State Consumer Disputes Redressal Commission
Vasudev Pillai vs Reliance General Insurance Co.Ltd. on 13 July, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/123
Instituted on : 13/04/2016
Vasudev Pillai, Aged 54 years,
S/o Late Gopal Pillai,
R/o : Near Kanji House, Kumhari, Police Station :
Kumhari, Tehsil Dhamdha, District Durg (C.G.) ... Appellant.
Vs.
Reliance General Insurance Company Limited,
Manager, Plot No - 29, Nehru Nagar (East),
Commercial Complex,
Bhilai, Tehsil & District Durg (C.G.) ...Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Shri D.D. Dhage, for the respondent.
ORDER
Dated : 13/07/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 15.02.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./2013/222. By the impugned order, the District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated the fact of the complaint of the complainant are that The vehicle bearing registration No.C.G.04-J.B.-7682 is registered with the R.T.O., Raipur in the name of son of the complainant Pramod Kumar Pillai and the said vehicle was insured with the O.P. for the period from 18.12.2010 to 17.12.2011. The policy No. is 2314702334000272 and cover note no. is 231407011494. Under the above insurance policy, the O.P. (Insurance Company) insured the vehicle in question and its driver and a sum of Rs.100/- was taken by the (O.P.) towards premium. If during the use of the vehicle, the owner of the vehicle dies, then under the above insurance policy, the O.P. (Insurance Company) is required to pay a sum of Rs.2,00,000/- to the legal heirs of the owner of the vehicle. On 20.12.2010 Ishwar Das Mongre, the driver of vehicle bearing registration No.C.G.04-J.B./7682, which was under the ownership of son of the complainant Pramod Kumar Pillai, was driving the vehicle and was going to Banbarad from Kumhari. In the above vehicle the son of the complainant, Pramod Kumar Pillai was also sat and they stayed at Ahiwara for taking tea and after taking tea, Pramod Kumar Pillai sat in the driver's seat and was driving the vehicle and driver Ishwar Das Mongre was sat in the conductor's seat, near High School, Village Banbarad, the driver of the vehicle bearing registration No.C.G.07-ZB/0347, which was coming from Ahiwara and he was driving the vehicle rashly and negligently dashed the vehicle bearing registration No.C.G.-04- // 3 // J.B.7682 due to which Pramod Kumar Pillai, who was driving the vehicle in question sustained grievous injury and died on the spot. In the above accident, the driver of vehicle bearing registration No.C.G.04-J.B.7682 also sustained grievous injuries and he died on 23.12.2010 during treatment at Pt. Jawaharlal Nehru Hospital and Research Centre, Sector 09, Bhilai, Tehsil and District Durg (C.G.). On being receiving intimation regarding the incident, Police Station Nandini Nagar, District Durg registered First Information No.410/2010 against Jeetu Dewangan, who was driver of the offending vehicle bearing registration No.C.G.07/Z.B.0347. After the incident, the complainant gave intimation regarding the incident to the O.P. (Insurance Company) through toll free number. In response thereto, the O.P. (Insurance Company) gave claim No.2111039549 in respect of the vehicle which was damaged in the incident and claim No.2111039555 in respect of P.A. Claim. The complainant gave written intimation regarding the incident to the O.P. (Insurance Company) on 31.12.2010 and also attached R.C. Book of vehicle bearing registration No.C.G.04/J.B/77682, insurance policy and photocopy of the fitness certificate and photocopy of driving licence of son of the complainant. In the above intimation the complainant gave information to the O.P. Insurance Company that after the incident, the vehicle in question is in possession of the Police Station, Nandini Nagar and requested the O.P. (Insurance Company) to appoint // 4 // Surveyor and get the loss assessed. The complainant also requested the O.P. to give intimation to him in his mobile no.98271-70838 regarding appointment of the Surveyor, so that he will present at the time of survey at Police Station, Nandini Nagar. The complainant also requested the O.P. to take action regarding his claim in respect of damage of the vehicle in question and claim in respect of death of his son Pramod Kumar Pillai, but the O.P. did not take any action. The complainant gave intimation regarding the incident to the O.P. in time, but as per terms and conditions of the policy, the O.P. did not provide the sum assured under the policy to the tune of Rs.2,00,000/- regarding death of his son, to the complainant and also did not pay Rs.2,45,000/- as per terms and conditions of the policy regarding damage to the vehicle in question, which comes within purview of deficiency in service. The complainant sent registered notice to the O.P. and demanded the amount but after receipt of the notice, the O.P. did not give reply thereof and also did not settle the claim of the complainant. The complainant contacted the O.P. several time, but the O.P. did not settle the claim of the complainant and thus committed deficiency in service. Hence, the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
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3. The O.P. filed its written statement and denied the allegations made by the complainant in the complaint. The O.P. averred that according to the documents, Pramod Kumar Pillai was driving the vehicle in question. There is clear cut violation of the terms and conditions of the insurance policy, therefore, amount of compensation has not been paid. The vehicle in question was not completely damaged in the accident. The O.P. did not commit any deficiency in service by not paying the amount of compensation to the complainant. At the time of accident, the driver of the insured vehicle Pramod Kumar Pillai was not having effective and valid driving licence for driving Light Goods Vehicle, but deceased Pramod Kumar Pillai, was carrying passengers in the said vehicle, which is violation of the terms and conditions of the insurance policy, hence the O.P. did not pay the amount of compensation and thus it has not committed any deficiency in service. The complaint is liable to be dismissed for want of cause of action. The complaint was required to be filed within two years from the date of accrual of cause of action. According to the complainant, the cause of action accrued on 20.12.2010 and accordingly the complaint was required to be filed till 19.12.2012 but the complainant has been filed very belatedly and no proper explanation has been given for the delay. In these circumstances, the complaint is liable to be dismissed. According to the documents filed by the complainant the vehicle in question is Light Motor Vehicle and the above vehicle // 6 // was insured as goods carries vehicle. According to the documents and the insurance policy, the total sitting capacity of the vehicle in question is two persons, but at the time of incident, 15 persons were sitting in the vehicle in question including driver Pramod Kumar Pillai. The insured vehicle was being used for carrying passengers. At the time of incident, the driver of the vehicle Pramod Kumar Pillai was not having valid and effective driving licence to drive the insured vehicle. Due to violation of terms and conditions of the insurance policy, the O.P. is not liable to pay any compensation to the complainant. The O.P. did not commit any deficiency in service. The complaint is liable to be dismissed as barred by limitation.
4. The complainant filed documents. Annexure A-1 is Police Investigation Report, Annexure A-1(a) is First Information Report (Under Section 154 Cr. P.C.), Inquest, application for post mortem, post mortem report, Annexure A-2 is Death Certificate of Pramod Kumar issued by Registrar (Birth-Death), Annexure A-3 is Motor (Final) Survey Report dated 25.05.2012 of Shri Pankaj Rai, Surveyor and Loss Assessor, Annexure A-4 is Certificate of Registration of vehicle bearing registration No.C.G.04-JB-7682, Annexure A-5 is Certificate of Fitness, Annexure A-6 is Repair Estimates for Accidented Vehicle bearing Registration No.C.G.04-JB-7682, Model - Tata Ace, Annexure A-7 is Tax Invoice dated 01.03.2012 issued by Jaika Automobiles, Annexure A-8 is driving licence of Pramod Kumar Pillai, Annexure A-9 is Notice // 7 // of Arbitration proceeding issued by the Sole Arbitrator, Annexure A- 10 is Family Card, Annexure A-11 is letter dated 31.12.2010 sent by the complainant to the Manager, Reliance General Insurance Company Limited, Bhilai (C.G.), Annexure A-12 is letter No.RFL/LRN/L-1/253 sent by Religare to Mr. Nitin Chadha, Advocate, Annexure A-13 is No Objection Certificate dated 14/07/2011, Annexure A-14 is quotation dated 17.01.2012 issued by Jaika Automobiles, Annexure A-15 is Certificte issued by Yogesh Sahu, Upadhyaksh - Nagar Palika Parishad, Kumhari, Annexure A-16 to Annexure A-18 are Repayment Receipts, Annexure A-19 is order dated 15.12.2011 passed by J.M.F.C., Durg (C.G.), Annexure A-20 is registered notice dated 31.12.2011 sent by Shri Etendra Kumar Rao, Advocate, on behalf of the complainant to The Claim Manager, Reliance General Insurance Co. Ltd. Raipur (C.G.), Annexure A-22 is acknowledgement and receipt for registry, Annexure A-23 is Goods Carrying Vehicle Package Policy Certificate Cum Policy Schedule , Annexure A-24 is First Information Report dated 21.12.2010, Annexure A-25 is Merg Intimation dated 21.12.2010, Annexure A-26 is Inquest dated 21.12.2010, Annexure A-27 is Post Mortem Report dated 21.12.2010, Annexure A-28 is death certificate dated 16.09.2011 of Pramod Kumar, Annexure A-29 is Property Seizure Memo dated 21.12.2010, Annexure A-30 is Property Seizure Memo dated 21.12.2010, Annexure A-31 is Property Seizure Memo dated 21.12.2010, Annexure A-32 is Arrest/Court Surrender Memo, dated // 8 // 05.06.2011, Annexure A-33 is Police Investigation Report dated 05.03.2011, Annexure A-34 is Final Report dated 18.08.2011, Annexure A-35 is notice dated 31.12.2010 sent by the complainant to the O.P., Annexure A-36 is Certificate of Registration of vehicle bearing registration No.C.G.04-JB-7682, Annexure A-37 is Certificate of Fitness of vehicle bearing registration No.C.G.04-JB-7682, Annexure A-38 is insurance policy dated 18.12.2010, annexure A-39 is driving licence dated 13.12.2009 of Pramod Kumr Pillai, Annexure A-40 is registry receipt dated 31.12.2011, Annexure A-41 is acknowledgement dated 02.01.2012, Annexure A-43 is Survey Report dated 25.05.2012, Annexure A-44 is Repair Estimated dated 17.01.2012, Annexure A-45 and Annexure A-46 is Tax Invoice dated 01.03.2012, annexure A-47 is receipt and application filed under Section 451 Cr.P.C. by the complainant before J.M.F.C. Durg (C.G.), Annexure A-48 is photocopy of order sheet dated 29.09.2011 recorded by J.M.F.C. Durg, Annexure A-49 is order dated 14.12.2011 in Criminal Revision No.173/2011 passed by Fifth Additional Session Judge, Durg (C.G.), Annexure A-50 is Quotation, Annexure A-51 is Notice of Arbitration sent by Sole Arbitrator, Annexure A-52 to Annexure A-55 are Repayment Receipts, Annexure A-55 is No Objection Certificate, Annexure A-56 is Order dated 29.09.2011 of J.M.F.C. Durg (C.G.), Annexure A-57 is Ration Card, Annexure A-58 is driving licence of Ishwar Das, Annexure A-59 is order sheet dated 03.07.2015 passed by // 9 // 6th Additional Motor Accident Claims Tribunal, Durg, Annexure A-60 is application filed under Sections 166 and 140 of Motor Vehicles Act, 1988 by the complainant and others.
5. The O.P. has not filed any documents before the District Forum.
6. Learned District Forum after having considered the material placed before it by the parties has dismissed the complaint.
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued initially the vehicle in question, was being driven by driver Ishwar Das Mongre, thereafter vehicle in question was being driven by deceased Pramod Kumar Pillai. Deceased Pramod Kumar Pillai was having driving licence for driving Light Motor Vehicles (LMV) which is also valid and effective for driving light goods vehicle, therefore, the respondent (O.P.) has erroneously repudiated the claim of the appellant (complainant). The appellant (complainant) is entitled to get compensation from the respondent (O.P.) as prayed in the complaint. If we presume that the vehicle in question was carrying passengers, even then the appellant (complainant), is entitled to get compensation on non-standard basis. The appeal may be allowed and the impugned order passed by the District Forum may be set aside. The appellant (complainant) may be awarded compensation, as prayed by him in the complaint.
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8. Shri D.D. Dhage, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and argued that the vehicle in question was goods carrying vehicle, but it was being used by the deceased Pramod Kumar Pillai as taxi at the time of the accident, which is contrary to the terms and conditions of the insurance policy and near about 13 more passengers were sitting in the vehicle ,which is prima facie violation of terms and conditions of the insurance policy. It appears that the vehicle in question was used against the terms and conditions of the insurance policy. He further argued that the driver of the vehicle was not having driving licence to drive goods carrying vehicle. According to the appellant (complainant), Ishwar Das Mongre was driver of the vehicle in question, who was not possessing valid and effective driving licence to drive goods carrying vehicle, therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission.
9. We have heard learned counsel for both the parties and have also perused the record and impugned order of the District Forum.
10. From perusal of the complaint, it appears that on 20.12.2010 initially the vehicle bearing registration No. C.G.04-J.B.-7682 was being driven by Ishwar Das Mongre and owner of the vehicle in question Pramod Kumar Pillai was also sat and they stayed at Ahiwara for // 11 // taking tea and after taking tea, Pramod Kumar Pillai sat in the driver's seat and was driving the vehicle and driver Ishwar Das Mongre was sat in the conductor's seat, and the vehicle was being driven by Pramod Kumar Pillai. According to the respondent (O.P.), Pramod Kumar Pillai was having driving licence for driving Light Motor Vehicle (L.M.V.) whereas the vehicle in question is goods carrying vehicle.
11. The driving licence of Pramod Kumar Pillai has been filed by the appellant (complainant) himself which is marked as Annexure A-8. In the said driving licence it is mentioned that Pramod Kumar Pillai is only entitled to drive Light Motor Vehicles (L.M.V.) and Motor Cycle With Gear (MCWG). In the above driving licence it is not mentioned that Pramod Kumar Pillai is also entitled to drive Goods Carrying Vehicle. The appellant (complainant) has filed Certificate of Registration of vehicle bearing registration No.C.G.04-JB-7682 in which against the column of class of vehicle, Light Goods Vehicle is mentioned and its seating capacity is mentioned as 2.
12. In Sub Section (14) of Section 2 of The Motor Vehicles Act, 1988 "Goods Carriage" has been defined thus :-
"goods carriage" means any motor vehicle constructed or adopted or for use solely for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of the goods."
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13. In Sub Section (21) of Section 2 of The Motor Vehicles Act, 1988 the "Light Motor Vehicle" has been defined thus :-
"light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road- roller the unladen weight of any of which, does not exceed 7500 kilograms."
14. From bare perusal of the record of the District Forum, it appears that at the time accident, the deceased Pramod Kumar Pillai was driving Goods Carrying Vehicle whereas he was having driving licence for driving Light Motor Vehicle (L.M.V.). It appears that at the time of the accident, Pramod Kumar Pillai, was not having valid and effective driving licence to drive Goods Carrying Vehicle.
15. The appellant (complainant) filed photocopy of First Information Report (F.I.R.) which is marked as Annexure A-1(a) in which it is mentioned that at the time of accident, in the vehicle in question Yashoda Bai, Pavan Bai, Sangeeta Bai, Prem Mani Bai, Padmni Bai, Parwati Bai, Radhika Bai, Dukhia Bai, Haridi Bai, Kewari Bai and Ahilya Bai and Mehtarra were sitting.
16. In the instant case, the respondent (O.P.) has appointed Shri Pankaj Rai, as Surveyor and Loss Assessor, who inspected the vehicle in question and assessed the loss. In his Survey Report dated // 13 // 25.05.2012 it is mentioned that the vehicle in question is Light Goods Vehicle (L.G.V.). It is also mentioned in the Surveyor Report that "the vehicle was carrying 15 passengers including driver and helper at the time of accident." It appears that the vehicle in question is Light Goods Vehicle (L.G.V.) and at the time of accident the vehicle in question was carrying 13 passengers. The vehicle was being used in violation of terms and conditions of the insurance policy.
17. In the case of National Insurance Company Limited vs. Meena Agrawal, 2009 (III) D.M.P. 111 (SC), Hon'ble Supreme Court observed that - Consumer Protection Act, 1986 - Section 23 - Liability of insurance company - Damage to vehicle in a vehicular accident - Claim for cost of repairs of vehicle - Alleged breach of conditions of insurance policy - Driver allegedly not possessing valid driving licence
- Vehicle insured for personal use but being used as taxi. - Hence use of vehicle against conditions of insurance policy - District Consumer Forum rejected the claim for damages - On appeal being preferred State Commission allowed the claim partly on ground that though vehicle was used as a taxi there was no fundamental breach of conditions of insurance policy - Revision filed by insurance company dismissed by National Commission - Held, owner of vehicle is under obligation to verify that driver of vehicle has a valid driving licence - Claim for damage to vehicle in question - No reasons assigned by State Commission and the National Commission to conclude that there // 14 // was no fundamental breach of policy conditions - When vehicle insured for personal use being used for commercial purpose - Orders of State Commission and National Commission not sustainable - Impugned order set aside."
18. In the case of New India Assurance Co. Ltd. vs. B. Satyajit Reddy & Anr. I (2011) CPJ 132 (NC), Hon'ble National Commission observed that "Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b)
- Motor Vehicles Act, 1988 - Section 3(1) - Insurance - Breach of policy conditions - Accident claim - Injuries to occupants - Driving licence validity - Claim repudiated - Forum dismissed compliant - State Commission allowed appeal - Hence revision - Contention of respondent No.2 was that vehicle was not being used as transport vehicle but for personal purpose - Not accepted - Vehicle continued to be registered as a transport vehicle for which a specific authorized licence was a statutory necessity - Act in driving a taxi was illegal and such driving was in contravention of terms of policy conditions - Repudiation justified.
19. In the case of S.G. Shivamurtheppa vs Reliance General Insurance Company Limited I (2012) CPJ 175 (NC), Hon'ble National Commission has observed that "Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b) - Insurance - Carrying of - Excessive passengers
- Breach of policy conditions - Vehicle met with accident - Claim // 15 // repudiated - Complaint partly allowed - Appeal allowed and order of District Forum set aside - Hence, revision petition - Motor vehicle was registered for carriage of passengers not exceeding to 12 - At time of accident, vehicle was instead carrying 16 persons - There was explicit and admitted violation of condition of insurance policy and so, claim rightly repudiated by Insurance Company - Impugned order of State Commission valid."
20. In the instant case, the driver of the vehicle in question Pramod Kumar Pillai was having licence to drive Light Motor Vehicles (LMV), but the vehicle in question was goods carrying vehicle and deceased Pramod Kumar Pillai, was not having valid and effective driving licence to drive goods carrying vehicle. From the First Information Report and Certificate of Registration of vehicle in question, it has already been established that 13 more passengers were carrying by the deceased Pramod Kumar Pillai in the vehicle in question at the time of accident, which shows that the vehicle in question was being used as Taxi, which is fundamental breach of terms and conditions of the insurance policy.
21. Therefore, the impugned order dated 15.02.2016, passed by the District Forum, is just and proper and does not suffer from any infirmity or illegality, hence does not call for any interference by this Commission.
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22. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 13/07/2016 13/07/2016 13/07/2016 13/07/2016