State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs Shri. Mangesh Dattaram Chavan on 21 December, 2018
A/15/35 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/35
(Arisen out of order dtd.11/09/2014 in Complaint No.12 of 2013 of District
Consumer Disputes Redressal Forum, Ratnagiri)
The New India Assurance Co. Ltd.,
Through The Branch Manager,
Branch Ratnagiri Office, Javkar Plaza,
Jaistambha, Ratnagiri, .....Appellant/
Tal. and Dist. Ratnagiri. (Original Opponent)
Versus
Shri. Mangesh Dattaram Chavan,
R/at - House No.1729, Teli Ali, .... Respondent/
Taluka and Dist. Ratnagiri (Original Complainant)
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.A.K. Zade, Member
PRESENT: Advocate Mr.D.R. Mahadik for appellant.
Advocate Mr.Ajay Pawar for respondent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal is filed against the order dtd.11/09/2014 passed by District Consumer Disputes Redressal Forum, Ratnagiri by which the Appellant/ Opponent was directed to pay insurance claim on non-standard basis i.e. Rs.2,33,933/- to Complainant alongwith interest @ 9% p.a. with effect from the date of filing complaint till realization. Appellant/Opponent was also directed to pay Rs.10,000/- towards compensation for mental and physical harassment and Rs.3,000/- towards cost of complaint. Appellant/Opponent was also directed to comply the said order within a period of 45 days failing which Complainant may file application under Section 25 and 27 of the Consumer Protection Act.
2) As per Complainant, brief facts of the case are as follows -
A/15/35 2Complainant was owner of Maruti EECO Vehicle bearing No.MH-08- R-7014. The said vehicle was insured with New India Assurance Co.Ltd., Branch Ratnagiri. The period of insurance was 11/01/2011 to 10/01/2012. The said vehicle met with an accident on 11/05/2011 at Khedashi Naka, Ratnagiri because of dash by truck coming from opposite side due to fault of truck driver, who was driving it negligently. At the time of accident the Complainant's abovesaid car was being driven by Late Mr.Rajkumar Ram Sharma who died in the said accident.
3) Thereafter, Complainant informed Opponent/Insurance Company who appointed surveyor. After the accident, the said vehicle was parked at Jagrut Motors, Ratnagiri, which was the authorized service centre of the manufacturer company i.e. Maruti Udyog Ltd. The surveyor inspected the said vehicle and submitted report to insurance company according to which Complainant was expecting to receive an amount of Rs.3,11,911/- towards the above claim. On enquiry with Opponent-Insurance Company in June/July, 2011, the Complainant was told that he will get insurance claim for loss within few days and will be intimated accordingly by letter. However, Complainant received letter dtd.05/08/2011 from Opponent/ Insurance Company, according to which the claim was repudiated for the reason that driver late Mr.Rajkumar Sharma was not having valid motor driving license while driving the car at the time of accident.
4) As per Complainant, said Mr.Rajkumar Sharma was an expert driver and had driving license dtd.25/01/2005 and was closely known to the Complainant through friend circle and the said driver was freely visiting Complainant's house and was familiar with his wife and other family members. As said late Mr.Rajkumar Sharma was good driver, Complainant had used his service on Complainant's said car twice in February, 2011, while going out of town with family and at that time said Mr.Sharma had a valid driving license. On the date of subject accident i.e. on 11/05/2011, Complainant had gone to attend marriage of relative of some known person A/15/35 3 at 10.00 a.m. and his wife and his son were in the house. After the marriage function was over, Complainant went back to home. At that time, as he did not find his vehicle outside his home, he asked his wife about it, who told him that said late Mr.Rajkumar Sharma had come to the house at about 11.00 a.m. and asked for the said car for going out to some place and was asking for key of the vehicle. Wife of Complainant told Mr.Sharma to ask Complainant for it and then to take the vehicle out. However, said Mr.Sharma took key of the said car, which was hanging on wall in the hall and took the vehicle out saying that he had urgent work at place Nivali and will bring the car back at about 3.00 p.m. and although Complainant's wife was not allowing him to take the said vehicle, he had taken the said vehicle out. Complainant therefore, submitted that there is no deliberate negligence on his part and even if it is admitted that the driver was not having valid driving license at the time of accident, even then, it is true that he had valid driving license earlier and had experience and expertise in driving the vehicle and therefore, non-holding of valid driving license was not the root cause of accident and there was no nexus between cause of accident and the alleged validity of driving license. Complainant further submitted that Opponent insurance company had caused deficiency in service by repudiating the claim of Complainant in the above situation without any valid and justified reason because of which Complainant had suffered mental and physical harassment and therefore, it was necessary to direct Opponent to pay the claim of Rs.3,11,911/- as per surveyor's report. Complainant also stated that the said vehicle was lying at Jagrut Motors, Ratnagiri, mentioned above and even if the Forum holds that there was breach of conditions of insurance policy by Complainant, it was necessary to direct Opponent to pay 75 % of the above compensation amount as 'non standard claim'. Complainant therefore, prayed for direction to Opponent/Insurance Company to pay the amount of Rs.3,11,911/- towards compensation for damages as per the surveyor report alongwith 9 % p.a. with effect from 11/05/2011 till realization or if it is held that the A/15/35 4 Complainant had caused breach of condition of policy for the reason that the said driver had no valid license while driving the vehicle at the time of accident, then to direct Opponent to pay 75 percent of the above amount of Rs.3,11,911/- as non standard claim alongwith interest @ 9% p.a. from the date of filing of complaint till realization. Complainant also prayed for compensation of amount of Rs.25,000/- towards mental and physical harassment and Rs.10,000/- towards cost of complaint.
5) Opponent resisted the claim by filing written statement denying the averments and allegations of the Complainant except those admitted. As per Opponent, there was no deficiency on its part, as it had appointed the surveyor immediately on receiving written complaint from Complainant about the said accident, to assess the amount of damages by inspecting the said vehicle. Thereafter, while examining documents relating to claim of Complainant, it was observed that the driver of said vehicle Mr.Rajkumar Ram Sharma was not having a valid driving license at the time of accident while driving the vehicle. As per Opponent, insurance contract between Complainant and Opponent requires the person driving the insured vehicle to have a valid and effective driving license at the time of driving the vehicle. Breach of this condition is not only breach of terms and conditions of insurance policy but also the breach of provisions of Motor Vehicle Act, 1988. Opponent further submitted that, in such situation, Opponent was not liable to pay any claim or compensation for damages to Complainant and accordingly, Opponent had repudiated the claim. Opponent also submitted that the claim which cannot be paid as per law, demand for the same by Complainant is totally illegal and even the claim on non-standard basis of 75% amount is also not payable for the said reasons. Opponent therefore, prayed for dismissal of the complaint with cost of Rs.25,000/-.
6) After going through the record and hearing arguments, Ld.District Forum passed the impugned order which is the subject matter of this appeal.
A/15/35 57) Appellant filed this appeal on the ground that error in impugned order is apparent on record as liability has been saddled on Opponent although it was not accrued because of breach of policy condition. Appellant also mentioned that as per policy, the insured was not indemnified if the vehicle was used or driven otherwise than in accordance with stipulations in schedule which provides that driver including the insured must hold valid and effective driving license as provided under the Law/Motor Vehicle Act/Rules. Another ground of appellant is that there is Exception Clause No.III (b) of the policy which clearly stipulates that the persons or classes of persons are entitled to drive vehicle subject to holding valid and effective driving license to avail benefits. As per appellant, the Ld.District Forum erred in holding that 'Complainant/Insured was not at fault as he was not able to verify validity of driving license of driver and it was not necessary to make enquiry about driving license of driver employed by him', although it observed that 'driving license had expired before the accident and the same was not renewed at the time of accident.' Thus, the Ld.District Forum although admitted that there was breach of conditions of insurance policy, allowed complaint on non-standard basis. As per appellant, Complainant clearly admitted in claim form that the said driver Rajkumar Ram Sharma was a paid driver and it was a concocted story by Complainant that driver took vehicle without his consent. The appellant therefore, prayed for allowing the appeal and setting aside/modifying the order of the Ld.District Forum.
8) Perused record. Heard arguments on behalf of the parties.
9) It is an admitted fact that the said vehicle at the time of accident was being driven by the person who was not having a valid driving license at the time of accident. It is not the case of Complainant/Respondent that the said vehicle was stolen or that it was taken out by force from the possession of Complainant. The said driver was known to Complainant and his family, who used to drive Complainant's vehicle as paid driver and the said driver A/15/35 6 had taken key of vehicle and also the vehicle from house of the Complainant in presence of his wife and son. In our opinion it is the responsibility of Complainant/vehicle owner to keep the vehicle and its keys in safe custody and not to allow a person not having the valid driving license to drive the said vehicle and it was necessary for the vehicle owner/Complainant to ensure that the person driving the vehicle had valid driving license. We have gone through the relevant Policy Schedule-cum-Certificate of Insurance in respect of the subject vehicle. The said certificate clearly mentions Persons or classes of persons entitled to drive Any person including the insured provided that a person driving holds an effective driving license at the time of the accident.
The Ld.District Forum had held that the said driver Mr.Rajkumar Ram Sharma had taken the vehicle without permission from the Complainant and at that time it was not possible for Complainant to ensure whether the said driver was having license or not. We do not agree with this observation of the Ld.District Forum as the key and vehicle was taken from the house of Complainant in presence of his wife and son and it is not the case of Complainant that the said vehicle was taken out of his possession by theft or by force or if it was so, then there is no police report or any other evidence to that effect. On the other hand, the Complainant himself had contended in complaint that the said driver was freely visiting Complainant's house and was familiar with his wife and other family members. Hence, it can be well presumed that the said vehicle was driven away by the said driver in a routine manner with consent-express or implied of the Complainant.
10) During arguments, advocate for appellant cited five judgments/orders in support of his contentions. The first judgment/order cited is the order of this State Commission in First Appeal No.388 of 2010 dtd.12/10/2010, in which, it was held that such concession (relating to non-renewal of license due to illness of father of driver) cannot be given once it is admitted that on the date of accident, the driver was not holding any effective and valid A/15/35 7 driving license and therefore there was no service deficiency on the part of insurance company in repudiating the claim. This Commission therefore, allowed the appeal and set aside the order of District Forum and dismissed the complaint. Another judgment cited is the order of Hon'ble National Commission reported in 1996 (I) CPR 78 in Revision Petition No.39 of 1995 decided on 24/01/1996, in which, the Hon'ble National Commission held that ".....when the accident occurred, the driver of the vehicle was not holding an effective and driving valid license. The insurance company was therefore, fully justified in repudiating its liability in respect of claim put forward by Complainant." The Hon'ble National Commission therefore allowed the petition filed by the insurance company and set aside the order of the State Commission and restored the order of the District Forum dismissing the complaint. The third judgment cited is also of Hon'ble National Commission in Revision Petition No.228 of 2011 decided on 01/05/2013. In this case the driving license of the driver expired on 26/01/1995 and was later renewed from 26/09/1995 and thus, was not valid on the date of accident i.e.04/02/1995. Thus, the driver was not having valid and effective driving license at the time of accident. The Hon'ble National Commission allowed the petition filed by the insurance company setting aside the order of District Forum and State Commission holding that 'Complainant was not entitled to claim any compensation from petitioner' and dismissed the complaint. We find ratio in the above three judgments is applicable in the instant case, as in the instant case also, the person driving the vehicle was not having effective and valid driving license at the time of accident. The fourth judgment cited is the order of this Commission dtd.06/04/2015 in First Appeal No.A/11/363 in which the appeal filed by the insurance company was allowed and the consumer complaint was dismissed for breach of the policy condition relating to carrying passengers in goods vehicle and the repudiation was held valid. We find that the ratio is applicable only to the extent of breach of condition of policy as facts are different. The fifth judgment filed on behalf of appellant is the judgment of A/15/35 8 Hon'ble Supreme Court reported in 1966 A.C.J. 267 in Civil Appeal No.886 of 1963 decided on 07/02/1966. The said judgment is related to the cancellation/ termination of the policy and therefore, we do not find the ratio applicable in the instant case.
11) Thus, in light of the above judgments and in view of above discussion, we hold that the appellant insurance company is justified in repudiating the claim of Complainant for the reason that the driver of the vehicle was not having a valid driving license while driving the said vehicle at the time of accident. We further hold that the Ld.District Forum erred in awarding the claim of the Complainant on non-standard basis for the above reasons and also in light of the above judgments having ratio applicable in the instant case, as the Complainant is not entitled to get claim even on non-standard basis and also other reliefs because of breach of policy condition. We therefore, hold that the impugned order needs to be set aside. We therefore, pass the following order. -
ORDER
(i) Appeal No.A/15/35 is partly allowed.
(ii) The order of the Ld.District Consumer Disputes Redressal
Forum, Ratnagiri in Consumer Complaint No.12 of 2013,
dated 11/09/2014 is set aside.
(iii) The Consumer Complaint No.12 of 2013 before the District Consumer Disputes Redressal Forum, Ratnagiri is dismissed.
(iv) No order as to cost.
(v) Copies of this order be furnished to the parties.
Pronounced on 21st December, 2018.
[Justice A.P.Bhangale]
President
[A.K.Zade]
Member
aj