Date of Filing:16.03.2009<br /> Date of Order:14.07.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 14TH DAY OF JULY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 605 OF 2009<br /> A. Ranganath<br /> S/o. Appajappa<br /> R/at No. 21, Nagenahalli<br /> Begur Post, Hosakote Taluk<br /> Bangalore Rural District<br /> Bangalore Complainant<br /> V/S<br /> The Reliance General Insurance Co.<br /> No. 28, 5th Floor, East Wing<br /> Century Building, M.G. Road<br /> Bangalore 560 001 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant stating that he is owner of Eicher Goods Vehicle bearing No. KA 53 5597. Vehicle was insured with the opposite party. The vehicle met with accident on 06.08.2008 and the vehicle was damaged. Opposite party inspected the vehicle and instructed the motor company and complainant to get the vehicle repaired and promised to refund the amount. The estimate of repair is Rs. 1,62,930/-. Opposite party did not pay the claim amount stating that driver had no valid driving license. Complainant submitted that driver was having valid driving license. Opposite party company had again issued renewal notice to the complainant. Complainant is put to untold hardship and made to run from pillar to post without any relief. Therefore, the complainant prayed for grant of Rs. 2,00,000/- with compensation. <br /> 2. Notice was issued to opposite party. Opposite party appeared through advocate and filed defence version stating that the vehicle Eicher is a MGV vehicle bearing No. KA 53 5597 was insured with the opposite party for the period from 12.032008 to 11.03.2009 and policy was issued. The gross weight of the vehicle is 8,800 kgs. Immediately after receipt of the survey report and vehicle documents the claim of the complainant was considered and same was repudiated by letter dated 08.01.2009. As per the documents furnished driver of the vehicle was having DL of Driving Light Motor Vehicle (Transport) below 7500 kgs. for the period from 11.06.2007 to 10.06.2010. The DL was issued by the RTO, K.R. Puram, Bangalore. The vehicle in question was Medium Goods Vehicle. Therefore, there is no valid and effective DL on the day of accident. Hence, opposite party is not liable to pay compensation. It is the case of the opposite party that if the Hon’ble forum were to come to the conclusion that the opposite party as to consider claim of the complainant the same can not be beyond the amount as assessed by the surveyor in his report.<br /> 3. Respective parties have filed affidavit.<br /> 4. Arguments are heard.<br /> 5. The points for consideration are:<br /> 1. Whether the repudiation of the claim by the opposite party is justified in this case?<br /> 2. Whether the complainant is entitled for the refund amount as assessed by the surveyor in his report?<br /> 6. It is admitted case of the parties that the complainant had insured his Eicher Goods Vehicle No. KA 53 5597 with the opposite party and opposite party had issued policy. The effective date of policy period was from 12.03.2008 to 11.03.2009. It is also admitted fact that the said vehicle met with the accident on 06.08.2008 and damage was caused to vehicle. The vehicle was left with the garage for repair and as per the repair estimate the complainant is claiming Rs. 1,62,930/-. Complainant has put up the claim but the opposite party unfortunately repudiated the claim. The only defence taken by the opposite party is that the driver of the vehicle was having DL to drive LMV transport vehicle. The vehicle in question was being medium goods Vehicle (MGV), therefore, there was breach of DL clause. On that ground the opposite party rejected the claim of the complainant. It is admitted case of the opposite party that driver of the vehicle was having LMV (Transport) driving license as on the date of accident. The complainant has produced the driving license to show that driver is having LMV DL which was in force or valid from 11.06.2007 to 10.06.2010. The complainant has produced Goods Carriage Permit issued by the RTO, K.R. Puram, Bangalore in respect of vehicle No. KA 53 5597. As per this Goods Carriage Permit unladen capacity of the vehicle is shown as 5700 kgs. and laden weight of the vehicle is shown as 8,800 kgs. Under definition clause of Light Motor Vehicle as per the Motor Vehicle Act 1988 Sec 2 (21) “Light Motor Vehicle” means transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. So as per the definition of Light Motor Vehicle the present vehicle KA 53 5597 comes under Light Motor Vehicle only because the RTO has clearly mentioned in the Goods Carriage Permit unladen weight of the vehicle was 5700 kgs i.e. it does not exceed 7,500 kgs as per the definition. So on this ground the repudiation of the claim put up by the complainant is not justified and proper on the part of the opposite party. Secondly, admittedly, the driver was having driving license and as per the opposite party, the driver was holding LMV and the vehicle involved was MGV. Therefore, on that technical ground the claim was repudiated. The Hon’ble Supreme Court in 2004 ACJ 1 in National Insurance Co. Ltd. Vs. Swaran Singh & Others. In the full court judgement it has been held as under:<br /> “Motor Vehicles Act, 1988, section 149 (2)(a)(ii) – Motor Insurance – Driving license – Defences available to insurance company – Whether – insurance company in order to avoid its liability towards insured 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 of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time – Held;: yes; mere absence, fake or invalid license or disqualification of the driver for driving, are not in themselves defenses available to the insurance company:. <br /> <br /> “Motor Vehicles Act, 1988, section 149(2)(a)(ii) – Motor insurance – Driving license – Defences available to insurance company – Driver possessing license for one type of vehicle but found driving another type of vehicle – Whether liability of insurance company would depend upon the fact that driver not possessing requisite type of license was the main or contributory cause of accident or not – Held: yes; insurer will not be allowed to avoid its liability merely on technical breach of conditions concerning driving license”.<br /> <br /> “Motor Vehicles Act, 1988, section 149 (2)(a)(ii) – Motor insurance – Policy – Breach of – Driving license – Insurance company established breach on the part of insured concerning policy condition regarding holding of a valid license by the driver or his qualification to drive during the relevant period but the breach was not so fundamental as found to have contributed to the cause of accident – Whether the insurance company exempted from liability – Held: no; 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”.<br /> <br /> 7. In view of the above authority of law in this case also it is very clear the breach if any is not fundamental or important so as to repudiate the claim. The learned counsel for the opposite party referred to us a decision of Hon’ble Supreme Court of India reported in 2008 CPJ 1 (SC). I have gone through the said judgement very minutely and in detail. In that case the driver was having DL to drive Light Motor Vehicle (LMV) and the vehicle involved in that case was Heavy Motor Vehicle (HMV). Apart from that the DL was not having endorsement authorizing the driver to drive transport vehicle. Therefore, on that ground the Hon’ble Supreme Court had come to the conclusion that the complainant is not entitled for the claim. But in the present case the facts are entirely different. The vehicle involved in this case is Medium Goods Vehicle (MGV) and admittedly, the driver was having DL to drive Light Motor Vehicle with endorsement as transport vehicle. Therefore, the facts of the case are entirely different from those cases relied on by the learned advocate for the opposite party. Therefore, I am of the opinion that that Hon’ble Supreme Court judgement will not come to the help of opposite party in this case to repudiate the claim of the complainant. Consumer Protection Act is a social and benevolent legislation. It is intended to protect better interests of the consumers. The insurance company cannot avoid its liability to pay the lawful claim by taking a very technical and inconsequential defence. Therefore, repudiation of claim in this case is wholly unjustified. The complainant has put up claim for Rs. 1,62,930/-. But he has not produced acceptable and legal evidence in support of his claim. However, the opposite party had appointed surveyor. The surveyor after inspecting the vehicle submitted survey report. The surveyor has assessed the damage to the vehicle to the tune of Rs. 52,627.50. The opposite party in his fairness has clearly stated in the defence version if the Hon’ble court were come to conclusion that opposite party is liable to pay compensation the same cannot be beyond the amount as assessed by the surveyor in his report. So under these circumstances and taking into consideration of all the facts and circumstances of the case it is just, fair and reasonable to direct the opposite party to settle the claim and pay Rs. 52,627/- to the complainant. Since, there is delay in settling claim, the complainant is entitled for interest at 10% p.a. on that amount from date of repudiation of the claim from January 2009. In the result I proceed to pass the following:<br /> ORDER<br /> 8. The complaint is allowed. The opposite party is directed to pay Rs. 52,627/- along with 10% interest on that amount from January 2009 till payment / realisation within 30 days from the date of this order. <br /> 9. The complainant is also entitled for Rs. 4,000/- as costs of the present proceedings from the opposite party.<br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. Pronounced in the Open Forum on this 14TH DAY OF JULY 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />