State Consumer Disputes Redressal Commission
Smt.Kanakmala Sahu vs Jila Sahakari Kendriya Bank Maryadit & ... on 25 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/810
Instituted on : 02.02.2017
Smt. Kanakmala Sahu,
W/o Late Bhagwat Sahu, Aged 32 years,
R/o : Village - Surangi,Tehsil - Rajnandgaon,
Dist. Rajnandgaon (C.G.). ..... Appellant/Complainant
Vs.
1. Jila Sahkari Kendriya Maryadit Bank,
Through : Branch Manager, Branch Arjunda,
Tehsil - Gunderdehi, Dist. Balod (C.G.) ...Respondent No.1/O.P.No.1
2. Liberty Videocon General Insurance Co. Ltd.
Through : Claim Manager,
Address : 10th Floor, A Wing,
Peninsula Business Park, Sena Party,
Bhupat Marg,
Mumbai (Maharashtra) 400013 Respondent No.2/O.P.No.2
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Sanjay Dadsena, Advocate for the appellant (complainant).
None for the respondent No.1 (O.P. No.1).
Shri Manoj Prasad, Advocate for the respondent No.2 (O.P. No.2).
ORDER
DATED : 25/04/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 15.12.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.CC/2015/701. By // 2 // the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is a rustic woman and deceased Bhagwat Sahu was her husband. Bhagwat Sahu was having saving bank account with O.P. No.1 and the account No. was 601012140068. Bhagwat Sahu was insured under the Group Janta Personal Accident Policy with the O.P. No.2. The premium of Rs.65/- was deducted by the O.P. No.1 from the account of the deceased Bhagwat Sahu and the same was sent to O.P. No.2. The O.P. No.2 issued Policy No.4112-200501-13-5000016-00-000, which was effective for the period from 13.01.2014 to 12.01.2015. The sum assured was Rs.5,00,000/-. On 25.10.2014, the husband of the complainant was driving the vehicle carefully and slowly, some technical fault occurred in the tractor at village Surangi and the tractor dashed with wall of the house, due to which Bhagwat Sahu sustained grievous injuries in his head and he died due to injuries sustained by him. The Post mortem examination was also conducted on the dead body of deceased on 25.10.2014. Merg Intimation No.83/2014 under Section 174 Cr. P.C. and First Information No.399/2014 for offence under Section 304A was registered. The complainant gave intimation regarding death of her husband to the OPs and also submitted her claim before the OPs along with relevant documents, but the OPs did not provide claim amount under the insurance policy. Hence the // 3 // complainant has filed instant complaint before the District Forum and prayed for granting reliefs as prayed in the prayer clause of the complaint. The complainant is entitled for getting sum assured Rs.5,00,000/- and Rs.50,000/- towards compensation for mental agony along with interest 12% p.a. and cost of litigation.
3. The O.P. No.1 filed its written statement and averred that the deceased Bhagwat Sahu was insured with the O.P. No.2, therefore, the dispute is between the complainant and O.P. No.2. The O.P. No.1 performed its duty and when the O.P. No.1 received intimation regarding death of the deceased Bhagwat Sahu, the O.P. No.1 sent intimation regarding the same to the O.P. No.2, therefore, the O.P. No.1 , is not liable to pay any compensation to the complainant. The complaint is liable to be dismissed against the O.P. No.1.
4. The O.P. No.2 filed its written statement and averred that the complaint is not maintainable under Consumer Protection Act, 1986 The complainant is utterly failed to prove deficiency in service on the part of the O.P. No.2. The O.P. No.2 sent a letter to O.P. No.1 and demanded documents i.e. driving licence, photographs of the legal heir of the deceased, ID and address proof and also sent reminder but the O.P. No.1 did not provide above documents to the O.P. No.2, then O.P. No.2 sent intimation on 25.06.2015 regarding repudiation of the claim. At the time of the accident, the deceased was not having effective and valid // 4 // driving licence which is violation of Part III : General Exclusions :
Provided always that the Company shall not be liable under this Policy for - (3) Any claim of the Insured Person (vi) driving any vehicle without a valid driving licence. It is a condition precedent fasten by Insurance Company that written notice of claim must be given by the Insured/ Insured Person / Nominee to Company within 15 days after actual date and time of accident. However, the Company may condone the delay on merits of the claim subject to getting satisfied that the delay in notification was due to reasons beyond the control of the insured / Insured Person/Nominee. In the instant case the complainant has not filed documents within 30 days of the accident. The vehicle was being driven by the deceased without valid and effective driving licence, which comes within fundamental breach of the terms and conditions of the insurance policy, therefore, the complaint is not entitled for any compensation under the insurance policy. The complaint is liable to be dismissed.
5. The complainant filed documents. Annexure A-1 is Police Investigation Report, Annexure A-2 is letter dated 4.1.2015 sent by Officer Incharge, Police Station Lalbag, Rajnandgaon to Superintendent of Police, Rajnandgaon, Annexure A-3 is First Information Report, A-4 is Merg Intimation, Annexure A-5 is Inquest, Annexure A-6 is application under Section 175 Cr. PC, Annexure A-7 is application for post mortem and postmortem report, Annexure A-8 is death certificate, Annexure A-
// 5 // 9 is letter dated 09.02.2015 sent by the complainant to the OPs, Annexure A-10 is copy of saving pass book, Annexure A-11 is registered notice sent by Shri A.K. Rao, Advocate to the OPs, Annexure A-12 is postal receipts, Annexure A-13 is acknowledgement, Annexure A-14 is reply dated 19.10.2015 sent by O.P. No.2 to Shri Etendra Kumar Rao, Advocate, Annexure A-15 is repudiation letter dated 25.06.2015.
6. The O.P. No.1 has not filed any documents.
7. The O.P. No.2 has filed documents. Annexure NA-2-1 is deficiency letter dated 28.01.2015, Annexure NA-2-2 is 1st reminder letter dated 28.04.2015, Annexure NA-2-3 is 2nd reminder letter dated 13.05.2015, Annexure NA-2-4 is 3rd reminder letter dated 02.06.2015, Annexure NA-2-5 is insurance policy along with terms and conditions.
8. Learned District Forum after having considered material placed before it by the parties, has dismissed the complaint.
9. Shri Sanjay Dadsena, learned counsel appearing for the appellant (complainant) has argued that the husband of the appellant (complainant) Bhagwat Sahu was having saving bank account with the respondent No.1 (O.P. No.1) and premium of Rs.65/- was deducted from the account of the deceased. The deceased was insured with the O.P. No.2 under Group Janta Personal Accident Policy. On 25.10.2014, when deceased was driving tractor, the tractor was dashed with wall of // 6 // house, due to which he sustained grievous injuries and due to which he succumbed. The complainant is his wife / nominee, therefore, she is entitled for compensation of Rs.5,00,000/- under the policy, but learned District Forum, has erroneously dismissed the complaint of the complainant and did not consider the complaint in its right perspective, therefore, the appeal be allowed and impugned order be set aside.
10. None appeared for the respondent No.1 (O.P. No.1) inspite of service of notice, when the case is fixed for final hearing on 20.04.2017.
11. Shri Manoj Prasad, learned counsel appearing for the respondent No.2 (O.P. No.2) has argued that Late Bhagwat Sahu, who was driving the tractor was not having valid and effective driving at the time of the accident. The appellant (complainant) did not submit driving licence of deceased and other relevant documents to the respondent No.2 (O.P. No.2). The appellant (complainant) is not entitled to get any compensation from the respondent No.2 (O.P. No.2). Learned District Forum has rightly dismissed the complaint of the appellant (complainant), therefore, the appeal is liable to be dismissed.
12. We have carefully considered the contentions raised by the counsel for the parties appearing and have also perused the record of the District Forum.
// 7 //
13. The appellant (complainant) filed document Annexure A-3 i.e. copy of First Information Report, Annexure A-4 Merg Intimation, Annexure A-7 Post Mortem Examination Report, Annexure A-5 is inquest, Annexure A-6 is notice under section 175 Cr.P.C. for inquest of the dead body of the deceased Bhagwat Sahu, Annexure A-8 is death certificate of deceased Bhagwat Sahu. Looking to the above documents, it appears that on 25.10.2014 deceased Bhagwat Sahu was driving the tractor and the tractor dashed with wall due to which he sustained injuries and died. In the inquest, it is mentioned that the deceased sustained lacerated wounds / injuries in head and there was abrasion in the left leg. In the post mortem examination report also same injuries were mentioned and the deceased died due to head injuries.
14. Looking to the above documents, it is established that the deceased Bhagwat Sahu died due to accident and his death was accidental death.
15. The deceased Bhagwat Sahu obtained Group Janta Personal Accident Policy No.4112-200501-13-5000016-00-000 from the respondent No.2 (O.P. No.2) through respondent No.1 (O.P. No.1) and the said insurance policy was effective for the period from 13.01.2014 to 12.01.2015. The deceased Bhagwat Sahu died during the subsistence of the insurance policy and his death was accidental in nature.
// 8 //
16. Now we shall examine whether the appellant (complainant) is entitled to get compensation under the insurance policy from the respondent No.2 (O.P.No.2) ?
17. The main plea taken by the respondent No.2 (O.P. No.2) is that at the time of accident, deceased insured Bhagwat Sahu was not possessing valid and effective driving licence. On the contrary, learned counsel for the appellant (complainant) has argued that the accident was not occurred due to negligent act of driver of the tractor, but all of a sudden technical problem occurred in the tractor due to which tractor dashed with wall and deceased sustained head injuries and succumbed due to injuries sustained by him, therefore, driving licence is not required.
18. In Sharda Bai Vs. Liberty Videocon General Insurance Co. Ltd. II (2017) CPJ 41 (NC), Hon'ble National Commission has observed thus :-
"5. In National Insurance Co. Ltd. v. Laxmi Narain Dhut II (2007) ACC 28 (SC) = IV (2007) SLT 102 = III (2007) CPJ 13 (SC) = (2007) 3 SCC 700, the Hon'ble Supreme Court noted as under :-
"24. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake // 9 // licence has to be considered differently in respect of the third party and in respect of own damage claims.
36. The inevitable conclusion therefroe is that the decision in Swaran Singh case has no application to own damage cases. The effect of take licence has to be considered in the light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once the licence is a fake one the renewal cannot take away the effect of fake licence. It was observed in Kamla case as follows : (SCC p. 347, para 12)
12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit striped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to 'review a driving licence issued under the provisions of this Act with effect from the date of its expiry'. No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine."
37. As noted above, the conceptual difference between third party right and own damage case has to be kept in view. Initially, the burden is on // 10 // the insurer to prove that the licence was a fake one. Once it is established the natural consequences have to flow.
38. In view of the above analysis, the following situations emerge :
1. The decision in Swaran Singh case has no application to case other than third-party risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third-party risks the insurer has to indemnify the amount, and if so advised, to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.
The High Courts/Commission shall now consider the matter afresh in the light of the position in law as delineated above."
In National Insurance Co. Ltd. Vs. Om Prakash Jain, 2009 (SLT Soft) 5 = Civil Appeal No.6248 of 2009 decided on 14.9.2009, the Hon'ble Supreme Court referring to its earlier decision in Laxmi Narain Dhut (supra) and Swaran Singh (supra) specifically held as under :-
"In National Insurance Company Limited v. Laxmi Narain Dhut, 2007 (3) S.C.C. 700, it has been clearly laid down that the decision in the case of National Insurance Company Ltd. v. Swaran Singh & Anr., 2004 // 11 // (3) S.C.C. 297, has no application to the cases other than third party risks and where originally licence was a fake, renewal thereof cannot validate the same. In the present case, the complaint was filed for damage of the vehicle of the insured and not the third party risk. The District Forum and State Commission have concurrently held that the original licence of the driver was fake. This being the position, the District Forum was justified in dismissing the complaint and the State Commission committed an error by awarding compensation to the respond".
In the aforesaid case, the complaint was filed by the insured himself seeking compensation for the damage caused to his vehicle, which had met with an accident. It was found that the driving licence possessed by the driver of the vehicle was a fake licence. The National Commission having decided in favour of the complainant, the matter was taken by the Insurance Company to the Apex Court.
In united India Insurance Co. Ltd. v. Davinder Singh, IV (2007) ACC 705 (SC) = IX (2007) SLT 235 = IV (2007) CPJ 1 (SC) = (2007) 8 SCC 698, the respondent owned a vehicle which he had got insured from the appellant United India Insurance Co. Ltd. The said vehicle met an accident with a truck. It was being driven by a person, who did not possess a valid licence. The owner of the vehicle filed a complaint before District Forum, seeking compensation for the damages caused to his vehicle. This Commission have ruled in his favour. The matter was taken to the Hon'ble Supreme Court by way of an appeal. Allowing the appeal filed by the Insurance Company, // 12 // the Apex Court inter alia held that the Fora below committed an error in holding the Insurance Company liable to indemnify the owner of the vehicle with regard to losses sustained by him. During the course of the judgment, the Hon'ble Supreme Court, inter alia observed as under :-
"10.It is, thus, axiomatic that whereas an Insurance Company may be held to be liable to indemnify the owner for the purpose of meeting the object and purpose of meeting the object and purport of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an Insurance Company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regard the statutory liability of the insurer vis-à-vis the purport and object sought to be achieved by a beneficient legislation before a Forum constituted under the Motor Vehicles Act and enforcement of a contract qua contract before a Consumer Forum.
In Oriental Insurance Co. Ltd. v. Meena Variyal, IV (2007) ACC 335 (SC) = IX (2007) SLT 251 = (2007) 5 SCC 428, the Hon'ble Supreme Court referring to its earlier decision in Swaran Singh (supra), held as under :-
"It is difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the Insurance Company cannot be made automatically liable merely by resorting to Swaran Singh ratio. This appears to be // 13 // the position. This position was expounded recently by this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut. This Court after referring to Swaran Singh and discussing the law summed up the position thus : (Laxmi Narain Dhut case, SCC p. 719 para 38).
The legal proposition emerges from the above referred decisions of the Hon'ble Supreme Court is that though the Insurance Company is liable to a third-party even if the vehicle, at the time it meets with an accident is being driven by a person who does not possess a valid driving licence, the position would be different in case where compensation is sought by the insured himself, for the damages caused to his vehicle. Wherever, the insured himself is the claimant, the Insurance Company is not liable to reimburse him for the damage caused to the vehicle, if it is found that the driver of the vehicle did not possess a valid licence at the time the vehicle met with an accident."
6. In National Insurance Co. Ltd. v. Jarnail Singh & Ors., JT 2001 (Supp. 2) SC 218, the driving licence of the driver, who drove the vehicle had expired on 16.5.1994. The vehicle met with an accident on 20.10.1994 and the driving licence was renewed only with effect from 28.10.1996.
It was held that the proviso of Sub-section (1) of Section 15 became applicable to the case and since the driver had no effective driving licence to drive the vehicle on the date of the accident, the policy condition was violated and the Insurance Company was not liable to pay any amount to the insured. The aforesaid decision was quoted and applied by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Suresh // 14 // Chandra Aggarwal, III (2009) ACC 895 (SC) = IV (2009) CPJ 14 (SC) = AIR 2009 SC 2987. In Suresh Chandra Aggarwal (supra), the driver of the vehicle was not holding an effective licence at the time it met with an accident since the said licence had already expired on 25.10.91, whereas the accident took place on 29.2.92. The policy condition applicable in that case required that the person entitled to drive the vehicle should hold or should have held a driving licence and should not be disqualified from holding an effective driving lince. It was noted that though the driving licence had expired on 25.10.91, 4 months prior to the accident it was got renewed only with effect from 23.3.1992 and the driver had not applied for the renewal of the licence within 30 days of its expiry. Referring to the proviso of Section 15 Sub-section (1) of the Motor Vehicles Act, it was held that in such a case, the licence could be renewed only from the date of its renewal and in the interregnum period between expiry of the licence and the date of its renewal, there was no effective licence in existence. The decision of this Commission holding the Insurance Company liable was, therefore, set aside by the Hon'ble Supreme Court."
19. In Karnail Singh v. United India Insurance Company Limited, II (2010) CPJ 104 (NC), Hon'ble National Commission has observed that "Driver driving vehicle without valid licence, in violation of terms and conditions of policy, repudiation of claim by insurer is justified."
20. In Thomas Mathew vs. Oriental Insurance Company Limited, II (2006) CPJ 309 (NC), Hon'ble National Commission, has observed thus :-
// 15 // "6. In the aforementioned circumstances, the State Commission committed no error in returning the finding that there was no valid licence with the driver to drive the vehicle as per provisions of Motor Vehicles Act on 14.5.1996. The State Commission has also considered the provisions of Section 14 of the Motor Vehicles Act and has rightly concluded that even if benefit of 30 days from 12.4.1996 is given, in case he had applied for renewal of licence, even then on the date of accident, i.e, 14.5.1996, the driver did not have any valid driving licence, thus, falling under the General Exception clause of the policy which mandates the driver to hold an effective and valid driving licence failing which the claim was not to be payable."
21. In M/s. MRH Associates Through its Partner, Mr. Harsh Kumar Handa vs. National Insurance Co. Ltd., Through its Branch Manager & Anr., 2015 (1) CPR 137 (NC), Hon'ble National Commission has observed that "If driver of vehicle is not holding a valid and effective licence for driving vehicle in question, it shall be a serious violation of statutory requirement under Motor Vehicles Act as also conditions of insurance policy which would vitiate contract of insurance and as such insurance company would be entitled to repudiate claim."
22. In the instant case, the appellant (complainant) has not filed copy of driving licenc eof the deceased Late Bhagwat Sahu. It appears that Late Bhagwat Singh, who was driving the tractor did not hold valid and effective driving licence at the time of accident, which is violation of terms and conditions of the insurance policy, therefore, the appellant // 16 // (complainant) is not entitled to get any compensation from the respondents (OPs) even on non-standard basis.
23. Therefore, the finding recorded by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality. There is no reason to interfere with the view taken by the District Forum.
24. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed with no order as to the cost.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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