Kerala

Ernakulam

CC/10/415

C.S.ASSIS - Complainant(s)

Versus

THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY, MUVATTUPUZHA - Opp.Party(s)

A.G.TISSARANT,

29 Feb 2012

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM
ERNAKULAM
 
Complaint Case No. CC/10/415
 
1. C.S.ASSIS
S/O SYED MUHAMMED RAWTHER, MOOLAMKUZHILYIL(H), EAST MARADY.P.O, MUVATTUPUZHA.
...........Complainant(s)
Versus
1. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY, MUVATTUPUZHA
M/S ORIENTAL INSURANCE COMPANY, MUVATTUPUZHA.
............Opp.Party(s)
 
BEFORE: 
 HONORABLE MR. A.RAJESH PRESIDENT
 HONORABLE MR. PROF:PAUL GOMEZ Member
 HONORABLE MRS. C.K.LEKHAMMA Member
 
PRESENT:
 
ORDER

 

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 24/07/2010

Date of Order : 29/02/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

 

    C.C. No. 415/2010

    Between


 

C.S. Assis,

::

Complainant

S/o. Syed Muhammed Rawther, Moolamkuzhiyil (H),

East Marady. P.O.,

Muvattupuzha.


 

(By Adv. A.G. Tissarant,

P.K. Jose & Associates, Lawyers, Joseph Villa,

South Janatha Road, Palarivattom, Kochi - 25)

And


 

The Divisional Manager,

::

Opposite Party

M/s. Oriental Insurance

Company,

Muvattupuzha.


 

(By Adv. A.R. George, Anthikkatt House,

P.O. Vennala,

Cochin - 28)

O R D E R

C.K. Lekhamma, Member.

 

1. The brief facts of the complainant's case are as follows :-

The complainant had taken insurance policy of his vehicle from the opposite party on 24-11-2007. The coverage was for a period of one year from 24-11-2007 to 23-11-2008. As per the terms of the insurance agreement, the insurance company is bound to compensate the insured in respect of a claim upto 7,50,000/- and a personal cover of 2,00,000/- to the owner and driver. The complainant's vehicle met with an accident on 08-09-2008. But the police registered a crime against the complainant's son Faizal under the wrong impression that at the time of alleged accident, the vehicle was driven by Faizal. Actually, the vehicle was being driven by the complainant himself. The complainant placed a claim for Rs. 2,43,272/- before the opposite party. The opposite party repudiated the claim on the ground that in the final charge sheet, it is stated that the person driven the vehicle at the material time of accident was one Mr. Faizal. The opposite party also directed the complainant to produce the driving licence of the Faizal. The complainant sent a reply dated 16-02-2009 to the opposite party stating the real facts. The complainant has also produced the copy of the driving licence of Faizal before the opposite party. The policy condition is that the insurance coverage will be given to any person including the insured provided that a person driving the vehicle holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such driving licence. In spite of repeated requests on the part of the complainant, the opposite party has not responded properly the service given by the opposite party is shabby and not according to policy conditions. The complainant suffered irreparable loss and injury by the negligent conduct of the opposite party. Hence the complainant is before us seeking directions against the opposite party to give the entire claim amount of Rs. 2,53,272/- along with 12% interest together with compensation and costs of the proceedings.


 

2. The version of the opposite party is as follows :

On receipt of the complainant's insurance claim, and in order to process the same the opposite party verified the relevant records. As per the records, it was revealed that one Faizal was the accused driver of the complainant's vehicle at the time of accident. There was variance in the version given by the complainant in his claim form and in the final report of Muvattupuzha Police, this opposite party as per letter dated 06-02-2009 sought a clarification from the complainant in that regard and also requested the complainant to produce the driving licence of the said Faizal for verification. The complainant replied the same as per his letter dated 16-02-20-09 by stating that “the said Faizal had no connection whatsoever with the alleged accident and the said Faizal is my son and the police falsely implicated him as an accused in the criminal case.” Along with the said reply the complainant sent a photo copy of the driving licence of Mr. Faizal. However, the complainant did not produce the original driving licence for verification. This opposite party obtained an extract of the driving licence of the said Faizal from the Licensing Authority, Muvattupuzha, and on verification for the same, it was revealed that his authorization to drive a Transport Vehicle had expired on 21-12-2007 and it was subsequently renewed only from 03-10-2008. Hence on the relevant date of accident, the said Faizal had no valid and effective driving licence to drive a Passenger Carrying Commercial Vehicle. There was clear contravention of the driver's clause contained in the policy issued to the complainant. Accordingly, the claim of the complainant was repudiated. The repudiation is strictly in terms of the contract of insurance and the conditions in the policy. Hence this complaint does not merit any consideration and the same is liable to be dismissed.


 

3. The complainant and the opposite party represented through counsel. Both sides did not adduce oral evidence. Exts. X1 (9 in numbers) and B1 to B6 were marked. The counsel for the complainant filed argument notes. Heard the respective counsel for both sides.


 

4. The only point that arose for consideration is whether the complainant is entitled to get the insurance claim amount from the opposite party or not being repudiated for reason whatever?


 

5. The case of the complainant is that the complainant's vehicle met with an accident and damaged. The claim submitted by the complainant was rejected by the opposite party. The complainant contended that at the relevant time, the vehicle met with an accident while he was driving the vehicle. According to the opposite party as per the records the vehicle was being driven by one Mr. Faizal and he did not have a valid badge to drive the vehicle at the material time and it is the clear violation of driver's clause in the policy.


 

6. Ext. X1 series (9 in numbers) are the cash bill issued by the workshop. Ext. B1 is the survey report of the complainant's vehicle. Ext. X1 is the copy of the complainant's policy. Ext. B3 is the copy of FIR as per the said document, it is evident that the complainant's son Faizal was the driver at the time of accident. Ext. B4 is the copy of the letter dated 27-04-2009 issued by the opposite party to the complainant requesting the complainant to submit theoriginal driving licence of Faizal within 7 days. Ext. B5 is the copy of the letter dated 20-07-2009 to the complainant. Ext. B6 is the copy of Driving Licence particulars of Mr. Faizal.


 

7. The insurance claim application was repudiated by the opposite party stating that the driver did not hold valid badge at the time of accident. The Hon'ble Supreme Court in Amalendu Sahu Vs. Oriental Insurance Co. Ltd. II (2010) CPJ 9 (SC) held in para 14 is as follows :

“In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Ltd. V. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set our in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. Th said guidelines are set out below :-


 

Sl. No.

Description

Percentage & settlement

1.

Under declaration of licensed carrying capacity

Deduct 3 years of licensed difference in carrying capacity premium from the amount of claim or deduct 25% of claim amount, whichever is higher.

2.

Over loading of vehicles beyond licensed carrying capacity.

Pay claims not vehicles beyond exceeding 75% of admissible claim.

3.

Any other breach of warranty/conditions of policy including limitation as to use.

Pay upto 75% of warranty/admissible claim.


 


 

8. Relying on the above decision, the Hon'ble Kerala State Consumer Disputes Redressal Commission in Haneefa Vs. M/s. Cholomandalam MS General Insurance Ltd. (Appeal 688/2005) decided on 30-09-2010 held that the opposite parties are liable to settle the claim on non-standard basis as out lined by the Apex Court. The set of facts in the above case and the case at hand are similar and the above decisions are squarely applicable in the instant case.

 

9. In view of the above, the complainant is entitled to get the insurance claim on non-standard basis based on Ext. B1 survey report. In the facts and circumstances of the case, we are not ordering any compensation and costs of the proceedings. Hence we have already ordered interest of the claim amount.


 

10. We partly allow the complaint and direct that the opposite party shall pay the insurance claim amount in line with the above observation together with interest at the rate of 12% p.a. from the date of complaint till realisation.

 

The order shall be complied with, within a period of two months from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29th day of February 2012.

Sd/- C.K. Lekhamma, Member. Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.


 

Forwarded/By Order,


 


 


 

Senior Superintendent.


 


 

A P P E N D I X


 

Complainant's Exhibits :-


 

Exhibit X1 series

::

Cash bill and invoices ( 9 Nos.)

 

Opposite party's Exhibits :-


 

Exhibit B1

::

Private and confidential motor (final) survey report dt. 15-12-2008

B2

::

Motor insurance certificate cum policy schedule

B3

::

Copy of the final report dt.30-10-2008

B4

::

A letter dt. 27-04-2009

B5

::

A letter dt. 20-07-2009

B6

::

Copy of driving licence particulars

 

Depositions

::

Nil


 

=========


 

 
 
[HONORABLE MR. A.RAJESH]
PRESIDENT
 
[HONORABLE MR. PROF:PAUL GOMEZ]
Member
 
[HONORABLE MRS. C.K.LEKHAMMA]
Member

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