State Consumer Disputes Redressal Commission
Tavora Hotels & Restaurants, vs The Oriental Insurance Co. Ltd. on 26 November, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA FA. No. 23/2012 TAVORA HOTELS & RESTAURANTS, A partnership firm having its registered office at 2nd Floor, through its Partner, Mr. Carlos Tavora, 2nd Floor, Trionora Apts. Panaji Goa. Appellant v/s. THE ORIENTAL INSURANCE CO. LTD. through its Divisional Manager, 3rd floor, Gouveia Chambers, Heliodoro Salgado Road, Panaji-Goa. Respondent Appellant is represented by Adv. Shri. D. Naik. Respondent is represented by Adv. Shri. E. Afonso. Coram: Shri. Jagdish G. Prabhudessai, Member Smt.Vidhya R. Gurav, Member Dated: 26/11/2013. ORDER
[Per Smt. Vidhya R. Gurav, Member.] This appeal is filed by complainant in CC. No. 108/2008 and is directed against the dissenting order dated 24/08/11 and final order dated 1/8/2012 of the ld. North Goa District Forum by the complaint filed by the Complainant/Appellant has been dismissed.
2. Some facts of the case are stated hereunder to dispose off this appeal.
3. The complainant/appellant had purchased a brand new Toyata Corolla H5, Anniversary Edition Car, type saloon on 23rd January 2006. The said car was registered in the RTO office Panaji having No. GA-07/C-6006. The said car was insured with the opposite party under policy type Private Car Package Policy Zone B which is a comprehensive policy having policy No. 163200/31/2007/3584 for Rs. 9,20,000/- and which was renewed on 17/1/2007 for a further period and was valid upto midnight of 22-1-2008.
4. The said car met with an accident on 27th December 2007 when the partner of the complainant Mr. Carlos Tavora was driving the said car from Bambolim to Panaji through the Goa University Route and was badly damaged.
5. The partner of Appellant No. 1 informed the Panaji town police and Agacaim police station about the said accident vide its letter dated 27/12/2007.
6. The Agacaim police station conducted the scene of accident, panchanama and also inspected the car, prepared a motor vehicle checking report dated 27/12/2007and one Mr. Jacob Fernandes from M/s. Jacob Garage after inspection of the car gave its report dated 29/12/2007.
7. After the completion of the necessary formalities the car was towed out to the car dealer M/s. Sharayu Toyota, at Cortalim to carry out repairs. The said car dealer after inspection estimated the cost of repair Rs. 4,38,646.63/- vide quotation dated 31/12/2007.
8. Hence the complainant/appellant preferred an Insurance claim of Rs. 4,38,646.63/- with OP/Respondent vide Motor Claim Form dated 02/01/2008 as the car was insured for Rs. 9,20,000/- with OP.
9. In order to commence with the work of damaged car, the car dealer demanded a advance payment of Rs. 2,00,000/- vide its letter dated 12/1/08 and again vide another letter dated 8/2/2008 he demanded entire estimated cost of Rs. 4,38,646.63/- in order to commence the work. The appellant/complainant accordingly informed the insurance company.
But vide letter dated 27/02/2008, the OP repudiated the claim of the complainant/appellant on the ground that complainant was not holding a valid and effective driving licence on the day of the accident i.e. 27/12/2007 as no claim.
10. Despite no claim stand taken by the OP; the said complainant, effected a advance payment of Rs. 2,00,000/- vide cheque Mo. 024452 dated 7/3/2008 drawn on Goa Urban Co-operative Bank in order to commence with the repair work and another cheque of Rs. 2,96,961/- vide cheque No. 027940 dated 6/5/2008 drawn on Goa Urban Co-operative Bank after completion of entire work and took delivery of the repaired vehicle.
11. Hence aggrieved by the letter dated 22/2/2008, repudiating the claim of the complainant, preferred complaint before the ld. Forum.
12. We perused the written version of OP, affidavit-in-evidence of complainant and OP and documents on record.
1. We have heard Shri. Dinesh Naik, the lr. advocate on behalf of the appellant/complainant and ld. Advocate E. Afonso on behalf of the Respondent/OP, so also we perused the written submissions filed on behalf of the Appellant and Respondent.
2. There is no dispute that the Complainant/appellant had obtained from OP a Private Car Package Policy Zone B bearing policy No. 163200/31/2007/3584 and had renewed the same on 17/1/2007 for further period and was valid upto midnight of 22/1/2008 and hence was inforce at the time of accident.
3. According to the complainant, Mr. Carlos Tavora the partner of the firm was driving the said car through Goa University route at the time of accident. The driver of the vehicle had not contributed in any manner to the accident and he was never disqualified from holding a driving licence. In fact according to the complainant the partner of the complainant was always and is deemed to be holding valid driving license bearing No. GA/47509 which was issued on 15/4/1988by the Licensing Authority (North) Panaji Goa, to drive Light Motor Vehicle and subsequently got renewed without undergoing further tests and even till date is holding valid and effective driving licence and is not and was never disqualified from holding a driving license and hence the insurance Company cannot repudiate the claim on the ground that the driver of the vehicle was not having a valid or effective driving license.
13. The ld. Advocate for the complainant relied on various decisions of Apex Court which are as under:-
Jeetendra Kumar vs. Oriental Insurance Company (AIR 2003 SC 4161. In the instant case the driver of the vehicle was not holding a valid licence. The insured vehicle was damaged by fire. The fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault, or act or omission of the driver. Held that, Insurance Company could not have repudiated the claim of the insured solely on the ground that the driver did not have a valid licence at the time of the incident in question.
Also further at para 40, it is observed that a person whose license is ordinarily renewed in terms of the Motor Vehicle Act and the rules framed thereunder despite the fact that during the interregnum period, namely when the accident took place and the date of expiry of the licence, he did not possess a valid license, during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified thereof.
Further paras 84 it is observed that if accident is caused solely because of some other unforeseen or intervening cause having no nexus with driver for not possessing requisite type of license, Insurance Company cannot avoid liability merely for technical/minor breaches of licence conditions.
National Insurance Company Ltd., vs. Swaran Singh and others reported in AIR 2004 SC 1531, the Apex Court at para 105 (iii) has observed that the breach of policy conditions e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149 has to be proved to have been committed by the insured for avoiding liability of the insurer.
Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenses available to the insurer against either insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and has failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
14. Further also in the case of Oriental Insurance Company Ltd., vs. Meena Variyal & others reported in (2007)5 SCC 428, the Apex Court has taken the similar viewed as that of Swaran Singhs case of para 105 (iii) of the judgement and further at para 16 it is observed that the insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company.
Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.
15. Also Apex Court in case of Premkumari & ors. vs. Prahlad Dev & ors. reported in AIR 2008 SC 1073 at para 7 (iii) has taken the similar view as that of Swaran Singhs judgement at para 105
(iii).
16. The Apex Court in the case of Dharmendra Goel vs. Oriental Insurance Co, Ltd., reported in (2008) 8 SCC 279 at para 8 has observed that:
Even otherwise, we believe that in such matters, the compensation is possible on the material on record, it should not be denied on hyper technical pleas.
17. The Honble Bombay High Court in case of Bajaj Alliance General Insurance Company Ltd., vs. Smt. Vaishali Shetty & ors. reported in 2009 (1) AIR Bom R 776 at para 26 has observed as under:
In the present case, the Tribunal was required to apply the rule of main purpose while interpreting the policy conditions and if the test of main purpose is adopted, even after considering the material placed on record by the appellant insurer, a finding cannot be recorded that the breach was so fundamental that the appellant is entitled to avoid its liability under the policy of insurance.
18. Further the Apex Court in Amalendu Sahu vs. Oriental Insurance Company Ltd., reported in (2010) 4 SCC 536 it is observed at para 12 that:
The Appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The laid guidelines are set out below.
Sr. No. Description Percentage of Settlement 1 Under declaration of licensed carrying capacity Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim made.2
Overloading of vehicles beyond licensed carrying capacity Pay claims not exceeding 75% of admissible claims 3 Any other breach of warranty/ condition of policy including limitation as to use.
Pay upto 75% of admissible claim.
19. The Court held that the insurance company cannot repudiate the claim in toto and granted 50% of the claimed compensation.
20. Lr. Adv. E. Afonso for the OP/Respondent submitted that there is no dispute about the policy. It is an own damage claim i.e. the claim for damage to the insured vehicle due to the accident. There is a distinction between an own damage claim and a third party claim. An own damage claim is made by the insured himself for damage to his vehicle whereas the third party claim is the claim made by any person who is injured in an accident or a legal representative of the deceased person who died in an accident. In case of the own damage claim it is a contractual liability between the Insurer and Insured under the policy to indemnify the insured for any loss/damage to the vehicle.
Whereas in case of third party claim it is statutory liability of the Insurer to indemnify the insured person and the driver driving the vehicle at the time of accident with the consent of the insured for any liability under the provision of M. V. Act to third party.
21. It was further submitted by lr. Advocate for the respondent that the vehicle was damaged in an accident on 27.01.2007 which was driven and owned by Carlos Tavora. The said Carlos Tavora was not holding a valid and effective driving license at the time of accident on 27.12.2007. Prior to the accident his licence was valid from 21.01.1999 to 09.07.2007. Thereafter the validity of licence was from 15.01.2008 to 14.01.2013. Therefore the said Carlos Tavora from 09.07.2007 to 14.01.2008 was not holding a valid and effective driving licence and hence there has been a breach of specified policy condition excluding driving by any person who does not hold a valid and effective driving licence.
22. It is also submitted that there is no deeming provision for automatic renewal of driving licence after the expiry of its validity. Renewal of licence has to be done within 30 days of its expiry. In such cases of renewal within 30 days of expiry takes effect from the date of the expiry of licence. In all other cases after 30 days of expiry of licence, the same is valid from the date validation is applied for or the requisite fees for the same is paid and hence there is vast distinction between renewal of licence within 30 days of its expiry and validation of licence after expiry of 30 days of licence.
23. Further it is submitted by the respondents lr. advocate that the driving licence was valid prior to the accident and after the accident but not on the date of accident and hence insurance company is not liable. He also relied upon the reported judgment MullaPrakasarao vs. MullaJanaki&ors (2004) 3 SCC 343 a full bench judgement of 3 judges pg. 344 line (e) Order CA No.1613 of 1996:
It is not disputed that the driving licence of the driver of the vehicle had expired on 20-11-1982 and the driver did not apply for renewal within thirty days of the expiry of the said license, as required under S11 of M. V. Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of contract, the Insurance company has no liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence.
The respondent has also cited below mentioned judgement:
a) Ishwar Chandra &ors. Vs. Oriental Insurance Co. Ltd. (2007) 10 SCC (head note of pg 650)
b) Ram Babu Tiwari vs. Untied India Insurance Co. Ltd. (2008) 8 SCC 165
c) National Insurance Co. Ltd. Vs. VidhyadhnMariawada (2008) 12 SCC 701.
24. In all the above judgement similar view has been taken and facts of the case are identical to the present case which state that if the driver does not possess valid driving licence at the time of the accident, the Insurer is not liable to pay any compensation.
25. It is further submitted that all the judgements cited by the Complainant are in respect of `third party claim who have suffered injuries or died in the accident.
Therefore the said judgements are not applicable to the present case as it is a own damage claim which is settled by the judgement of the Apex Court in National Insurance Co. Ltd. Vs. LaximiNarainDhut (2007) SCC 700. Further in Jitendra Kumar vs. oriental Insurance Co. Ltd.(2003) 6 SCC 420 is the claim for loss of vehicle due to fire by mechanical reasons. The said Judgement is distinguishable from the facts and circumstances of the present case where the loss is due to accident while the vehicle was being driven by the partner of Complainant which went off the road and hence said judgement is not applicable to the present case.
26. Further the advocate for the respondent has also relied upon the guidelines how to settle the non-standard claims but the foot-note of the said guidelines reads as under
NOTE: ALL CLAIMS WHERE DRIVING LICENCE FOUND TO BE NOT EFFECTIVE SHOULD BE REPUDIATED.
27. After hearing both the parties, going through the documents, affidavits and written submission, we found that the main issue in the present case is the valid driving licence. After going through the policy and also as pointed out by the advocate for the respondent the drivers clause in the policy which is as under:
Any person including the insured, provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learners Licence may also drive the vehicle and that such a person satisfied the requirements of rule 3 of Central Motor Vehicles rules 1989.
28. Hence after going through the policy and driving licence we found that the driver of the vehicle should possess a valid and effective driving licence but in the present case the driver, partner of Complainant was not holding a valid and effective driving licence since licence had expired prior to the accident i.e. on 09/07/2007. Whereas the accident took place on 27.12.2007 and the licence was renewed subsequently from 15.01.2008 to 14.01.2013 i.e. after the accident which statement is accepted by us from documents.
29. Para 16 of the written arguments so also it was argued orally that the Complainant/ appellant Mr. Carlos Tavora was always and is deemed to be holding valid driving licence bearing no. GA/47509 which was issued on 15/04/1988 and was subsequently got renewed without undergoing further tests and even till date is holding a valid and effective driving licence and is not and was never disqualified from holding a driving licence but from para 3 of the affidavit in evidence (exhibit O) it is stated that validity of licence was from 15.04.88 to 14.04.93 from 28/10/93 to 09/07/07 and 21/01/00 to 09/07/2007 and 15/01/2008 to 14/01/2013. The records show that at the time of accident i.e. on 27/12/2007 the Complainant/ appellants licence was not valid since it was not renewed after 09/07/97 which was the date of expiry. So also the Complainant/ appellant has not applied for renewal of licence within 30 days with continuity of validity of licence from the date of its expiry i.e. 09/07/2007.
30. It is also notified that after 09/07/2007 till the date of accident and thereafter the appellant was not having a valid and effective driving licence and it was issued to him only on 15/01/2008 and hence the claim was repudiated rightly as no claim for breach of Policy conditions.
31. Further one of the arguments advance by the appellant is of deeming provision for automatic renewal of driving licence after the expiry of its validity. But as far as our knowledge goes and argued by the respondents counsel, renewal of licence has to be done within 30 days of its expiry. Only in such cases of renewal within 30 days of expiry takes effect from the date of the expiry of licence, but in all other cases the same is validated from the date the validation is applied for or the requisite fees for the same is paid and hence the appellant was not holding a valid and effective driving licence at the time of the accident.
32. Further all the judgements cited by the appellants are in respect of Third Party Claim who have either suffered injuries or died in the accident and hence the said judgements are not applicable to the present case as it is own damage claim. To support this contention the respondent has relied upon the judgement of Apex Court i.e. National Insurance Co. ltd. Vs. LaximiNarainDhut (2007) 3 SCC 700 to which we agree which states that Third Party Claims has no applications to the own damage claim.
33. Further Jitendra Kumar vs. Oriental Insurance Co. Ltd. (2003) 6 SCC 420 is cited by the Appellant. Here the claim is for loss of vehicle due to fire by mechanical reasons. Though it is a own damage claim, it is distinguishable from the above case where the loss is due to an accident while the vehicle was being driven by appellant partner which went off the road and hence present judgement is not applicable to the facts of the above case.
34. Further the appellant has relied upon the judgement of the Apex Court i.e. Sahus Judgement (2010) 4 SCC 536. This judgement is not applicable to the present case as the breach of policy condition is of driving licence which was not valid and effective at the time of accident. Whereas the judgement speaks about breach of policy condition in use of vehicle for private, for hire and reward. In the said judgement the claim is settled as non-standard claim thereby granting the Respondent 50% claimed value.
35. Produced by Adv. E. Afonso for respondents. Further the guidelines at clause III (a) reads as under:-
(a) Any other breach of warranty/condition of policy including limitation as to use : Pay 75% of & admissible claim at the end of the said guidelines the note is given which states as under:
Note:- All claims where driving licence found to be not effective should be repudiated.
36. In the present case the appellant was not holding a valid and effective driving licence at the time of accident hence the insurer is not liable to indemnify the insured on the basis of either judgement or guidelines. Also the judgements of the Apex Court cited by Respondents are identical to the present case and hence as per judgement insurance company is not liable to pay any compensation to the insured since the driver does not possess valid driving licence at the time of accident.
37. After considering all the above facts, documents relied upon, written version, affidavits and written submissions, citations, we are of the considered opinion that the complainant/appellant has failed to make out any case of deficiency of service on the part of OP and hence we uphelds the judgement of the North Forum.
ORDER The appeal is hereby dismissed with no order as to the cost.
Pronounced in open Court.
[Shri. Jagdish G. Prabhudesai] [Smt. Vidhya R. Gurav] MEMBER MEMBER