State Consumer Disputes Redressal Commission
Hdfc Ergo Health Insu.Co.Ltd vs Ravinaben Bipinbhai Vsava on 18 May, 2023
Details DD MM YY
Date of Judgment 18 05 2023
Date of filing 20 01 2023
Duration 29 03 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
First Appeal No.60/2023
HDFC Ergo Health Ins. Co. Ltd.
3rd Floor, Akshat plaza,
Opp. HDFC Bank, Alpha Society,
Link Road, Bharuch ...Appellant
Vs
Ravinaben Bipinbhai Vsava
Old Bhilvado, Ninam,
Tal. Amod, Dist. Bharuch ...Respondent
APPEARANCE :R. P. Raval, Ld. Adv. for the appellant
CORAM : Hon'ble Justice Mr. V. P. Patel, President
Hon'ble Ms. A. C. Raval, Member
Hon'ble Ms. P. R. Shah, Member Order by Hon'ble Ms. P. R. Shah, Member.
1. The appellant has filed this appeal under section 41 of the Consumer Protection Act, 2019 (for short the CP Act), being aggrieved by and dissatisfied with the judgment and order dt.23/11/2022 passed by the Ld. Consumer Dispute Redressal Commission, Bharuch in the Consumer Complaint No. 133/2021.
2. Heard Ld. Advocate Mr.R. P. Raval for the appellant. Perused the record of the case. Though the notice duly served to the respondent. The respondent or respondent's representative has not chosen to appear before this Commission.
Impugned Order
3. The Ld. District Commission has partly allowed the complaint and has directed the opponent insurance company to pay Akshay A/60/2023 Page 1 of 9 Rs.11,25,000/- with 7% interest from the date of filing the complaint and Rs.3,000/- for mental agony and Rs.3,000/- as litigation cost.
3.1 The Ld. District Commission has mentioned in the order that if the the complainant has received any reimbursement from the opponents under this policy from any other court/tribunal then, to that extent, the opponent will have the right to deduct the said amount against the claim awarded in this order.
Facts of the case
4. Complainant's husband Bipinbhai Natavarbhai Vsava(LA) had taken a comprehensive own damage Motor Insurance two wheeler Policy - Bundled for his vehicle no. GJ-16-DA-4915 for the period 25/10/2020 to 24/10/2021 vide policy no.
2312203729179400000. This policy had a personal accident cover for owner driver with the sum assured of Rs.15,00,000/-. On 11/06/2021, the complainant's husband while riding his insured vehicle met with an accident and died due to injuries. The complaint with no. 11199900321077 was filed in Amod police station. Complainant submitted the claim with documents to the opponents and claimed Rs.15,00,000/- as per the policy. The claim was repudiated by the opponent and therefore the complainant filed the complaint before the Ld. District Commission.
Arguments of the appellant
5. It is the case of the appellant that the Ld. District Commission has failed to appreciate that no claim for personal accident cover was intimated to the opponents. The opponent has contended that the insured was driving the vehicle without a driving license which is a material breach of condition and also under general exception as per the terms and conditions of the policy, the company is not liable under the policy unless the vehicle is driven by as stated in Akshay A/60/2023 Page 2 of 9 the Driver's clause. The opponents have also contended that in view of material breach of condition of the policy, the complainant is not entitled to any claim. The Ld. District Commission has erred in awarding the amount on non-standard basis.The appellant has prayed to quash and set aside the order passed by the Ld. District Commission.
Merits of the case
6. There is no dispute that the complainant's husband DLA was holding a comprehensive personal accident policy cover for owner driver with policy no. 2312203729179400000 for the period 25/10/2020 to 24/10/2021 and the sum insured was Rs.15,00,000/- and life assured met with an accident and died during the subsistence of the policy.
7. Claim made only for theft of vehicle and not for personal accident 7.1 It is the case of the appellant that the complainant registered the claim for the theft of the vehicle. There was no claim intimation from the complainant against personal accident claim. The complainant had submitted the claim for the insured vehicle which was stolen from the accident spot. The said claim was denied on the point of delay in intimation to appellant and police authority. The appellant states that they have never received claim for which the complaint was filed.
7.2 The appellant avers that to process the personal accident claim there are several documents such as, claim form, driving licence of driver, consent of insured, post-mortem report, registered certificate, etc required. However no such documents and said driving license of the insured (owner driver) was submitted to appellant to process the claim.
Akshay A/60/2023 Page 3 of 97.3 It is true that complainant has lodged the claim for theft of vehicle and had not lodged the claim with the opponent for personal accident. The complainant has produced with the complaint panchnama of the place of accident, inquest panchnama of the deceased, the PM report of the LA, RC book of the vehicle and the insurance policy.
7.4 All the above documents establish that as stated by the complainant, the LA died in the accident that had taken place on 11/06/2021.As the LA was holding a comprehensive personal accident cover for owner driver policy, we are of the view that the complainant is entitled to all the benefits under the policy even though the claim was lodged only for theft and not for personal accident. It is possible that the complainant may not be very literate to have understood that two separate claims have to be filed. One for theft of the insured vehicle and other for personal accident. That no personal accident claim was filed by the complainant cannot go against the rights of the complainant to be entitled to all the benefits under the policy. The opponents cannot eschew their liability under the policy on this ground. The insurable interest of the LA is not disputed by the opponents therefore as per the policy terms and conditions, the complainant is entitled for the personal accident cover and the sum assured under the policy.
8. No driving license- award on non-standard basis 8.1 It is the contention of the appellant that the insured was driving the vehicle without a driving license which is a material breach of condition. There is a specific exclusion and/or exception incorporated in the policy which reads as under:
Section III- Personal accident cover for owner-driver This cover is subject to:Akshay A/60/2023 Page 4 of 9
(C) 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.
Also it has been contended that the general exception, "Driving Clause" in the policy schedule reads as under:
"Person or classes of persons entitled to drive - Any person including the insured provided that a person driving holds and effective driving license at the time of the accident."
8.2 The appellant has futher contended that as the LA did not have a driving license there is violation of Section 3 and 5 of the Motor Vehicles Act. The appellant has submitted that the Ld District Commission has erred in awarding the amount on non-standard basis.
8.3 The appellant vide page no. 73 made application to the Commission to direct the complainant to produce valid driving license of the life assured.
8.4. As per the contention of the opponent, the complainant has not been able to provide driving license of the LA and therefore there is a breach of policy condition and the complainant is not entitled to any claim.
9. On perusal of the FIR on page 24, it is stated that the LA was driving the insured vehicle GJ-16-DA-4915 and while approaching Solarizam, one long truck like vehicle hit the LA's vehicle and LA sustained severe injuries and was taken by 108 to Amod Government Hospital where the Doctor declared the LA dead.This proves that there was a collision, as two vehicles were involved in the accident
10. We may refer to the following cases:
10.1 New India Assurance Co. Ltd. VsKrishnappa on 23 June, 2020 in M.F.A. No.7960 of 2013 (MV-D) decided by Karnataka High Court, it is stated as under:Akshay A/60/2023 Page 5 of 9
"105. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition field under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving license of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proves to have been committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer hasto prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv)The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefore would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
Akshay A/60/2023 Page 6 of 923. Clause 6 of the summation is relevant. It states that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions should apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. A reading of the same would imply that every breach of the policy condition regarding licence would not ipso facto, be so fundamental so as to enable the Insurance Company to avoid its liability. The breach with regard to the condition of possessing a driving licence must be so fundamental so as to have contributed to the cause of accident. Thus, there must be a nexus between the absence of a valid and effective driving license by the driver of the offending vehicle and the accident. The same would imply that the driver of the offending vehicle is not duly licensed to drive the vehicle and in absence of possessing the skill to drive a vehicle has driven the same in a rash and negligent manner. It could also be a case where the driver is disqualified for holding or obtaining a driving licence and during the period of disqualification, has driven the vehicle in a rash and negligent manner and caused the accident. Therefore, the aforesaid interpretation of the Hon'ble Supreme Court is in the context of the expression used in Section 149(2)(a)(ii) of the Act.
10.2 IV (2019) CPJ 186 (NC) in case of Shri Ram Gen. Ins. Co. Ltd.
Vs. Kamlesh, "14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan PradsadAppaprasadPathak, reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. While granting claim on non-standard basis the National Commission set out its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims."
Sr. Description Percentage of settlement
(i) Under Declaration of licensed deduct 3 years difference in premium from the amount of Akshay A/60/2023 Page 7 of 9 carrying capacity claim amount, whichever is higher
(ii) overloading of vehicles pay claims not exceeding beyond licensed carrying 75% of admissible claim capacity
(iii) Any other breach of Pay upto 75% admissible warranty/condition of policy claim including limitation as to use
9. Relying upon the above guidelines given by the Hon'ble Supreme Court, it is seen that in the present matter one of the policy conditions has been clearly violated and that being an important conditions, I deem it appropriate to allow the insurance claim @60% of the IDV of the vehicle.
11. From the findings in the above referred judgments, it can be inferred that in order for the insurance company to avoid its liability, it has to prove that the breach of policy condition is so fundamental so as to have contributed to the cause of accident. In the instant case, the appellant insurance company has not led any evidence to establish this. The appellant has not been able to demonstrate a nexus between the absence of the Driving licencse of the LA and the accident and that the LA has driven the vehicle in a rash and negligent manner and caused the accident.
12. This commission has considered the written statement, memo of the appeal, ratio laid down in above referred judgments, impugned judgment and order, documentary evidence produced on record, facts and circumstances of the case.
13. This commission is of considered view that it is an admitted position that LA did not have a valid driving license. Thus there is a breach of the provision of the policy and of Section 3 and 5 of Motor Vehicle Act. Therefore as per the guidelines laid down in New India Assurance Company Limited vs Narayan Prasad Appaprasad Pathak (supra), the complainant is entitled to an Akshay A/60/2023 Page 8 of 9 award of 75% of the sum insured. Ld. District Commission has awarded 75% of the claim. The order of the Ld. District Commission is just, fair and reasonable and it's requires no interference. Therefore we confirm the order of the Ld. District Commission. Hence in the interest of justice, following order is passed.
ORDER
1. Appeal no. 60/2023 is dismissed at admission stage.
2. The order of the Ld. District Commission, Bharuch dated 23/11/2022 in complaint no. 133/2021 is hereby confirmed.
3. Registry is directed to verify the amount deposited by the applicant in appeal no. 60/2023 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
4. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission, Bharuch through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 18/05/2023
[Ms. P. R. Shah] [Ms. A. C. Raval] [Justice Mr. V. P. Patel]
Member Member President
Akshay A/60/2023 Page 9 of 9