D.O.F:31/03/2021

                                                                                                       D.O.O:28/04/2023

IN THE CONSUMER DISPUTES  REDRESSAL COMMISSION, KASARAGOD

CC.80/2021

Dated this, the 28^th day of April 2023

PRESENT:

SRI.KRISHNAN.K                          : PRESIDENT

SRI.RADHAKRISHNAN NAIR.M   : MEMBER

SMT.BEENA.K.G                          : MEMBER

M. K. Narayanan Nair,

S/o. K. Kunhiraman,

Rasna Nivas, Adiyath,                                                         : Complainant

Poinachi, Post- Thekkil,

Kasaragod – 671541

(Adv. T.C. Narayanan)

                                                                      And

The Liberty General Insurance Limited,

10^th Floor, Tower A,

Peninsula Business Park,                                                     : Opposite Party

Ganpatrao Kadam Marg,

Lower Parel, Mumbai- 400013

(Adv. C.V. Narayanan)

ORDER

SRI.KRISHNAN.K :PRESIDENT

The case of the complainant is as follows:-

The Complainant is the owner of the vehicle KL-14Z0724 Covered by insurance policy issued by the Opposite Party valid from 10/03/2020 till 09/03/2021

The vehicle met with an accident on 10/11/2020, and damaged completely.  Quotation for repairs shows cost of Rs.79,740/- and labour charges of Rs.8,000/-.  The complainant made a claim with Opposite party, but the Opposite Party repudiated the claim on the ground that vehicle at the time of accident was driven by on Rahul who is not having a valid driving license.  The Complainant’s case is that vehicle was driven by Rejish having valid driving license and thus covered by policy.  So claimed insurance benefits and damages and cost of litigation.

2.       The Opposite Party filed written version.  The Opposite Party admits insurance coverage as per policy issued by the Opposite Party and admitted averments in para.6 to 8 in the complaint.  Surveyor was appointed, submitted the report.  Evidence of DW1 shows that Rahul was working in Amana Toyota and he was on leave on 11/11/2020 and 12/11/2020 as per Ext.B5 attendance register.  The Opposite Party’s version is that vehicle was driven by Rahul, son of Complainant.  He has no valid driving license.  Thus correctly repudiated the claim and no deficiency in service.  Parties are bound to by terms of contract and hence complaint is to be dismissed.

3.       The Complainant filed chief affidavit.  Marked documents Ext.A1 to A5.  Ext.A1 is insurance policy.  Original quotation Ext.A2.  Driving license of Rejish is marked as Ext.A3.  copy of GD entry is marked as Ext.A4, Repudiation  letter Ext.A5.  Ext.A6 series invoice 4 in numbers.  DW1 was examined from Opposite Party side and Ext.B1 to B7 documents marked.  Ext.B1 is policy, B2 investigation report.  Ext.B3 is repair assessment.  Ext.B4 is motor insurance claim form.  Ext.B5 is attendance register.  Ext.B6 is policy particulars.  Ext.B7 is the repudiation letter.

Following points arise for consideration.

1. Whether repudiation of insurance benefits to the vehicle is justifiable?
2. Whether there is any deficiency in service from Opposite Party? And whether complainant is entitled for compensation. If so for what reliefs?

Issues are taken together for convenience.

4.       The case of the complainant is that Opposite Party denied insurance benefit.   The complainant is the owner of the vehicle.  According to him vehicle was driven by his son Rejil, who is having valid driving license.  Rejil is having valid driving license is not disputed by Opposite Party but dispute is Rejil was not driving the vehicle at the time of accident, but his brother Rahul was driving the vehicle at the time of accident and Rahul has no license.

5.       The Complainant is examined as PW1.  He deposed that the vehicle is driven by his son Rejil at the time of accident and not Rahul as Claimed by insurance company.  The Opposite Party did not enter the box.  DW1 was examined to prove the attendance register of Rahul during the day of accident.  As per B5, on 11/11/2020 and 12/11/2020 Rahul was on leave.  Accident was on 10/11/2020.

6.       There is no eye witness to the accident happened on 10/11/2020.  In any event Opposite Party did not adduce evidence to prove that Rahul was driving the vehicle or to disprove that Rejil was not driving the vehicle at the time of accident.  No evidence is adduced by the person who conducted the investigation and findings thereon are not supported by legal or acceptable evidence.  Ext.B2 investigation report on the basis of which repudiation of policy is made is not proved as per mandate of law and repudiation is not sustainable as per law for reasons aforesaid and thus commission hold that complainant is entitled to insurance benefits.

          Exonerating the insurance company from the liability on the ground that the driver of the offending vehicle did not possess valid license is not accepted since Commission found that there is no evidence to prove that Rahul was driving the vehicle at the time of accident.  The driver of the vehicle Rejil was holding a valid driving license at the time of accident and since the insurance company failed to prove otherwise, it was liable to pay the insurance benefit and compensation.  First, the driver of the vehicle Rejil proved his driving license Ext.A3 in his evidence.  The license was proved by the driver and marked in evidence without objection by the insurance company and lastly the insurance company failed to adduce any evidence to prove that the driving license was either fake or invalid for some reason.

          The vehicle is totally damaged economically un reparable or constructive total loss.  Total amount comes to Rs.80,000/- plus Rs.8,000/- as labour charge in total comes 88,000/-.  Since claim is not paid in time, but repudiated on unjustifiable reasons, the Complainant suffered financial loss but also suffered great mental agony.

          The vehicle was found to be totally damaged and is a total loss and hence the Complainant is entitled to insurance benefits.  Denial of benefits amounts to deficiency in service.  Considering the nature and circumstances of the case a sum of Rs.25,000/- is found reasonable compensation. 

          In the result complaint is allowed in part the Opposite Party is directed to pay Rs.88,000/- (Rupees Eighty Eight Thousand only) towards insurance benefits to complainant.  Considering it as total loss with interest at 8% per annum from date of filling the complaint till payment.  The Opposite Party is also directed to pay Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation for deficiency in service and Rs.5,000/- (Rupees Five Thousand only) as cost of litigation within 30 days of the receipt of the order.

     Sd/-                                            Sd/-                                               Sd/-

MEMBER                                    MEMBER                                   PRESIDENT

Exhibits

A1:  Insurance Policy

A2 series Original quotation 3 in numbers

A3:  Driving license of Rejish

A4:  Copy of General Diary

A5:  Repudiation letter

A6 series invoice 4 in numbers

B1:  Policy

B2:  Investigation report

B3:  Repair assessment

B4:  Motor insurance claim form

B5:  Attendance register

B6:  Policy particulars

B7:  Repudiation letter

Witness Cross examined

PW1: M. K. Narayanan Nair

PW2:  Rejish.E

DW1:  Saman.K

     Sd/-                                           Sd/-                                             Sd/-

MEMBER                                    MEMBER                                   PRESIDENT

Forwarded by Order

                                                                      Assistant Registrar

Ps/