National Consumer Disputes Redressal
Vijayakumari Amma vs New India Assurance Co. Ltd. & Anr. on 16 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3539 OF 2016 (Against the Order dated 25/08/2016 in Appeal No. 450/2014 of the State Commission Kerala) 1. VIJAYAKUMARI AMMA KULANGARA VEEDU, KURAMPALA MURI, KURAMPALA VILLAGE , ADOOR TALUK, PATHANAMTHITTA KERALA ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. & ANR. REP BY ITS BRANCH MANAGER, PATHANAMTHITTA KERALA 2. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO LTD., KOTTAYAM KERALA ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONER : MR.C.N. SREEKUMAR, ADVOCATE
MR. AMIT SHARMA, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENTS : MR. J.P. SHEOKAND, ADVOCATE
Dated : 16 February 2024 ORDER
1. The present Revision Petition has been filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (the "Act") against impugned order dated 25.08.2016, passed by the State Consumer Disputes Redressal Commission, Kerala (the 'State Commission') in First Appeal No. 450/2014. In this case, the Appeal of the Respondent/Opposite Party (OP) was allowed and the complaint was dismissed. Vide the Order dated 01.07.2014, the District Consumer Disputes Redressal Forum, Pathanamthitta (the "District Forum") in Consumer Complaint No.133 of 2013 allowed the complaint filed by the Petitioner/Complainant.
2. For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.
3. Brief facts of the case, as per the Complainant, are that she is the owner of Ford/Figo Car No.KL-26-B-8797 insured under the Policy No.76010131120100004413 with the OPs from 20.08.2012 to 19.08.2013. On 26.11.2012, the car was involved in a collision with compound wall resulting in significant damage. The incident was reported to local Police and OPs. OPs appointed a surveyor who assessed the loss as Rs.1,81,226.42. Later, the car underwent repairs, and a claim was submitted. However, OPs repudiated the claim on the ground that her son namely Arun was driving the car at the time of accident and he did not have valid Driving License. Aggrieved by the repudiation, she filed CC No.133 of 2013 before the District Forum seeking relief of Rs.4,39,274/- towards loss along with compensation for harassment and litigation cost.Top of Form
4. In their reply, the OPs contended that the claim was denied as the insured deliberately breached the terms and conditions of the insurance policy, rendering the claim void and illegitimate. The repudiation stemmed from the driver of the insured vehicle was not holding a valid driving license and three reasons that (i) violation of principle of utmost good faith of insurance, (ii) Misrepresentation of material facts (iii) violation of Condition No.8 'the due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers to be given by you shall be conditions precedent to any liability of the company to make any payment under the policy'.
5. The District Forum vide order dated 18.03.2019 allowed the complaint in part and granted the following relief:
"In the result, this complaint is allowed as follows:
Opposite Party is directed to reassess the repairing expenses shown in Ext.A4 by deducting allowable depreciation as per Ext.B3 policy conditions and pay the said reassessed amount with 7% interest from the date of filing of this complaint to the complainant within 30 days from the date of receipt of this Order along with compensation of Rs.10,000/- (Rupees Ten Thousand only) and cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only), failing which the complainant is allowed to realize a total amount of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand only) and the compensation and cost ordered herein above with 9% interest from today till the realization of the whole amount."
(Extracted from Translated copy)
6. Being aggrieved by District forum order, the OPs filed an Appeal and vide Order dated 25.08.2016, the State Commission allowed the Appeal and with the following observation: -
"4. Admittedly, the vehicle of the complainant bearing Reg. No. KL 26 B 8797 was insured with the opp. parties for the period from 20.08.2012 to 19.08.2013 and the vehicle met with an accident on 28.11.2012. The complainant has produced the copy of the extract of the general diary kept at the Mavelikkara Police Station. As per the GD entry dated 27.11.2012, the car of the complainant while being driven through the Mavelikkara Kochalummodu Road on 26.11.2012 at about 1:30 hrs in the early morning went out of control and hit the compound wall of the house of one Daniel Kutty and over tuned and thereby sustained damage. It is seen from the GD entry that no crime was registered. It is significant that the GD entry is silent as to who was driving the vehicle at the time of accident. It is in the above background the complainant claims that she was driving the vehicle and her brother was a co-passenger. On the contrary, the investigator appointed by the opp. parties came to the conclusion that the son the complainant was in fact driving the vehicle. He had no driving license. The complainant's son as well as his friend who was a co- passenger sustained injuries. The story that they sustained injuries in a bike accident as they were coming to the accident spot is invented by the complainant to submit insurance claim. It was on that basis the claim was repudiated.
5. No doubt that insurance service falls within the purview of the Consumer Protection Act but only if deficiency in service is involved. Since own damage claim is put forth the party may not be compelled to approach A Motor Accidents Claims Tribunal Under Section 165 of the Motor Vehicles Act. But a consumer forum cannot act as the appellate authority of the insurance company and substitute its own decisions without sufficient evidence. The consumer forum based its decisions on the lack of independent evidence to substantiate the contention of the opp. parties. But the approach should have been just the reverse. The consumer forum never considered the question whether there was evidence to show that the complainant was in fact driving the vehicle at the time of accident. The complainant is a woman aged 55 years. The accident happened during night time at 1:30 hrs. lt is true that the complainant has produced the copy of her driving license. As PW1 the complainant admitted that the vehicle hit a road side granite wall and over turned. But she sustained no injury sufficient to approach a hospital. She claimed that she summoned a nearby nurse on the next day and took TT injection and she herself dressed her wound. She claimed that her brother was accompanying her in the vehicle. He also sustained no injury. She admitted that Arun one of her sons sustained injury in an accident. He sustained crush injury leg and abrasions on the hand. She claimed that he sustained injuries in a bike accident as he was coming to the accident spot on getting interim regarding the accident. His friend did not sustain injury. She pleaded ignorance whether the scooter sustained any damage. She dented the suggestion that Arun was not holding valid driving licence. She claimed that Arun was holding four wheeler driving licence. But the complainant conveniently failed to produce the driving licence of her son Arun, thus affirming the contention of the appellants that the son of the complainant was not having driving licence on the date of accident. We have referred to the several circumstances accompanying the accident and in our view the several circumstances can only lead to the inference arrived at by the insurance investigator that at the time of accident, the complainant was not driving her vehicle involved in the accident. On the contrary her son who was having no valid driving licence was driving the vehicle. The conclusion of the consumer forum to the contrary on the basis of lack of evidence cannot be sustained.
6. Regarding the compensation awarded the consumer forum was not justified in accepting Ext.A4 final bill issued by the workshop after effecting repairs. The complainant is entitled to make replacement of spare parts only to the extent it is required to restore the vehicle to the condition at the time of accident. The complainant is not entitled to reap benefits out of the accident. There is no acceptable evidence except the survey report to show the extent of damage sustained to the vehicle. The estimate of repairs or the final bill itself is not sufficient evidence to indicate the actual extent of repairs required due to the accident. But this aspect is immaterial in view of the conclusion that the appellants were justified in repudiating the claim as the driver of the vehicle at the time of accident was not having valid driving licence. Therefore, the order of the consumer forum cannot be sustained. Hence the appeal is liable to be allowed.
In the result, the appeal is allowed. The order of CDRF, Pathanamathitta in CC.No.133/2013 dated 01.07.2014 is set aside. The complaint shall stand dismissed. The parties are directed to bear their respective costs in this appeal."
7. Being dissatisfied by the Impugned Order dated 25.08.2016 of the State Commission, the Petitioner/Complainant filed the instant Revision Petition.
8. The learned Counsel for the Petitioner/Complainant argued that this case is entirely based on the premise that the Complainant submitted that she was driving the car at the time of accident, but the Respondents/OPs contended that the son of Complainant, namely, Arun was driving the car at the time of accident and also he did not have the valid driving licence at the time of accident and thus, the Respondents/OPs have no liability to pay the claim. The learned Counsel for the Complainant relied upon the judgment of National Insurance Co. Ltd. vs Swaran Singh (2004) 3 SCC 297, 2004 SCC (Cri) 733 the Court has held as under: (SCC pp. 336-37, para 89):
"89. ....If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."
9. He further relied on Kalyan Kumar Gogoi Vs. Ashuthosh Agnihotri and Another (2011) 2 SCC 532 observed as under:
"37. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatsoever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetence to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.
38. The reasons why hearsay evidence is not received as relevant evidence are:
(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me",
(b) truth is diluted and diminished with each repetition and
(c) if permitted, gives ample scope for playing fraud by saying "someone told me that....... ". It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible."
10. He also argued in favour of the order passed by the District Forum. He sought to allow the present Revision Petition and set aside the order of the State Commission.
11. On the other hand, the learned Counsel for the Respondent argued that Petitioner/Complainant filed a meritless petition which does not disclose any substantial grounds for intervention of this Commission. This case is entirely based on the premise that instead of Complainant, her son namely Arun was driving the car at the time of accident and he did not have valid and effective driving licence at the time of accident and thus, the Respondents/OPs. have no liability to pay the claim. He argued in favour of the order passed by the learned State Commission. He sought to dismiss the present Revision Petition.
12. I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
13. The main issue in the instant case is whether the claim for damage sustained by a vehicle in a road accident is admissible, when the driver, i.e. complainant herself or her son namely Arun of such vehicle was in possession of a valid and effective driving license at the time of the accident?
14. With regard to the issue who was the driver at the time of accident, the learned State Commission delved into this matter in detail in the impugned order. There is no reasons or cogent evidence to disbelieve the said findings of the learned State Commission that the son of the Complainant namely Arun was the driver of the insured vehicle at the time of the accident and he did not have valid and effective Driving License at that time of accident. The insurance company's argument centers on fundamental breach of policy condition by the insured (Complainant) as regards to the driver's valid license and demonstrating its direct contribution to the accident. This is crucial in determining the admissibility of the insurance claim. Notably, there is no third-party claim under dispute and the claim pertains to the owner/insured (Complainant) who allowed the vehicle to be driven by a person without a valid driving license, resulting in the accident. This is considered a breach of the Motor Vehicles Act as well as the terms of the insurance contract. As a result, the insurance company argues that the complainant is not entitled to any relief under the policy in question.
15. Based on the discussions above, I do not find that the learned State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or there is any material irregularity or illegality in the order of the learned State Commission in Appeal No. 450 of 2014 dated 25.08.2016.
16. There is no merit in the present Revision Petition and the same is, therefore, Dismissed.
17. There shall be no order as to costs.
18. All pending Applications, if any, stand disposed of accordingly.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER