Tamil Nadu

StateCommission

FA/248/2014

C. Sekar - Complainant(s)

Versus

The Branch Manager, United India Insurance Co. Ltd., - Opp.Party(s)

M/S. C. Kulanthaivel

31 Dec 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI - 3.

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                      ::      PRESIDENT                       

                  Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

F.A. No. 248/2014

  (Against the order in C.C. No.23/2009 dated 05.02.2014 on the file of the D.C.D.R.C., Namakkal)

                         DATED THE 31^st  DAY OF DECEMBER 2021

 

C. Sekar,

S/o. Mr. Chinnusamy,

D. No.5C, Palkarakuppannankadu,

Seetharampalayam,

Tiruchengode Taluk,

Namakkal District.                                                                 .. Appellant / Complainant.

 

- Versus –

 

The Branch Manager,

United India Insurance Co. Ltd.,

No.146-N, Kumar Complex,

West Car Street,

Tiruchengode – 637 211.                                                 .. Respondent / Opposite party.

 

Counsel for Appellant / Complainant                  : M/s. Kulanthaivel

Counsel for Respondent / Opposite party          : M/s. T. Ravichandran

 

This appeal coming before us for final hearing today, on 29.11.2021 and on hearing the arguments of Appellant, the Respondent remaining absent  and on perusing the material records, this Commission made the following order in open court :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

The present appeal has been filed by the complainant aggrieved against the dismissal of his complaint made in CC.No.23/2009  dated  05.02.2014   before  the District Commission, Namakkal.

 

1.         The factual background culminating  in to  appeal is as follows:-

The complaint was filed alleging deficiency in service on the part of the opposite party in not honouring the claim of the complainant with regard to damage of the vehicle  along  with a  prayer to direct the opposite parties to pay a sum of Rs.2,55,618/- towards cost of repair, Rs.1,000/- as cost and Rs.50,000/- towards compensation for the hardship sustained by him.

2.         It is submitted by the complainant that he took insurance policy with the opposite party for his Ashok Leyland lorry for the period 22.02.2007 to 19.02.2008.  When the said lorry was coming from Belgam to Hosur on 19.07.2007 met with an accident with another lorry with Registration No.KA-51-216 coming from the opposite direction and severe damage was caused to the vehicle of the complainant.   The complainant himself repaired the vehicle at his own cost  and sent a claim form for Rs.2,55,618/- with the opposite parties being the cost of repairs.  However the opposite parties admitted to settle only Rs.84,117/- based on their surveyor report.  Thereafter, the complainant sent a legal notice to the opposite party claiming the said amount for which, the opposite party replied via notice dated:16.01.2009  denying  their liability to pay any amount holding that the driver did not possess any valid licence on the date of accident.

3.         The opposite party failed to appear before the District Commission and was set ex-parte.   The complainant filed proof affidavit and marked documents Ex.A1 to Ex.A9.  The Learned District Commission after perusing the pleadings and documents filed by the complainant dismissed the complaint holding that there is no deficiency on the part of the opposite party.   Aggrieved against the same, the present appeal has been preferred by the complainant/ appellant.   

 

4.         Point for consideration:-

Whether the appeal has to be allowed and if so, to what relief the appellant /  complainant  is entitled?

5.         Point:-

The Counsel for the appellant submitted both oral and written arguments.  However, though the respondents appeared initially through an Advocate failed to appear at the time of oral arguments and also, did not file any written arguments. 

6.         The main submission made by the Counsel for the Appellant is that the District Forum failed to subject for verification the driving license of the driver who was involved in the accident and thus wrongly held that the driver did not possess a valid license at the time of accident.   He argued that when the opposite party has agreed to settle a sum of Rs.84,117/- and also having failed to appear before the District Commission, the District Commission ought to have allowed the complaint.

7.         On hearing the arguments and on going through the documents submitted by the complainant before the District Commission we could see that the insurance coverage for the subject vehicle was not in dispute.   It is seen that on the fateful day of accident the vehicle had a valid insurance policy.  But the main crux of the complaint is that the opposite party failed to honour the claim of Rs.2,55,618/- spent by the complainant to repair the damaged vehicle.  But the lower Forum had dismissed the complaint on the issue that on the date of accident the driver of the vehicle did not possess a valid license inspite of the fact that it was alleged by the complainant that the opposite party admitted to pay a sum of Rs.84,117/- which was not disputed by the opposite party.  By appearing before the District Commission. Therefore, the issue to be decided in the present appeal is that whether the complainant is entitled to recover the claim of insurance when it is alleged that  there is a material breach of condition of policy that the driver of the vehicle was not possessing a valid license on the date of accident.    It is alleged by the complainant that the finding of the lower forum that there was some correction in Ex.A4 (driving license) is not known to him as the driver had left after the accident and he had approached the transport licensing authority and had obtained the same.  Therefore, he contended that a certified copy of the driving license which was issued by the Assistant Licensing Authority, Regional Transport Office, Salem (West) dt. 21.03.2017 was obtained and the same was marked as Ex.A10 which proves that the license is valid from 31.01.2005 to 14.02.2010.  However the learned District Forum relieing upon the decision of the Supreme Court of India reported in 2007 (3) SCC at page No.700 in National Insurance Co. Ltd. –Versus- Lakshmi Narayan Dutt and the decision in National Insurance Co. Ltd. –Versus- Matheswarmma of the Supreme Court of India, had dismissed the complaint holding that there is material breach of policy conditions as the driver did not possess a valid license.    We have come across a recent decision by the  Supreme Court dt.04.03.2020 passed in NIRMALA KOTHARI – Vs- UNITED INDIA INSURANCE LTD. In the said decision, the point as to whether the Insurance Company can have the defence of the driver not having valid license to repudiate the claim was discussed.  The Apex Court after discussing the case laws in United India Insurance Co. Ltd. –Versus- Lehru & Ors. Reported in 2003 (3) SCC 338 & Pepsu RTC – Versus- National Insurance Co. Reported in 2010 SCC 2017 had held that the onus of proving that the insured did not take adequate care and caution to verify the genuiness of the license or was guilty of wilful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer.  It was held as, 

“ While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable”.

          Considering the above Judgement  we are of the view that the finding of the District Commission that there was some manipulation in the driving licence submitted by the complainant and hence he was not entitled to the insurance claim does not hold good as the insurance company never came forward to prove that licence is not a valid one. In Ex.A9 the reply notice issued by the insurance company they have admitted that the surveyor appointed by them had assessed the damages to the vehicle to the tune of Rs.84,117/-. Further till date the insurance company had not served any  copy of order of repudiation for the claim raised by the complainant. It is to be noted that the insurance company did not appear before the District Commission nor this Commission to substantiate their view that the claim could not be honoured as there was breach of policy conditions. In such circumstances considering the admissions made by the opposite party and also reying upon the Apex Court verdict discussed about we feel it appropriate to hold that the complainant is entitled to receive the claim as assessed by the surveyor of the opposite party to the tune of Rs.84,117/-. Thus we answer this point in favour of the complainant / appellant holding that the opposite party had committed deficiency in service in not honouring the claim of the complainant and we set aside the finding rendered by the lower Ditrict Commission. Considering the peculiar facts& circumstances of the case the appellant is not entitled for compensation.   

In the result the appeal is partly allowed and the complainant is entitled to receive a sum of Rs.84,117/- towards the claim from the opposite party. Considering the peculiar facts& circumstances of the case the appellant is not entitled for compensation. No order as to costs.

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                          PRESIDENT