BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.94/2008 Order dated this the 26th day of December 2008 COMPLAINANT/S Sri.Chaluvegowda S/o Late Narasimhegowda, R/o Sabbanahalli Village, C.A.Kere Hobli, Maddur Taluk, Mandya District. (By Sri.P.Linge Gowda., Advocate) -Vs- OPPOSITE PARTY/S 1. The Divisional Manager, Divisional Office II, The Oriental Insurance Co., Ltd., Muslim Hostel Complex, Saraswathipuram, Mysore. 2. Puttaswamy, Branch Officer, Oriental Insurance Company Ltd., Bandigowda Layout, Mandya. (By Sri.B.K.Shivalingaiah., Advocate) Date of complaint 10.09.2008 Date of service of notice to Opposite parties 23.09.2008 Date of order 26.12.2008 Total Period 3 Months & 3 Days Result The complaint is partly allowed directing the Opposite party to pay Rs.38,000/- with cost of Rs.1,000/- to the complainant within six weeks. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, to direct the 1st Opposite party to pay the repair expenses of Rs.38,000/- with damages of Rs.20,000/-. 2. The case of the complainant that he is the owner of the Hero Honda Motor Cycle bearing No.KA-11-S-889. The said vehicle was insured with Opposite party Insurance Company from 26.12.2007 to 25.12.2008. The said vehicle met with an accident on 07.03.2008 at about 3.30 p.m. near Hatna Village on Melukote Mandya Road. Due to the hit by canter bearing No.KA-01-B-6968 coming from the opposite side to motor cycle, the rider of the motor cycle i.e., the son-in-law of the complainant died at the spot and motor cycle was badly damaged. The rider has having LLR driving licence. In respect of the accident, Shivalli Police registered Crime No.18/2008 against the driver of said canter. Then, the complainant intimated the accident to the Opposite party. The vehicle was got repaired spending Rs.38,000/-. The Opposite party Company repudiated the claim of the complainant on the ground that on the date of accident, the rider of the motor cycle was not possessing valid DL. The Opposite party has not settled the claim. Therefore, the Opposite party has committed deficiency in service and therefore liable to pay cost of repair and damages of Rs.20,000/- for mental agony. 3. The Opposite party has filed version admitting the insurance of the vehicle, but denied that the rider of the motor cycle was having LLR. The deceased rider was not supposed to ride the motor cycle on main road only holding LLR and the pillion rider shall have valid driving licence. Since, the pillion rider was not having valid DL, the Opposite party has repudiated the claim of the complainant. Therefore, there is no deficiency in service and complaint is not maintainable and liable to be dismissed. 4. During trail, the complainant has filed affidavit and produced the documents Ex.C.1 to C.11. On behalf of the Opposite party, affidavit of one Officer is filed and documents Ex.R.1 to R.3 are produced. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the Opposite party has committed deficiency in service by not repudiating the claim? 2) Whether the complainant is entitled to the cost of repairs of the motor cycle and compensation? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that the complainant is the owner of the motor cycle which was insured with the Opposite party Company, valid from 26.12.2007 to 25.12.2008. The said vehicle met with an accident on 07.03.2008 when the son-in-law of the complainant was riding as a canter bearing No.KA-01-B-6968 dashed against the motor cycle and the rider of the motor cycle died at spot and the rider was having LLR at the relevant time and motor cycle was damaged. Spending of Rs.38,000/- for repairs of the motor cycle involved in the accident is not disputed by the Opposite party. The complainant has produced Ex.C.2, C.4 to C.8 to prove that he has spent Rs.38,000/-. The Opposite party has not got inspected the vehicle inspite of informing about the damage in the accident. The Opposite party has repudiated the claim on the ground that the driver of the vehicle does not possess the valid licence and also not complied with the Rule 3 of Central Motor Vehicle Rules 1989 as per Ex.C.1. The complainant has produced learner licence Ex.C.9 and as per this learner licence, the LLR holder is prohibited from driving any motor vehicle unless he has besides him a person duly licensed to drive the vehicle. As per the evidence of the complainant, the pillion rider is the brother of the son-in-law of the complainant who died in the accident and even pillion rider also died in the accident. According to his evidence, the pillion rider was possessing DL, but it could not be traced. According to the Opposite party, the complainant has given statement as per Ex.R.3 that the pillion rider was not possessing DL. But, the perusal of Ex.R.3 reveals that he has not stated that the pillion rider was not possessing DL, but what he has stated is that he could not trace the DL of the pillion rider. So, the burden is on the Opposite party to prove that the pillion rider was not possessing valid DL at the time of accident when admittedly the rider was possessing LLR. 9. In the decision reported in National Insurance Co., Ltd., -Vs- Swaran Singh reported in Accidents Claims Journal 2004 page 1, the Honble Supreme Court has held that the burden to establish the breach of policy terms lies on the insurance company and person, holder of learner licence is entitled to drive the vehicle. Further, it is important to note as to whether the driving of the motor cycle by holder of the learner licence is the main cause for the accident and there is violation of terms of the policy. In the above decision, it is held that mere absence or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party, to avoid its liability towards insured. The insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of the policy regarding driving use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. Further, even where 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 of the condition of driving licence is so fundamental as are found to have contributed to the cause of the accident. In this case, the Opposite party has not proved that the pillion rider was not possessing DL and the complainant has not exercised the proper care allowing the son-in-law to ride the motor cycle was possessing learner licence. Further, the Opposite party has not proved that the riding of the motor cycle by learner licence holder is the main cause for the accident. Admittedly, the police have registered the case against the canter as per Ex.C.10 and as per this document prima-facie accident was due to the rash and negligence driving by the driver of the canter and both the rider of the motor cycle and pillion rider died due to the accident. Therefore, the repudiation of the claim by the Opposite party is not just and proper and therefore, the Opposite party has committed deficiency in service. 10. The complainant has claimed Rs.38,000/- towards the cost of repairs, but Opposite party has not disputed the cost of repairs, but only repudiated the claim on technical ground. Therefore, the Opposite party is liable to pay the cost of repairs Rs.38,000/-. Though the complainant has sought for damages of Rs.20,000/- for mental agony, but there is no question of mental agony for mere repudiation. 11. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite party to pay Rs.38,000/- with cost of Rs.1,000/- to the complainant within six weeks. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 26th day of December 2008). (PRESIDENT) (MEMBER) (MEMBER)
