State Consumer Disputes Redressal Commission
Kotak Mahindra General Insurance ... vs Surjeet Khan & Anr. on 17 July, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.100 of 2023
Date of institution : 16.02.2023
Reserved on : 09.07.2023
Date of decision : 17.07.2024
1. Kotak Mahindra General Insurance Company Limited, H-78, 7th,
23 Himalaya House, Kasturba Gandhi Marg, New Delhi-110001.
2. Kotak Mahindra General Insurance Company Ltd., Jawaharke,
Tehsil and District Mansa, both through its authorized signatory
Mr. Milind V Myakal, Senior Vice President, available at 8th floor,
Kotak Infinity IT Park, General A K Vaidya Marg, Malad-East,
Mumbai, Maharashtra-400097.
.....Appellants/Opposite Parties No.1 & 2
Versus
1. Surjeet Khan aged about 23 years S/o Sh. Gani Mohammad,
Resident of VPO Dalel Singh Wala, Tehsil and District Mansa (Punjab).
....Respondent No.1/complainant
2. Rajpul Surveyor, Rajpoul Singh, DM & EE, Near Tinkoni, Namdev
Marg, G.T.Road, Bathinda, through its Managing Manager
....Respondent No.2/Opposite party No.3
.
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 03.01.2023 passed by the District
Consumer Disputes Redressal Commission,
Mansa in cc/40/2021
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member FA No.100 of 2023 2 Argued by:-
For the appellants : Sh. Sanjeev Goyal, Advocate
For respondents : Exparte
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the appellants/opposite parties No.1 & 2 against the impugned order dated 03.01.2023 passed by District Consumer Disputes Redressal Commission, Mansa (in short, "the District Commission"), whereby the complaint filed by complainant against opposite parties (in short 'OPs'), under Section 35 of the Consumer Protection Act, 2019, was partly accepted and the following relief has been granted:
"Resultantly, in view of the above, the present complaint is partly allowed and OP Nos. 1 & 2, jointly and severally are directed to pay the insurance claim amount as assessed by the Surveyor i.e. Rs.13,800/- to the complainant along with Rs.10,000/- as compensation and Rs.5000/- as litigation expenses. Complaint is dismissed against OP No.3 ".
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that the complainant got insured his vehicle i.e. 'Eicher Tractor' bearing registration No.PB31U-9076, from OPs No.1 & 2, vide policy/certificate No.1053753700 for a period from 23.01.2019 to 22.01.2020. Unfortunately, the vehicle in question met with an accident within the insured period and some of the parts of the vehicle were damaged. The complainant informed OP No.1 and ultimately, OP No.3 was appointed as Surveyor, who inspected the damaged accidental vehicle and on his FA No.100 of 2023 3 instructions, the complainant got repaired his vehicle and incurred expenses to the tune of Rs.24,561/- for purchasing new parts of the damaged vehicle. Thereafter, the complainant submitted his claim, vide claim No.10510001230 in the month of November, 2019 with OPs No.1 & 2 through OP No.3 but the claim has not been cleared by the OPs till date. The complainant also served legal notice dated 17.03.2020 upon the OPs but all in vain. Alleging deficiency in service, the complainant filed the complaint before District Commission and sought directions against the OPs to pay the total sum of Rs.24,561/- for purchasing new parts of the insured vehicle and further to pay Rs.50,000/- as compensation for harassment and mental agony and Rs.20,000/- as litigation expenses.
4. Upon notice, OPs No.1 & 2 appeared through counsel and filed joint written reply, and contested the complaint by raising certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, OPs No.1 & 2 stated that after getting the information on 13.11.2019 regarding loss caused to the insured vehicle, they appointed Mr. Rajpal Singh, IRDA approved Surveyor & Loss Assessor, who inspected the damaged vehicle on 14.11.2019 at M/s Moujia Auto Mobile Agency, Mansa. The complainant was asked to submit the driving license of Tota Khan, who was driving the vehicle at the time of alleged accident. However, the complainant did not submit the driving license of Tota Khan. The complainant submitted the estimate to the tune of Rs.23,700/- for repairing the tractor and the surveyor assessed the loss to the tune of Rs.13,800/- as per the terms and conditions of the policy and submitted his report dated 26.11.2019. FA No.100 of 2023 4 Thereafter, the complainant vide letter dated 13.12.2019 was asked to submit the DL of Tota Khan, but the complainant failed to supply the same. Therefore, the claim could not be settled and the OPs were ready to consider the claim subject to submission of driving license of Tota Khan and its genuineness thereof. After denying the other averments made in the complaint, the OPs prayed for dismissal of the complaint.
5. Notice of the complaint was also issued to OP No.3, who failed to appear to contest the complaint despite service, hence, he was proceeded against exparte.
6. The appearing parties led their evidence in support of their respective contentions and the District Commission after going through the record and hearing learned counsel for the parties, partly accepted the complaint of the complainant against OPs No.1 & 2 only, vide impugned order as above. Aggrieved with the same this appeal has been filed by the appellants /OPs No.1 & 2
7. Notice of the appeal was issued to the respondents through registered post. But respondents did not appear despite service, therefore, they were proceeded against exparte, vide order dated 17.04.2023.
8. We have heard learned counsel for the appellants and gone through the written arguments and record of the case.
9. Learned counsel for the appellants vehemently contended that the District Commission wrongly, illegally and without appreciating FA No.100 of 2023 5 the facts and submission made by the appellants, partly allowed the complaint of the complainant/respondent. The District Commission has failed to appreciate that the driving license of the driver Tota Khan was not valid at the time of accident. The accident in question took place on 13.11.2019 and the license of the driver was valid for the period from 05.02.2004 to 22.12.2016 for transport vehicle and upto 22.12.2018 for Non-transport vehicle. The license was expired on 22.12.2018 and was got renewed on 26.01.2020 i.e. after more than one year from its expiry and even after the date of accident. Therefore, there was clear cut violation of the terms and conditions of the policy as such no claim is payable, but despite that the District Commission partly allowed the complaint, which caused miscarriage of justice. The learned counsel further argued that the District Commission has lost sight on the fact that as per Section 15 of the Motor Vehicle Act, if the license is renewed within 30 days, then the same shall be effective from the date of its expiry, but in the present case, the DL was got renewed on 26.01.2020 i.e. after more than one year from its expiry. In support of his contentions the learned counsel for the appellants has relied upon the judgments of Hon'ble Supreme Court of India in the case of "Ram Babu Tiwari Vs. United India Insurance Co. Ltd." 2008(4) RAJ 664(SC), judgment of Hon'ble National Commission in the case of 'Chhimae Dolma Vs. National Insurance Company Ltd.', 2010 (1) CPC 713 and judgment of Karnatka High Court in case of 'United India Insurance Co. Ltd. Vs. Parvathi Hebbar and another', 2018 ACJ 1420 and prayed for acceptance of the present appeal by setting aside the impugned order. FA No.100 of 2023 6
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the appellants.
11. The admitted facts of the case are that the complainant got insured his vehicle i.e. 'Eicher Tractor' bearing registration No.PB31U- 9076, from OPs No.1 & 2, vide policy/certificate No.1053753700 for a period from 23.01.2019 to 22.01.2020, Ex.C-1. It is also not in dispute that the vehicle in question met with an accident during subsistence of the policy. The respondent/complainant alleged that after incurring expenses to the tune of Rs.24,561/- for purchasing new parts of the damaged vehicle, he submitted his claim, vide claim No.10510001230 with OPs No.1 & 2 through OP No.3 but the claim has not been cleared by the OPs despite repeated request as well as legal notice. Alleging deficiency in service, the respondent/complainant filed a consumer complaint before the District Commission, which was partly allowed vide impugned order as above. Aggrieved by the same the appellants/OPs No.1 & 2 filed the present appeal.
12. The main ground of appeal raised by the learned counsel for the appellant/OP is that the District Commission without considering the fact that the driver of the insured vehicle was not holding a valid and effective driving license at the time of accident, which is in violation of the terms and conditions of the insurance policy, has wrongly allowed the complaint of the respondent/complainant. To determine this controversy we have perused the pleadings, evidence placed on record by the parties as well as the impugned order. From the perusal of record, it is evident that the accident has taken place on 13.11.2019 FA No.100 of 2023 7 and the driving license of driver 'Tota Singh' was valid for the period from 05.02.2004 to 22.12.2016 for 'Transport Vehicle' and was valid upto 22.12.2018 for 'Non Transport Vehicle'. Accordingly, the license was expired on 22.12.2018 and the same was renewed on 26.01.2020 i.e. after more than one year from its expiry. Hence, it is duly established on record that the driving license of the Driver Tota Singh had already expired on the date of accident i.e. 13.11.2019. It is relevant to discuss here the 'Driver's Clauses' as mentioned under the terms and conditions of the policy, which is reproduced as under:-
"Driver's Clauses:- Any person including the insured: Provided that a person driving hold an effective Driving License at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learners' License may also drive the Vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules 1989."
The above said clause contemplates that apart from the insured, any other person, authorized by the insured could also drive the vehicle provided the person driving hold an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. As in the present case the driver of the insured vehicle had renewed his driving license on 26.01.2020, the provisions of Section 15(1) of the Motor Vehicle Act are also relevant, which are reproduced as under:-
"Section 15: Renewal of Driving Licenses--(1) Any licensing authority may, on application made to it, renew a driving license issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where application for renewal of a license is made more than thirty days after the date of its FA No.100 of 2023 8 expiry, the driving license shall be renewed with effect from the date of its renewal."
As per above Section 15 (1) of the Motor Vehicle Act, it is clear that if an application for renewal of license is made within 30 days of the date of its expiry, the license continues to be effective and valid without a break. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, the license is renewed only with effect from the date of its renewal, meaning thereby that in the interregnum between the date of expiry of the license and the date of its renewal, there is no effective license in existence. In the present case, as discussed above, on the date of accident i.e. 13.11.2019 the driving license of the driver Tota Singh had already expired and he got renewed the same from the licensing authority on 26.01.2020 i.e. after a lapse of more than 30 days from the date of its expiry i.e. 22.12.2018. Therefore, between the period 22.12.2018 to 26.01.2020, the driver had no valid and effective driving license. Accordingly, there is clear cut violation of the terms and conditions of the policy.
13. The learned counsel for the appellants, in support of his contentions, has relied upon the certain case laws in the case of 'Ram Babu Tiwari's Vs. United India Insurance Company (Supra), wherein the Hon'ble Apex Court has held; "A Motor Vehicles Act,1988, Sections 166, 147 and 149- Fatal Motor accident caused by negligence of Tractor Driver- Driver held a license which had expired 3 years earlier- It was renewed 10 days after accident- Held, driver did not hold valid driving license- Insurance Company not liable." In the case of 'Chhimae Dolma Vs. National Insurance FA No.100 of 2023 9 Company Ltd.(Supra), the Hon'ble National Commission has held:
"Consumer Protection Act, 1986 Sections 14(1)(d) and 2(1) (g) Insurance Claim-Driver's license- Driver's license was valid upto 20.08.2003, which was subsequently renewed w.e.f. 24.09.2003- Accident of vehicle occurred on 18.09.2003- It is well proved that driver had not valid driving license at the time of accident- Section 15 of the Motor Vehicle Act makes it clear that if application for renewal of license is not made within 30 days then renewal of license will not be valid from the back date- It will be effective from back date if application for renewal is filed within 30 days of the expiry date- Grace period given under Section 14 is not independent of Section 15 of M.V. Act- Jitender's Kumar case 2003(6)SCC 420 rightly distinguished by the State Commission- Order upheld." Also in the case of "United India Insurance Co. Vs. Parvathi Hebbar and another (Supra)" the Hon'ble Karnatka High Court held; "Motor Vehicles Act, 1988, Sections 147 and 149(2)(a)(ii) Breach of policy- Liability of Insurer- On date of accident driver of offending vehicle not having effective driving license- Liability fastened on Insurance Company contrary to law- Tribunal ought to have fastened liability on owner of vehicle having entrusted vehicle to person not possessing valid and effective driving license- Driving license renewed after three months of expiry of license- Subsequent renewal to come into operation only from date of renewal and not from retrospective period- Hence, judgment and award passed by Tribunal liable to be set aside and liability has to be fastened on owner of vehicle." FA No.100 of 2023 10
14. As per version of the appellants/Insurance Company there is violation of driver's clause mentioned in the terms and conditions of insurance policy and the respondent/complainant is not entitled to any claim. No doubt, in the present case, there is violation of the terms and conditions of the policy as license of the driver had been expired at the time of accident. The moot question arises before this Commission is as to whether in the case of violation of any condition, the insurance company is entitled to deny the claim in toto or not? In the present case, it was not the version of the appellants that the said accident had occurred due to negligence of the driver or driver was not having skill to drive the vehicle properly. The appellant had appointed surveyor, who submitted his reported dated 26.11.2019 (Ex.OP1-2/3). The surveyor has duly mentioned in his report that "while saving stray animal tractor become out of control and overtuned on right side water Khall." It means that there is no fault on the part of the driver and accident took place due to a stray animal coming infront. The appellant has relied upon judgment of Hon'ble Supreme Court titled as Ram Babu Tiwari (Supra) in support of his contention that in absence of a valid driving license the Insurance company is not liable to pay the insurance claim. This judgment is of the year 2008. In the same year, the Hon'ble Apex Court passed a judgment in case titled as "National Insurance Company Limited Vs. Nitin Khandewal" 2008(7)SCALE-351, wherein the Hon'ble Court relied upon judgment of "Jitendra Kumar v. Oriental Insurance Co. Ltd. & Another (2003) 6 SCC 420 and National Insurance Co. Ltd. v. Swaran Singh & Others (2004) 3 SCC FA No.100 of 2023 11 297 and in paras 9 and 10 of the said judgment the Hon'ble Apex Court observed as under:-
"9. The question then is; can the Insurance Company repudiate a claim made by the 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 licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(1)(ii) of the Motor Vehicle Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. 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.
The Honble Apex Court in case Nitin Khandewal (Supra) held that "In a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis." It was further held that "The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis."
15. The ratio of judgment of the Hon'ble Apex Court in case titled as "Amalendu Sahoo Vs. Oriental Insurance Co. Ltd." Civil Appeal No.2703 of 2010, decided on 25.03.2010 is also applicable in the present case, wherein it was held that "From a perusal of the FA No.100 of 2023 12 aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled where condition of policy including limitation as to use was breached." This judgment of the Hon'ble Apex Court is of the year 2010. It is pertinent to mention that Consumer Protection Act is a social benefit oriented legislation, which encourages adoption of liberal construction in favour of the consumer and above said judgment of the Apex Court are in favour of the consumers.
16. In view of the ratio of judgments of the Hon'ble Apex Court in the said cases of Nitin Khandewal and Amalendu Sahoo (Supra), the complainant is entitled to 75% of the claim as awarded by the District Commission as per the report of the surveyor. With regard to the award passed by the District Commission qua compensation and litigation expenses, we are of the view that since the respondent/complainant had not supplied the driving license to the appellants/OPs despite issuing the letter dated 13.12.2019, Ex. OP 1- 2/4, appellants/OPs are not deficient in service for non-processing of claim lodged by him. Hence, the respondent/complainant is not entitled for any compensation and litigation expenses. Accordingly, the impugned order dated 03.01.2023 passed by the District Commission is required to be modified. Hence, the appeal filed by the appellant is partly allowed and the impugned order is modified as under:-
a) OPs No.1 & 2, jointly and severally, are directed to pay 75% of Rs.13,800/- i.e. Rs.10,350/- (instead of Rs.13,800/- as awarded by the District Commission) to respondent No.1/complainant.FA No.100 of 2023 13
17. The appellant had deposited an amount of Rs.14,500/- at the time of filing the appeal with this Commission. This amount alongwith interest, which accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The parties may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
18. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER July 17, 2024.
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