This is the complaint filed by one Smt.Ambamma and her Minor son Nandeesha against Respondents Iffco Tokio General Insurance Co. Ltd. under Sec-12 of C.P. Act for to direct the Respondents to pay insurance amount of Rs.2,00,000/- for the death of husband of Complainant No.1 K.Basavaraj and to award an amount of Rs.10,000/- towards damages, mental agony, hardship, loss sustained for deficiency in service, to award an amount of Rs.5,000/- towards cost of this litigation with interest @ 18% p.a. with other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the Complainants case are that;
The husband of Complainant No.1 and the father Minor Complainant No.2 by name K.Basavaraj was the R.C. holder and owner of Bajaj Auto bearing No.KA-34/7106. He was having valid licence to drive it at his life time. The said vehicle was insured with Respondent Insurance Company and Insurance Policy holds good from 28/06/2006 to 27/06/2007. On 04/01/2007 at about 9.00 a.m. near country club of Bellary on public highway the said K.Basavaraj was driving the said vehicle and due to sudden application of breaks to it, it turned turtle, he sustained grievous injuries and died. Police complaint was filed in that regard. The Complainant No.1 and 2 are legal heirs filed claim petition before the Respondents, but their claim was not considered inspite of several requests. A legal notice was issued, but Respondents shown their negligence in settling their claim and thereby both Respondents were found deficiency in their services towards them as such they filed this complaint for the reliefs as prayed in it.
3. The Respondent Nos.1 and 2 appeared in this case through their advocate, the Respondent No.1 filed Written Version and Respondent No.2 adopted the W.V. of Respondent No.1. The brief facts of Written Version of them are that;
K.Basavaraj obtained Policy for his goods vehicle bearing Regn. No.KA-34/7106 and the said Policy valid from 28/06/2006 to 27/06/2007. The said vehicle was registered as a goods carriage and it was insured as a commercial vehicle in the insurance package. The Policy covers the risk for owner-cum-driver for Rs.2,00,000/-. On the said date, time and place K.Basavaraj was driving his luggage auto without valid and effective licence to drive it. The licence issued by RTO authorities not authorizes the K.Basavaraj to drive the luggage auto of him. Hence, it is violation of terms and conditions of Policy and thereby it was prayed by it to dismiss the complaint among other grounds.
4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;
Whether the Complainants prove that, the deceased K.Basavaraj who is the husband of Complainant No.1 and father of Complainant No.2, was owner and R.C. holder of auto bearing Regn.No.KA-34/7106 insured with Respondents, was driving with valid licence to drive it. On 04/01/2007 at 9.00 a.m. near Country Club of Bellary on public road, the vehicle met with an accident, he died in the said accident. These Complainants being LRs. of deceased K.Basavaraj filed claim petition along with necessary records to the Respondents, but Respondents shown their negligence in settling their claim petition with untenable grounds and thereby both Respondents found guilty under deficiency in their services towards them?
Whether the Complainants are entitled for reliefs as prayed in their complaint?
To what relief the Complainants are entitled for?
5.Our findings on the above points are as under.
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;
Point Nos.1 & 2: -
6. In order to prove the facts involved in these two Points, the affidavit evidence of Complainant No.1 was filed, she was noted as P.W.1. Documents Ex.P.1 to Ex.P.16 are marked. On the other hand, the affidavit evidence of the Head, CSC of Respondent Insurance Company was filed, he was noted as R.W.1, no documents filed and marked. Both parties have not filed their written arguments.
7. On perusal of contents of Complaint, affidavit evidence of P.W.1, Written Version and affidavit evidence of R.W.1, some of the following facts are undisputed facts in between the parties.
1.There is no dispute with regard to legal heirship of Complainant Nos.1 and 2 of K.Basavaraj as Complainant No.1 being his wife and Complainant No.2 is as his minor son.
2.Ownership of K.Basavaraj to the auto goods carrier bearing No.KA-34/7106 is not in dispute.
3.Purchase of Insurance Policy by K.Basavaraj for the said auto rickshaw by covering the risk for owner-cum-driver to the extent of Rs.2,00,000/- from the Respondents Insurance Company is not in dispute.
4.The accident of the vehicle and death of K. Basavaraj in the said accident is disputed in the Written Version, but thereafter the Respondents have admitted it.
5.With regard to filing of claim petition by these Complainants with Respondents after the death of K.Basavaraj is also not in dispute.
8. In the light of circumstances stated above, we have referred two rulings of Hon’ble Supreme Court reported in 2007 ACJ 721 National Insurance Co. Ltd. Vs. Laxmi Narain Dhut and another ruling reported in AIR 1995 Supreme Court 1384 Chairman, Thiruvalluvar Vs. Consumer Protection Act.
9. The earlier ruling of Hon’ble Supreme Court is a latest decision to the later decided case. In later case, the Hon’ble Supreme Court held - Consumer Protection Act is not applicable to the cases arising out of accident claims due to death or fatal injuries sustained by the person in vehicle accident.
10. In the earlier decided case is the recent Judgment, their lordships of Hon’ble Supreme Court observed in Para No.22 of its Judgment in that case as the Forums created under C.P.Act 1986 are competent to adjudicate the claims relates to own damages. This kind of claims cannot be adjudicated by the Accident Tribunals.
11. In the light of law laid down by the Hon’ble Supreme Court in the latest case, we came to a conclusion that, this Forum has got jurisdiction to try the subject matter of this complaint.
12. Now, coming to the lonely point in dispute between the parties is that, according to the learned advocate for Complainant, deceased K.Basavaraj was having effective and valid licence to drive his own vehicle on the said date, time and place of accident. On the other hand, the learned advocate for Respondents contended that, deceased K.Basavaraj was not having a valid and effective driving licence to drive the said vehicle on the said date, time and place of accident.
13. In support of submission made by the learned advocate for Complainant, he referred R.C. extract of said vehicle Ex.P.2 and D.L. extract Ex.P.3. According to his submission, the vehicle bearing No.KA-34/7106 is a goods carrier. Its seating capacity is one as per R.C. extract Ex.P.2. His driving licence Ex.P.3 shows that he was having valid and effective licence to drive the said auto goods carriage as the vehicle mentioned in Ex.P.2 and Ex.P.3 is listed as a LMV as per Government Notification dated: 12/06/1989.
14. The learned advocate for Respondents also relied on documents Ex.P.2 and Ex.P.3 and contended that, the said vehicle is goods carrier, but licence of K.Basavaraj shows that he was having a licence to drive autorickshaw cab only, but the said vehicle mentioned in Ex.P.3 not similar to the vehicle mentioned in Ex.P.2 R.C. extract. The said vehicle of K.Basavaraj is goods carrier vehicle. As such, Ex.P.3 is not a valid driving licence to drive the said vehicle and thereby there was breach of conditions of driver clause of Insurance Policy Ex.P.1.
15. In support of the arguments advanced by the learned advocate for Respondents, he referred following rulings.
Unreported decided case of Hon’ble Supreme Court in Civil Appeal No.1102 of 2009 dated: 18/02/2009 Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors.
2008 (1) T.A.C. 401 (S.C.) New India Assurance Co. Ltd. Vs. Prabhu Lal.
III (2008) CPJ 191 (NC) United India Insurance Co. Ltd. Vs. Arvind Kumar Rajak.
AIR 2008 SUPREME COURT 2266 New India Assurance Co. ltd. Vs. Roshanben Rahemansha Fakir & Anr.
16. In all the above said rulings, the Hon’ble Supreme Court held with regard to effective and valid licence to drive the particular class of vehicles and if there was no valid and effective licence to a driver to drive the particular class of vehicles then claim against Insurance Policy is not maintainable and thereby Insurance Company is not liable to pay any compensation.
17. Keeping in view of the submissions made on both sides and documents referred by them, we referred Ex.P.2 which is a copy of R.C. in which class of the said vehicle bearing No.KA-34/7106 was noted as goods carrier. On perusal of driving licence of K.Basavaraj Ex.P.3, it discloses that he was valid and effective D.L. to drive autorickshaw cab only. In Ex.P.3 there was no endorsement by RTO authority by stating that K.Basavaraj was having valid and effective licence to drive goods carrier. In view of documents Ex.P.2 and Ex.P.3, it is a fact that, goods carrier vehicle is different to the autorickshaw cab as mentioned in Ex.P.3.
18. Now, coming to the submission made by the learned advocate for Complainant in this regard. He contended that, the Govt. Notification dated; 12/06/1989 shows the list of vehicles called them as Light Motor Vehicles. In the said list, five types of vehicles have been listed as Three-wheelers-Passenger vehicle, auto rickshaw, motorized cycle rickshaw, invalid carriage and three-wheeler-goods carriage. According to his submission, all the said vehicles are listed as Light Motor Vehicles as such, holding licence to drive any one of the vehicle listed above is sufficient to drive other kinds of vehicles as listed. There is no need of endorsement by the RTO specifically in the Driving Licence in that regard as such, driving licence of auto rickshaw held by K.Basavaraj was valid and effective licence to drive a goods carrier which involved in the accident.
19. In pursuance of submissions made on both sides in this regard, Ex.P.3 shows that the driving licence held by the K.Basavaraj is only for to drive auto rickshaw cab. There is no mentioning in it by the competent authorities for his eligibility to drive other kinds of vehicles as noted in the said Notification. If there was an endorsement by the competent authority in Ex.P.3 for authorizing him to drive LMV without specifying the nature of vehicles then the arguments advanced by the learned advocate for Complainant holds good, but in the present case, Ex.P.3 shows that deceased K.Basavaraj was having effective and valid D.L. to drive auto rickshaw cab which is passenger carrying vehicle and not as goods carrier as mentioned in Ex.P.2. So it is a conclusive fact that, the deceased K.Basavaraj was not having valid and effective D.L. to drive present vehicle bearing No.KA-34/7106. The submission made by the learned advocate for Respondents in this regard and rulings referred above are supporting our conclusion that, the deceased K.Basavaraj was not having effective and valid D.L. to drive goods carrier i.e. vehicle bearing No.KA-34/7106 on the said date, time and place of accident.
20. Now coming to the next point for our consideration is as to whether such breach of contract with regard to non-possession of valid and effective driving licence to the drive it on the said date, time and place of accident is a fundamental breach of terms and conditions of Policy. To decide this factor, the law laid down by the Hon’ble Supreme Court in recent ruling reported in 2009 (1) CCC 6 (NS) Supreme Court National Insurance Co. Vs. Meena Agrawal is sufficient. In the said case, their lordships has observed as not having effective and valid licence for to drive the particular vehicle is a fundamental breach of terms and conditions of Policy and thereby their lordships of Hon’ble Supreme Court reversed the judgment of State Commission and National Commission by upholding the Judgment of District Forum.
21. The facts and circumstances of this case and the facts and circumstances that case dealt by their lordships of Hon’ble Supreme Court are similar as such, the case on hand cannot be considered as there was no fundamental breach of terms and conditions of Policy.
22. In view of facts and circumstances discussed above, we have not convinced from the submission made by the learned advocate for Complainant as there is deficiency in service by the Respondents. On the other hand, we have accepted the case of Respondents and thereby we have not noticed any deficiency in service on the part of these Respondents in non-settling the claim of Complainants and thereby we answered Point No.1 in Negative.
23. In view of findings on Point No.1, the Complainants are not entitled for any one of the reliefs as prayed in their complaint. Hence, Point No.2 is also answered in Negative.
Point No.3: -
24. In view of findings on Point Nos.1 & 2, we pass the following;
The complaint filed by the Complainants is dismissed, leaving the parties at their own costs.
Inform the parties accordingly.
(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 19th day of March 2009).
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