O R D E R<br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> The grievance of the complainant against the Ops is, that first complainant’s husband Late Chikkanna was the registered owner of a Canter Vehicle bearing registration No.KA-02-A-976 had insured that vehicle with Ops and the policy was in effect from 20/11/2008 to 19/11/2009 which cover the risk of own damage and 3rd party including personal accident of owner cum driver. That the vehicle met with an accident on 29/12/2008 on Kunigal-Nelamangala Road. Then they approached the second Op with necessary documents making claim for the insurance benefits on 30/07/2009. Thereafter on so many occasions the first complainant visited the Ops but they did not respond to consider her claim. Then she also got issued a notice on 19/01/2010 but even then after lapse of more than one year, the Ops have not considered their claim to pay the insurance amount and therefore has prayed for a direction to Ops to pay insurance claim of Rs.4.00 lakhs towards the personal accident risk of her husband, the owner and also to pay Rs.50,000/- towards mental torture with cost.<br /> <br /> 2. Ops have appeared through their advocate and filed common version admitted ownership of the vehicle of Late Chikkanna, issue of Insurance policy which was valid up to 19/11/2009 and the nature of the policy to cover the risk of own damage, 3rd Party including personal accident of owner cum driver. Ops without disputing the date of accident and the claim made by the first complainant to pay insurance amount, denied that the first complainant had approached them several times and they did not respond to her. It is further contended that policy was issued to cover personal accident cover for owner cum driver but the deceased Chikkanna being the owner of the lorry was traveling as a passenger, was not driving the vehicle and he was also not having a valid driving license. It is further stated that one Thammegowda was driving Canter truck at the time of the accident and therefore they are not liable to compensate the risk. They have also stated that policy covered owner who should be the driver of the vehicle and who was having an effective driving license to drive a particular vehicle and accident must have taken place while he was driving the vehicle. But in the case on hand the deceased was not driving the vehicle therefore personal accident cover will not apply to the facts of this case. That the complainants themselves have admitted that one Thammegowda was driving the vehicle at the time of the accident and therefore the Ops justifying their action in repudiating the claim of the complainant have prayed for dismissal of the complaint.<br /> <br /> 3. In the course of enquiry into the complaint, the first complainant and the Manager, Customer Service of the Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. Both parties have produced policy copy. Complainant has produced the death certificate of her husband, copies of police investigation report and Op has produced conditions of the policy. We have heard the counsel for both parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Ops have caused deficiency in their service by not paying the insurance amount.<br /> 2. To what relief the complainants are entitled to?<br /> <br /> 5. Our findings are as under:<br /> <br /> Point No.1 : In the negative<br /> Point No.2 : See the final order<br /> <br /> REASONS:<br /> <br /> 6. Answer on point No.1: As narrated by us above, we find no dispute between the parties with regard to certain material facts like ownership of the lorry, date of accident, issue of policy and the validity of the policy as on the date of the accident. The complainants have complained the deficiency in the service of the Ops in they having not honoured their claim to pay Rs.4.00 lakhs towards personal accident risk of deceased Chikkanna. But the Ops have taken a contention that policy issued in favour of Chikkanna covers the risk of own damage and third party including personal accident of owner cum driver and have further elaborated that insurance amount is payable only when the owner cum driver was driving the vehicle at the time of the accident and he must have possessed a valid driving license to drive such kind of vehicles. Therefore, the dispute is only with regard to the entitlement of the heirs of the deceased and whether repudiation is just or not. It is contended by Op that Late Chikkanna was though the RC owner was covered under the policy was the owner who should have valid driving license to drive the vehicle and he must have been the driver driving the vehicle at the time of accident but have contended at the time of accident Chikkanna was not driving Canter truck but one Thammegowda was driving the vehicle when it met with the accident. The complainant’s have not denied the fact that Chikkanna was not having a valid driving license and he was not driving the Canter truck at the time of the accident and it was one Thammegowda was driving the same. Counsel for the Ops invited our attention to conditions of the policy and referring to section 3 which deals with the personal accident cover for owner cum driver and which says, compensation is payable in respect of the owner cum driver, out of an accident or occurrence and says that owner cum driver is the registered owner of the vehicle the owner holds an effective driving license in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989 at the time of the accident. Admittedly, the husband of the first complainant was not having a valid driving license, was not driving truck and as he was not the owner cum driver is not entitle for the policy benefit. Even in the course of arguments when we questioned the counsel for the complainant about the complainant’s not satisfying this requirement, he was fair enough to concede that the insured was not having a driving license and was not driving the truck at the time of the accident. That being the fact, not in dispute. The Ops have rightly repudiated the claim of the complainants and such an act cannot be termed as deficient and therefore, the complaint in our view is not maintainable and the same is to be dismissed. As such, we answer point No.1 in the negative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 28th September 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />