IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 30th day of September, 2014
Filed on 14.9.2011
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.307/2011
between
Complainant:- Opposite Parties:-
Sri. Subash Chandra Bose 1. Bharathi AXA General Insurance
Bhagya Deepam Company Ltd., 1st Floor, Ferns Icon
Muttom P.O., Cheppad Sy. No.28, Doddana Kundi Village
Haripad – 690 581 K.R. Puram, Bangalore – 37
Alappuzha District
(By Adv. Laly Joseph) 2. Bharathi AXA General Insurance
Company Ltd., 5th & 7th Floor
Modayil Centre Point, Pallimukku
M.G. Road, Cochin – 682 035
(By Adv. Oommen Thomas – for
Opposite parties 1 and 2)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the owner in possession of a vehicle No.KL-29 B 4435. The first opposite party is the insurer of the vehicle. On 23.1.2010 the vehicle met with an accident at Kayamkulam. Due to the accident the vehicle of the complainant get damaged. A case was registered by the Kayamkulam Traffic Police Inspector. At the time of accident, the vehicle was insured with the opposite party. After the accident claim for compensation was advanced by the complainant to the opposite party. The representative and technical experts inspected the place of occurrence and the vehicle involved in the accident. Thereafter, the opposite party repudiated the claim lodged by the complainant on the ground that the driver was not having valid license at the time of accident. The complainant was driving the vehicle accompanied with a valid license holder. On the basis of the instruction by the opposite party, complainant repaired the vehicle. The expenses and costs of the vehicle are Rs.59,259/-. The opposite party did not pay any amount for the repair of the vehicle. The act committed by the opposite party amounts deficiency in service and hence the complaint is filed directing the opposite parties to return the claim amount of Rs.59,259/- with
interest and compensation. 2. The version of the opposite parties is as follows:-
It is true that on 23.1.2010, the complainant’s car met with an accident at Kayamkulam. The complainant was losing the car without the assistance of a person specifically authorized to import learning of driving. The car was insured with the opposite party. The averment in para 5 of the petition is not correct. Upon intimation of the claim on 15.2.2010 the vehicle was inspected by a competent surveyor of IRDA and on studying the report it is understood that the driver was having learner’s license and was not accompanied by a tutor having specific authorization. Further the complainant himself was driving the car at the time of accident. He was holder a learners’ license only. The complainant influenced the police and not included the charge Under Section 3(1) of MV Act, even though he was holder a learner’s license only. The complainant was had not complied the provisions of the Motor Vehicles Act and the policy conditions. So he is not entitled to get any own damages claim. Hence the complaint is to be dismissed.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A4. One witness was examined as PW2. The document produced was marked as Ext.A5. Opposite party was examined as RW1. Documents produced were marked as Exts.B1 to B5.
5. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) If so the reliefs and costs?
6. Point No.1:- The admitted facts of the case are following:-
1) Complainant is the owner in the possession of the Santro Hyundai Car bearing No.KL – 29 – B – 4435.
2) On 23.1.2010 the car met with an accident at Kayamkulam.
3) The car was insured with the opposite parties under a comprehensive policy, and there was valid policy at the time of accident.
4) Complainant himself was driving the car at the time of accident.
5) Complainant was holding a learner’s license only.
According to the complainant due to the accident the vehicle was damaged and the claim put forward for compensation was repudiated for the reason that the driver was not having valid license at the time of accident. It is admitted that complainant was having only learners’ license at the time of accident. The contention of the opposite party is that since the complainant was not having effective driving license, the insurance company is not liable to accept the claim of the complainant. According to the complainant he was driving the vehicle satisfying the condition in rule 3 of the Motor Vehicle Rules. In order to substantiate this allegation, he has produced the charge sheet in Criminal No.117/2010 which is marked as Ext.A3. On verifying Ext.A3, it is seen that the complainant was accompanied by Mr.Santhosh Babu who is having a valid driving license. A copy of the policy is produced and marked as Ext.B5 series. In Ext.B5 series page No.2 wherein it is specifically stated is as follows:- “Persons or classes of person entitled to drive, Any person including the insured: Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.” In the instant case, it is admitted that complainant is having only learner’s license at the time of accident. According to him he was driving the vehicle satisfying the condition of Rule 3 of Motor Vehicle Rules. He was assisted by his brother named Santhosh Babu who was having a valid license. On verifying Ext.A3 it can be seen that Mr. Santhosh Babu is listed as witness No.8 who was sitting in the front seat along with the driver and was having license to drive the vehicle. More over Mr. Santhosh Babu was examined as PW2. He categorically stated that he is having a valid license and he accompanied the complainant at the time of accident. He also produced his driving license which is marked as Ext.A5. The opposite party’s counsel vehemently argued that there is no mention in the FIR and FIS of the criminal case regarding the presence of Mr. Santhosh Babu. Learned counsel also argued that Mr. Santhosh Babu’s name was included in the charge sheet only at the influence of the complainant. On verifying FIR and FIS, we came to see that the name of the valid license holder was not mentioned in the FIR and FIS. But it is pertinent to note that the crime was charged against the accused, the complainant in this case u/s 279 and 337 of IPC. If the complainant had no driving license, he should be charged u/s 3 of the M.V. Act. Since the complainant was not charged u/s 3 of the M.V. Act, we cannot assume that the complainant was not having effective driving license at the time of accident. The opposite party doubted the genuineness of the Ext.A3 charge sheet. According to the opposite party the Police had completed the entire investigation by 27.1.2010, but they have not submitted the charge at the influence of the complainant immediately, but only on 12.4.2010. The opposite party failed to prove that contention by examining the officer who prepared the charge sheet. They repudiated the claim of the complainant on the basis of the report of the private investigator, but that private investigator was not examined by the opposite party to prove their contentions. No evidence was adduced by the opposite party to prove that complainant did not satisfy Rule 3 of the Central Motor Vehicles Rules. Further it has come out in evidence that PW2 who is having a valid driving license was travelling along with the complainant. Hence we are of the opinion that opposite party cannot repudiate the claim of the complainant on the ground that complainant has got only a leaner’s license at the time of accident and it cannot be stated he has committed breach of policy condition. The repudiation of the claim of the complainant by the opposite party on that ground amounts to deficiency in service. The point No.1 answered accordingly.
7. Point No.2:- According to the complainant due to the accident the vehicle was damaged and as per the instruction of the opposite party the complainant done the repairing of the vehicle in the authorized workshop of S.S. Hyundai, Mavelikara. The expenses and costs of repair of the vehicle are Rs.59,259/- and to prove that complainant produced the bill issued in this regard and which is marked as Ext.A4. Ext.A4 shows that complainant paid Rs.59259/- towards repairing charge. The opposite party contended that upon the intimation of the claim, a competent surveyor of IRDA inspected the vehicle and had given assessment to the tune of Rs.43,311/- only. But in order to substantiate this contention, no survey report is produced. In the absence of survey report, it is difficult to believe the assessment of the surveyor. Hence the complainant is entitled to get Rs.59,259/- towards repairing charge from the opposite party. In view of the above discussion, we are of the opinion that complainant who was having effective driving license to drive the vehicle at the time of accident is entitled to claim compensation from the opposite party as per the term of the comprehensive policy of the vehicle involved in the accident.
In the result, complaint is allowed. The opposite parties are directed to pay Rs.59,259/- (Rupees fifty nine thousand two hundred and fifty nine only) with 6% per annum from the date of filing the complaint till realization to the complainant. We refrain from granting compensation and cost of the proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by me and pronounced in open Forum on this the 30th day of September, 2014.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Subash Chandra Bose (Witness)
PW2 - C.S. Santhosh Babu (Witness)
Ext.A1 - Copy of the policy
Ext.A2 - Copy of the registered letter dated 22.4.10
Ext.A3 - Copy of the FIR
Ext.A4 - Copy of the cash invoice
Ext.A5 - Copy of the driving license of Sri. Santhosh Babu
Evidence of the opposite parties:-
RW1 - A.Hussain (Witness)
Ext.B1 - Copy of the mahazor
Ext.B2 - Copy of the mahazor
Ext.B3 - Copy of the final report of Police
Ext.B4 - Copy of the wound certificate
Ext.B5 series - Copy of the policy and other details ( 5 Nos.)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
