By Sri. Chandran Alachery, Member:
The complaint filed under section 12 of the Consumer Protection Act of 1986 for order directing the Opposite Parties to pay a sum of Rs.5,68,699/- towards the complete repair charges of the damaged vehicle and to pay a sum of Rs.1,75,000/- as compensation and cost of the proceedings.
2. The Complainant's case in brief as follows:- The Complainant's car bearing registration No.KL12/E/3268 met with an accident on 03.02.2012 at about 6 AM at Beenachi, Near Sulthan Bathery. Due to the accident, the vehicle was completely damaged. The accident was intimated duly to the police station, Sulthan Bathery and it was recorded in the general diary. The vehicle is covered by full cover policy and the coverage period is 09.04.2011 to 08.04.2012. The accident was also intimated to the Insurance company without delay. The vehicle was then entrusted with Marina Motors for repair. The above Marina Motors calculated the damages and informed the insurance company that an amount of Rs.5,68,699/- is required for repair of the vehicle. Thereafter, when claim form submitted by the Complainant to the opposite parties, the opposite Parties refused the claim with unreasonable grounds. The Complainant and his family are depending the income from the vehicle for their livelihood. The Complainant was getting Rs.1,000/- per day income from the vehicle. Due to the non-co-operation of the Opposite parties the vehicle was kept idle for 7 months and Rs.1,75,000/- is the total loss sustained to the Complainant. Aggrieved by this, the complainant filed this complaint for his redressal.
3. On receipt of complaint, notices were issued to the Opposite Parties and Opposite Parties appeared before the Forum and filed version. In the version the Opposite Parties contented that at the time of accident the driver of the vehicle was not having valid driving licence to drive the passenger carrying commercial vehicle. The Opposite Parties admitted the insurance coverage of the passenger carrying vehicle No. KL 12E 3268 and the policy was valid from 09.04.2011 to 08.04.2012. The Opposite Parties contended that a claim was made for own damages by the Complainant before the Opposite Party stating that one Habeeb. P.K, S/o Koyali, Rahiyath Manzil, Kartikulam, Wayanad was driving the vehicle at the time of accident. The Complainant did not produce the driving licence of the driver and thereafter produced the licence. On verification of driving licence, it is found that the licence to drive transport vehicle expired on 15.12.2011. The driver renewed his licence to drive transport vehicle only on 04.02.2012. The accident happened on 03.02.2012 and so at the time of accident the driver of the vehicle was not having a valid driving licence to drive a passenger carrying commercial vehicle. The Opposite Parties repudiated the claim on 17.08.2012. The Opposite parties have deputed a surveyor to assess the loss and as per the survey report, the liability of the Opposite party is Rs.2,70,836.43 only.
4. On going through the complaint, documents of Complainant and Opposite parties and evidence of both parties, the Forum raised the following points for consideration.
1. Whether there is deficiency of service from the part of Opposite Parties?
2. What order as to cost and compensation?
5. Point No.1:- The Complainant produced proof affidavit and is examined as PW1 and Exts. A1 to A9 are marked. Opposite Parties filed witness list and is examined as OPW1 and Exts.B1 to B5 are marked. Ext.A1 is the certificate issued by Sub- Inspector of Police, Sulthan Bathery with regard to general diary entry of accident. Ext.A2 is the receipt issued by the KSEB for the remittance of work amount, Ext.A3 is the estimate issued by Marina Motors to the Complainant with regard to the work done by them, Ext.A4 is the photocopy of Registration certificate of vehicle, Ext.A5 is the copy of driving licence of One Habeeb. P.K who had drove the vehicle at the time of accident, Ext.A6 is the copy of insurance policy of the vehicle, Ext.A7 is the copy of permit, Ext.A8 is the copy of Tourist Permit, Ext.A9 is the repudiation letter issued by the insurance company to the Complainant. Ext.B1 is the certificate issued by the Sub Inspector of Police, Sulthan Bathery and Ext.B2 is the claim form submitted by the Complainant to the insurance company. Ex.B3 is the copy of permit, Ext.B4 is the Survey Report, Ext.B5 is the driving licence particulars. On going through the complaint, version it is found that the passenger carrying vehicle No. KL 12E 3268 was having valid insurance coverage with Opposite party and the policy was valid from 09.04.2011 to 08.04.2012. The case of the Complainant is that at the time of accident, the vehicle was driven by one Mr. Habeeb. P.K. The Complainant submitted claim application with the Opposite Party for own damage to the vehicle. The driving licence produced before the Opposite party shows that the licence to drive transport vehicle expired on 15.12.2011. The licence was seen renewed only on 04.02.2012. The accident happened on 03.02.2012. So the Opposite Parties repudiated the claim due to the reason that the insurance policy is a contract and the complainant violated the terms of contract. The Opposite Parties stated that the Complainant violated the contract by allowing a person to drive the vehicle who does not have valid driving licence to drive a transport vehicle. The Forum while verifying the records and evidences found that in this case, the driver Mr. Habeeb. P.K was holding a valid driving licence to drive a transport vehicle up to 15.12.2011. The validity expired on 15.12.2011. But it was renewed on 04.02.2012. The accident took place on 03.02.2012. As per records and evidences adduced by both parties, there is absolutely no evidence before the Forum to prove that the accident had happened due to the absence of authorisation /badge has contributed to the cause of accident. So it is not the absence of authorisation/badge had contributed to the cause of accident. The driver Mr. Habeeb. P.K is a qualified driver to drive a transport vehicle. The only thing is that the validity of licence is expired on 15.12.2012. The Complainant had produced a ruling reported in 2013(4)KLT Page 700, the Hon'ble High Court of Kerala by Hon'ble Mr.Justice Thomas P Joseph in Kuruvila V/S Jijo Joseph's case ruled that Motor Vehicle Act 1989 Section 149(2)(a)(ii) and 3, the Insurer cannot avoid its liability in the absence of “Effective licence”, unless there is proof that the absence of authorisation/badge has contributed to the cause of accident, the insurer is not absolved of its liability to the third parties or its duty to indemnity the insured. Here, the Opposite Parties collected premium from the Complainant for third party risk as well as own damages. So the insurer cannot say that they are not bound to pay own damage to the Complainant. Another ruling by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, reported in CPF 2014(1)CPR 400 (NC), the Hon'ble National Commission ruled that as per section 21(b) of CP Act of 1986, vehicle insured damaged in a road accident. Repudiation of claim-complaint – allowed by District Forum – Appeal- allowed by State Commission revision petition, admittedly driver was not in possession of valid and effective driving licence at the time of accident. It is well settled that whenever a driver did not have a valid and effective driving licence at the time of accident, the claim could not be honoured impugned order passed by state commission based on a correct appreciation of the facts and circumstances on record as well as the legal preposition governing the issue. No illegality, irregularity or jurisdictional error found in the impugned order of the State Commission so as to warrant interference. Revision petition is dismissed in the above case it is found that the driver who had driven the vehicle had no valid and effecting driving licence at the relevant time of accident. The driver was a holder of driving licence to drive only motor cycle, LMV etc., and had no driving licence to drive a transport vehicle heavy goods vehicle. The driver was granted heavy goods vehicle and transport vehicle licence only on 09.11.2009. The accident took place on 29.06.2009. This ruling is not applicable in this case. In this case, the driver who had driven the vehicle at the time of accident was a person holding an effective driving licence with badge up to 15.12.2011. The validity expired on 15.12.2011. It was renewed on 04.02.2012. At the time of accident, the validity of licence was not there. It does not mean that the driver do not have the knowledge and efficiency to drive the transport vehicle at all. The renewal of licence is only a technicality. More over, the accident is not occurred due to the absence of valid and effective driving licence to drive a transport vehicle at the time of accident. Opposite Parties not produced any evidence to this aspect. Opposite Party appointed a surveyor and the surveyor assessed the total loss to the vehicle is Rs.3,47,087/- . After deducting depreciation, the total payable amount is Rs.2,70,836/- only according to the Opposite Parties. Opposite Parties are ready to pay that amount to the Complainant. Here the vehicle is insured for Rs.4,00,000/-. The maximum liability of the insurer is Rs.4,00,000/- only. According to the Complainant, the total loss sustained to the vehicle is Rs.5,68,699/-. The model of the vehicle is 2010. The accident took place in the year 2012. So the vehicle was nearly two years old and reasonable depreciation can be calculated. The total depreciation calculated by the Surveyor of the Opposite Party is Rs.76,251/-. But the Surveyor calculated the labour charges as Rs.39,570/-. The actual labour charges incurred by the Complainant is Rs.68,000/-. The Opposite Parties cannot deduct any amount as depreciation over labour charges. So the Complainant is entitled for the difference of Rs.28,430/- also. So the calculation of total claim is:-
Total insured value payable by the Opposite Parties - Rs. 4,00,000/-
Less total depreciation calculated by the Surveyor - Rs. 76,251/-
Total Balance - Rs. 3,23,749/-
Add difference in labour Charges - Rs. 28,430/-
Net balance payable - Rs. 3,52,179/-
6. Therefore, the Forum found that the Complainant herein is entitled to get Rs.3,52,179/- towards the total claim. The Opposite Parties failed to calculate the claim amount properly and to disburse the amount to the Complainant. So the Forum found that there is deficiency of service from the part of Opposite Parties in dealing with this matter. So point No.1 is found accordingly.
7. Point No.2:- Hence point No.1 is found against the Opposite Party, The Opposite Parties are liable to pay cost and compensation to the Complainant.
In the result, the complaint is partly allowed and the Opposite Party No.1 and 2 are directed to pay a sum of Rs.3,52,179/- (Rupees Three Lakh Fifty Two thousand One hundred and Seventy Nine) only with 12% interest from the filing of the complaint till realisation to the Complainant. The Opposite Parties No.1 and 2 are jointly and severally liable to pay the amount. More over, the Opposite Parties are directed to pay a sum of Rs.2,500/- as compensation and Rs.1,000/- (Rupees One thousand) only as cost of the proceedings. The Opposite Parties are directed to pay the above amounts to the Complainant within 30 days of the receipt of this order.
Dictated to the C.A transcribed by him and corrected by me and pronounced in the Open Forum on this the 28th day of May 2014.
Date of filing: 15.11.2012.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
A P P E N D I X
Witness for the Complainant:
PW1. Abdul Shukoor Complainant.
Witnesses for the Opposite Parties:
OPW1. Jinu Anthrayos Manager, Reliance General Insurance
Company Ltd.,
OPW2. Ramjeesh. P. Insurance Surveyor.
Exhibits for the Complainant:
A1. Certificate. dt:31.10.2012
A2. Letter.
A3. Estimate dt:07/02/2012.
A4. Copy of Registration Certificate.
A5. Copy of Driving Licence.
A6. Copy of Reliance Passenger Carrying Vehicle Certificate cum Policy
Schedule.
A7. Copy of Permit in respect of all India Tourist Vehicles dt:21.06.2010.
A8. Copy of Authorisation dt:18.07.2011.
A9. Letter. dt:17.08.2012.
Exhibit for the Opposite Parties:
B1. Certificate. dt:04.02.2012.
B2. Motor Claim Form.
B3. Copy of Permit in respect of all India Tourist Vehicles dt:21.06.2010.
B4. Copy of Survey Report.
B5. Copy of Driving Licence Particulars.
