D.O.F. 20.06.2008 D.O.O. 08.11.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President Smt. K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this the 8th day of November 2010. C.C.No.150/2008 P. Ajith, S/o. Govindan, Power of Attorney Holder : P. Ajesh Kumar, S/o. Govindan, Vimala Govind Nivas, : Complainant Kumbham, P.O. Koodali, Kannur District. (Rep. by Adv. K. Reghunathan) The Divisional Manager, M/s. New India Assurance Co. Ltd., : Opposite party Kannur. (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 ` 75,000 as damage and ` 25,000 as compensation along with cost of this litigation. The brief of complainant’s case is as follows : The complainant, owner of KL 13-C-6618 insured his vehicle with opposite party. The jeep met with an accident on 09.08.2007. The factum of accident was duly intimated to opposite party through claim form. Opposite party repudiated the claim on the ground that the driver of the vehicle at the time of accident is not having valid driving license for driving transport vehicle. Complainant sent lawyer notice on 28.05.2005. But opposite party did not send any reply nor settled the claim which is tantamount to deficiency in service. Opposite party is liable to compensate the complainant for the loss and sufferings suffered. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the material allegations of the complainant. The contentions raised by the opposite party in brief are as follows : The complainant is not maintainable since the complainant, the insured committed breach of policy condition. The complainant allowed to drive the vehicle at the time of accident by a driver who had no valid driving license and badge. Subsequent renewal is not sufficient to fasten the liability on the insurer. The opposite party received the claim intimation on 10.08.2007 and filled up Claim Form on 20.08.2009. The opposite party there upon deputed Mr. Pramod P., Insurance Surveyor as loss assessor to conduct a survey to assess damage caused to vehicle and to quantify the net loss. He submitted report with an assessment of net loss ` 27,033. But according to the Surveyor the driver P. Suresh who was driving the taxi jeep at the time of the accident was not having license. The driving license and badge expired on 27.05.2006 whereas accident occurred on 09.08.2007. There was no valid license on the day of accident. The accident occurred only due to the absence of an effective driving license at the time of accident. It is true that there is insurance policy and it is correct that the claim under the policy has been repudiated on the ground that the driver was not having valid driving license at the time of accident. Repudiation was made on the basis of the policy condition and it cannot be construed as an act of deficiency of service on the part of opposite party. Compensation towards repair charge as ` 75,000 is claimed without any basis. So also claim for ` 25,000 as compensation for deficiency in service and cost is not sustainable. The complaint itself is not maintainable since the complainant had committed breach of policy condition. Hence to dismiss the complaint. 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 remedy in the complaint? 3. Relief and cost. The evidence consist of the oral evidence of PW1, PW2, PW3, DW1, DW2 and documentary evidence Ext.A1 to A6, B1 to B13, X1 and X1(a). Issues 1 to 3 : It is also an admitted fact that the driving license of the concerned driver was expired during the period of accident and the license was renewed only subsequently. Complainant PW1 in his cross examination, to a relevant question with respect to the license deposed that “kptc-jn\v ssek³kv Dm-bn-cp-¶p. ]s£ kT-`-h-k-a-bT ]pXp-¡n-bn-cp-¶n-Ã. kT-`-hT Ignªv Hcp amkT Ign-ªmWv ]pXp-¡n-b-Xv. Driving License lmP-cm-¡n-bn-«p-v. AXmWv Ext.A6. Ext.A6 t\m¡n-bm 1992 license issue sNbvX-Xm-bpT 1993 badge issue sNbvX-Xm-bpT ImWp-T.” The evidence of PW1 with support of Ext.A6 it has been made clear that the driver, though holding valid license before and after the period of accident he was not having valid license at the time when accident was taken place. Now the main point to be discussed and decide is whether or not the repudiation of claim on the ground that the policy condition was violated since the driver was not having valid license at the time of accident. The guiding principles laid down in the land mark decision by the Hon’ble High Court n Oriental Insurance Co. Ltd Vs Poulose reported in 2004 (1) KLT 8 (F.B) is the leading star much dependable to arrive at a conclusion with respect to the above question of law. The Full Bench decision of the Hon’ble High Court held that “Even if the license had expired on the date of the accident but was subsequently renewed, it would fulfill the mandate of the statute.” It is further held that “Insurer is not absolved of the liability to indemnify the insured merely because the driving license had not been renewed on the date of the accident.” The elaborate discussion on the crux of the matter it has been pointed out that the license contained in S.2(10) does not stipulate any period of validity. Once a license is issued to one, it shall be regarded that it has been duly issued. The period of effectiveness of a license is mentioned in Section 14 and on its expiry, it can be renewed as provided in S.15. That means the license, inspite of its validity period continues to exist, unless it has been shown that the license had been disqualified to hold one. In such circumstances, it shall have to be regarded that he continues to be duly licensed. The facts of this complaint is similar to the facts of the above cited case. Similarly facts are not in dispute in both cases. As on the date of accident the drivers in both cases did not have a valid driving license according to the Insurance Company. Hence the decision cited above very well applicable to the case in hand. As the Hon’ble High Court held the driver of the vehicle in question was duly licensed and was not disqualified from holding the said license the insurer cannot avoid the liability in terms of the award. The contentions that, the driver did not have an effective driving license is not a ground of defense permitted in terms of the statutory provision. The para 7 of the above cited decision gives a clear clarification on this point explaining the definition of driving license as follows : Driving license is defined in S.2(10) of the Act and it does not make any reference to the period of its validity S.14 mentioned about the period during which a driving license can be said to be effective. On the expiry of the said period, though it ceases to be effective, it does not cease to exist because, the holder of the license has an option, in terms of Section 15, to renew it even after the expiry of its effectiveness. Even after the period of the expiry, to get it renewed one need not apply for a fresh license. He need apply only for renewal. On such renewal it regain the effectiveness SS.3, 14 and 15 taken together convey an idea that the license continue to be duly licensed, subject to his, obligation to get the license renewed, after the period of its effectiveness. It is pertinent to follow the direction given in para 9 since the same is applicable to Consumer Protection Act also. Para 9 says “The Act embodies beneficent provisions. Such provisions have to be liberally construed. Literal construction can defeat the objection and the purpose”. Hence the insurance Company is liable to indemnify the insured. The latest decision of the Hon’ble Delhi High Court in New India Insurance Co. Ltd. Vs. Ansuiya Devi and others (2010 ACJ 1847) held that “There could be no doubt that in order to escape liability, not only it should be proved that the driver of the vehicle was not having a license at the time of the accident but also the Insurance Company should prove that the driver was disqualified from holding or obtaining a license or never had any license at all. Merely proving that on the date of the accident, the driver did not have a license, is not enough to hold that the Insurance Company is not liable for claim. The onus of proving that the driver of the vehicle never had a license or was disqualified from holding a license, is on the Insurance Company. This is a view applicable to the complaint in hand. Ansuiya Devi’s case unequivocally established that the burden of the proof is upon the shoulders of opposite party to prove that the driver of the vehicle was disqualified from holding a license. In the present complaint opposite party has no case that the Driver of the Jeep was disqualified from holding a license. Opposite party has also no case that he was not having license at all. Ext.A6 makes it clear that the driver of the Jeep Mr. P. Sureshan was issued license with effect from 25.01.1992. But it is an admitted fact that on the day of accident it was expired and not renewed. Thereafter his license was validated from 05.10.2007 to 11.02.2016 as far as non transport and to 04.10.2010 as far as transport. Hence it is also sure and certain his earlier license was not fake but true and valid. Opposite party has neither such case nor adduced any evidence to prove that the driver was disqualified from holding a license. The above cited case is thus fully applicable to the facts of the complaint in hand and thereby insurance is liable for the loss sustained by the complainant. Another point to be answered is whether a driver who had valid license to drive a light motor vehicle was authorized to drive a light goods vehicle as well. Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Annappa Irapppa Neseria and other (ACJ 2008 (II) 721) categorically stated that it is evident that transport vehicle has now been substituted for ‘medium goods vehicle’ and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time, to cover both light passenger carriage vehicle and light goods carriage vehicle. It is held that “A driver, who had a valid license to drive a light motor vehicle, therefore was authorized to drive a light goods vehicle as well. The vehicle involved in the present case is a Jeep which is in the category of light motor vehicle. Learned counsel for the opposite party relying upon the case Oriental Insurance Co. Ltd. Vs. Prithvi Raj (2008 CD KLT SN 53 (C. No.53) S.C. but the facts of the case is different from that of the present case. The stress of the decision establishes that once the license is a fake one the renewal cannot take away the effect of fake license. It is held that no licensing authority has the power to renew a fake license and, therefore, a renewal if at all made cannot transform a fake license as genuine. This is certainly an unchallenged position of law. The opposite party has no care, in the case in hand, that the license obtained by the driver of the jeep had been a fake one and it was the fake license that had been subsequently renewed. Hence Prithvi case has no factual application to the present case. What is held in Ansuiya Devi’s case relying upon 2004 ACJ 1 (S.C.) that “mere proving that on the date of accident driver did not have a license is not enough to hold that Insurance Company is not liable” is certainly applicable to this case. Whether the driver is disqualified to hold a license is the prime question. Such question doesn’t arise in the present case since the driver was able to renew his license subsequently. We are, therefore, of considered opinion that the opposite party Insurance Company is liable to reimburse the owner. It can be seen that after receiving the claim the opposite party deputed one Mr. Pramod P., Insurance Surveyor or Loss Assessor to conduct a survey to assess damage and to quantity the net loss. The Surveyor thus submitted report assessing the net loss as ` 27,033. The claim of the complainant towards repair charge is ` 75,000. But complaint has not adduced evidence to prove the actual repair charges. Ext.B1 is the Survey report of the Insurance Surveyor and Loss Assessor. His report shows that he had assessed net loss as ` 27,033 out of which ` 20,033 assessed as cost of spare parts and ` 8000 as labour charges. Mr. Pramod, the Surveyor was examined as PW2. He has adduced evidence to the effect that he had inspected the alleged vehicle on 22.08.2007 and Ext.B1 is the report submitted by him. He has also deposed that on the basis of estimate prepared by the owner of the workshop the cost was ` 50,000. But he further deposed that there were no supporting bills. He has also stated that he has shown in page number 3 of his report the amount of net loss on the basis of bills. According to the bill the amount was ` 38,491. In cross examination he has deposed that on the basis of estimate amount prepared by the owner of workshop was ` 65,000 and the same was prepared before repair without seeing the bill. He deposed that as per assessment the amount of repair based on the bill was ` 27,033. He has also deposed that the difference of amount occurred due to 50% depreciation. He added depreciation shown on metal and rubber parts based on the age of the vehicle as per the policy condition. 50% depreciation shown after 10 years and there was no reduction for glass materials. DW2 is also a Surveyor and Loss Assessor. He conducted a re-inspection of the alleged damaged jeep on 16.11.2007. He had deposed that Ext.B8 is the reinspection report submitted by him. He has deposed that he is not bound to submit the price of the parts in reinspection report. Ext.B8 has pointed that certain items were not renewed as recommended by P. Pramod, the Surveyor. On going through the evidence both oral and documentary the reports of the Surveyor we are of opinion that the assessment done by the Surveyor PW2 P. Pramod is quite reasonable and dependable and we find that the amount of ` 27,000 is reasonable. The complainant is thus entitled to get a sum of ` 27,000 as compensation and also an amount of ` 1000 as cost this proceedings. The issues 1 to 3 are found in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the Insurance Company to pay an amount of ` 27,000 (Rupees Twentyseven Thousand only) compensation together with a sum of ` 1000 (Rupees One Thousand only) as cost of this proceedings within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act, after the expiry of one month. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. F.I.R. dated 09.08.2007. A2. Lawyer notice dated 28.05.2008. A3. Postal receipt. A4. Acknowledgment Card. A5. Letter dated 28.11.2007. Exhibits for the opposite party B1. Cash bill dated 06.10.2007. B2. Quotation for repair dated 20.08.2007. B3. Bill dated 08.10.2007 issued by Grand Auto Garrage. B4. Retail invoice 08.10.2007. B5. Certified copy of the Insurance policy of vehicle KL 13/C 6618. dated 23.03.2007. B6. Copy of the Motor accident claim intimation dated 10.08.2007. B7. Copy of the Claim form submitted by the complainant to the OP dated 20.08.2007. B8. Re-inspection report dated 20.11.07. B9. Photocopy of the assessment sheet. B10. Special Claim Report. B11. Copy of the vehicular documents. B12. Driving License of P. Sureshan dated 22.10.2007. B13. Copy of the RC. Exhibits for the Court X1. Letter dated 26.03.2010. X1 (a). Driving License particulars. Witness examined for the complainant PW1. Complainant PW2. Pramod P. PW3. N. Manoj Witness examined for opposite party DW1. R. Suresh Babu DW2. Dijeesh Lal R. /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
