PER SHRI.S.S. PATIL – HON’BLE MEMBER-
1) This is the compliant regarding deficiency in service on the part of Opposite Party as it repudiated the insurance claim of the Complainant on frivolous ground such as, the driver of the damaged vehicle was not having an effective driving license.
2) The facts of the complaint as stated by the Complainant are that the Complainant is holding a license issued by the State Transport Authority renting the motor cabs on rent a cab Scheme floated by the State Government in the year 1981. Accordingly the Complainant is conducting this business under the said license. Under this license, any person holding a valid driving license is entitled to drive the vehicle as a hired cab. It was also contended by the Complainant that it is not necessary to have a permit or badge for driving such cab/car. The Complainant was required to keep a fleet of number of vehicles as it was their business to give vehicles with or without driver as per the requirement of their clients. The Complainant owns 100 such vehicles meant for its business and all these vehicles are duly insured with Opposite Party since last 20 years and more.
3) The Complainant has further submitted that one vehicles, Mercedes Benz bearing registration M.V. No.MH06-S-7777 was owned by it and was covered under Policy No.020900/3104/01055 issued by the Opposite Party for a period from 29/09/04 to 28/09/05 for the sum of Rs.18,70,000/-.
4) On 05/04/05, the above said insured vehicle met with an accident at Pedder Road, Mumbai. It’s right front portion got damaged. At this time, the vehicle was driven by the employee (Supervisor) of the Complainant (Name of the driver – Mr. Raghu Raghavan). He was holding a valid driving license No.MH02-92-6051511. The Complainant intimated the accident to the Opposite Party. Then Opposite Party appointed their surveyor to assess the loss caused to the vehicle. Thereafter, the Complainant repaired the damaged vehicle as per the advice of the Opposite Party. M/s. Sanghi Motor Car Co. repaired the vehicle and raised a bill of Rs.2,29,879. The Complainant paid the bill to the repairer and then lodged its claim with the Opposite Party. inspite of several correspondence with Opposite Party, it did not reimburse the claim of the Complainant and finally, the Opposite Party vide its letter dtd.02/12/05 repudiated the claim of the Complainant arbitrarily saying “The driver of the vehicle which met with an accident, was not having the specific authorization to drive a Public Service Vehicle as it is necessary in terms of Rule 4(1) of the Maharashtra Motor Vehicle Rules, 1989 applicable through out Maharashtra. It was also mentioned that, the insured vehicle was registered as Light Motor Vehicle (LMV) and also as a tourist Taxi and Tourist Vehicle is necessarily is a public service vehicle as per definitions in Motor Vehicle Act, 1988. The person driving the vehicle at the time of alleged accident required specific authorization to drive a public service vehicle. Mr.Raghu Raghavan was not having such authorization. Hence he was not having an effective driving license at the time of the said accident. This is a breach of terms of the contract of policy. The claim also falls under Gen exception 3(b) of the policy. Hence, the claim is repudiated.”
5) The Complainant also made correspondence with the Regional Transport Authority on the subject. It also issued a notice to the Opposite Party to reimburse the claim amount but, Opposite Party did not pay the amount of claim. The Complainant has further stated that the cause of action is continuous but it has also filed a separate application for condoning the delay in filing the complaint.
6) Finally the Complainant has prayed for reimbursement of the claim amount of Rs.2,29,879/-, Rs.2 Lacs as compensation and Rs.25,000/- as the cost of the complaint. The Complainant has attached xerox copies of the following documents along with the complaint.
i) License for renting motor cab.
ii) Insurance Policy for period from 29/09/2004 to 28/09/2005.
iii) Letter dtd.02/12/2005 issued by the Opposite Party to the Complainant.
iv) Notice dtd.03/03/2007.
v) Letter dtd.18/06/07 to the Complainant.
7) The complaint was admitted and notice was served on the Opposite Party. Opposite Party submitted its written statement cum affidavit wherein it is stated that the complaint is not maintainable as per condition 7 of the passenger carrying commercial vehicle package policy. This condition 7 reads as follows –
“it is agreed and declared that if the company disclaim liability to insured for any claim hear under and such claim shall not, within twelve calendar months from the date of such disclaimer have been made the subject matter of a suit in a Court of Law, the claim shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”
8) The complaint was lodged on 23/05/08 so the right is extinguished by the above condition no.7. It was also contended by the Opposite Party that the complaint is barred by the period of limitation U/s.24A of the Consumer Protection Act, 1986.
9) It is further contended by the Opposite Party that it had issued “Passenger carrying commercial vehicle package policy” to the Complainant. The policy was subject to observance of terms and condition, exclusion and exception as stated therein. The Opposite Party has also clarified that, it has appointed the surveyor to assess the loss (damage) to the vehicle and the same was of Rs.1,70,000/- and not as claimed by the Complainant.
10) The Opposite Party has further stated that the driver of the vehicle, who was driving the vehicle at the time of accident, was having a driving license to drive H.G.V. Vehicle. The vehicle MH-06-S-7777 is a public service vehicle (Tourist Taxi). As per Motor Vehicle Act, 1988 and Maharashtra Motor Vehicle Rules, 1989, the driver should have the endorsement on the driving license to drive public service vehicle. As per the policy condition, the driver Mr.Raghu Raghavan had no effective and valid driving license to drive the said vehicle. The Opposite Party repudiated the claim on 02/12/2005.
11) The Opposite Party has clarified that the copy of the license for renting the motor cab enclosed by the Complainant does not mention that under this license any person holding a driving license issued by the competent authority is entitled to drive the vehicles as hire cab. The vehicle involved is a tourist taxi and the driver was not having the effective required license to drive this tourist taxi. Finally it is averred by the Opposite Party that there is no deficiency on its part or it has not indulged in any unfair trade practice as alleged by the Complainant. It was prayed by the Opposite Party that complaint be dismissed with cost.
12) The Opposite Party has attached the xerox copies of the passenger carrying commercial vehicle package policy claim form, R.C. Book, Authorization for tourist permit Form No.47, Permit of Tourist Vehicle. Driving license of Mr.Raghu Raghavan, Tax Invoice Report 6378, Bill check report, Repudiation letter, Letter dtd.16/09/2005, Letter dtd.09/12/2005, Definition of Public Service Vehicle, Driving license, Appendix XIV, Sec.10 & 11 of M.V. Act, Rule 4, an authorization to drive public service vehicle Form LPS A, etc.
13) The delay in filing the compliant has been condoned by this Forum vide its’ order dtd.28/11/2008.
14) Both the parties have filed their written arguments wherein they have reiterated the facts mentioned by them in the complaint and written statement. We heard both the Ld.Advocates for the Complainant and Opposite Party and perused all the papers submitted by both the parties. Our observations are as follows -
15) The Complainant owned the Public Service Vehicle i.e. MH06-S-7777 which was insured with the Opposite Party under passenger carrying Commercial Vehicle Package Policy No.020/900/3104/01055. During the validity of this policy, the vehicle met with an accident and got severely damaged. The Opposite Party was informed by the Complainant. The Opposite Party had appointed surveyor who assessed the loss caused to the vehicle and gave his report to the Opposite Party. The surveyor assessed the loss to the tune of Rs.1,70,000/- only. The Complainant got the vehicle repaired. The cost of this repair work was Rs.2,29,879/-. The Complainant then filed his insurance claim of Rs.2,29,879/- with the Opposite Party. The Opposite Party scrutinized the claim and repudiated the claim on 02/12/05 stating the reason that, the driver who was driving the vehicle at the time of accident (05/04/05) was not having the effective driving license. As per the Opposite Party, the damaged vehicle is a public service vehicle and driver, driving this vehicle requires a specific authorization to drive the said vehicle as per Rule 4(1) of the Maharashtra Motor Vehicle Rules, 1989. Mr. Raghu Raghavan, the driver of the damaged vehicle was not having this specific authorization to drive the public service vehicle MH06-S-7777. Since he was not having the effective driving license as per terms of the above said policy the insurance claim of the Complainant was repudiated.
16) From this contention it is clear that the driver Raghu Raghavan was having the driving license to drive a H.G.V. Vehicle but he was not having the specific authorization from the competent authority to drive a public service vehicle. However, in this respect the Complainant has produced one judgement of Hon’ble High Court, Orrisa AIR 1999 Orissa 78 in National Insurance Co. Ltd. V/s. Raisabibi and Others in which the head note reads as follows -
“Motor Vehicle Act (59 of 1988) Ss 147 9, 28 – Orissa Motor Vehicle Rules (1993) R 71 – Insurer’s liability - Driving license indicating driver was authorized to drive a transport vehicle – Mere non issuance of public service vehicle badge to driver – Does not render driving license invalid hence, insurer cannot escape its liability on ground that driver had no valid driving license.” We have perused the driving license of Mr. Raghu Raghavan thoroughly and it is mentioned in this license page no.33 that “The license to drive motor vehicles other than transport vehicles is hereby renewed from 09/02/2004 to 08/07/2007. This certainly shows that, the driver Mr.R.Raghavn was not having even a driving license to drive the transport vehicle. In the case cited by the Complainant in support of his case stated above, the driver was having a basic license to drive a transport vehicle. Therefore, the ratio is not applicable to the case in hand and it is clear that Mr.Raghu Raghavan was not having the license to drive a transport vehicle nor he was having a badge as required under Rule 4 of Maharashtra Motor Vehicle Rules. Therefore, it is clear from the above facts that the driver, who was driving the vehicle at the time of accident, was not having effective and valid driving license.
17) The other contention of the Opposite Party is that there was breach of condition 7 of the insurance policy issued to the Complainant as the Opposite Party had disclaimed (repudiated) the insurance claim of the Complainant on 02/12/05 and the complaint was filed on 04/06/08 i.e. after 2 and half years after the repudiation of the claim. The policy condition 7 specifically stipulates that, “It is agreed and declared that, if the Company shall disclaim the liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been made the subject matter of a suit in Court of Law, then the claim shall, for all purposes, be deemed to have been abandoned and shall not thereafter be recoverable hereunder.” Thus taking into consideration this condition, the claim of the Complainant has been extinguished by virtue of the above said agreed stipulation and declaration.
18) The Opposite Party has produced the Hon’ble Supreme Court judgement (1997) 4 Supreme Court cases 366 in National Insurance Co. Ltd. V/s. Sujir Ganesh Nayak & Co. and another. The Head note reads as follows –
A “Contract Act, 1872 – S.28 – condition in insurance policy relieving the insurer from liability for loss or damage unless the claim was raised before the expiry of the specified period from the happening of the loss or damage – validity such a condition even if the period specified therein was shorter than that prescribed by the statute for filing a suit for that purpose, held, not hit by S-28. Case law reviewed – Limitation Act, 1963 – Art 44(b) – Insurance – General Insurance.”
B “Contract Act 1872 – S. 28 – Forfeiture clause in insurance policy – validity – stipulation in insurance policy that – unless an action or suit was commenced within the period specified therein after the rejection of claim of the insured, by insurer, all benefits under the policy would cease – such stipulation even if the period for commencing an action or suit provided therein was shorter than provided in the limitation law, held, valid and effective – cause law – reviewed – Limitation Act, 1963 Art 44(b) Insurance – General Insurance.
C “Contract Act, 1872 – S – 28 – Curtailment of period of limitation otherwise provided in law not permissible but extinction of the right itself unless exercised within a specified time is permissible. Contract containing a provision that a right if not claimed by a suit within the period specified therein would stand extinguished – such provision, even though the period specified therein eventhough shorter than the period of limitation, provided in the Limitation Act – nonetheless valid – Limitation Act, 1963.
19) In the case in hand condition 7 has extinguished the right of the Complainant to file the compliant if not filed within 12 months from the date of disclaiming the insurance claim of the Complainant. Therefore, in view of the above said judgement of the Hon’ble Supreme Court, the right of the Complainant has been extinguished and therefore, the Opposite Party is not liable to reimburse the amount of claim payable to the Complainant. Therefore, in view of the above said judgment of the Hon’ble Supreme and the observations mentioned in para no.16 above we do not find merit in the complaint as the right of the Complainant has been extinguished by non action on the part of the Opposite Party itself in stipulated time limit agreed and declared in policy condition no.7. Therefore, we pass the following order –
O R D E R
i)Complaint No.92/2008 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
