BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 362/2004 Filed on 20.09.2004<br /> Dated : 15.05.2008<br /> Complainant:<br /> A.K.Shajahan, S/o Aliarkunju, T.C 15/1652, Opposite Women’s College, Vazhuthacaud, Thiruvananthapuram.<br /> <br /> (By adv. Sri. S. Sreekumar)<br /> <br /> Opposite party:<br /> <br /> The Divisional Manager, New India Assurance Co. Ltd., Thiruvananthapuram Divisional Office-I, First Floor, Kottarathil Building, Thiruvananthapuram – 33.<br /> <br /> (By adv. Sreevaraham G. Satheesh)<br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 04.11.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 09.04.2008, the Forum on 15.05.2008 delivered the following:<br /> <br /> ORDER<br /> SMT. S.K. SREELA: MEMBER<br /> The case of the complainant is as follows: The complainant is the owner of Fiat Uno Car bearing reg. No. KL-01-S-313. The said vehicle was insured with the opposite party vide policy No. 3176050066911 for period from 06.07.2000 to 05.07.2001 for a sum of Rs. 4.43 lakhs. Permit was obtained from RTA, Thiruvananthapuram to use the said vehicle as contract carriage within the state of Kerala for period 22.06.2000 to 21.06.2001. The vehicle met with an accident on 21.03.2001 at Sooranadu and damaged extensively. The complainant was driving the vehicle at the time of the accident. The complainant submitted claim form promptly to the opposite party and requested settlement of the insurance claim on priority. The complainant gave a consent letter to the opposite party to settle the claim for Rs. 175000/- under SALVAGE LOSS BASIS, since there was an offer from the opposite party to settle the claim on SALVAGE LOSS BASIS for a sum of Rs. 175000/-. On 08.04.1981 he had obtained a driving license (DL No. 81-C-13979) RTA, Mumbai for driving “Heavy Motor Vehicles”. Later on when he shifted his residence to Alappuzha on 12.01.1989 he obtained a driving license (DL-No. A/85/89) for driving motorcycle with gear and light motor vehicles. This was done because in the license held by him motorcycle and LMV was not mentioned. He also obtained badge for driving transport vehicles with effect from 13.01.1991. Driving license No. 81-C-13979 issued by Bombay licensing authority for heavy vehicle valid upto 29.10.2002 was produced before the opposite party for verification and the claim was repudiated on the ground that as per Kerala Motor Vehicles Rules badge to drive contract carriage/tourist vehicle was essential and the driver did not have the badge. The opposite party vide letter dated 23.07.2002 informed the complainant that: -<br /> (a) Under Sec. 6 of the MV Act, 1988 holding of more than one driving license is strictly prohibited<br /> (b) Effective date of driving license produced differs from the date of authorization of driving transport vehicles.<br /> © RTO Alappuzha informed that action being contemplated under Rule 25 of KMR Rules and the matter will be decided on getting confirmation. <br /> Though the opposite party was informed that the complainant had valid driving license and badge for driving transport vehicle at the time of accident, the opposite party was seeking ground to justify the repudiation. Hence this complaint for getting Rs. 175000/- with 16.5% interest along with compensation and costs. <br /> The opposite party has filed their version contending as follows: The complaint is not maintainable. It is admitted that the vehicle KL-01-S-313 belonging to the complainant was insured with the opposite party. The said vehicle met with an accident and the complainant submitted a claim for the loss sustained to the vehicle. The opposite party processed the claim and the loss was assessed as Rs. 175000/-. But on the scrutiny of records it was found that the driver of the vehicle at the time of accident was not holding valid and effective driving license to drive that particular class of vehicle. In the light of that violation of policy condition, the opposite party repudiated the same. The license produced by the complainant was one issued by the ALA, Mumbai and there was no badge authorizing to drive passenger vehicle. This is not a valid and effective license and hence a clear violation of the conditions of policy and the complainant is not entitled for any compensation. Subsequently the complainant produced another license issued by the ALA, Alappuzha along with a badge, which on verification was found that there is difference in the date of commencement of the badge noted in the records and in the badge. As per sec. 6 of Motor Vehicles Act, holding of two licenses is prohibited. Rule 25 of Kerala Motor Vehicles Rules says that in case of two driving licenses, the second one is to be cancelled and the first one is to be retained. As a whole there is clear violation of various provisions of Motor Vehicles Act and Rules from the side of the complainant and also violation of policy conditions. The complainant was not acting with utmost good faith, which is the basis of insurance. The complainant is not legally entitled for any compensation and the opposite party has correctly repudiated the claim. There is no deficiency of service on the part of this opposite party. The complainant is not entitled for any amount as claimed. Hence prayed for dismissal of the complaint with costs.<br /> <br /> The complainant has filed affidavit and Exts. P1 to P15 were marked on his side. Opposite party has also filed affidavit and Exts. D1 has been marked on their part. <br /> <br /> The points to be considered are: - <br /> (i)Whether the act of the opposite party in repudiating the claim is proper?<br /> (ii)Whether there is deficiency in service on the part of the opposite party?<br /> (iii)Reliefs and costs.<br /> <br /> <br /> Points (i) & (ii): - It is an admitted fact that car bearing Reg. No. KL-01 S 313 was owned by the complainant and it was insured with the opposite party vide insurance policy which was valid from 06.07.2000 to 05.07.2001. There is also no dispute with regard to the fact that the said car met with an accident on 21.03.2001. The occurrence of accident was informed to the insurance company by the complainant. The opposite party processed the claim and the loss was assessed as Rs. 1,75,000/-. However, the opposite party repudiated the claim on the ground that the driver of the vehicle was not holding valid and effective driving license to drive that particular class of vehicle at the time of accident. The said vehicle was used as a contract carriage within the State of Kerala. The complainant has admitted that on 08.04.1981 he had obtained a driving license (DL No. 81-C-13979) from RTA Mumbai for driving ‘Heavy Motor Vehicles’ and on 12.01.1989 he had obtained another driving license (DL No. A/85/89) for driving ‘motor cycle with gear and light motor vehicles’. Ext. P3 dated 15.01.2002 is the letter issued to the complainant by the opposite party for production of driving license for verification. Accordingly, the complainant had submitted the license issued by the Mumbai RTA, wherein admittedly, the said license is valid upto 29.10.2002 but without any badge to drive contract carriage/Tourist Taxi vehicles, as essentially required under the Kerala Government Motor Vehicles Rules. The complainant has admitted in the complaint itself that he had obtained badge for driving transport vehicles with effect from 13.01.1991 only from the RTA, Alappuzha along with the driving license No. A/85/89 for driving motor cycle with gear and light motor vehicles. <br /> <br /> At this juncture, the pertinent point to be noted is that at the time of submission of claim form, the possession of the second license was suppressed. Only after the repudiation of the claim for non-possession of badge for driving contract carriage, the complainant submitted the second license, which has been issued by RTA, Alappuzha. The opposite party contends that as per Rule 25 of KMV Rules, in case of 2 driving licenses the second one is to be cancelled and the first one is to be retained and in this case that rule is violated. The complainant’s counsel argued that Rule 25 provides remedial measure to regulate, holding of more than one driving license and accordingly the complainant had two options; as he was authorized to drive different classes of vehicle i.e; Heavy Motor vehicle Mumbai RTO and light motor vehicle by Alappuzha, RTO, he could have applied for transferring light motor vehicle entry into the license of Heavy Motor Vehicle issued by Mumbai RTO or he could surrender his driving license for the motor vehicle for cancellation and retain only the driving license of light motor vehicles and the complainant made the second option by surrendering his Mumbai license. The opposite party had contended that in case of holding of two driving licenses the 2nd one is to be cancelled and first one is to be retained. As per Rule 25 of the Motor Vehicles Rules, <br /> (1)When any person is found to be holding more than one valid driving license simultaneously, the licensing authority shall-<br /> (a)in case the license authorizes the holder to drive the same classes of motor vehicles, impound and cancel, all the driving licenses except the one issued earliest; and <br /> (b)in case the license authorizes the holder to drive different classes of motor vehicles, note the necessary additions to the classes of vehicles in the license issued earliest and impound and cancel the others. <br /> <br /> Hence the Rule is very clear and accordingly, the necessary additions are to be noted in the license issued earliest and impound and cancel others. It is an admitted fact by the complainant that he had first obtained license from R.T.A Mumbai and later on from Alappuzha RTA. As per Rule 25, the complainant ought to have surrendered the license issued from Alappuzha RTA and got the entries in it transferred to the earlier license, which is the license, issued from RTA Mumbai. But no such action is seen taken. Ext. P10 is the letter from the RTO, Alappuzha to the opposite party wherein it is stated that the complainant had surrendered the license issued by ALA Mumbai on 18.12.2002. The date of accident is 21.03.2001 and the date of surrender is 18.12.2002 and the license is seen cancelled on 07.02.2003. This is against the provisions of the Kerala Motor Vehicles Rules. This Forum is taken aback by the act of the RTA, Alappuzha in canceling the earliest license i.e; the license issued by ALA, Mumbai, instead of noting the necessary additions to the classes of vehicles in the license issued earliest and impounding and cancelling the other as per Rule 25 of Kerala Motor Vehicles Rules, 1989. Be that as it may, we are not going into this controversy. The date of accident is 21.03.2001 and the complainant had surrendered his license issued by ALA, Mumbai though not proper, only on 18.12.2002, which is much after date of accident. Hence the fact that what prevented the complainant from taking necessary proceedings with regards to the two licenses and badge under Sec. 26 of Kerala Motor Vehicles Rules, before the accident is not specified. The complainant had proceeded further with surrendering of license etc. only after the repudiation of his claim. Hence the complainant’s veracity is under challenge. The non-production of the license issued by the RTA, Alappuzha with badge before the insurance authority for verification in time is itself suppression of material facts. The complainant produced the same only after the insurance has been repudiated. As per the records on file the complainant is found possessing two driving licenses at the time of accident, which is against the Motor Vehicles Act. Sec. 6 of KMV Act stipulates that ‘no person shall while he holds any driving license for the time being in force, hold any other driving license except a learner’s license. The opposite party’s counsel had argued that the policy document being a contract has to be read strictly and relied on 2004(3) KLT 560(SC) wherein it has been referred that, “The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves”.<br /> <br /> It is a settled position that once it is found that insurer had duly considered all the relevant facts and circumstances and taken a decision as to whether the claim put forward by the insured under the policy should be allowed to any extent, it cannot be said that there has been any deficiency in service on the part of the insurer in relation to the performance of its duties under the terms of contract. In the instant case also, investigation was got conducted by the opposite parties regarding the claim of the complainant and on the basis of the available materials have come to the conclusion that there has been violation of policy conditions and hence repudiated the claim. The opposite parties have proved that the complainant was guilty of negligence and failed to fulfill the conditions of the policy regarding use of goods carriage vehicles. In these circumstances the opposite party cannot be held liable for compensating for any loss sustained by the complainant. In our view the Insurance Company was right in repudiating the claim and it cannot be held that there is deficiency in service on the part of the opposite party in repudiating the claim, not withstanding the fact that the occurrence and loss have not been controverted.<br /> <br /> <br /> Point (iii): In the above circumstance the complainant is not entitled to any reliefs claimed in the complaint.<br /> <br /> <br /> In the result the complaint is dismissed. No order as to costs.<br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th May 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> <br /> O.P.No. 362/2004<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Letter of sanction dated 02.06.2000 A/c No. TL/veh/245 of Punjab National Bank, Statue, Tvpm.<br /> P2 - True copy of certification of registration of vehicle No. KL01-S-313 dated 16.06.2000.<br /> P3 - Letter of reminder No. III dated 15.01.2002 to the complainant. <br /> P4 - Letter No TVM-D.O-I/31/0D/01/58/2002 dated 25.01.2002 addressed to the complainant from the New India Assurance Co. Ltd.<br /> P5 - True copy of reply letter dated 14.03.2002 from complainant. <br /> P6 - copy of consent letter from complainant. <br /> P7 - Letter dated 23.07.2002 addressed to the complainant. <br /> P8 - Letter dated 30.09.2002 addressed to the complainant. <br /> P9 - Copy of letter dated 10.02.2003 to the RTO, Alappuzha.<br /> P10 -True copy of letter No. LI/1702/A dated 07.02.2003from RTO, ALP to the Div. Manager, New India assurance Co. Ltd., Palayam. <br /> P11 - Letter dated 18.09.2003 addressed to the complainant. <br /> P12 - Copy of legal notice dated 12.03.2004 issued to the Div. Manager, New India Assurance Co. Ltd., Palayam, Tvpm. <br /> P13 - Reply notice dated 05.04.2004 issued to the opposite party's counsel. <br /> P14 - True copy of driving license of Mr. Shajahan. <br /> P15 - True copy of Badge dated 13.01.1991 of A.K. Shajahan. <br /> <br /> II OPPOSITE PARTY'SWITNESS :<br /> NIL<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> D1 - Copy of driving license particulars of A.K. Shajahan with Sl.No. 305/01.<br /> <br /> PRESIDENT