State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd., vs Karthiyani, on 15 October, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/726 (Arisen out of Order Dated null in Case No. of District None) 1. NEW INDIA ASSURANCE COMPANY ...........Appellant(s) Versus 1. KARTIANI ...........Respondent(s) BEFORE: SMT.A.RADHA PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 726/2011
JUDGMENT DATED 15.10.2012
PRESENT:-
SMT. A. RADHA : MEMBER
APPELLANT The New India Assurance Co. Ltd., P.B.No. 14, M.O. Ward, Near Town Hall, Alappuzha.
. ( Rep. by Sri. Adv. M. Nizamudeen) Vs RESPONDENT Karthiyani, Sree Shylam, CMC - 16, Cherthala, Alappuzha. (Rep. by Sri. Adv. S. Reghukumar) JUDGMENT SMT. A. RADHA : MEMBER
This appeal is preferred by the opposite party against the order passed by CDRF, Alappuzha in C.C. No. 207/2008.
2. The complainant, a senior citizen, is the registered owner of the Ambassador car registration No. KL-4-M-1881 and the same was insured with the opposite party. On 03.10.2006, the complainant had to go for treatment. On that day as the driver was on leave her son-in-law took her to the dispensary along with his wife for the treatment. On way back from the hospital, the car met with an accident and the accident was informed to the opposite party. The surveyor inspected the vehicle and prepared a report regarding the damages. A claim form filed was repudiated on the ground of violation of the policy conditions. She had to meet the entire repair expenses for an amount of Rs. 84,697/- A lawyer's notice was issued on 29.05.2008 to the opposite party. The opposite party was not prepared to disburse the insurance claim. The act of the opposite party amounted to deficiency in service and is liable to pay adequate compensation for mental agony. The complainant claimed Rs.50,000/- towards compensation and also the repair charges from the opposite party.
3. The opposite party filed version contending that there is no deficiency in service on their part and the claim was repudiated on valid reasons based on the policy conditions. It is contended that at the time of accident the person who was driving the vehicle had no valid driving license. The vehicle involved in the accident was a taxi. The person who drives a transport vehicle should possess badge to drive the vehicle. Further the fitness certificate of the vehicle expired early on 27.2.2006. The contract of indemnity and comprehensive coverage insist strict compliance of conditions. The driver of a transport vehicle must have the authorization with a badge to drive such vehicle and the vehicle must have a valid fitness certificate also to ply in the road. As these two documents were absent, it is violation of policy conditions under the M.V. Act and rules.
4. The evidence consisted of oral testimony on behalf of the complainant as Pw1 and documents marked as Ext. A1 to A7. The manager of the opposite party was examined as Rw1 and Exts B1 to B7 were marked. It is not in dispute regarding the accident or the policy. During the material time of accident, there is a valid policy whereas the person who was driving does not have a badge to drive the vehicle. The son-in-law of the complainant was using the vehicle for personal purpose. As per the Policy certificate the Forum found that 'a person holding an effective valid Learner's License to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicle Rule. 1989'. On close reading, the person holding license or Learners license at times can drive other such vehicles provided the vehicle is not used for transporting passengers. Hence the Forum below came to the conclusion that the vehicle was purely using for personal purpose and the question of badge for the person who drive does not arrive in this case. Regarding fitness certificate also the Forum took as advantageous as it was used for personal purpose. Further the surveyor assessed the damages to the tune of Rs. 21,000/- whereas the claim submitted by the complainant was for Rs. 84,697/- During the time of evidence the surveyor was not mounted to box nor filed any affidavit to prove in evidence. The opposite parties had not proved their case properly and the Forum below allowed the complaint in favour of the complainant.
5. The counsel for the appellant vehemently argued that the person who does not have a badge is not permitted to drive a transport vehicle and the Insurance Company is not liable to indemnify the claim. The driver of this vehicle was only having a light motor vehicle license . Further the vehicle being a taxi, Section 3 of the MV Act requires holding of valid driving license which is very material in a case and Section 5 also declares that owner of person in charge of the motor vehicle can cause or permit any person which does not satisfy the provisions of Section 3 to drive a vehicle. Section 66 prohibits owner of a motor vehicle to use or to permit the use of motor vehicle as a transport vehicle in any public space is same in accordance with the conditions of permit granted by an appropriate authority. The counsel relied on the decision in New India Assurance Company Vs. Prabhu Lal 1(2008)CPJ 1(SC). He also referred to the decision of the High Court of Himachal Pradesh in New India Assurance Company Ltd., Shimla Vs. Suraj Prakash & others(2006) 4 SCC 250 wherein the vehicle involved in an accident was taxi, a public service vehicle. But the license issued was in favour of the driver was to ply light motor vehicle and there was no endorsement to drive transport vehicle. Hence the Hon'ble High Court found that the Insurance Company can not be saddled with the liability to pay compensation to the claimant. The Counsel also pointed out the decision of the Hon'ble High Court in Thara Vs Syamala 2009(2)KLT 707 wherein the vehicle involved in the accident did not have a valid fitness certificate or permit at the time of accident. Section 149(2)(a)(i)(c) of the Act provided that the Insurer can escape from liability if the vehicle at the time of accident was used for a purpose not allowed by the permit where the vehicle is a transport vehicle. The permit and fitness certificate had expired prior to the date of accident. Hence it will entitle the insurer to dishonor liability under the policy.
6. Further the assessment made by the surveyor is only Rs. 21,000/-. Admittedly as there is no valid license to the person who had driven the vehicle at the time of accident and also lack of fitness certificate to the vehicle involved in the accident certainly is entitled the Insurance Company to dishonor the liability in the policy.
7. The learned counsel representing the respondent submitted that the complainant who was a senior citizen was taken for urgent treatment by the son-in-law. After admitting the complainant in the hospital on way back home, the vehicle met with the accident. In the instant case, the vehicle was used exclusively for personal purpose. Though it is a taxi, it was not used as a transport vehicle. The complainant itself narrated with the reason for using the vehicle for personal purpose. He also brought our attention to the M.V. Act Section 3, wherein a person holding an effective and valid license is entitled to drive the vehicle when it is not used for transport of passengers. So it goes without saying that the person who drove the vehicle at the time of accident who is having a valid driving license is entitled to drive the vehicle if it is used for personal purpose. Now coming to the second objection raised by the Insurance company is with regard to the fitness certificate. It is true that the vehicle does not have fitness certificate at the time of accident. A breach of condition does not carry away from the indemnification of the Insurance Company to own the claim. The fitness certificate for a transport vehicle is intended to carry with regard to the number of passengers in the transport vehicle. In this case the complainant and his wife was only travelling at the time of accident. So the number of persons travelling in the vehicle is not a hindrance with regard to the fitness of the vehicle. Further the Ext. A1 is the Inspection Report produced in evidence from the Motor Vehicle Inspector who certified that the vehicle does not have any mechanical defect. A1 is issued by the motor vehicle inspector which was not objected by the Insurance Company/opposite party. So the vehicle is fit to drive as a transport vehicle. The Counsel also pointed out that it was admitted in the version that the driver at the time of accident is none other than the son-in-law of the complainant and moreover the vehicle had no mechanical defect as revealed by AMVI Report. The policy is a contract of indemnity. The counsel also pointed out that he had incurred Rs. 84,697/- as repair charges which was not disputed by the opposite parties. In the version the opposite parties submitted a surveyor assessed the damage to Rs. 21,000/- only which was not proved in evidence. In the absence of any affidavit or survey report nor the evidence adduced from the part of surveyor, the claim is to be entertained reasonably. The counsel also urged that the claim amount is to be allowed in toto.
8. On an overall view of the matter, this Commission finds that there is force in the argument put forth by the respondent/complainant which is to be countenanced. It is settled law that Insurance Company can repudiate the claim of insurer in a case where there is breach of policy conditions. It is material to assess the loss and amount has to be determined at the maximum of 75% of the assessed amount of loss. While treating disqualification of driver to be non fundamental breach of terms and conditions of insurance policy wherein the claim can be settled on non standard basis. In this case the driver cannot be disqualified as he was having light motor vehicle license so he does not come in non fundamental breach of term and condition of the insurance policy. Further the non-availability of fitness certificate of vehicle at the time of accident is a violation of statutory requirement. Though the vehicle involved does not have the fitness certificate at the time of accident, the certified A.M.V.I Report submitted by the A.M.V.I after the accident goes to the benefit of the insured. On that ground the fundamental breach of terms and conditions of the Insurance policy can be settled on non standard basis. Further we also placed reliance to the observation made in United Insurance Company Ltd Vs. M/s. Pushpalaya Printers 1(2004)CPJ 22(SC) wherein "two interpretations possible, one beneficial to insured should be accepted words or documents if ambiguous, shall be construed against party who prepared it". Hence we find that the observation made in the case of Amalendu Sahu Vs. Oriental Insurance Company Ltd II(2010)CPJ 9 (SC) the Insurance Company cannot repudiate the claim in toto.
9. In the result, this Commission is inclined to apply the principle laid down in the above cited decision and the Insurance Company is liable to pay an amount of 75% of Rs. 84,697/-
In the result, the appeal is dismissed and the order of the lower Forum is modified . The appellant/Insurance Company is directed to pay an amount of Rs. 63,523/- to the respondent/complainant within one month on receipt of this order failing which the complainant is entitled for 9% interest till realization.
Office is directed to send a copy of this order to the Forum below along with L.C.R. A. RADHA : MEMBER st [ SMT.A.RADHA] PRESIDING MEMBER