Date of Filing:08.12.2009<br /> Date of Order: 27.10.2010<br /> <br /> 2<br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 27TH DAY OF OCTOBER 2010<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 2888 OF 2009<br /> Shantha @ Shanthamma<br /> C/o. Sabari Circle<br /> No. 1681, Ramesh Road<br /> Prasanth Nagar, T. Dasarahalli<br /> Bangalore 560 057 Complainant<br /> V/S<br /> The Manager<br /> Bajaj Alliance General Insurance Co.<br /> No. 105 A / 107 A, Cears Plaza<br /> 136, Residency Road<br /> Bangalore 560 025 Opposite Party<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that K. Rajikrishnan is daughter of Gopalkrishna Pillai. In the year 1993 by mutual understanding by members of family and in the presence of elders of the family the complainant adopted Kum. Rajikrishnan as her adopted daughter. Kum. Rajikrishnan was working as Assistant in Hinduja TMT Ltd. at Hosur Road and she was drawing salary of Rs. 8030/-. On 14.07.2007 Kum. Rajikrishnan was driving her scooty being registration No. KA 05 HC 6060. The scooty met with an accident. Kum. Rajikrishnan suffered injuries and she died in the hospital. Complainant had filed claim petition before the Motor Accident Claims Tribunal. The present opposite party had taken contention that claim petition is not maintainable under Motor Vehicle Act. After dismissal of the claim petition complainant approached the opposite party Insurance Company for payment of Rs. 1,00,000/- covered under the policy. Opposite party refused to pay the amount. The vehicle was insured with the opposite party. Policy covers personal accident to the extent of Rs. 1,00,000/-. The opposite party committed deficiency in service in not giving the claim amount. Hence, the complaint requesting to direct the opposite party to pay Rs. 1,00,000/- and also for grant of compensation.<br /> 2. Opposite party has filed defence version admitting that insurance policy had been issued to Kum. Rajikrishnan in respect of her two wheeler. The deceased Rajikrishnan was holding only learners license at the time of accident and riding two wheeler in contravention with the conditions Rule 3 of the Central Motor Vehicle Rules. Therefore, complaint deserves to be dismissed. Complainant claiming to adoptive mother is not entitled for any compensation. There is no deficiency of service on the part of opposite party. Therefore, opposite party prayed to dismiss the complaint.<br /> 3. Affidavit evidence of complainant is filed. On behalf of opposite party also affidavit evidence is filed by the Senior Executive – Legal.<br /> 4. The complainant has produced documents. The opposite party has not produced any documents.<br /> 5. Arguments are heard.<br /> 6. I have gone through the complaint averments, defence version and documents produced by the complainant.<br /> 7. The points for consideration are:<br /> 1. Whether the complainant has proved deficiency of service on the part of opposite party?<br /> 2. Whether the complainant is entitled for insured sum of Rs. 1,00,000/- under policy No. OG-08-1701-1802-00002649?<br /> 8. It is admitted case of the opposite party that it had issued certificate cum policy schedule in the name of deceased Kum. Rajikrishnan. The period of insurance was from 13.04.2007 to 12.04.2008 mid night. The policy covered personal accident for owner–driver of Rs. 1,00,000/-. Policy document is produced by the complainant. It is admitted case of the parties that on 14.07.2007 the owner cum driver of scooty Kum. Rajikrishnan met with accident and she suffered injuries in the accident and ultimately succumbed to injuries. The complainant is said to be adoptive mother of deceased. She has adopted the deceased in the year 1993 as her adoptive daughter. The complainant has produced Adoption Deed dated 06.04.1993. Therefore, as per the adoption deed the complainant had become adoptive mother of deceased and she is competent to file the complaint on behalf of the deceased. There is no material or substance in the defence of the opposite party that complainant has no locus standi to file the complaint. Adoptive mother for all purposes under the law is considered as mother and she is legal heir under the law to the deceased Kum. Rajikrishnan. Therefore, the opposite party mother can maintain the complaint. The defense of the opposite party in this respect is rejected. Secondly, no body put up claim before the opposite party except the present complainant. Therefore, there is no valid reason for the opposite party to deny the claim filed by the present complainant. The complainant had filed claim petition before the Motor Accident Claims Tribunal, Bangalore and in that proceeding the present opposite party had taken contention that claim petition is not maintainable under the Motor Vehicle Act. Therefore, the claim petition came to be dismissed by the Motor Accident Claims Tribunal. After disposal of the claim petition by the MACT the complainant approached the opposite party requesting the opposite party to pay the insured sum under the policy since the policy covered personal accident. But, unfortunately, the opposite party repudiated the claim of the complainant on a very technical ground and as per Rule 3 of Central Motor Vehicle Rules. A person holding learner’s license can ride a vehicle only when he / she is accompanied by person holding an effective driving license. The opposite party relying on Rule 3 of Motor Vehicle Act repudiated the claim without there being any enquiry or investigation or documents to prove the fact that deceased was driving the vehicle without accompanied by a person holding an effective driving license. The opposite party has no evidence either orally or documentary to substantiate their defence that deceased was driving two wheeler at the time of accident without accompanied by a person holding effective driving license. Mere taking defence in the defence version does not amount proof of the fact stated in the defence version. It is admitted fact that deceased was holding learner’s license on the date of accident. This fact is admitted one. Even otherwise, the defence taken by the opposite party to repudiate the claim relying on Rule 3 is very technical defence. Such technical defence does not dislodge the lawful claim. The Hon’ble Supreme Court of India and Hon’ble National Commission have time and again held that the person holding learner’s license in terms of provisions of MVA and rules is duly licensed person entitled to drive vehicle. The learner’s license also considered to be effective driving license and insurance company is liable to admit the claim. It has been also consistent opinion of Hon’ble Supreme Court and National Commission that when two opinions are possible in a given case with respect to interpretation of policy conditions the opinion which is favourable to the Consumer shall be given effect to. Therefore, in this case the technical defence taken by the opposite party to deny the claim is not proper. The opposite party company should have immediately admitted the claim and paid the insured amount to the complainant. The opposite party company unfortunately repudiated the claim without legal and valid grounds. The complainant is definitely entitled for the claim. The opposite party has committed deficiency of service in not allowing the claim promptly. Therefore, the complaint deserves to be allowed. The Consumer Protection Act is a social and benevolent legislation intended to protect better interests of consumers. The complainant herein being a consumer her interests shall have to be protected. Judiciary is respected not on account of its power to legalize injustice on technical ground but because it is capable of removing injustice and is expected to do so. The dismissal of the claim petition by the Motor Accident Claims Tribunal is no bar to file the present complaint. MVC case was dismissed on the ground that claim petition before the tribunal is not maintainable. Since, policy covers personal accident the opposite party company is bound to pay the sum insured to the complainant under the policy. In the result I proceed to pass the following:<br /> ORDER<br /> 9. The complaint is allowed. The opposite party is directed to pay Rs. 1,00,000/- to the complainant. The complainant is also entitled for 6% interest p.a. on Rs. 1,00,000/- from the date of filing complaint till payment / realisation.<br /> 10. The complainant is also entitled for Rs. 1,000/- as costs of the present proceedings from the opposite party.<br /> 11. The opposite party is directed to send the ordered amount to the complainant directly by way of D.D. / cheque with intimation to this forum.<br /> 12. Send the copy of this Order to both the parties free of costs immediately. <br /> 13. Pronounced in the Open Forum on this 27TH DAY OF OCTOBER 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />