State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs P. Subramaniam 1/231-A, East Street, ... on 28 February, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) F.A.NO.370/2008 (Against order in OP.NO.156/2006 on the file of the DCDRF, Coimbatore) DATED THIS THE 28th DAY OF FEBRUARY 2011 Bajaj Allianz General Insurance Co. Ltd., D No.11, Peoples Park, 3rd Floor Govt. Arts College Road Coimbatore- 18 Appellant/ Opposite party Vs. 1.
P. Subramaniam
2. Mrs. Vedathal W/o. Subramaniam Both residing at 1/231-A, East Street, Neelampudur, Coimbatore-641 014 Respondent/ Complainants The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay Rs.2,10,000/- towards compensation and cost. The District Forum allowed the complaint.
Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.1.2008 in OP.No.156/2006.
This petition coming before us for hearing finally on 28.2.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Opposite party : Mr.N. Vijayaraghavan Counsel for the Respondent/Complainant : M/s. A. Sivaji M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. The complainants son, by name Karuppusamy, who was the owner of the vehicle, bearing Regn. No.TN-37-X-0357, had taken insurance policy, with the opposite party, including personal accident coverage for owner-driver, for Rs.2 lakhs, which was in force, even on the date of the accident viz.
28.7.2004, in which the complainants son sustained injury and succumbed to the same. Based upon the Personal Accident coverage, when a claim was lodged, it was negatived/ repudiated by the opposite parties/appellants, on the grounds the son of the complaiant, who drew the vehicle, on the fateful day, was not possessing valid license, and therefore they are not answerable to the claim, which is unjustifiable, illegal, amounting to deficiency in service, and in this view, the complainant is entitled to the sum assured. For this purpose, a consumer complaint came to be filed.
3. The opposite party, admitting the insurance given by them, including the personal accident coverage, opposed the claim, that as per the conditions available in the policy, in order to claim personal accident cover, for owner-driver, he should have possessed valid
-effective driving license, in accordance with the provision of Rule 3 of the Central Motor Vehicles Rules, which he did not possess, that on that basis alone, repudiation was made, which cannot be termed as deficiency in service, thereby praying for the dismissal of the complaint, denying further averments also.
4. The District Forum considering the cases of the parties, as well some of the decisions relied on, came to the conclusion, that the opposite parties having accepted the proposal, which discloses that the complainants son was having valid license, not entitled to dispute the same, and the repudiation should be construed as negligent act, followed by deficiency in service. Further considering the proposal, it has further came to the conclusion, that the opposite parties cannot go against the contract, when they have received the premium for personal accident, in this view, a sum of Rs.2,05,000/- was ordered to be paid, alongwith cost as per the order dt.29.1.2008, which is under challenge in this appeal.
5. After filing of the appeal, it was reported, that the 1st complainant/1st respondent, by name Subramanian died, and his wife viz.
2nd respondent/2nd complainant, is on record. Therefore, recording the same, since cause of action survives, the appeal was taken for hearing.
6. The complainants son by name, Karuppasamy, was owning a Maruthi Omni Van TN-37-X-0357, for which he had taken insurance policy also, with the opposite party, not in dispute. Mr. Karuppasamy, while driving the vehicle on 28.7.2004, met with an accident, dashed against the lorry, or lorry dashed him, and in the said road accident, he sustained severe head injuries, followed by death. While taking insurance policy for the vehicle, admittedly he had paid a premium of Rs.100/-, towards personal accident, for owner/driver, which will assure Rs.2 lakhs, in case of road accident death. Based upon the said policy, the parents of the deceased, viz.
the complainants, lodged a claim, and the same was repudiated admittedly by the opposite party, on the ground that the driver was not having valid license, at the time of accident, and therefore there is violation of the conditions of the policy, and in that case, they are not liable to pay the sum assured. Because of this repudiation, a case came to be filed, ended in their favour, which is under challenge.
7. The District Forum, as rightly submitted by the learned counsel for the appellant, had misconstrued the terms and conditions of the policy, as if the personal statement given by the deceased is binding upon the insurance company, as if it forms part of the terms and conditions of the policy, forgetting the provisions of law, and the terms and conditions available to claim personal accident coverage also. In this context, we have to see, the policy and the statement given by the deceased.
8. Ex.A5, is the policy for the vehicle driven by the son of the complainant, and there is coverage PA cover, for owner-driver of Rs.2 lakhs, not in dispute.
This is not an unconditional assurance.
The policy holders manual says, that the driver should possess, effective driving license at the time of accident The owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules 1989, at the time of the accident . Subject to this condition alone, coverage for personal accident was given under the policy, not challenged before us. As recorded by the District Forum, while giving proposal, it appears, the owner of the vehicle has stated, as if he was having valid license. That will not amount to admission by the opposite party, regarding the validity of the license produced, having validity. Mere self declaration, on which basis insurance coverage issued, does not mean, that the insurance company is not entitled to challenge the same. If really, the complainants son was having four wheeler driving license, nothing would have prevented the complainant, from producing the same. Assuming that because of the death of their son, the complainants were unable to produce the original certificate, nothing would have prevented the complainants, from obtaining certificate from the appropriate authority, viz. license issuing authority, which was not done in this case. But, as seen from Ex.A6, the driving license of driver Mr.Karuppasamy, was only valid for two wheeler, and not authorized, to drive four wheeler, and to this effect, affidavit also filed. Therefore, if really Karuppasamy was possessing valid effective license, to drive four wheeler, that should have been produced, and for non-production, a reasonable adverse inference can be drawn, as if Karuppasamy, had no valid license, while driving the vehicle, and that is why the same was not produced, thereby, indicating that there was breach of policy condition, on which basis, the claim was rightly repudiated by the opposite party, which was not properly appreciated by the District Forum. Even before this commission, when we have questioned the learned counsel for the complainant, to produce the license, he failed to produce the same. When some decisions were relied on by the opposite party, to support the defense, the District Forum very conveniently ignored the same, observing that the cases are not directly related to the facts of the present case, which appears to be improper appreciation of the law. Before this commission also, the learned counsel for the appellant brought to our notice, a decision of the Supreme Court in National Insurance Company Ltd., Vs. J. Maheshwaramma, in C.A.No.3408/2009, wherein distinction has been made between personal claim and 3rd party claim, observing that in case of personal claim or own damage, a valid license is a must, which dictum is squarely applicable to the present case. For the above said reasons, we conclude, that the driver viz.
Karuppasamy, the son of the complainant, since had no valid effective license to drive four wheeler, met with an accident, and under the policy, the insurance company is not entitled to compensate, though they have collected the premium, which was not properly appreciated, making this appeal meritorious.
9. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.156/2006 dt.29.1.2008, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
J. JAYARAM M. THANIKACHALAM JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Insurance