(Passed this on 08th August, 2017)
Shri. S.P. Muley, President –
1. This is a complaint of deficiency in service against the Opposite Party, Oriental Insurance Company.
2. The complainant is owner of the vehicle No. MH-31-CB-5258, which was insured with the O.P.2, Chandrapur Branch of Oriental Ins. Co. for IDV Rs. 4,75,000/- for the period from 20/2/2011 to 19/2/ 2012. During subsistence of policy on 26/5/2011 the said vehicle loaded with Tendu leaves was plying within P.S. Chimur. There was overhanging electric cable on the road. The vehicle touched the low hanging 3 phase electric cable and caught fire. In the fire the vehicle was extensively damaged and was beyond repairs. The incident was immediately reported to O.P.1, who deputed a surveyor. After survey, the surveyor asked the driver to shift the vehicle to Nagpur for final assessment of loss. It was towed to one Auto works at Nagpur. An estimate of Rs. 9,91,400/- was given for repairs. He submitted it with claim form and documents to the OPs. A surveyor was deputed for final survey. The surveyor after survey did not find any fault of the driver and declared the vehicle as total loss. After some period the claim was repudiated on the ground that at the time of incident the driver did not hold valid driving license. In fact, the driver had valid license to drive the vehicle. Hence alleging repudiation as deficiency in service, he has claimed IDV Rs. 4,75,000/- with interest from the OPs along with compensation and cost.
3. The OPs by their reply admitted the ownership and insurance of the vehicle. The incident is also admitted. However it is stated the vehicle was over loaded with Tendu leaves and due to negligence of State Electricity Board (MSEB) in not keeping cables at proper height on road, it touched the leaves. Therefore the claim should have been made against MSEB or it should have been impleaded. It is denied the surveyor asked the complainant to shift the vehicle to Nagpur for final assessment. It is denied claim was made with documents. The claim was repudiated on the ground as stated by the complainant. Besides there was negligence of the driver in over loading the vehicle with Tendu leaves and MSEB was also negligent in not keeping the cable at proper height. It is therefore submitted to dismiss the complaint.
4. Heard both Ld counsels. Perused documents and affidavit. On that basis we record our findings with reasons as under.
FINDINGS AND REASONS
5. As per the repudiation letter dated 12/11/2012 the claim was repudiated on only one ground that the driver did not hold valid driving license at the time of accident. The insured vehicle was MGV Class and the driver was holding LMV-TR license. It is contended, he should have HGV-TR license to drive the vehicle. This fact is not denied by the counsel for the complainant that the driver was holding LMV-TR license. But he argued that the license had nothing to do with cause of accident and therefore repudiation on this ground is not justified. In other words, he submitted the accidental fire due to which the vehicle got damaged was not caused due to any act of the driver but was due to negligence of MSEB in not keeping its cable at proper height on road. The driver had not, in any manner, contributed in damaging the vehicle. Therefore, he contends the OPs are not justified in repudiating the claim on the ground of not holding valid driving license.
6. Hon´ble Supreme Court in the case of Jitendra Kumar v/s Oriental Insurance Co. Appeal (civil) 4647/03 decided on 17/7/2003 (SC) in similar set of facts, has held the insurance company cannot repudiate a claim made by a owner of the vehicle which is duly insured with the company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid driving license. It is further stated, it does not empower the insurance company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e damages incurred due to reasons other than the act of the driver.
7. In S. Iyyapan v/s United India Insurance Co. 2013 (6) Mh. L.J. 1 it is held, mere absence, fake or invalid driving license 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 the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one was not disqualified to drive at the relevant time.
8. In New India Assurance Co. v/s Roshanben Rahemansha Fakir, Civil Appeal No. 3496/08 decided on 12/5/2008 (SC) same view was taken that in each case, a decision has to be taken whether the fact of the driver possessing license for one type of vehicle but found driving another type of vehicle , was the main or contributory cause of accident.
9. Since this is the only issue involved in this case and the same is covered by the decisions cited above, suffice it to say that the OPs are not justified in repudiating the valid claim of the complainant on the ground of the driver not holding valid driving license. It is not necessary to go into other points of arguments as to who was negligent and whether MSEB was necessary party. This was never the ground for repudiation. Therefore issue of non joinder of necessary part does not arise. Even otherwise, MSEB cannot be a party in consumer dispute of this nature. It is not in dispute that the vehicle was a total loss. The IDV of the vehicle was Rs. 3,90,000/- as per policy certificate, which is admissible under the policy. The complaint is therefore allowed. Hence, the following order.
ORDER
- The complaint is allowed.
- The OP2, Oriental Insurance Company is directed to pay a sum of Rs. 3,90,000/- being IDV of the insured vehicle with 12% p.a interest from the date of filing of the complaint to the complainant.
- The OP2 is further directed to pay compensation of Rs. 15,000/- for mental agony and litigation cost Rs. 5000/- to the complainant
- the order shall be complied within 30 days from receipt of copy of the order.
- Copy of the judgment shall be given to both the parties, free of cost.
