The Divisional Manager, through its Branch Manager, Oriental Insurance Corporation of India, Raichur V/S Manappa S/o. Narasappa Bandli, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/67

Manappa S/o. Narasappa Bandli, Raichur - Complainant(s)

Versus

The Divisional Manager, through its Branch Manager, Oriental Insurance Corporation of India, Raichur - Opp.Party(s)

Sri. Baavaraj

10 Mar 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/67

Siddamma W/o. Manappa Bandli, Raichur Manappa S/o. Narasappa Bandli, Raichur						...........Appellant(s)
Vs.
The Divisional Manager, through its Branch Manager, Oriental Insurance Corporation of India, Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Nos-1 & 2 against opposite Oriental Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay an amount of Rs. 1,00,000/- towards sum assured under the policy and Rs. 50,000/- as a compensation with interest. 2. The brief facts of the complainants case are that, complainant Nos- 1 & 2 are the parents of one Ayyappa, who died in the vehicular accident, he was driving his own motor cycle bearing No. KA-36/S-6227 insured with opposite Insurance Company covers all the risk upto Rs. 1,00,000/- including drivers risk. The said vehicle met with an accident on 31-08-09. Thereafter complainants being class-1 heirs of deceased Ayyappa filed claim petition before the opposite, but their requests not considered, as such they filed this complaint for the reliefs as prayed in it. 3. The opposite Insurance Company appeared in this case through its Advocate, filed its written version by contending that, the complaint filed by the complainant is pre mature one, they have not produced any documents for settlement of the claim as required for settlement. Driving licence of the deceased Ayyappa was not furnished as, it is a necessary to settle their claim. Ayyappa was not having Driving licence to drive the said vehicle. Hence the claim was not settled, accordingly it prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant Nos. 1 & 2 being the parents of deceased Ayyappa proves that, their son Ayyappa was owning a motorcycle bearing No. KA-36/S-6227 insured with opposite Insurance Company by covering of all the risk including owners driver liability upto Rs. 1,00,000/- for a period commencing from 01-12-08 to 30-11-09 it met with an accident on 31-08-09 and their son Ayyappa was driving the said motorcycle with valid licence at that time died in the accident, thereafter they filed claim petition before the opposite Insurance Company, but opposite Insurance Company not considered their requests, inspite of repeated written and oral demands and thereby opposite Insurance Company found guilty under deficiency in its service.? 2. Whether complainants are entitled for the reliefs as prayed in their complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant No-1 was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-10 are marked. On the other hand affidavit-evidence of Branch Manager of opposite Insurance Company was filed, who is noted as RW-1. No documents filed and marked. 7. In the instant case, the some of the following facts are undisputed facts in between the parties which are:- 1. It is undisputed fact that, complainant Nos- 1 & 2 are the parents of deceased Ayyappa. 2. It is undisputed fact that, the said Ayyappa died while he was driving his motorcycle bearing No. KA-36/S-6227 on 31-08-09, when it met with an accident. 3. It is further undisputed fact that, motorcycle bearing No. KA-36/S-6227 is insured with opposite Insurance Company covering all the risk including the owners driver risk and its period commences from 01-12-08 to 30-11-09. 8. In view of the said undisputed facts, we feel that there is no necessity for us to refer the documents regarding the ownership of the vehicle, documents relating to accident and death of Ayyappa. 9. The point for our consideration is whether, the said Ayyappa was holding valid and effective driving licence as on the date of accident. According to complainants their son Ayyappa was holding Ex.P-10 learners licence, but due to the personal difficulty of him, he not obtained permanent licence. The said accident took place within short time, after lapse of learners licence at Ex.P-10, as such, it deemed that, he was holding valid and effective driving licence to drive the vehicle. 10. In support of this contention, they have referred a ruling reported in AIR 2004 SC 2874 National Insurance Company Limited V/s. Baghwani and others. 11. As per the submissions made by the learned advocate for opposite, the learners licence Ex.P-10 will automatically lapsed after (6) months from the date of issuance. Admittedly accident took place on 31-08-09, that means to say that, he was not having valid and effective driving licence and thereby, there was a breach of condition of the policy for which Insurance Company is not liable to pay any amount under the Insurance policy. 12. In support of this contention the learned advocate for opposite relied on ruling reported in 2010 (1) MARC 810 SC New India Assurance Company Ltd., V/s. Suresh Chandra Agarwal. 13. One thing is very much clear from the pleadings and affidavit-evidence of complainant No-1 that, after expiry of learners licence deceased Ayyappa not applied for to issue permanent licence within stipulated time or afterwards till his death. 14. Keeping in view of this fact, now let us examine the case of complainant as well as the case of Insurance Company in the back ground of the principles of rulings referred by them. 15. The ruling referred by the learned advocate for complainant, National Insurance Company Ltd., V/s. Baghawani & Others, their lordships of the Supreme Court dismissed the SLP. Civil Petition No. 9027/03. In view of its earlier judgment reported in AIR 2004 SC 1537. This is a judgment of the Honble Supreme Court regarding the dismissal of SLP by holding that, the learners licence is also a valid licence. The details not noted in the said judgment, he not furnished the ruling reported in AIR 2004 Supreme Court 1531 which is base for dismissal of SLP 9027/03 . However we have got the said decision for our guidelines to resolve their dispute. 16. In Para-91 of the reported AIR 2004 SC 1537 judgment, the Honble Supreme Court observed in reference to the judgment of National Insurance Company & Others V/s. Swarna Singh & Others Para No. 91 of the said judgment: Motor Vehicles Act 1986 provides for grant of learners licence. Section 4(3) section 7(2) of section 10(3) and section 14. A learners licence is, this also a licence within the meaning of the provisions of the said Act. It cannot be said that, a vehicle being driver of the learner subject to the conditions mentioned in the licence, he would not be a person, who is not duly licenced resulting in conferring a right on the insurer to avoid the claim of third party. It cannot be said that, a person holding learners licence is not entitled to drive. Even, if there exists a condition in the contract of insurance that vehicle cannot be driven by a person holding learners licence. The same would run counter to the provisions of section 149(2) of the said Act. 17. In the recent ruling reported in 2010 (1) MARC 801 Supreme Court on which learned advocate for opposite placed reliance, their lordships of the Supreme Court held as, licence could not have been renewed subsequently from the date of its expiry. 18. We have gone through the principles as laid down by their lordships in both the cases referred by the parties, we are of the view that, with great respect to their lordships of the ruling reported in AIR 2004 Supreme Court 2879 or the ruling reported in AIR 2004 Supreme Court SC 1531 are not coming to the help of complainant for the reasons that, the learners licence is valid licence, as held by their lordships in case of third party risk. Those two cases are in reference to the claim of third party risk. But in the instant case, the claim of the complainant is owners and driver liability under the Insurance policy issued by opposite. Here, it is not a claim of third party. 19. As admitted by the complainant himself vide Ex.P-10, the licence expired after (6) months of its date i.e, on 20-02-09. So also as on the date of the accident Ex.P-10 it was not in force. Ayyappa not filed any application before the competent authority to issue licence, under the said circumstances, as on the date of accident, the driver was not having valid and effective driving licence to drive the motorcycle. Hence it is the breach of fundamental condition of the Insurance policy by deceased Ayyappa himself, as such we are of the view that, rightly opposite party insisting for to produce valid and effective driving licence for settlement. Hence we are of the view that, there is no negligence on the part of opposite Insurance Company, accordingly we answered Point No-1 in Negative. POINT NO.2:- 20. In view of the finding on Point No. 1, the complainant Nos. 1 & 2 are not entitled for any of the reliefs as prayed in their complaint, accordingly we answered Point No- 1 & 2. POINT NO.3:- 21. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant Nos. 1 & 2 is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 10-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant Nos-1 & 2 against opposite Oriental Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay an amount of Rs. 1,00,000/- towards sum assured under the policy and Rs. 50,000/- as a compensation with interest. 2. The brief facts of the complainants case are that, complainant Nos- 1 & 2 are the parents of one Ayyappa, who died in the vehicular accident, he was driving his own motor cycle bearing No. KA-36/S-6227 insured with opposite Insurance Company covers all the risk upto Rs. 1,00,000/- including drivers risk. The said vehicle met with an accident on 31-08-09. Thereafter complainants being class-1 heirs of deceased Ayyappa filed claim petition before the opposite, but their requests not considered, as such they filed this complaint for the reliefs as prayed in it. 3. The opposite Insurance Company appeared in this case through its Advocate, filed its written version by contending that, the complaint filed by the complainant is pre mature one, they have not produced any documents for settlement of the claim as required for settlement. Driving licence of the deceased Ayyappa was not furnished as, it is a necessary to settle their claim. Ayyappa was not having Driving licence to drive the said vehicle. Hence the claim was not settled, accordingly it prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant Nos. 1 & 2 being the parents of deceased Ayyappa proves that, their son Ayyappa was owning a motorcycle bearing No. KA-36/S-6227 insured with opposite Insurance Company by covering of all the risk including owners driver liability upto Rs. 1,00,000/- for a period commencing from 01-12-08 to 30-11-09 it met with an accident on 31-08-09 and their son Ayyappa was driving the said motorcycle with valid licence at that time died in the accident, thereafter they filed claim petition before the opposite Insurance Company, but opposite Insurance Company not considered their requests, inspite of repeated written and oral demands and thereby opposite Insurance Company found guilty under deficiency in its service.? 2. Whether complainants are entitled for the reliefs as prayed in their complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant No-1 was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-10 are marked. On the other hand affidavit-evidence of Branch Manager of opposite Insurance Company was filed, who is noted as RW-1. No documents filed and marked. 7. In the instant case, the some of the following facts are undisputed facts in between the parties which are:- 1. It is undisputed fact that, complainant Nos- 1 & 2 are the parents of deceased Ayyappa. 2. It is undisputed fact that, the said Ayyappa died while he was driving his motorcycle bearing No. KA-36/S-6227 on 31-08-09, when it met with an accident. 3. It is further undisputed fact that, motorcycle bearing No. KA-36/S-6227 is insured with opposite Insurance Company covering all the risk including the owners driver risk and its period commences from 01-12-08 to 30-11-09. 8. In view of the said undisputed facts, we feel that there is no necessity for us to refer the documents regarding the ownership of the vehicle, documents relating to accident and death of Ayyappa. 9. The point for our consideration is whether, the said Ayyappa was holding valid and effective driving licence as on the date of accident. According to complainants their son Ayyappa was holding Ex.P-10 learners licence, but due to the personal difficulty of him, he not obtained permanent licence. The said accident took place within short time, after lapse of learners licence at Ex.P-10, as such, it deemed that, he was holding valid and effective driving licence to drive the vehicle. 10. In support of this contention, they have referred a ruling reported in AIR 2004 SC 2874 National Insurance Company Limited V/s. Baghwani and others. 11. As per the submissions made by the learned advocate for opposite, the learners licence Ex.P-10 will automatically lapsed after (6) months from the date of issuance. Admittedly accident took place on 31-08-09, that means to say that, he was not having valid and effective driving licence and thereby, there was a breach of condition of the policy for which Insurance Company is not liable to pay any amount under the Insurance policy. 12. In support of this contention the learned advocate for opposite relied on ruling reported in 2010 (1) MARC 810 SC New India Assurance Company Ltd., V/s. Suresh Chandra Agarwal. 13. One thing is very much clear from the pleadings and affidavit-evidence of complainant No-1 that, after expiry of learners licence deceased Ayyappa not applied for to issue permanent licence within stipulated time or afterwards till his death. 14. Keeping in view of this fact, now let us examine the case of complainant as well as the case of Insurance Company in the back ground of the principles of rulings referred by them. 15. The ruling referred by the learned advocate for complainant, National Insurance Company Ltd., V/s. Baghawani & Others, their lordships of the Supreme Court dismissed the SLP. Civil Petition No. 9027/03. In view of its earlier judgment reported in AIR 2004 SC 1537. This is a judgment of the Honble Supreme Court regarding the dismissal of SLP by holding that, the learners licence is also a valid licence. The details not noted in the said judgment, he not furnished the ruling reported in AIR 2004 Supreme Court 1531 which is base for dismissal of SLP 9027/03 . However we have got the said decision for our guidelines to resolve their dispute. 16. In Para-91 of the reported AIR 2004 SC 1537 judgment, the Honble Supreme Court observed in reference to the judgment of National Insurance Company & Others V/s. Swarna Singh & Others Para No. 91 of the said judgment: Motor Vehicles Act 1986 provides for grant of learners licence. Section 4(3) section 7(2) of section 10(3) and section 14. A learners licence is, this also a licence within the meaning of the provisions of the said Act. It cannot be said that, a vehicle being driver of the learner subject to the conditions mentioned in the licence, he would not be a person, who is not duly licenced resulting in conferring a right on the insurer to avoid the claim of third party. It cannot be said that, a person holding learners licence is not entitled to drive. Even, if there exists a condition in the contract of insurance that vehicle cannot be driven by a person holding learners licence. The same would run counter to the provisions of section 149(2) of the said Act. 17. In the recent ruling reported in 2010 (1) MARC 801 Supreme Court on which learned advocate for opposite placed reliance, their lordships of the Supreme Court held as, licence could not have been renewed subsequently from the date of its expiry. 18. We have gone through the principles as laid down by their lordships in both the cases referred by the parties, we are of the view that, with great respect to their lordships of the ruling reported in AIR 2004 Supreme Court 2879 or the ruling reported in AIR 2004 Supreme Court SC 1531 are not coming to the help of complainant for the reasons that, the learners licence is valid licence, as held by their lordships in case of third party risk. Those two cases are in reference to the claim of third party risk. But in the instant case, the claim of the complainant is owners and driver liability under the Insurance policy issued by opposite. Here, it is not a claim of third party. 19. As admitted by the complainant himself vide Ex.P-10, the licence expired after (6) months of its date i.e, on 20-02-09. So also as on the date of the accident Ex.P-10 it was not in force. Ayyappa not filed any application before the competent authority to issue licence, under the said circumstances, as on the date of accident, the driver was not having valid and effective driving licence to drive the motorcycle. Hence it is the breach of fundamental condition of the Insurance policy by deceased Ayyappa himself, as such we are of the view that, rightly opposite party insisting for to produce valid and effective driving licence for settlement. Hence we are of the view that, there is no negligence on the part of opposite Insurance Company, accordingly we answered Point No-1 in Negative. POINT NO.2:- 20. In view of the finding on Point No. 1, the complainant Nos. 1 & 2 are not entitled for any of the reliefs as prayed in their complaint, accordingly we answered Point No- 1 & 2. POINT NO.3:- 21. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant Nos. 1 & 2 is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 10-03-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.