National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Valsa George & Anr. on 29 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 969 OF 2011 (From the order dated 25.11.2010 in Appeal No.616/09 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) Oriental Insurance Co. Ltd. Through its Branch Manager 1st Floor, Naduvelil Buildings Pazhayangadi, P.O. Ranni Pathanamthitta Kerala Petitioner Vs 1. Valsa George W/o Dr. George Varghese Sunny Memorial Hospital Kozhenchery Rep. by her Power of Attorney Holder P. Kurian Philipose Padinjarethi House, Kaviyoor P.O. Thiruvalla Now residing at: 9-A, Adakala Nagar, Selam 7 Tamil Nadu 2. P. Kurian Philipose Padinjarethil House, Kaviyoor P.O. Thiruvalla Now residing at: 9-A, Adakala Nagar, Selam 7 Tamil Nadu Respondents BEFORE: HONBLE MR. SURESH CHANDRA, PRESIDING MEMBER For the Petitioner : Mr. Rajesh K. Gupta, Advocate For Arkay & Arkay For the Respondents : Mr. B. Rajesh, Advocate Pronounced on:_29th August, 2012 ORDER
PER SURESH CHANDRA, MEMBER This revision petition has been filed by OP/Insurance Company against the order dated 25.11.2010 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, the State Commission) in Appeal No.616 of 2009.
2. The factual matrix of this case are that the respondent no. 1 who is first complainant is the registered owner of the Tempo Traveler bearing Regn. No.K13-D/6177 which was used as an ambulance. The permit of the vehicle to use it as an ambulance was surrendered before RTO when the vehicle was sold to the second respondent who was complainant no.2 before the District Forum. No objection certificate was issued by the RTO for transferring the registration of the vehicle from Kerala to Tamil Nadu. The said vehicle had been insured by the respondent no. 1 with the petitioners for the period from 4.7.2003 to 3.7.2004. On 14.12.2003, when the aforesaid vehicle was on way to Salem, it met with an accident at Neelampur in Comimbatore-Salem Road with heavy damage to the vehicle.
At the time of the accident the vehicle was driven by one P.K. Kurian who was having valid licence. An FIR was lodged with the police in respect of the accident and the respondents submitted claim form before the petitioner. Surveyor was appointed by the petitioner company and after inspection of the vehicle permission was given to carry out the repairs of the vehicle. After the repairs, a bill amounting to Rs.98,615/- was sent to the office of the petitioner at Salem on 6.2.2004 for settling the claim. The petitioner, however, repudiated the claim raising certain contentions. Alleging deficiency in service on the part of the petitioner, the respondents filed the present complaint for issuing direction to the petitioner to allow the claim amount along with compensation and cost and also for allowing the respondent no.2 who is power of attorney holder to receive the amount from the petitioner. Petitioner Co. opposed the complaint but the District Forum on appraisal of the pleadings and evidence placed before it allowed the complaint in terms of its order dated 23.6.2009 which is reproduced below:
1. The 2nd complainant is allowed to realize Rs.98,615/- less the legal deductions specified in the policy condition with 10% interest from the date of filing of this complaint along with Rs.3,000/- as cost from the opposite parties.
2. Compensation of mental agency is not allowed in the light of the order for interest to the decretal amount.
3. Opposite parties are directed to pay the amounts so awarded within 30 days from the date of receipt of this order, failing which interest at the rate of 12% will follow for the whole amount till the whole realization.
3. Aggrieved by this order of the District Forum, the petitioner challenged the same before the State Commission by filing an appeal which was partly accepted by the State Commission by its impugned order dated 25.11.2010. The operative part of the order reads as under:
In the circumstances we find that opposite parties are not entitled to reject the claim in toto as the policy violations are not so serious so as to exonerate the insurer from the entire liability. Hence, the opposite parties are directed to pay on non-standard basis of the claim submitted by the complainants. Hence the order of the Forum is modified as follows the appellant will settle the claim with the 2nd complainant by allowing 75% of the repair cost of Rs.98,615/- less legal deductions specified in the policy conditions. The complainants will be entitled for interest at 9% from the date of complaint and cost of Rs.3000/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the 2nd complainant will be entitled for interest at 12% from 25.11.2010 i.e. the date of this order.
4. We have heard Mr. Rajesh K. Gupta, Advocate for the petitioner and Mr. B. Rajesh, Advocate appearing for respondents no. 1 & 2 and perused the record. It is argued by learned counsel for the petitioner that in spite of the fact that the driver of the vehicle did not possess a valid and effective driving licence for the category of vehicle in question and also the submission of the petitioner company that the vehicle was not having the necessary fitness certificate at the time of accident, the Fora below gravely erred in ignoring these important aspects and allowed the claim of the respondents which is not only against the specific conditions of the policy but against a catena of judgments delivered by the Apex Court and the National Commission. Learned Counsel submitted that the fitness certificate of the vehicle expired on 17.11.2003 and hence on the date of the accident i.e. 14.12.2003, the vehicle was not carrying the fitness certificate. In support of his contentions, the Counsel has produced before us a copy of Form 28 which indicates that the vehicle in question was LMV Ambulance class of vehicle and even while granting its no objection to the transfer of the vehicle from Kerala To Tamil Nadu, the Registering Authority, Pathanamthitta vide its endorsement dated 12.12.2003 has specifically recorded the vehicle as a tempo traveler ambulance. The counsel has also cited authority of judgments of the Honble Supreme Court in the cases of Oriental Insurance Co. Ltd. Vs. Angad Kol and Ors. (2009) 11 SCC 356, New India Assurance Co. Ltd. Vs. Prabhu Lal (2008) 1 SCC 696, National Insurance Co. Ltd. Vs. Kusum Rai (2006) 4 SCC 250 and General Assurance Society Ltd. Vs. Chandanmall Jain and Anr. (1996) 3 SCR 500 to support his case.
5. On the other hand, the contention of the counsel for the respondent is that the vehicle in question was actually a light motor vehicle whose model was tempo traveler ambulance and as such it should not be treated as a different vehicle and ordinary LMV. There is, however, no denial by him that the vehicle was actually being used as an ambulance.
He has also not denied that even at the time of the transfer of the vehicle from Kerala to Tamil Nadu, the office endorsement on Form 28 produced by the petitioners counsel clearly retains the description of vehicle as a tempo traveler ambulance of which the registered owner is shown to be Dr. Valsa K. George of Sunny Memorial Hospital, Kozhenchery.
6. We have carefully considered the rival contentions raised by the Counsel for the two parties. It has not been denied that the description of the vehicle in question has been shown as a tempo traveler ambulance. That it was used as an ambulance has also not been denied by the respondents. There is also no evidence placed on record by the respondent which would indicate the renewal or issuance of fitness certificate in respect of this vehicle after the expiry of the earlier fitness certificate on 17.11.2003. In these circumstances, it is established beyond doubt that on the date of accident, the vehicle neither had a fitness certificate nor did the person driving it possessed a valid and effective driving licence to drive this vehicle which required a special endorsement by the competent authority. In this view of the matter, the ratio laid down by their Lordships of the Honble Supreme Court in the cases of Angad Kol and Ors., Prabhu Lal, Kusum Rai and Chandanmall Jain and Anr. (Supra) is fully applicable and, hence, the claim of the respondents cannot be allowed even on non-standard basis. This being the settled position of law, the impugned order cannot be sustained in the eye of law and must be set aside. The revision petition, therefore, stands allowed, the impugned order is set aside and the complaint of the respondents is dismissed. No costs.
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( SURESH CHANDRA ) MEMBER k