State Consumer Disputes Redressal Commission
Branch Manager United India Insurance ... vs A. Ramasamy S/O. Ettappnaicker ... on 9 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) COMMON ORDER IN F.A.NO.479/2010, 480/2010 & 481/2010 (Against order in O.P.NO.80/2001 on the file of the DCDRF, Srivilliputhur) DATED THIS THE 9th DAY OF DECEMBER 2011 F.A.NO.479/2010 Branch Manager United India Insurance Co. Ltd., M/s. Arunkumar 924-F, Main Road, Kovilpattu Counsel for Appellants / 2nd opposite party Vs. 1. A. Ramasamy S/o. Ettappnaicker 2. V. Jayalakshmi W/o. R.Venkatesan 3. S. Vijayalakshmi W/o. R. Srinivasan M/s. Sethuramanujam All are residing at : Counsel for 7-F, Pilliarkovil Street, Saathur Respondents/ Complainants 4. R. Srinivasan M/s.S.Ramachandran M/s.Srinivasa Constructions Counsel for 7-F, Pilliarkovil Street, Saathur 4th Respondent/ 1st Opposite party F.A.NO.480/2010 Branch Manager United India Insurance Co. Ltd., M/s. Arunkumar 924-F, Main Road, Kovilpattu Counsel for Appellants / 2nd opposite party Vs. 1. R. Srinivasan M/s. Sinivasa Constructions 7-F, Pilliarkovil Street, Saathur 2. S. Priyadarshana M/s. S. Ramachandran, Counsel for D/o. R. Srinivasan Respondents/ Complainants F.A.NO.481/2010 Branch Manager United India Insurance Co. Ltd., M/s. Arunkumar 924-F, Main Road, Kovilpattu Counsel for Appellants / 2nd opposite party Vs. 1. S. Vijayalakshmi W/o. R. Srinivasan Muthalnaickenpatti Mr.K. Sethuramanujam Sivakasi Taluk, Virdhu Nagar Respondent/Complainant 2. Minor S. Pavithra D/o. R. Srinivasan Muthalnaickenpatti Sivakasi Taluk, Virudhu Nagar 3. R. Srinivasan M/s. Srinivasa Constructions M/s. S. Ramachandran, Counsel for 7-F, Pilliarkovil Street, Saathur 4th Respondent/ 1st Opposite party The Complainant filed a complaint before the District Forum against the opposite parties praying for direction to the opposite party to pay the policy amount with compensation and cost. The District Forum allowed the complaints. Against the said order, these appeals are preferred by the 2nd opposite party separately in praying to set aside the orders of the District Forum dt.27.5.2010 in CC.Nos.78/2001, 79/2001 and 80/2001. These appeal coming before us for hearing finally on 23.11.2011. Upon hearing the arguments of the counsels on either side, upon perusing the written arguments, documents, and lower court records, this commission made the following order: COMMON ORDER
M. THANIKACHALAM J, PRESIDENT
1. The 2nd opposite party in CC.No.78/2001 and 80/2001 and the only opposite party in CC.No.79/2001, on the file of District Forum, Srivilliputhur, are the appellants, in F.A.No.479/2010, 481/2010 and 480/2010 respectively.
2. The parties are referred as arrayed in the complaint.
The first opposite party, by name R. Srinivasan, who is not the opposite party in CC.No.79/2001, was the owner of a car, bearing Regn.No.TN67 B1998, which was insured with the United India Insurance Company, the appellants, for the period covering 23.11.1998 to 22.11.99, including personal accident claim, as well as covering the life of the driver also. During the pendency of the coverage, the vehicle, when driven by one Srinivasan, who was having learners license, met with an accident, by hitting a lorry bearing No.KL 13/L 2264, in which two of the occupants viz. Dhanammal (CC.78/2001) and Rajalakshmi (CC.79/2001), as well as the driver of the vehicle (CC.No.80/2001) died.
3. On the basis of the accident, FIR was given against the offending vehicle, and the driver had admitted the guilt before the Judicial Magistrate. Under the policy, the 2nd opposite party/ insurance company is liable to compensate the legal heirs of the occupants, as well as the driver, who died and when claims were made, repudiated on the grounds that this vehicle was driven by R.Srinivasan, who had no valid license, thereby offended the terms and conditions of the policy, and in view of the same they are not liable to compensate, for the death of the person, thereby the insurance company has committed negligence, as well as deficiency in service, causing mental agony also. Thus alleging, as said above, independent claims were made by the legal heirs of the deceased, in the same accident, claiming personal accident, claim of RS.1 lakh alongwith compensation of Rs.1 lakh, including for mental agony and cost.
4. The common defense by the owner of the vehicle:
The 1st opposite party in CC.78/2001 and 80/2001 in his written version, would contend that the vehicle was duly insured with the 2nd opposite party, which was in force on the date and time of the accident, so if the claimants are entitled to any compensation, they have to proceed only against the insurance company, thereby disowning his liability, denying other averments, prayed for the dismissal of the complaint, as far as he is concerned.
5. The 2nd opposite party, admitting the fact, the vehicle was insured with them, mainly resisted the case on the ground, that since at the time of the accident, even as per the case of the complainants, the vehicle was driven by a person, who was having only learners license, the insured had violated the terms and conditions of the policy, in handing over the vehicle, to a person who is incompetent to drive the vehicle, that the cases are not maintainable for non-joinder of necessary parties, as well as the complainants are not consumers, that the Forum has no territorial jurisdiction to decide the case, since, no part of cause of action had arisen within the territorial jurisdiction of the District Forum concerned, and in view of the separate claims filed before Motor Accident Claims Tribunal, the cases are not maintainable, praying for the dismissal of the complaint, denying other averments in the complaints.
6. The District Forum, by its separate orders dt.27.5.2008, came to the conclusion, that the complainants are the consumers, being the beneficiary of the person died, for whom premium were paid, that the Forum has jurisdiction, since part of cause of action had arisen, within its jurisdiction, that even in view of the fact that motor accident claim petitions were filed against the offending vehicle, these petitions are well maintainable. On the above basis, directions were made, against the 2nd opposite party/insurance company alone, in two cases, to pay a sum of Rs.1 lakh with interest as personal accident claim, with compensation of Rs.5000/- with cost of Rs.5000/-, and in one case (CC.80/2001), directed the 2nd opposite party, to pay a sum of Rs.20000/-, with interest, alongwith compensation of Rs.5000/- and cost of Rs.5000/-, which are all challenged by insurance company, independently as said above, in these appeals.
7. Against the dismissal of the cases, against the owner of the vehicle, the complainants have not filed any appeal.
8. In the written versions, additional written versions, though many defenses were raised by the insurance company/appellants, which are all negatived by the District Forum, those findings are not at all questioned in the memorandum of appeals.
Therefore, in this appeal we are not concerned about the territorial jurisdiction, maintainability of the case, as well as other MCOP pending elsewhere, and it can be safely taken, these points are all not pressed before us, since in the grounds of appeal, no such plea, in addition learned counsel for the appellants also have not urged those points raised in the written version, before us.
9. The learned counsel for the appellants would contend, that admittedly at the time of the accident, the vehicle was driven by one Srinivasan, who was having only Learners License, for LMV, and by entrusting the vehicle to the person, who is not having valid license, the terms and conditions of the policy was offended, and therefore the repudiation was justifiable. In support of the above contention, our attention was also drawn to some of the decisions of this commission in National Insurance Co.
Ltd., Vs. A.Thangavel, reported in I (2011) CPJ 335, as well as the decision of the National Commission in National Insurance Co. Ltd., Vs. Pritipati Sattiyya & Ors. reported in IV (2011) CPJ 133 (NC), including two rulings of the Apex Court in National Insurance Co. Ltd., Vs. Meena Aggarwal reported in 2009 ACJ 666, and New India Assurance Co. Ltd., Vs. Roshanben Rahemansha Fakir and another reported in 2008 ACJ 2161. We have perused the above judgements very carefully, and we are of the considered opinion, that on facts, those rulings are not applicable to the case on hand, since all those decisions relate to commercial vehicle or passenger vehicle, driven by LMV license holder, not obtaining endorsement, which is mandatory, which is not the case here. In this context we have to see the facts of the present cases.
10. Admittedly one Srinivasan, who is the 1st opposite party in CC.78/2001 and 80/2001, was the owner of premier car, bearing Regn. No.TN67 B1998. It is also an admitted fact that the vehicle was insured with the opposite party, as seen from the Policy No.14588/1998 (Ex.A3=B1).
This policy covers the period 23.11.98 to 22.11.99. During the coverage of the policy, admittedly, the vehicle met with an accident on 26.1.99 and the offending vehicle, was lorry bearing No.KL B2264, for that admittedly criminal case was filed against the lorry driver, who admitted the guilt also.
Therefore, it is patent, that this accident had taken place, not by the negligent or rash driving of the LLR holder, by name Srinivasan, whereas this accident had occurred due to the negligent act or rash driving of the offending vehicle viz. KL B2264. Therefore, we cannot say the LLR holding driver Srinivasan, had violated the terms and conditions of the policy, or owner entrusting the vehicle to him, violated the conditions of the policy, as if the driver had driven the vehicle, without knowing how to drive the vehicle etc. Therefore, the legal heirs of the occupants of the car, have filed any claim petition before the Motor Accident Claim Tribunal, against the insurance company of the offending vehicle, that has nothing to do with this case, since this claim depends upon separate premium paid for personal accident, as well as for the driver also, independently, exclusively. Because of these reasons alone, this defense, though raised in the written version not urged before us.
11. As seen from the policy, for five capital benefits, per person Rs.1 lakh premium was paid, thereby insurance company undertaken to reimburse the damage caused to the occupants, or if death caused, to the legal heirs of the occupants, as the case may be. In this case, admittedly two occupants by name Dhanalakshmi, and Rajalakshmi have died and their legal heirs have filed CC.78/2001 and 79/2001. Similarly as seen from the policy condition, there is a personal accident cover for driver, quantifying Rs.20000/-, for which also premium paid and for the death of the said driver, his legal heirs have filed CC.80/2001. Considering the quantum agreed under the policy, for the occupants at Rs.1 lakh each, for the driver Rs.20000/-, the District Forum has rightly granted compensation, in which quantum we cannot find fault, and that is why interest is challenged, which we will discuss infra.
12. In the policy, there is no prohibition in driving the vehicle, by a person, holding leaners license. As repeatedly held by the courts, as incorporated in the complaint itself, a driver, holding learners license would be a person duly licensed person, within the meaning of the Motor Vehicles Act, and such a person is entitled to drive the vehicle, if driven, that cannot be treated as violation of conditions of policy, which is supported by the decision of National Commission in National Insurance Co. Ltd., Vs. Ramesh Kumar (IV (2006) CPJ 460 NC). Realizing this, defense was taken as if there was no display that the vehicle was driven by LLR holder, displaying L, accompanied by a person knowing, driving. For all these averments, to prove except the plea, we do not have any materials. In the surveyors report though, it is said permanent LMV license holder was not driven alongwith driver, and L symbol was not affixed in the vehicle, and it is not known, on which basis this conclusion was reached. Even assuming that it is a violation, that is not the cause of the accident, to invalidate the policy. If the vehicle on its own, while driven by LLR holder, caused anything, it can be said there is a policy violation, whereas, in this case admittedly another lorry hit this vehicle, caused accident, thereby indicating LLR holder is not the case for the accident. Further, since it is not prohibited, that LLR holder is not entitled to drive the vehicle and LLR holder also duly authorized, to drive the vehicle, we conclude as rightly did by the District Forum, there is no violation of the policy, except this point, not other point was urged before us. The District Forum, considering all defense, has correctly come to the conclusion, awarded, compensation as per the personal accident coverage, to the limit of driver liability, with bearest minimum interest of 6%, since repudiated unjustifiably, which finding we are not willing to disturb, including the compensation, for mental agony and cost.
For these reasons, all the appeals are liable to be dismissed, as non meritorious.
13. In the result, all the appeals are dismissed, confirming the order of the District Forum in CC.Nos.78/2001, 79/2001 and 80/2001.
There will be no order as to cost in these appeals.
J. JAYARAM M. THANIKACHALAM JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Miscellaneous