DATE OF FILING: 18.02.2013
DATE OF DISPOSAL: 11.05.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievances before this Forum.
2. Briefly stated the case of the complainant is that the complainant is the registered owner of the vehicle bearing registration No.OR-07-U-6768 (INDIGO) and purchased the same by borrowing loan from the O.P.No.2. The complainant was plying the same under contact carriage for earning his livelihood and maintaining his family. After purchase of the said vehicle, the complainant insured the said vehicle under O.P.No.1 for sum of Rs.4,00,000/- on payment of Rs.16,406/- as premium towards the insurance policy. The O.P.No.1 issued a certificate in respect of the aforesaid vehicle vide policy No.2605003111P00480966 which was valid for the period 24.06.2011 to 23.06.2012. On 15.05.2012 at about 5 P.M. while the above said vehicle was plying from Rambha side towards Berhampur dispelling the norms as prescribed by the law near Humma - Patana Sahi, after getting signal from the driver of offending Tractor bearing registered No.OR-07-V-8549 and Trolley No. OR-07-V-8550, whiling the driver of the car was overtaking by the said of tractor in minimum speed, all of a sudden the driver of the offending tractor turned the tractor to his right side resulting the front side of the said INDIGO dashed against the Trolley of the tractor for which the INDIGO was completely damaged and front side glass was also broken. The above accident took place due to negligence on part of the driver of the offending tractor. After the accident a written report was lodged before the Humma Police Outpost and the Police Authority investigated the case. The M.V.I. inspected and examined both the vehicle and a report was sent to the appropriate authority for necessary action and the complainant also lodged the claim before the office of the O.P.No.1. After receipt of the claim form, the O.P.No.1 deputed a surveyor to inspect and assess the damage of the said INDIGO car. After that the complainant with due permission from the O.P.No.1, repaired the INDIGO car in the authorized auto garage and spent near about Rs.1,55,350/- towards repairing of the car. During course of the claim, the complainant as per the direction of the O.P.No.1 submitted all the relevant documents with the claim form. After going through the documents and papers the O.P.No.1 repudiated the claim and closed the same under the reason “The claim is repudiated on account of breach of the expressed policy condition on your part for having allowed the insured vehicle to be driven by a person not possessing a valid and effective driving license at the material time of the subject loss”. Such repudiation is an arbitrary and not judicious one. At the time of accident the driver of the car was having valid driving licenses but office of the O.P.No.1 repudiated the claim without going through the documents submitted by the complainant at the time of claim, the O.P.No.1 hurriedly and in a mechanical manner without justified grounds repudiated the claim. Alleging deficiency in insurance service on the part of the O.Ps the complainant prayed to direct the O.P.No.1 to pay the O.D. claim amount of Rs.1,55,350/- towards damage and repairing charge of the car and Rs.1,00,000/- towards damage, mental agony in the best interest of justice.
3. Upon notice the O.P.No.1 appeared on 21.03.2013 through learned counsel Sri K. Dilip Kumar Advocate and filed his version on 17.04.2014. It is stated that all the allegations made by the complainant in his complaint petition are not true and correct and the complainant is put to strict proof of the same as required under law. The allegations which are not strictly admitted herein are deemed to have been denied by the O.P.No.1. The complaint petition is barred by time and is liable to be dismissed with costs. This Hon’ble Forum has no jurisdiction to try over this case of the complainant and for that the case of the complainant is liable to be dismissed. The allegations made at para-1 of the complaint petition are true and at para-2 are not to the knowledge of O.P.No.1, however the same may be record of right on documentation. The allegations made at para-3 of the complaint petition are a matter based on record. The allegations made at para-4 of the complaint petition is true and correct, however the repudiation of claim made by the O.P.No.1 as stated by the complainant as arbitrary and not judicious is not correct. The complainant admitted his vehicle was registered as Taxi and was used as contract carriage at the time of accident i.e. subject loss and also obtained the policy from O.P.No.1 for the purpose of contract carriage, thus a contract carriage can only be driven by a driver who possess a driving license of that category i.e. with a transport endorsement in the license to drive such vehicle and here the complainant knowingly allowed the driver who only possess a license to drive only light motor vehicle non-transport and the same is not a valid and effective driving license to drive the vehicle thereby the complainant committed breach of policy conditions and thus the repudiation of claim made by the O.P.No.1 is just and proper and in accordance with law. Absolutely the complainant has no case at all against this O.P.No.1 and has foisted a false case only to grab a false compensation as well as a false relief from this O.P.No.1 and the case is devoid of any merit and should be dismissed outright with costs. Absolutely there is no deficiency in service by this O.P.No.1. Hence the O.P.No.1 prayed to dismiss the case with cost in the best interest of justice.
4. Notice sent to O.P.No.2 and the O.P.No.2 neither chooses to appear nor filed any written version hence the O.P.No.2 was declared set ex-parte on 06.02.2104. Accordingly the case is also preceded ex-parte against O.P. No.2.
5. On the date of final hearing of the consumer dispute, the learned counsels for the complainant as well as for the O.P.No.1 are present. In fact, the learned counsel for the O.P.No.1 also filed the survey report before this Forum as per the direction issued by this Forum on 3.1.2017. We heard the matter at length from the learned counsel for both parties and have also gone through the complaint, written version, written arguments and materials placed on the case record. We have also carefully considered submissions made by the learned counsel for the complainant as well as for the o.P.No.1.
6. During the course of hearing of the consumer dispute the learned counsel for the complainant contended that the complainant is the registered owner of the vehicle bearing Registration No.OR-07-U-6768 (INDIGO) which was purchased on loan from O.P.No.2 and insured with O.P.No.1 for a sum of Rs.4,00,000/- vide policy No. 2605003111P00480966 on payment of Rs.16,406/- towards premium and the policy was valid from 24.6.2011 to 23.6.2012. When the policy was in force, the said vehicle met with an accident on 15.5.2012 at about 5 P.M. while the vehicle was plying from Rambha side towards Berhampur. The complainant intimated the O.P.No.1 about the accident and also submitted the claim form. The O.P.No.1 deputed the survey to inspect the vehicle and to assess the loss when the vehicle was kept for repairing in the garage. The complainant with due permission of the O.P.No.1 also repaired the vehicle by spending a sum of Rs.1,55,350/- towards repairing charges. The complainant as per the directions of the O.P.No.1 submitted all bills, vouchers and relevant documents along with claim form. However, the O.P.No.1 repudiated the claim of the complainant on the ground of breach of policy conditions of the insured vehicle for having allowed a person to drive the vehicle not possessing valid and effective driving license at the material time of loss. It is also contended that the O.P.No.1 without verifying the documents mechanically without a just ground repudiated the claim of the complainant. The complainant therefore has filed this consumer complaint to direct the O.P.No.1 to pay the own damage claim of Rs.1,55,350/- towards damage and repairing charges of the vehicle along with Rs.1,00,000/- towards compensation for mental agony and to grant other such relief as deems fit in the interest of justice. The learned counsel in support of his case also submitted documents which have been marked as Annexure I to VI placed on case record along with other material documents.
7. Per contra, the learned counsel for the O.P.No.1 categorically pleaded that the complainant has admitted that his vehicle was registered as taxi and was used as contract carriage at the time of accident of insured vehicle. A contract carriage vehicle can only be driven by a driver who possesses a driving license of that category i.e. with transport endorsement in the license to drive such vehicle. In the instant case, the complainant knowingly allowed the driver who only possess a license to drive only light motor vehicle which is non-transport and the same is not a valid and effective driving license thereby the complainant committed the breach of the policy conditions. Therefore, the repudiation of the claim by the O.P.No.1 is just and proper in accordance with law and in support of his arguments, he has also cited an authority of Hon’ble National Commission vide R. P. No.2394/2006 in the case of New India Assurance Co. Ltd. Versus Mr. Biswajit Reddy and Others decided on 21.9.2010. Hence, there is absolutely no deficiency in service and the present complaint of the complainant is devoid of any merit and should be dismissed with costs in the interest of justice.
8. We heard the learned counsels for both parties and have thoughtfully considered the contentions raised by the learned counsel for both parties. We have also perused the material documents placed on the case record submitted by both sides. We have also gone through the decision cited by the learned counsel for the O.P.No.1 and carefully examined the decision of the Hon’ble National Commission. We have also perused the survey report submitted by the O.P.No.1 and have also gone through it meticulously.
9. On perusal of the materials, it reveals that there is no dispute or doubt that the present complainant has insured the alleged vehicle with O.P.No.1 vide insurance policy No. 2605003111P00480966 for an assured sum of Rs.4,00,000/- on payment of Rs.16,406/- towards premium of the said policy. It is also beyond doubt that the policy was in force during the time of accident i.e. on 15.5.2012. It further discloses the vehicle was registered with R.T.O. Chatrapur, Ganjam, bearing Regd. No. OR-07-U-6768 on 28.6.2010 and the fitness of the vehicle is valid up to 27.6.2012. It is also evident from the document that an FIR was lodged in the Humma Police outpost on 15.5.2012 U/s 279 of IPC after accident of the vehicle. It further reveals that after the accident of the vehicle, the M.V.I., Ganjam, Chatrapur has inspected the damaged vehicle on 16.5.2012 and the same was intimated to O.P.No.1 on 18.5.2012 along with the claim form. However, the O.P.No.1 repudiated the claim of the complainant on 17.10.2012 on the ground that at the time of accident of the vehicle, the driver of the alleged vehicle was not holding a valid and effective driving license to drive the vehicle in dispute.
10. In this context, the Forum is to decide the only point in dispute whether the driver of the damaged vehicle was holding a valid and effective driving license during the material time of accident?
11. To address the above question, we would like to refer the documents filed by both parties in support of their cases. On careful verification of the driving license of the driver of the damaged vehicle, we found that at the material time of accident, the vehicle was being driven by one Mr. Rakumala Jagodish Dora. His driving license number is OR-0720080040288 which was issued by R.T.O. Chatrapur, Ganjam on 4.8.2012 and is valid up to 08.09.2028. The said driving license is a light motor vehicle non-transport license valid with effect from 9.9.2008. On careful examination of the driving license we found that the license is issued for driving a light motor non-transport vehicle and the license is also valid up to 08.09.2028. In this instant case, the vehicle in dispute is also a light motor vehicle i.e. an Indigo Car whose fitness was also valid up to 27.6.2012. The un-laden weight of the car as is evident from the registration certificate is only 1105 kilogram which is a light motor vehicle as per the Motor Vehicle Act, 1988. Hence, it is clear that the driving license is for light motor vehicle and the car which was driving by the driver at the material time of accident is also a light motor vehicle which is beyond doubt or dispute. However, the O.P.No.1 contended that the vehicle was used for contract carriage as is evident from the registration particulars of vehicle class mentioned in the registration certificate. In this view of the case, we would like to say that there is nothing placed on record to prove that the vehicle was on the very date of accident was used for contract carriage or for commercial transport purpose. In the instant case, as per the materials on record, the driver was holding a license to drive light motor vehicle and was driving a light motor vehicle i.e. Indigo CS LX, a Tata product which was registered as contract carriage car but not a cab (commercial carrier) or a purely commercial transport vehicle. It is also a fact on record that the damage to the vehicle was caused without any fault of the driver of the damaged vehicle since the accident was caused due to rush and negligence of the offending tractor bearing Registration No.OR-07-V-8549 and Trolley bearing Regd. No.OR-07-V-8550 which dashed the car all of a sudden by turning the tractor to his right side. On this point, we would like to refer the ruling of Hon’ble National Commission in the case of National Insurance Co. Ltd. Vs. Din Dayal Chamoli reported in 2003(1) J. Cr. C.521, it was specifically held that “where there is no nexus between the driving license and the accident and if the license is not valid, then also, on non-standard basis, the claim should be awarded”. The non-endorsement of transport vehicle in the driving license is not material in the fact and circumstance of the case since there is no evidence on record to prove that due to the mistake of the driver of alleged vehicle, the accident was caused. Hence, it is clear that the accident was caused and the vehicle was damaged without fault on part of the driver of the car of the complainant. In the present peculiar fact and circumstance of the case, in our considered view and as per the above ruling of the Hon’ble National Commission, we would like to state that the non-endorsement of transport vehicle in the driving license of the driver is not material. Moreover, this is an own damage claim of the complainant and in the instant case the O.P.No.1 has repudiated the claim on the ground that the driver did not possess a valid and effective license. In the instant case, the driving license is valid but in the driving license it was not endorsed to drive the transport vehicle but the driver is authorized to drive a light motor vehicle. In the present case, the vehicle has been registered as a contract carriage and its weight is 1105 kg so it is not purely a transport vehicle but a contract carriage. In the fact and circumstance of the case, it may be stated that non-endorsement on his driving license to drive transport vehicle as required under Section-3 of the Motor Vehicle Act 1988 is being a breach of driving clause under Motor Vehicle Act, 1988 but not breach of policy conditions. We would also like to view that the insurance company must establish that the breach was on part of insured himself and if that is not the case; the insured complainant would be an innocent sufferer if his claim would be repudiated. In case of breach of driving clause, on the basis of guidance/notification issued by the Insurance Company while dealing with own damage case, matter should be directed to be settled claim of the insured on non-standard basis which means 75% of the damage assessed by surveyor.
12. In this case, the surveyor has assessed the loss/damage of the vehicle due to accident is Rs.90,000/- against Rs.1,55,350/- as claimed by the complainant. On verification of the surveyor report placed on the case record, we found that the surveyor has properly done the survey and meticulously assessed the loss of the insured damaged vehicle as per the documents submitted by the complainant. We also corroborated the bills and vouchers of repairing of damaged vehicle and the surveyor’s report reflects consistency with reported nature of accident and damage which can be accepted in toto. In our considered view, report of surveyor is an important document which can’t be brushed aside easily. Accordingly, the claim of the complainant could be settled on the basis of survey report but due to breach of driving clause, we would like to direct the O.P. No.1 to settle the claim on non-standard basis i.e. at the rate of 75% of the damage/loss assessed by the surveyor which is quite legal and valid as per insurance law. The learned counsel for the O.P.No.1 has cited a decision of Hon’ble National Commission vide R. P. No.2394/2006 in the case of New India Assurance Co. Ltd. Vs. Mr. Biswajit Reddy and Others decided on 21.9.2010 in support of his case. In the said case, the vehicle (Cab) met with accident was purely a commercial transport vehicle but in the present case it is a light motor contract carriage vehicle and the fact of the present case in hand is quite different from that case. We are, therefore, not inclined to accept the citation relied on by the O.P. No.1 due to factual differences of cases. In our view, the citation relied on by the learned counsel for the O.P.No.1 is not application to the present case hence the same is rejected.
13. In this case the complainant has also made a party to O.P.No.2 who is the financier of the vehicle. The O.P.No.2 during the course of proceeding was declared as ex-parte since the O.P.No.2 did not prefer to file his version of the case or to contest in this case. On careful perusal of the documents like complain petition and arguments of the complainant, we found there is no claim against O.P. No.2 and the complainant has not prayed any relief against him. In view of aforesaid discussion, we feel that there is no liability of O.P. No.2 in this case so the O.P.No.2 is absolved from his liabilities and the case is dismissed against O.P.No.2 due to devoid of merit. In a sequel to the aforesaid discussion and considering the fact and circumstances of the case, we allowed the case of the complainant against O.P. No.1 and dismissed against O.P.No.2.
14. Resultantly, the O.P.No.1 is directed to settle the claim of the complainant on non-standard basis i.e. at the rate of 75% of the damage/loss assessed by the surveyor in his survey report and to pay interest @ 6% per annum from the date of repudiation of the claim of the complainant. As per the discussion made above, the case of the complainant is dismissed against O.P. No.2 due to devoid of any merit. The O.P.No.1 is also directed to pay a modest sum of Rs.2,000/- to the complainant towards cost of litigation and the aforesaid orders shall be carried out by the O.P. No.1 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under Section 25/27 of the Consumer Protection Act, 1987. The case of the complainant is disposed of accordingly.
15. The order is pronounced on this 11th day of May 2017 under the signature and seal of this Forum. The office is directed to furnish copy of this order to the parties free of cost as per rules. A copy of the order be sent to the server of
