Karnataka

Gadag

CC/50/2016

Mr Malliksab. N. Ilkalla - Complainant(s)

Versus

The Manager National Insurance company Ltd., - Opp.Party(s)

S.R. Ghorpade

22 Jul 2017

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP.

2.   The nutshell of the complaint is that Complainant is permanent resident of Gadag. He is an Owner of TATA Super Ace vehicle bearing Reg No: KA-26 A-3665 which is being used for the earnings of his livelihood, he had insured his vehicle under insurance cover note Bearing No:HBRO/6112080-19243 (CQ No.053146) dated: 12.01.2015 which was valid upto 12.01.2016 by paying a premium of Rs.20,742/- through OP.

3.         On 07.09.2015 the Complainant’s son while transporting the house hold goods from Gadag to Belgaum after unloading the goods while returning from Belgaum to Gadag along with the owner of the goods and his friend with empty vehicle at about 3 pm, unfortunately the vehicle got tumbled down on the bridge near Naalwadi Village on Hubli-Gadag Road, on the said date of accident injured were shifted to Hubli in an Ambulance, the Complainant’s son who was driving the vehicle with valid driving license informed his father regarding the accident, after hearing the news complainant rushed to the spot of the accident and saw that the vehicle was damaged badly.

4.      The complaint was lodged at Annigeri police Station, Navalgund Taluk on 09.09.2015 the Officer-in-charge of the Police Station registered the complaint vide Crime No.0104/2015 on 09.09.2015 the vehicle was inspected by RTO Authorities and submitted MVA report.

 5.     The complainant informed about the accident to the Op as per the direction of Op vehicle was sent for workshop for repair the Ops company carried out the survey of damages, complainant approach the Op’s company prior to carrying out the repair the Ops assured that the damage claim is covered in the policy and the cost of the repair will be paid after submitting the bills and receipts, Accordingly the Complainant got the vehicle repaired and submitted the original bills to the Op for Rs.2,04,871/- on 14.03.2016. Meanwhile, Op sent a letter dated: 04.03.2016 to the complainant and mentioned that the surveyor has accessed the loss approximately on and around for 60,000/- subject to submission of bills and other papers and compliance of provision of Motor Vehicle Act.

6.      In the next paragraph in the said letter it is mentioned that some discrepancies have been observed in the claim and policy paper which are:

1)      That you have issued goods carrying vehicle policy which meant for carrying of goods only and prohibits carrying of passengers/persons in vehicle. But on going through the papers submitted by our client it is observed that persons/passengers are travelling in the vehicle at the time of accident.

2)      As per the RC book seating capacity is 2 only including driver, but 04 unauthorized persons are travelling at the time of accident which is violation of MV Act provisions. Violation of policy conditions and MV Act provisions will amount to repudiation of claim. Then at the end it is quoted that; In view of the violation of MV Act and carrying of unauthorized passengers we express our inability to consider your claims we close the claim as NO CLAIM”/ Sorry for the inconvenience caused to you in this regards. The content of the letter dated: 04.03.2016 Op’s Insurance Company clearly shows that, the Op is pre-determined to avoid the claim of the complainant, even if it is legal in all aspects.  

7.      Further, complainant submits that he approached the Op on 14.03.2016 the Ops company assured that Company look after the matter once again claim will be passed at the earliest but on 31.03.2016 Op issued a repudiated letter. Hence, complainant filed this complaint for the unlawful trade and deficiency-in-service on part of Op and claiming Rs.2,04,871/- with interest and along with other reliefs.                    

8.  The Forum registered the complaint and notice is ordered as such OP appeared through his advocate and filed Vakalat and written version.

BRIEF FACT OF THE WRITTEN VERSION

The Op denied all the contents of the complainant and further submits that, the Op had appointed the surveyor to carry out the survey and surveyor submitted his report and the Op admitted that the complainant submitted the vehicle documents and driving license of the driver on 07.10.2015.       

 Op submitted that the complainant has not approached the Forum with the clean hands and the Complainant’s had suppressed the information and material facts, the complainant had insured his vehicle under the terms and conditions as per the condition no.1 of Goods Carrying Vehicle(Package Policy) the accident should be intimated to the Company immediately and insured shall inform and assist as the company shall require as such complainant had not informed immediately in writing secondly there is a 29 days delay to give the information  and Op admitted that on 04.03.2016 he had repudiated the claim mentioning the reason that “The Respondent is Pre-determined to avoid the claim of the Complainant, even it is legal in all aspects” and further Op had admitted that OP wrote a letter on 31.03.2016 repudiating the claim of the complainant and it is also admitted that Op had not answer to the notice issued by the complainant moreover Op says that while giving Complaint to the police authority Complainant never said that the one of the inmate is owner of the goods and another person is the cleaner. FIR had lodged belatedly the vehicle in question is a goods vehicle meant for transportation not for carrying the passengers. The driver driving the vehicle was not holding valid license and was authorized to drive only passenger carrying vehicle not goods vehicle.

9.      Further OP submits that without prejudice to the above mention contention if the forum comes to the conclusion that Op is liable to pay any compensation than the Op is liable for only to IRDA surveyor report. Hence, Op prayed to dismiss the complaint with cost.

         

10.   In the background of the above said pleadings, the Complainant has examined PW1 in his support of the allegation. The documents produced are EX C-1 to EX C-12:

1. EX C-1 to EX C-5 Certified copy of FIR, Complaint, and Charge sheet and Vehicle documents.

2. EX C-6 Extract of Driving License.

3. EX C-7 Body Estimate.

4. EX C-8 and EX C-9 Repudiation Letter.

5. EX C-10 Legal Notice.

6. EX C-11 Postal Receipt.

7. EX C-12 Postal Acknowledgment.

11.    On the other hand Op filed his chief affidavit and documents on his behalf and is as follows.

LIST OF DOCUMENTS

1. EX OP-1 Certified copy of Insurance Policy.
2. EX OP-2 Certified copy of RC Extract issued by RTO Gadag of LGV bearing No. KA 26/A-3665.
3. EX OP-3 Endorsement Issued RTO, Gadag dated 06.11.2012.
4. EX OP-4 Certified copy of License of driver by name Husensab Maliksab Ilakal.
5. EX OP-5  Copy of Letter written to RTO Gadag.
6. EX OP-6  Reply given by RTO Gadag.
7. EX OP-7  Motor claim intimation submitted by complainant dated: 05.10.2015.
8. EX OP-8  Claim form submitted by complainant dated: 07.10.2015.
9. EX OP-9 Motor final survey report issued by IRDA surveyor by Name Nilakanth.T.Dhongadi.

Op witnessed RTO Gadag, the same has been cross examined by complainant advocate.

On perusal of above documents and argument heard from both the side, this being the pleading, the points arises before us for adjudication is as follows:

1.	Whether the complainant proves that the repudiation is unjustifiable?
2.   3.	Whether the Complainant is entitled for relief?   What Order?

 

Our Answer to the above Points are:-

Point No.1 – Negative,

Point No.2 – Negative,

Point No.3 – As per the final order.

 

On consideration of pleading, objection, evidence, documents on record, we answer the above points as under:

                        R E A S O N S

    12.  POINT NO.1 and 2:  Since both the points are inter-link and identical, we proceed with both the points together.

 

   13.     The complainant had insured his vehicle with Op a premium of Rs.20,742/-, unfortunately on 07.09.2015 the said vehicle met with an accident while the Complainant’s son was returning from Belgaum to Gadag, after unloading the Household articles he was accompanied by cleaner and owner of the household goods, the vehicle was tumbled down on the bridge near Nalvadi village on Hubli-Gadag Road, Op had repudiated the claim stating that the vehicle in question was played by a Unauthorized driving license holder and another reason is mentioned in that the vehicle is goods vehicle and the seating capacity of the vehicle is 1+1 but at the time of accident there were 5 unauthorized passengers travelling in the goods vehicle.

 

  14.      On perusal of the documents on record, EX OP1, EX OP2 and EX OP4 as well as EX C5, EX C1 it speaks that during the accident the driver who was none other than the son of the Complainant who had a driving license for LMV and the authorities of issuance of the driving license particularly mentioned in the driving license he is authorized to drive the transport vehicle only. The counsel for the Complainant filed a citation 2008 (IV) KCCR SM 297 Supreme Court National Insurance Company Ltd. V/s Annappa Ilappa Nesaria and others. In this, it is clearly mentioned that light passenger carriage vehicle and Light Goods carriage vehicle, a driver who had a driving license to drive a Light Motor Vehicle, therefore was authorized to drive a Light Goods Vehicle as well.

 

15.    The case it was reported in the year 2008 and meantime Advocate for OP filed the citation cited CDJ 2016, Case No.640, Revision Appeal No.1639/2014, (Oriental Insurance Company Ltd., V/s Hazi Noor Mohd.) National Consumer Disputes Redressal Commission, Judgement dated: 10.11.2016. Brief fact of the case is that respondent obtained an insurance policy with appellant for Mahindra pick-up, meantime the vehicle met with an accident. The Insurance Company appointed a surveyor who also recommended to settle the claim after respondent (Complainant) but the claim of the Complainant was repudiated by the Insurance Company on the ground that the driver of the Pick-up does not possess a valid driving licence to drive Light Transport Vehicle alleging deficiency in service on the part of the OP (Appellant) Complainant filed by the Complaint before the Dist. Forum   OP submitted that the vehicle in question is a goods carrying vehicle whereas at the time of accident, vehicle was being used for carrying the 8 passengers beside driver which amounts to violation of Terms and Conditions. It was further submitted that driver of the vehicle possess a licence for driving Light Motor Vehicle and learning licence of transport vehicle and he was not authorized to drive the vehicle unless he had beside him a person duly licenced to drive the vehicle which amount to violation of Terms and Conditions of the policy.

16.    After hearing both the parties, Hon’ble State Commission, elaborately said that the Insurance Company is right to repudiate the claim as that the driver cannot ply the vehicle without valid driving licence. Moreover, he cannot accompanied any against the capacity of two person including the driver, there was clear cut violation of the Terms and Conditions of the policy on the part of the Complainant. It is the same case in our hand is that Complainant does not possess a valid driving license to ply the vehicle. Moreover, the RTO of Gadag is deposed before the Forum while cross examining the learned counsel for the Complainant cleared that driver who was driving the vehicle in question does not possess a valid driving licence. Ofcourse, Complainant took contention that the driver of the vehicle in question can ply the vehicle, but after going through the record on file, Complainant utterly fails to prove his case. Hence, we answer Point No.1 in negative and Point No.2 also in negative. 

          17.  POINT No.3:  For the reasons and discussion made above and finding on the above points, we proceed to pass following:  

//ORDER//

1. This Complaint is dismissed. Parties have to bear their own costs.  

2.  Send a copy of this Order to both parties free of cost.  

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 22^nd day of July 2017)

 

 

 

Member

President