The Manager, ICICI Lombard General Insurance Co. Ltd.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR. COMPLAINT NO. DCFR. 67/07. THIS THE 23rd DAY OF APRIL 2008. P R E S E N T 1. Sri. N.H.Savalagi, B.A.LLB. (Spl) PRESIDENT. 2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER. 3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER. ***** COMPLAINANT :- Masood Pasha S/o. Mohammed Hussain, Age: Major, Occ: Business, R/o. PWD Camp, Maski Tq. Lingasugur, Dist: Raichur. //VERSUS// OPPOSITE PARTY :- The Manager, ICICI Lombard General Insurance Company Ltd., Bellad & Co. 2nd Floor, Gokul Road, Hubli. CLAIM :- For direction for payment of Rs. 25,065/- along with 12% interest and for payment of cost. Date of institution :- 16-08-07. Notice served :- 22-10-07. Date of disposal :- 23-04-08. Complainant represented by Sri. Virupaxigouda, Advocate. Opposite Party represented by Sri. Ashok Konda, Advocate. ----- This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following. JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant-Masood Pasha against Opposite Party Manager ICICI Lombard General Insurance Company Ltd., Gokul Road, Hubli. The brief facts of the complaint are as under: The complainant is the owner, possessor and RC Holder of vehicle TATA ACE bearing No. KA-36/5329 as the insured the same with OP. under comprehensive Insurance Policy No. 3003/1035403/00/000 valid from 16-03-06 to 15-03-07. On 18-01-07 at about 4-30 PM the complainant and the driver Saleemuddin were proceedings towards Lingasugur in his vehicle and when it was proceedings near Singhashana Halla on Maski Lignasugur Road, at that time one vehicle bearing Registration No. KA-36/6046 came from opposite direction and hit to the vehicle of the complainant. Due to which the complainant and his driver sustained grievous injuries and his vehicle sustained damages on the right side and all valuable parts were damaged. Thereafter the complainant took his damaged vehicle to Gangavathi by transportation by spending more than Rs. 3,000/-. He got repaired his vehicle with Jayashree Motors. TATA Authorized Service Station Gangavathi wherein he spent Rs. 25,605/- for the repairs, replacement of parts etc., the policy was in-force at the time of accident. As per the subsistence, existence of the policy with the Ops, the complainant has submitted his claim for payment of damages. He submitted all the bills, relevant documents to which he is entitle to his claim and receive the damages in-respect of insured vehicle with OP. In-spite of submitting relevant documents and requests for payment of damages. The OP had issued a letter dt. 11-05-07 stating that since the driving licence was not valid at the time of accident, the ICICI Lombard has not any liability. In-respect of the payment of amount. This is totally in-correct. The complainant has submitted valid and effective driving licence of driver on the material date of accident who was holding the licence and in-view of the same the conclusion of the OP that driving licence was not valid at the time of the accident is totally false and untanable. The DL submitted was LMV and the said licence holder is authorized to drive the vehicle upto 7500 Kgs. This material aspect goes to show that the licence was valid. The attitude of the OP deprived the complainant of his legal and lawful entitlement of his legitimate claim. So there is deficiency of service by the Ops. Hence for all these reasons the complainant has sought for direction for payment of Rs. 25,065/- along with 12% interest and for payment of cost. 2. The OP appeared through counsel and has field written version denying that the vehicle bearing No. KA/36-6046 dashed against the complainant vehicle and as such his vehicle sustained damages. There is no document to show that the accident has occurred. Therefore the complainant is put to strict proof of the alleged accident by producing the police records. The allegations that after the accident the complainant has took his damaged vehicle to Gangavathi by paying transportation charges of Rs. 3,000/- and got repaired the vehicle by paying repair charges of Rs. 25,065/- are false and baseless. As per the policy terms and conditions, it is bounden duty of the insurer/complainant to inform the Insurance Company about the accident and the insurance company will send its surveyor to the accident spot and survey the damages of the vehicle on the spot itself. The complainant has not at all informed the OP about the accident at all only after getting the repaired of the vehicle as alleged. He submitted bills which is against the policy conditions. Hence there is negligence on the part of the complainant-himself. The driver Saleemuddin who drove the complainant vehicle was not having valid and proper licence who drove the vehicle in-question. The repair got to the vehicle in-question is not within the knowledge of the Ops. The bills and documents submitted in-support of the claim amount are all bogus one. So there is no negligence or deficiency of service on the part of the Ops. Hence for all these reasons the OP has sought for dismissal of the complaint with exemplary cost. 4. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief. In-rebuttal the OP has filed sworn affidavit of its Manager by way of examination-in-chief as RW-1. On behalf of complainant (13) documents were got marked at Ex.P-1 to P-13. On behalf of OP (2) documents at Ex.R-1 & R-2 were got marked. 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1.Whether the complainant proves deficiency of service by the Ops in not settling his claim by the Respondent, as alleged.? 2.Whether the complainant is entitled for the reliefs sought for? 6. Our finding on the above points are as under:- 1.In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. It is the case of the complainant that he is the owner of vehicle-TATA ACE bearing NO. KA-36/5329. On 18-10-07 at about 4-30 PM while his insured vehicle was proceedings near Singhashana Halla on Maski-Lingasugur Road, at that time one vehicle No. KA-36/6046 came from opposite direction and hit to his vehicle. Due to which himself and his driver Saleemuddin sustained grievous injuries and his vehicle sustained damages. It is also his case that his driver Saleemuddin was holding valid and effective driving licence on the date of accident. So the repudiation of his claim made by the Respondent Lamboard Insurance Company on the ground that his driver had no valid driving licence is totally false and illegal. The Respondent ICICI Lombard Insurance company has denied the alleged accident and as per the policy terms and conditions it is bounden duty of the insured complainant to inform the Insurance Company about the accident but the same was not intimated by the complainant. Further the driver Saleemuddin who drove the alleged vehicle was not having valid and proper driving licence to drive the vehicle in-question. Hence the claim of the complainant has been rightly rejected and there is no deficiency of service. The complainant and OP in their affidavit-evidence have reiterated their respective pleadings. 8. The complainant has produced in all (13) documents out of which Ex.P-4 is the copy of RC Book. Ex.P-7 is the certified copy of FIR with complaint. Ex.P-8 is the C.C. of charge sheet. Ex.P-9 C.C. of spot panchanama. Ex.P-10 is the M.V. Report. Ex.P-11 is the Repudiation letter dt. 11-05-07. Ex.P-13 is the copy of driving licence. Respondents have produced Survey Report at Ex.R-1 & Extract of driving licence at Ex.R-2. 9. From a perusal of copy of DL at Ex.P-13 and Extract of DL at Ex.R-2 it reveals that the driver Md. Saleemuddin was given driving licence bearing No. 251/03-04 to drive the LMV. The validity of the DL is from 03-05-03 to 02-05-2023. The Respondents have repudiated the claim of the complainant as per their letter dt. 11-05-07 vide Ex.P-11 on the ground that the driving licence was not valid at the time of accident. Admittedly the driving licence at Ex.P-13=Ex.R-2 shows that the DL issued to driver Saleemuddin is to drive Light Motor Vehicle. Section 2 (21) of the Motor Vehicle Act defines Light Motor Vehicle as: a Transport vehicle or Omni bus the gross vehicle weight of either of which or a Motor Car or Tractor or road-roller the un-laden weight of any which does not exceed 7500 Kilograms. Section 2 (47) of the Act defines Transport Vehicle as: a public service vehicle, a goods carriage and educational institution bus or a private service vehicle. The above said definitions makes it clear that a Light Motor Vehicle means and includes goods carriage and transport vehicle or Omni bus provided that the un-laden weight of any of which does not exceed 7500 Kilograms. According to RC Book produced at Ex.P-4 and survey report produced by the OPs at Ex.R-1, the registered un-laden weight of the vehicle in-question is 1550 Kilograms and thereby the weight of the vehicle is within 7500 Kilograms. So when according to Section 2 (21) of the Act a Light Motor Vehicle means and includes a transport vehicle and this transport vehicle means and includes a Goods carriage a Public or Private service as defined in section 2 (47) of the Act, we are at a loss to know as to how the driver of the insured vehicle was not specifically having a valid DL as contended by the OPs. This our view is supported by the decision of Honble High Court of Madhya Pradesh-Indore Bench reported in 2006 ACJ 2645 Head Note (which is based on decision of Honble S.C. in Swarna Singhs case) which reads as under:- Motor Vehicles Act, 1988, sections 149 (2) (a) (ii) and 3__ Motor Insurance__ Driving licence__Liability of insurance company__ Driver had licence to drive light motor vehicle but he was driving a Tempo which is a transport vehicle__Insurance company disputed its liability on the ground that licence of the driver had no endorsement to drive a transport vehicle__Person holding a licence to drive light motor vehicle has the authority to drive a transport vehicle of weight not exceeding 7500 Kg as per section 2(21) and such a transport vehicle can also be a public service vehicle as defined in section 2 (35)__Whether insurance company is exonerated from liability merely because the licence does not bear the endorsement required by latter part of section 3__ Held: no; there is no breach of condition specified in section 149 (2) (a) (ii) and at any rate that would not amount to a fundamental breach. In Para-6 of the above said judgement relying on the decision of Honble S.C. it has been observed as under:- In the three-Judge Supreme Court decision in National Insurance Co. Ltd., v. Swaran Singh, 2004 ACJ-1 (SC), it has been observed in para 36: We may also take note of the fact that whereas in section 3 the words used are effective licence, it has been differently worded in section 149(2) i.e, duly licenced. If a person does not hold an effective licence as on the date of accident, he may be liable for prosecution in terms of section 181 of the Act but section 149 pertains to insurance as regards third risks. Again in Para-38 it is said: The words effective licence used in section 3, therefore, in our opinion cannot be imported for sub-section (2) of section 149 of Motor Vehicles Act, we must also notice that the words duly licenced used in sub-section (2) of section 149 are used in past tense. In para-81 it has been held: Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder to drive the vehicle falling within that class or description. In Para 102 the Summary of findings has been recorded. As per clause (vi) of this summary: Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insurer under section 149(2) of the Act. Based on the decision of Honble S.C. the Madhya Pradesh High Court in Para-7 of above rulings it has been concluded as under: In view of the above discussions the correct legal position is that a person holding a licence to drive light motor vehicles as defined in section 2(21) has the authority to drive a transport vehicle of the description given in section 2(21). Any person who has the licence under section 10 to drive the light motor vehicle would be deemed to have the authority to drive transport vehicle not exceeding 7500 kg in weight. Such a transport vehicle can also be a public service as defined in section 2(35). The insurance company would not be exonerated from its liability under section 149(2) (a) merely because the licence does not bear the endorsement required by the latter part of section 3 of the Act. There would be no breach of the condition specified in section 149(2) (a) (ii) and at any rate that would not amount to fundamental breach within the meaning of the words used in para 102 (vi) in Swaran Singhs case, 2004 ACJ-1 (SC). Lack of the endorsement on the licence would not render the person holding a valid licence as person who is not duly licenced. 10. As stated earlier in the instant case, the D.L. at Ex.P-13/Ex.R-2 shows that the driver was authorized to drive LMV, therefore the principles laid down in the above said rulings are aptly applicable to the present case. Hence we do not find substance in the contention of the Respondent Company, that the driver was not authorized to drive the insured vehicle in-question and thereby he had no valid driving licence at the time of accident and that there is a violation of policy conditions. Consequently the repudiation of claim of the complainant on this ground itself shows deficiency in service by the OP as rightly contended by the LC for the complainant. Hence we hold that the complainant has proved deficiency in service by the Ops. Therefore Point NO-1 is answered in the affirmative. POINT NO.2:- 11. The complainant has sought for direction for payment of Rs. 25,605/- along with interest at 12% p.a. and cost of litigation. The complainant has produced payment of bills repair charges at Ex.P-1 to Ex.P-3. The survey Report produced by the OP at Ex.R-1 shows assessment of loss at Rs. 20,800/- as against the total estimate value at Rs. 54,559/-. So having regard to the facts and circumstances of the case, we feel it just and proper to accept the survey report for awarding assessment charges at Rs. 21,000/- along with a global compensation of Rs. 5,000/- towards loss and cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. The OPs shall pay Rs. 21,000/- towards assessment of loss of the damaged vehicle along with a global compensation of Rs. 5,000/- towards loss and cost of litigation. The Ops shall comply this order with in (6) weeks from the date of receipt of copy of this order. Office to furnish a copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-04-08) On Leave Sd/- Sd/- Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi, Member. Member. President, Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
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