahindra Co., in the month of December-2013 and it was a brand new one and the same has been insured with the OP under policy No.3008/85619188/00/000 which was valid for the period from 05.12.2013 to 04.12.2013 covering third party risk, P.A for owner cum driver for an amount of Rs.2,00,000/- and also own damage for an amount of Rs.5,66,210/-.  That, on 28.01.2014 at about 2-15 PM, one Srinivasa who was driving the said Tractor-Trailer, near Veerabhadraswamy Temple at Chikkapura village he lost his control and the said Tractor-Trailer toppled down and completely damaged.  After the said accident, complainant intimated about the accident to the OP Insurance Company through telephone and also intimated to the Chitradurga Rural Police and the said Police registered a case in Cr.No.0036/2014 on 28.01.2014 against the said driver.   The complainant has given a complaint to the OP in writing and after receiving the complaint, OP appointed a surveyor, who surveyed the vehicle in Raghavendra Auto Mobiles at Davanagere and told the complainant to repair the vehicle.  The complainant repaired the said vehicle by incurring an amount of Rs.74,817/- towards the damages and for replacement of the parts.  He has incurred Rs.3,000/- towards toeing charges and also Rs.4,000/- towards labour charges, in all Rs.81,817/- and he has submitted claim form by producing all the necessary papers.  But the OP repudiated the claim of the complainant and on 20.05.2014 OP sent a letter stating that, the Driver has no valid DL and the vehicle was carrying more than the registered seating capacity and it is the violation of policy terms and conditions.  Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

10.  So, as on the date of accident, insurance policy was in force.  It is the main contentions of the complainant that, on 28.01.2014 when the driver driving the said vehicle at Chikkapura village, it was met with an accident and vehicle was toppled down and completely damaged.  Complainant has informed the same to OP and made a claim and in spite of policy was in force, OP has repudiated the claim on the ground that,  complainant had a DL to drive the said vehicle which is violation of policy conditions and MV Act and thereby he sustained financial loss and mental agony and OP has committed deficiency of service so, this complaint has been filed. 

 

       11.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also riled on documents like copies of policy, FIR, IMV report, Spot Mahazar, letter dated 30.01.2014, Xerox copy of quotation issued by the Sri Raghavendra Automobiles, Cash Bills, copies of RC, DL and letter of OP dated 20.05.2014, they are all Xerox copies, so, they are not marked and they are not helpful to the case of the complainant.   

 

12.  As per MV Act (a) no person shall drive a motor vehicle in a public place, unless he holds an effective and valid driving license issued to him authorizing to drive the vehicle and no person shall so drive a transport vehicle hired for his own use or rented under any scheme made under sub section (2) of Sec.75, unless his driving license specifically entitles him to do so.  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 he is not disqualified from holding or obtaining such a license.  Provided also that the person holding an effective learners license may also drive the vehicle and that such a person satisfies the requirements of rule 3 of the Central Motor Vehicle Rules 1989".  In view of the above stated facts for breach of drivers clause of the motor insurance policy, OP has rightly repudiated the claim. 

 

       13.  On the other hand, it is admitted by the OP that, complainant is the owner of said vehicle and it was duly insured with the OP and policy was in force as on the date of accident.  It is the main contentions of the OP that, even though insurance policy was in force as on the date of accident, but the driver has no valid and effective DL to drive the same at the time of accident and he has a DL to drive LMV only and so, complainant has violated the terms and conditions of the insurance policy so, OP has rightly repudiated the claim and complaint itself is not maintainable etc., and prayed for dismissal of the complaint.

 

       14.  On the basis of the above said affidavit and documentary evidences, Sri. K. Paniyappa, Advocate for the complainant has argued that, admittedly complainant is the owner and RC holder and said vehicle was duly insured with the OP and even though policy was in force as on the date of accident and OP has illegally repudiated the claim and thereby committed deficiency of service and complainant is entitled for the relief etc., and prayed for allow the complaint.

 

15.  On the other hand, Sri. K.E. Mallikarjuna, Advocate for the OP has strongly resisted the said contentions stating that, as per the terms and conditions of the DL, complainant was expected to drive LMV.   However, he had a valid permit to run LMV but, the vehicle which was met with an accident in question is Goods Vehicle and so, complainant has violated the terms and conditions of the DL and also the insurance policy and so, claim of the complainant is not maintainable and complaint is liable to be dismissed. 

 

16.  As per the decision reported in ILR 2013 KAR 4558 wherein it has been held as under:

 

       Zonal Manager, IFFCO – Tokio Insurance Co. Ltd., Vs. K.N. Parameshwaraiah and another.

 

Motor Vehicles Act, 1988, – Sections 173(1) – Accident claim – Judgment and Award – Appeal by the Insurance Company – Involvement of goods transport vehicle in the accident – Driver holding license to drive the Light Motor vehicle – Legality of the award passed by the Tribunal fastening liability on the Insurance Company – HELD.

 

1. Admittedly, the vehicle involved is a goods transport vehicle.  Similarly, on perusal of Ex.R-2, it is seen that, it is license issued to drive the Light Motor vehicle in particular and not the transport vehicle.  It is further seen that, on perusal of the registration certificate of the vehicle, marked as Ex.R-1, the description of the vehicle is mentioned as Light motor vehicle transport. 

 

2. With regard to the aspect of liability, further it is seen that, when once Insurance Company has discharged its burden of proving that the driver held license only to drive the non-transport vehicle, burden shifts upon the driver did possess license other than Ex.R-2 to drive the transport vehicle, but, neither the claimant nor the owner of the vehicle produced any material to discharge their burden.  In the circumstances, the contention of the Insurance Company that the driver was not having valid driving license to drive the transport vehicle will have to be accepted and in such event, the liability of the Insurance Company to indemnify the owner does not arise at all.  

    

and another decision I (2008) CPJ 1 (SC) of Hon'ble Supreme Court in the case of New India Assurance Co. Ltd., Vs. Prabhu Lal.  We perused the above said decisions.

 

The facts and circumstances of the case are aptly applicable to the present case on hand. 

 

17.  On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly shows that, OP has rightly repudiated the claim of the complainant.  Admittedly, complainant is the owner of said vehicle and it was duly insured with the OP and the policy was in force as on the date  of accident.  OP has appointed Surveyor and who assessed the loss and submitted the report.  According to the counsel for the OP, complainant had no valid permit to run the vehicle which was involved in the accident.  So, complainant has violated the terms and conditions of the DL and also insurance policy and so, OP has rightly repudiated the claim and complaint itself is not maintainable and he is not entitled for any relief. 

 

18.  On hearing the rival contentions of both the sides and on perusal of DL, it shows complainant had a valid DL to drive LMV, but not the vehicle involved in the accident.  Considering the facts and circumstances of the case and the documents produced by both the parties, we come to the conclusion that, complainant is not entitled to claim any amount from the OP.  Accordingly, this Point No.1 is held as negative to the complainant.

19.  For the foregoing reasons, we pass the following.

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.

Parties to bear their own costs.

        (This order is made with the consent of Members after the correction of the draft on 07/09/2015 and it is pronounced in the open Court after our signatures.)      

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of complainant:

                                                -Nil-

OP by filing affidavit evidence of Sri. Anand, Manager (Legal) taken as DW-1:

 

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

-Nil-

Documents marked on behalf of Opponent:

-Nil-

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.