State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Prakash R. Mali on 12 November, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 300 OF 2008 Date of filing : 21/02/2008 @ MISC. APPL. NOS. 449 & 450 OF 2008 Date of order : 12/11/2008 IN CONSUMER COMPLAINT NO. 408 OF 2006 DISTRICT CONSUMER FORUM : KOLHAPUR New India Assurance Co. Ltd. Thru Divisional Manager, Kolhapur Now thru manager Regional Office, Sharada Centre, Off. Karfe Road, Pune. Appellant/org. O.P. V/s. Prakash R. Mali R/at 517, A Disha Residebey, Shivaji Park, Kolhapur. Respondent/org. complainant Corum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Smt. S.P. Lale, Honble Member Present:
R.R.P. Bafna, Advocate for the appellant. Mr.A.M. Adagule, Advocate for the respondent.
- : ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member This is an appeal filed by org. O.P./Insurance Company against the judgement and award passed by District Consumer Forum Kolhapur in consumer complaint No.408/2006 delivered on 29/12/2007, whereby while allowing the complaint, O.P./Insurance Company has been directed to pay amount of Rs.1,48,448.94 as compensation to the complainant with interest @ 9% p.a. from 15/04/2006 and also directed to pay cost of Rs.500/- to the complainant.
The facts to the extent material may be stated as under :-
The complainant is the owner of Maruti car and he had taken comprehensive insurance cover from the New India Assurance Co. Ltd., Kolhapur. The policy period was 12/04/2005 to 11/04/2006. The said vehicle met with an accident at Kolhapur-Ratnagiri Road, near Kerli on 15/12/2005. The complainant informed about the accident and damage caused to the vehicle to the Insurance Company immediately. The spot survey was undertaken by the Surveyor appointed by the Insurance Company. The complainant sustained damage of Rs.1,89,115/-. The market value of the Maruti Van is Rs.2,18,104/-. He had taken insurance cover for that amount. The complainant in due course submitted claim form and sought damage of Rs.1,89,115/-. However, by letter dated 06/09/2006 the claim was repudiated by the Insurance Company on the ground that at the time of accident, driver of the vehicle Mr.Abhijit Kore was not having effective driving licence. According to the complainant, he had appointed driver Shri Namdeo Kamble. At the time of accident he had given the vehicle in the custody of Shri Kamble. He had not given consent to Mr.Abhijit Kore for driving the said vehicle. He pleaded that without his permission, Mr.Kore was driving the vehicle at the time of accident. Therefore, he was not guilty of violation or breach of condition of licence. Therefore, the Insurance Company should not have repudiated the claim. Since, the Insurance Company repudiated the claim, he filed consumer complaint.
The O.P. filed written statement and admitted that the complainant had taken insurance cover for his vehicle Maruti Van and it had met with an accident at Kolhapur-Ratnagiri Road. But, O.P. denied that the complainant was required to spend Rs.1,89,115/- for repairs. The Company also denied that Mr.Kore drove the vehicle without his permission. According to the O.P. in Police Inquiry, it was found that at the time of accident Mr.Kore was driving the vehicle of the complainant and he was not having effective driving licence. Therefore, the complainant committed breach of condition of policy and as such, the complainant is not entitled to get any insurance dues from it. It therefore pleaded that the complaint should be dismissed with costs.
On the basis of affidavits and documents placed on record, the Forum below was of the view that if the owner of the vehicle did not know that his vehicle was driven by the driver having no effective driving licence, then it could not be said that the owner was guilty of committing breach of condition of the policy. The Forum below relied upon B.K. Taimani V/s. United India Insurance Company Ltd. decided by the National Commission and allowed the complaint and directed the O.P. to pay Rs.1,18,448.94 as compensation with interest @ 9% p.a. Aggrieved thereby, org. O.P./Insurance Company has filed this appeal.
We heard Mr.R.P. Bafna, Advocate for the appellant and Mr.A.M. Adagule, Advocate for the respondent/org. complainant.
At the outset, Mr.Bafna pointed out to us that there is delay in filing this appeal. He therefore filed application for condonation of delay. There is delay of 10 days in filing this appeal. In support of delay application, he has filed affidavit of official of Insurance Company. In para 4&5 of the condonation of delay application, just and sufficient cause has been made out. Therefore, we are inclined to allow condonation of delay application. We are therefore condoning the delay subject to cost of Rs.500/- payable by the appellant to the respondent. We immediately took up this appeal for hearing.
We are finding that the Forum below clearly committed error in law in allowing this complaint. In as much as the Forum below ignored the fact that there was clear-cut breach of condition of policy. For claiming compensation under the policy, the driver of the vehicle must be having effective driving licence when he was driving the vehicle in question. In the instant case, there was police investigation of the accident to the vehicle. The Police registered offence under Section 279, 337 and 338 of I.P.C. and under Section 184 of Motor Vehicles Act. In the F.I.R. it has been mentioned that the driver of the vehicle was Mr.Abhijit Kore and he had driven the vehicle rashly and negligently and dashed the van to the nearby road side tree and in the process, the van met with an accident. The driver as well as two more persons sustained injuries. Mr.Kore, resident of Ratnagiri was the driver of the vehicle at the time of accident. The Police clearly mentioned that Mr.Kore has not having driving licence at the time of accident. The Police also filed charge-sheet against Mr.A.S. Kore under Section 279, 337 and 338 of I.P.C. and also under Section 184 of Motor Vehicles Act, which clearly means that at the time of accident, the driver of Maruti Van bearing No.MH-09-AB 7280 was not having driving licence and he was driving the vehicle rashly and negligently and hence, accident occurred. The injury certificate of Mr.A.S. Kore dated 11/01/2006 is placed on record. The certificate is issued by Dr.Pradip Patil, Kolhapur, which shows that Mr.Kore had sustained fractural injuries to bone and various parts of the body. It is pertinent to note that in claim form submitted by the complainant, he mentioned name of Mr.Anil V. Mali as driver, driving the subject vehicle and he was having driving licence MH-10-2005. But, in the complaint, he mentioned that he had entrusted his Maruti Van on the date of accident to Shri D.S. Kamble. So, he was not aware how Mr.Abhijit Kore was driving the vehicle at the time of accident. So, there is basic discrepancy about the person driving the vehicle. In his claim form, at the time of accident, he mentioned that Mr.A.V. More is driving Maruti Van, whereas in his complaint he mentioned that his driver was Mr.D.S. Kamble and he did not know how it was driven by Mr.Abhijit Kore at the time of accident. So, the complainants case is discrepant in nature and no credence can be attached to the case as made out in the complaint as well as in the affidavit filed in support of his complaint. The complainant is surely concealing the material fact about who was driving the vehicle at the time of accident. When, the complainants case is that at the time of accident, Mr.A.V. Mali was driving vehicle, then that is falsified by the Police papers. In Police papers, it has been revealed that Mr.Abhijit Kore was driving the vehicle though he was not having driving licence. So, the complainants case as made out in the complaint is absolutely false. At the time of accident, Mr.Abhijit Kore was driving the vehicle and at that time Mr.Kore was not having driving licence as is clear from the Police papers.
In the case of Sardari & Ors. V/s. Sushil Kumar & Ors. 2008 ACJ 1307, the Honble Supreme Court clearly laid down that when at the time of accident, driver of the truck had no licence, the Insurance Company was rightly exempted from the liability. The Supreme Court further laid down that the owner of the vehicle has a statutory obligation to see that the driver of vehicle whom he authorized to drive holds a valid driving licence. Relying on this ruling of the Honble Supreme Court, we hold that the order passed by the Forum below is unjust, improper and cannot be allowed to sustain in law. The Forum below ignored the material fact that Mr.Abhijit Kore, who was driving the vehicle has not having effective driving licence at the time of accident and condition of driver having effective driving lincence is an important condition of the policy and as such when there is violation of important condition of policy, the Insurance Company is not required to honour the claim arising out of insurance policy issued to the owner of the vehicle. The owner of the vehicle had not bothered to see that Mr.Abhijit Kore, who was driving the vehicle on Kolhapur-Ratnagiri Road was having effective driving licence. He blindly gave car in the custody of Mr.Abhijit Kore, who has not having driving licence at all. Therefore, his insurance claim was rightly repudiated by the appellant/Insurance Company. The Forum below erroneously passed the order allowing the complaint and directing the Insurance Company to pay amount of Rs.1,18,448.94. In any view of the matter, the said order is erroneous and bad in law. It is passed contrary to the ruling of the Supreme Court mentioned supra. Hence, we are inclined to allow this appeal and pass the following order :-
-: ORDER :-
1. Misc. Appl. No.449/2008 for condonation of delay is allowed. Delay is condoned subject to cost of Rs.500/- payable by the appellant to the respondent
2. Appeal is allowed. The impugned order is quashed and set aside. The complaint stands dismissed.
3.
No order as to costs.
4. Misc. Appl. No.450/2008, which is for stay stands disposed of.
5. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member dd.