DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 16th day of May 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 07/02/2004
(C.C.No.27/2004)
1.Thankam Menon.
W/o.Late K.P.A.Mani Menon,
2.Anitha,
D/o.Late K.P.A.Mani Menon
3.Binod,
S/o.K.P.A.Mani Menon
4.Bejoy
S/o.Late K.P.Mani Menon
Residing at
Punjakode Kalam,
Thenkurissi (PO),
Palakkad District - Complainant
(By Adv.C.Madhavankutty)
V/s
1.The Oriental Insurance Co.Ltd.,
Branch Office, Kingway Building,
Mavoor Road Junction,
Calicut – 673 001
(Adv.P.Ramachandran)
2.Koyanco Motors,
Koyanco House,
West Hill, Calicut – 673 005 - Opposite parties
O R D E R
By Smt.SEENA.H. PRESIDENT
The matter was remanded back by Hon’ble State Commission for fresh disposal. Notice was sent to all parties. Notice against the complainant returned stating deceased. Later as per Order in I.A.319/11 legal heirs of the complainant was impleaded. The complainants herein are the legal heirs of the original complainant.
Complaint in brief:
The complainant’s car was insured with the 1st opposite party from 29/8/2002 to 28/8/2003. The said car met with an accident on 17/8/2003. A case has also been registered at Vadakkanchery Police Station. Complainant submitted claim form with 1st opposite party as his car was heavily damaged. 1st opposite party sent Surveyor and after his inspection and filing of report, the car was taken to 2nd opposite party for repair. The complainant has spent in all Rs.61,784/- The 2nd opposite party had gone back on their promise at the time of purchase of the car that they would not take any money from him and instead will claim amount from the 1st opposite party and hence it is made a party. Though all the documents were presented alongwith the claim form to the 1st opposite party, they have repudiated the claim on the ground that the driving licence is fake. The acts of the opposite parties amounts to deficiency in service and hence the prayer for allowing the complaint.
Opposite parties entered appearance and filed version. The version of 1st opposite party is as follows. The complaint is not maintainable in law. To the claim form received, a Surveyor was deputed who assessed the loss as Rs.44,466.13/-. There was correction in the driving licence and on verification it was found to be fake licence. Licence was not in the name of Abdul Rahman but another person. The licence was created after the accident in order to get the own damage claim and the ignorance of the driver was the reason for the accident. There is no deficiency in service and hence the prayer for dismissal of the compliant.
The 2nd opposite party filed version contending the following: The complaint is not maintainable in law. The opposite party is an unnecessary party. The 2nd opposite party repaired the vehicle to the satisfaction of the complainant and then provided all the bills for making necessary claim with 1st opposite party. The complainant has not suffered any damage on account of the opposite party and hence the prayer for dismissal of the complaint.
Complainant filed proof affidavit and marked Ext.A1 to A7 and B1 to B4. 2nd opposite party filed proof affidavit. After remand driving licence particulars were called for by 1st opposite party from Assistant Licensing Authority, Calicut. The document produced was marked as Ext.C1.
Now the issues for consideration are
1. Whether there is any deficiency in service on the part of opposite parties
2. If so, what is the relief and cost complainant is entitled to ?
Heard the parties.
Issue No1 & 2
There is no dispute as to the policy and happening of the accident within the coverage of the policy. The definite contention of the opposite party in not processing the claim of the complainant is that the complainant failed to produce the original driving licence of the driver who has driven the vehicle at the time of the accident and further accident occurred due to the fault of the driver. According to them, on verification of the copy of the driving licence, it was found to be fake / forged. When the case was earlier decided the contention of the opposite party regarding fake driving licence was not clearly proved and hence after remand opposite party called for the driving licence particulars from the licensing authority, Kozhikode. The document marked as Ext.C1 clearly shows that the copy of the driving licence produced by the complainant before the company was a fake one. Now the position is that the driver who has plied the vehicle at the time of the accident has no valid driving licence. Certainly it is a clear violation of the policy conditions. Another issue is that whether the owner of the vehicle is aware of the said fact at the time of hiring the driver. The owner as a reasonable man has the duty to check whether the driver possess a driving licenece. That has been done by the complainant in this case. In the year 2002-2003 there is no easy facility to check the validity of the driving licence via internet etc., as on nowadays. When an owner is hiring a driver, he will have to check whether the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the owner as a reasonable man will believe the same to be issued by a competent authority. If it ultimately turns out that the licence was fake, the insurance company could not absolve from its liability in toto, provided owner / insured was aware or had notice that licence was fake.
Further it was held in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., 11(2010) CPJ that the Insurance Company cannot repudiate the claim in toto even if there is violation of policy conditions. It was held that company should have settled the claim on non standard basis.
Complainant has claimed Rs.61,784/- by way of repair charges, but as per Ext.B2 surveyor report, Surveyor has assessed loss to the tune of Rs.44,466/-. We do not find any reason to discard Ext.B2. It is to be noted that the surveyor was not cross examined by the complainant in order to prove discrepancies in the report if any.
In view of the above stated facts and circumstances of the case, the act of 1st opposite party in repudiating the claim of the complainant in toto amounts to deficiency in service. We are of the view that award of 75% of the loss assessed by the surveyor to the complainant will meet the ends of justice. 2nd opposite party is exonerated from liability as there is no grievance set up against them.
In the result, complaint partly allowed. We direct 1st opposite party to pay Rs.33,350/- (Rupees Thirty three thousand three hundred and fifty only) (75% of Rs.44,466/-) to the complainant along with compensation of Rs.5,000/- (Rupees Five thousand only) and cost of Rs.2,000/- (Rupees Two thousand only). Order to be complied within 30 days from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 16th day of May 2012.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Insurance Policy Certificate
Ext.A2 series (3 nos) – Bills for repairs, labour charges, spare parts and fojing
charges
Ext.A3 – Letter from the opposite party for production of driving licence
Ext.A4 series (3 nos) – Lawyer notice with postal receipt and acknowledgment
Ext.A5 – Reply Notice
Ext.A6 – Registration Certificate (Photocopy)
Ext.A7 – GD Extract copy (Subject to proof)
Exhibits marked on the side of the opposite party
Ext.B1 – Claim Form
Ext.B2 - Loss assessor’s report
Ext.B3 – Letter from registering authority on extract of DL Register
Ext.B4 – Investigation report of insurance investigator
Court Exhibit
C1 – Driving licence particulars
Cost Allowed
Rs.2,000/- allowed as cost.
