D.O.F. 08.04.2010

                                          D.O.O. 28.11.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri.K.Gopalan                :         President

                                      K.P.Preethakumari        :         Member

Smt.M.D.Jessy               :        Member

Dated this the 28^th day of November,  2011.

C.C.No.100/2010

Head Master,

Zahra High School,                                              :         Complainant

Thangal Peedika, P.O.Mokeri,

Panoor, Kannur,                              

(Rep. by Adv. K. Viswan)   

Branch Manager,

National Insurance Co. Ltd.,                                :         Opposite parties

K.S. Shopping Complex,

Narangapuram    

(Rep. by Adv. V.K. Rajeev)                                   

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 2,50,000 as compensation for deficiency in service together with the cost of this proceedings.

The case of the complainant in brief is as follows :  The insured school bus met with an accident on 04.12.2007 sustaining massive damage.  It was informed to insurance company and accordingly insurance surveyor inspected the vehicle duly.  Complainant filed claim for the loss.  But it was repudiated by the opposite party.  There was no violation of Insurance Policy as alleged.  On 09.07.09 complainant issued notice demanding ` 2,50,000 as insurance claim and ` 2,00,000 as compensation.  But there was no action.  The complainant is entitled to get just and reasonable compensation.  Denial of insurance amount is a deficiency in service.  Hence this complaint.

Pursuant to the notice opposite party entered appearance and filed version.  The brief of the contentions raised by the opposite party is as follows :  Opposite party is not liable to pay the insurance amount since the complainant has violated the Insurance law by permitting the driver of the vehicle to drive without proper and valid driving licence and badge to drive a passenger carrying transport vehicle.  The claim was repudiated on the ground of policy violation.  The surveyor appointed by opposite party however, assessed a sum of ` 1,25,338 as total liability towards the repair in case claim is allowable.

On verification of the claim documents it was found that the driver S. Shaheer was not qualified to drive a passenger carrying transport vehicle at the time of accident.  He was not having badge.  Moreover, the fitness certificate of the vehicle also expired on 27.06.07.  The Panoor police in crime No.227/07 charge sheeted the driver U/s 279, 337, 338 IPC and also charged U/s. 3(1) r/w 181 of the MV Act. 

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of opposite party?
2. Whether the complainant is entitled for the relief as prayed in the complaint?
3. Relief and cost.

The evidence consists of the oral testimony of PW1, DW1 & DW2 and Ext.A1 to A6, B1 to B10.

Issue 1 to 3 :

          Admittedly the subject matter vehicle has been insured with the opposite party. The opposite party repudiated the claim on the ground that the complainant violated the policy conditions.  The complainant’s case is that there is no such violation on the part of complainant and the repudiation of claim is a deficiency in service on the part of opposite party.  The opposite party on the other hand has raised specific contention that the claim repudiated on the ground of violation the policy condition by the complainant permitting the driver to drive without proper and valid driving license and also without having the badge to drive a passenger carrying transport vehicle.

          The complainant adduced evidence by means of chief affidavit in line with his pleadings.

          The complainant has stated nothing about the licence of the driver and of his badge in the affidavit evidence.  He hasn’t even specifically denied the main contention of opposite party that the driver has no proper licence and badge to drive the alleged vehicle.  What he has stated in his affidavit evidence is that “FXr-I£n ]dª Imc-y-§Ä If-hm-b-Xn-\m lc-Pn-¡m-c³ \ntj-[n-¡p-¶p.  FXr-I£n Bt£-]n-¨Xp t]mse Insurance Policy \nb-a-§Ä lc-Pn-¡m-c³ ]men-¡m-Xn-cp-¶n-«n-Ã.”  The absence of specific denial from the very outset spoils the case of the complainant.  Ext.A1 to A6 marked on the side of the complainant.  Ext.A4 is the repudiation letter.  Ext.A4 stated that “on scrutiny of the claim papers, we found that the driver at the time of accident Mr. S. Shabeer has not possessed valid Badge for driving the subject class of vehicle”  This is not answered by the complainant in his chief by way of affidavit evidence. Ext.A4 dated 09.03.09.  Complainant sent lawyer notice dated 09.07.09 much later for about four months after repudiation letter calling upon to pay ` 2,50,000 as insurance claim and a sum of ` 2,000 as compensation.  But the notice kept totally silent about the badge.  Nothing has mentioned in the complaint also.  In cross examination PW1 has deposed that “28.12.07 apX-emWv badge D­m-b-Xmbn Ext.A6 ImWpI”. 04.12.07-\mWv A]-ISw D­m-b-Xv.  kw`-h-¯n-\p-ti-j-amWv tourist vehicle HmSn-¡m-\p-ff authorization driver¡v In«n-b-sX¶v ]d-ªm icn-bmWv.  Ext.A6/B7 copy of the licence verified with original.  Particulars shows that date of issue is 29.10.2002 valid upto 28.10.2022.  It also shows the driver is authorized to drive transport vehicle vide Badge No.01085/2007 dated 28.12.2007 T N 01.  On going through the documents it is revealed that the driver Shabeer had obtained required licence to drive the vehicle only after the accident.  The complainant actually suppressed the fact of not having the badge at the time of accident, when the claim was lodged.  In the affidavit evidence opposite party adduced evidence that the mini Bus KL 13/N 3837 was insured with the opposite party as a commercial vehicle and it is a mandatory condition that only a driver with a driving licence to drive a transport vehicle with badge will be entitled to drive the said vehicle.  Ext.B1 drivers clause shows persons or classes of persons entitled to drive is thus “Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured here under, at the time of accident and is not disqualified from holding or obtaining such a licence.”  Ext.B1 also contain an important notice that “The insured is not indemnified, if, the vehicle is used or driven otherwise than in accordance with this schedule”.  So it is clear that the driver should have licence to drive the category of vehicle namely commercial vehicle,  In other worlds it is required  to have a driving licence to drive a transport vehicle with badge.  Ext.A6 reveals that on the date of accident he had no badge to drive a transport vehicle.

          It can be seen that Panoor police charged the case u/s 274,337,338 IPC and sec 3(1) r/w 181 of MV Act.  Ext.B9 is the attested copy of the charge sheet, which reveals the driver of the vehicle at the time of accident was not authorized to drive a transport vehicle.  Moreover, Ext.B7(d) is the photocopy of inspection report of AMVI, Thalassery which shows date of issue and expiry of the fitness certificate on 27.06.07 to 26.06.08.  Thus Ext.A6 and Ext.B7(d) proves that the driver of the vehicle did not possess the badge to drive the alleged vehicle and B7(d) report shows the fitness certificate was expired.

          The analysis of the available evidence on record proves that there are substances in the contentions of opposite party and it is proved that there is violation of policy condition that justified the repudiation of claim of the complainant. We have no hesitation to hold that complainant has miserably failed to prove his case by clear and cogent evidence.  Thus issues 1 to 3 are found against complainant.

          In the result, the complaint is dismissed.  No order as to cost.

Sd/-                     Sd/-               Sd/-

President              Member          Member

APPENDIX

Exhibits for the Complainant

A1.  F.I.R.

A2.  Motor claim form.       

A3.  Intimation.

A4.  Notice issued by OP dated 09.03.2009.

A5.  Lawyer notice dated 09.07.2009.      

A6.  Copy of driving licence.

Exhibits for the opposite parties

B1.       Policy certificate with schedule.

B2.       Claim intimation.

B3.       Claim form.

B4.       Investigation report.

B5.       Survey Report.

B6.       Final Survey Report.

B7 (a).  Copy of Driving Licence.

B7 (b).  Copy of R.C.

B7 (c).  Copy of AMVI’s report.

B& (d). Fitness certificate.

B7 (e).  Copy of permit.

B8.       Job estimate and debit invoice.

B9.       Attested true copy of charge sheet of Panoor P.S.

B10.     Repudiation letter.

Witness examined for the complainant

PW1.  Abdulla K.K.

Witness examined for opposite party

DW1.  T.A. Sankarankutty

DW2.  M. Ravindran

                                                                   /forwarded by order/

                                                              SENIOR SUPERINTENDENT