State Consumer Disputes Redressal Commission
Rasana E. Devid W/O Ravindranath Devid vs Bajaj Allianze Gen. Ins. Com. Ltd ... on 27 January, 2015
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BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN,
BENCH NO.3 JAIPUR
FIRST APPEAL NO : 1379/2011
Rashna E.David W/o Ravindra Nath David, Vaishali
Nagar, Jaipur.
..........Appellant/Complainant
Vs.
1. Bajaj Allianz General Insurance Company Ltd.,
C-Scheme, Jaipur through Manager.
2. Bajaj Allianz General Insurance Company Ltd.,
Pune through General Manager.
..........Respondents/Non-Petitioners
Date of Order - 27/01/2015
Before:
Hon'ble Mr.Anil Kumar Mishra - Presiding Member
Hon'ble Mr.Kailash Soyal - Member
Mr.Rakesh Yadav . . . . . Counsel for the
appellant/ complainant.
Mr.Ravindra Sharma . . . . . Counsel for the
respondents/ non-petitioners.
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JUDGEMENT
PER MR.ANIL KUMAR MISHRA (PRESIDING MEMBER)
1. The present appeal has been filed by Mrs.Rashna E.David, the appellant/ complainant (hereinafter referred to as "the complainant") against the judgment dated 14.06.2011 of the learned District Consumer Redressal Forum, Camp at Jaipur, Jaipur (hereinafter referred to as "the DCF") in complaint No.1361/2009 (Second No.415/2009) titled Rashna E.David Vs. Bajaj Allianz General Insurance Company Ltd. & Ors., whereby the complaint of the complainant was dismissed.
2. The brief facts giving rise to the present appeal are that the complainant filed a complaint before the learned DCF with an averment that she obtained an insurance for a period 15.02.2008 to 14.02.2009 for her car from the Bajaj Allianz General Insurance Company (hereinafter referred to as "the Insurance Company"). When she, along with her son Raunak David, who was driving the car, were going to their 3 residence at around 2:15 p.m. on 12.08.2008 from Sawai Man Singh School, the car met with an accident with the Maruti Zen No.RJ-14-7C-7680. An FIR was lodged against the complainant's car. The complainant got her car towed to the authorized Service Center and got it repaired and bore an expenses of Rs.66,195/- in the repair. The complainant lodged a claim before the Insurance Company, which was repudiated on the ground that the driver of the car Mr.Raunak David was having only a learner's driving license and he was not accompanied by an instructor having effective and valid driving license and the car also did not bore a letter "L" in red, on white background on the front and rear window. A complaint was filed before the learned DCF, which too stood dismissed by the impugned judgment.
3. The present appeal has been filed by the complainant on the ground that the impugned judgment is contrary to the facts and evidence available on record and also 4 against the settled principles of law. The learned DCF ignored the evidence on record that the complainant, who was holding a valid and effective driving license, was accompanying her son Raunak David, who had a learner's driving license and her son was driving the car under her instructions. Hence, there was no violation of the terms and condition of the Insurance policy and the claim was illegally repudiated and the complaint was also dismissed by the learned DCF on unjustifiable grounds. Therefore, the present appeal and complaint be allowed and the impugned judgment be quashed and set aside.
4. We have heard the arguments of both the parties and carefully perused the record, evidence and impugned judgment.
5. It is an admitted fact that the complainant's car No.RJ-14-8C-3378 was insured with Insurance Company for a period from 15.02.2008 to 14.02.2009 and the aforesaid vehicle met with an accident on 12.08.2008, during the currency of the 5 insurance policy and it was being driven by Raunak David, the son of the complainant. As per the bills of repair (Ex.7, 8 & 9) from the authorized Service Center, the complainant bore an expense of Rs.66,195/- (Ex.10) and spent Rs.600/- (Ex.6) for towing the vehicle to the Service Center. It is also an admitted fact that a claim was submitted by the complainant before the Insurance Company, but the same was repudiated vide letter dated 20.12.2008 (Ex.13) on the basis of report of investigation conducted by Gajanand Gupta & Associates (Ex.R1). The Investigator held in his report that at the time of accident the complainant's car was driven by Raunak David, who was having only a learner's driving license and he was not accompanied by any instructor having a valid and effective driving license.
6. The Investigator in his report held that Mr.Rajeev Gupta, the injured in the accident, stated before him and the police that neither any person nor any lady was 6 accompanying Raunak David at the time of accident and a charge sheet u/s 279, 337 & 338 IPC was filed against the driver of the offending car. It is true that one Mr.Rajeev Gupta, whose car collided with the complainant's car had stated in his FIR No.369/2008 that car No.RJ-14-8C-3378 was driven by a young boy of around 18 years and he was having a learner's driving license, which he personally saw. Mr.Rajeev Gupta stated before the Investigator that the offending car was being driven only by Raunak David and he was not accompanied by any person at the time of incident. But it is pertinent to mention here that Mr.Rajeev Gupta, the victim in the incident, in his statement on oath in his claim petition No.1731/2008 before the Accident Claim Tribunal admitted that he was neither aware of the fact that how many persons were sitting in the offending car nor he could say that any person was sitting or not beside the driver. He further clarified in his cross-examination that he could neither 7 see that any person was sitting in the car beside the driver seat nor could he see that the letter "L" was marked or not on the car.
7. Thus, there are two conflicting and contrary statements of Mr.Rajeev Gupta about the fact as to whether any person or lady accompanied or not with Mr.Raunak David, the driver of the offending car. Mr.Gupta in his statement on oath before the MACT had showed his total ignorance about the fact that Mr.Raunak David was accompanied or not by a person/ instructor having a valid and effective driving license at the time of accident. This statement of Mr.Gupta has got more evidentiary value as compared to the statement given by him before the Investigator of the Insurance Company. The Insurance Company did not produce statement of any other eye witness of the incident to prove that Raunak David was all alone in the car and he was driving it at the time of incident.
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8. It is pertinent to mention here that soon after the accident, Mrs. Roshna David, the complainant, in response to a notice u/s 133 of the M.V.Act (Ex.14) by police had stated that her son Raunak David was driving the car on 12.08.2008 i.e. the date of accident and she was accompanying him. In these circumstances, when Mr.Rajeev Gupta, the victim is not sure about the fact as to whether Raunak David, the driver of the offending car was accompanied or not by an instructor/ her mother at the time of incident, then the reply of the complainant in response to a notice (Ex.14) by police cannot be disbelieved and appears to be more reliable. Therefore, it is not proved that Raunak David, the driver of the offending car, who was admittedly having a learner's driving license, was not accompanied by his mother or any instructor having valid and effective driving license at the time of incident. Thus, there appears to be no violation either of section 3 of M.V.Act by the driver of the offending vehicle or 9 any terms and conditions of the insurance policy and the Insurance Company repudiated the claim of the complainant on hyper technical, superfluous and flimsy grounds. Therefore, the judgments of Union Territory in II (2007) CPJ 163 (New India Assurance Company Ltd. Vs. Gian Chand) and National Commission, New Delhi in II (2014) CPJ 505 (Sandeep Kumar Vs. IFFCO TOKIO General Insurance Company Ltd. & Ors.) cited by the learned counsel for the Insurance Company does not help it, as there is no violation of the terms and conditions of the policy. Section 3 of the M.V.Act authorizes a person having a learner's driving license to drive a vehicle provided that he is accompanied by an instructor having a valid and effective driving license. As the Insurance Company has failed to prove that Raunak David, the driver of the offending car, who was having learner's driving license was not accompanied by any instructor or his mother, who had a valid and effective driving license at the time of incident 10 and therefore, the Insurance Company was not justified in repudiating the claim of the complainant. Similarly the learned DCF also ignored these factual aspects and the statement on oath of Mr.Rajeev Gupta before the MACT.
9. For the aforesaid reasons, we are of the view that the learned DCF was not justified in dismissing the complaint and the findings given and the conclusions arrived at in the impugned judgment are contrary to the facts, evidence and settled principles of law and hence, the impugned judgment is liable to be quashed and set aside and the present appeal deserves to be allowed.
10. It is evident from the record that the complainant bore expenses of Rs.14,504/- (Ex.7), Rs.8000/- (Ex.8) and Rs.43,690/- (Ex.9) total amount Rs.66,195/- in the repairs of her car and also bore Rs.600/- (Ex.6) as towing charges. Thus, the complainant spent Rs.66,795/- in the repairs and towing of her car, which she is entitled to receive from the Insurance 11 Company as damages against the indemnification of loss to her car.
ORDER
11. The present appeal of the appellant -
complainant is allowed. The impugned judgment dated 14.06.2011 of the learned DCF in complaint No.1361/2009 (Second No.415/2009) titled Rashna E.David Vs. Bajaj Allianz General Insurance Company Ltd. & Ors. is quashed and set aside. The respondents - Bajaj Allianz General Insurance Company Ltd. shall pay to the complainant/ appellant Rs.66,795/- (Rupees Sixty Six Thousand Seven Hundred Ninety Five Only) with 9% interest per annum from the date of filing of the complaint. The respondents shall also pay to the complainant a consolidated amount of Rs.20,000/- (Rupees Twenty Thousand Only) as compensation for mental agony and cost of proceedings. The compliance of the order shall be made within one month from today.
(KAILASH SOYAL) (ANIL KUMAR MISHRA) MEMBER PRESIDING MEMBER PINKKY JAIN, UDC