Manager National Insurance Co. Ltd., Bhavani Vs. P. Thangadhurai - Court Judgment

SooperKanoon Citationsooperkanoon.com/1111049
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnOct-06-2009
Case NumberF.A.NO.394 of 2006 (Against order in O.P.No.99/2004 on the file of the DCDRF, Erode)
JudgeHON'BLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT THIRU PON. GUNASEKARAN B.A.,B.L., MEMBER - I
AppellantManager National Insurance Co. Ltd., Bhavani
RespondentP. Thangadhurai
Excerpt:
honble m. thanikachalam j, president. 1. the opposite party on the file of the district forum, erode, is the appellant herein. 2. the respondent as complainant, approached the district forum, erode, claiming a sum of rs.30,524/- with interest thereon, as if the opposite party/ appellant not only committed deficiency in service, but also neglected to pay the same, pursuant to the insurance policy no.650503/31/03/610571, contending that his vehicle bearing reg.no.tn-36-e-5949, was insured with the opposite party for the period from 13.12.2003 and 12.12.2004, that the vehicle met with an accident, causing damage to the vehicle, which was repaired by spending a sum of rs.30,524/-, that when the said amount was claimed under the policy, the same was repudiated, as if on the date of accident, the driver was not having valid license and in this view, the insurance company is not liable to pay the amount and the repudiation as well as non-payment of the amount, amounts to deficiency in service, and in this view, they should be directed to pay the claim. 3. the appellant / opposite party opposed the claim by filing written version stating that the petition is bad for non-joinder of necessary parties, that the complainant has violated the terms and conditions of the policy by entrusting the vehicle to a driver who has no valid and effective driving license on the date of the alleged accident, that there was no deficiency in service as far as the insurance company is concerned and that the insurance company is not answerable to the claim made by the respondent / complainant. 4. the district forum, on the basis of the above averments, analysed the case, assessed the exhibits filed on behalf of the complainant as well as perused the affidavits. the evaluation of the above matters brought to surface, as held by the lower forum that the repudiation of the claim by the insurance company, as if that the driver of the vehicle was not having a valid license, is against the settled proposition of law, that the insurance company alone has failed to prove that the driver was not qualified from holding or obtaining a license, that there was deficiency in service, which should follow as per the terms and conditions of the policy, the insurance company has to pay the repair charges, thus taking the view, an order has been passed, directing the opposite party/ appellant to pay a sum of rs.30524/- with interest thereon at 12% p.a., in addition to cost of rs.2000/-, which is under challenge. 5. heard the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and the order passed by the district forum also. 6. the respondent/ complainant, insured his vehicle bearing regn. no.tn-09-e-5949, with the appellant/ opposite party, paying a premium of rs.6874/-, for the period from 13.12.2003 to 12.12.2004, is not under challenge before us. it is also more or less an admitted that the vehicle met with an accident at coimbatore on 6.5.2004, during the currency of the policy. the vehicle owner, after informing the accident, repaired the vehicle with one maruthi dealer, who had charged rs.30524/-. based upon the live policy, and under the assumption that the insurance company is bound to reimburse the said amount, a claim came to be filed, after repudiation as said above, which was opposed unsuccessfully. 7. the facts narrated in the complaint and the evidence adduced before the district forum, as well as the written version, would disclose the fact that the driver stephen, who was driving the vehicle, though had license, it lapsed on 7.2.2004, which was renewed only on 29.6.2004, i.e., after 112 days beyond the grace period. it is not the case before us, on behalf of the complainant, that the driver who driven the vehicle on the date of the accident, had the license, not expired, even on the date of accident. the district forum also placing reliance upon the averments in the written version, concluded that the driver of the vehicle had his license upto 7.2.2004, and he renewed the same on 29.6.2004. thus concluding, relying upon certain decisions, which we will discuss infra, came to the conclusion, as if the insurance company failed to prove that the driver was disqualified from holding or obtaining a license, and in this view, it ignored the lapse of the license and accepted the case of the complainant. 8. the learned counsel appearing for the respondent / complainant has also not advanced any case before us, such as, on the date of the accident, the driver of the vehicle had valid license or he renewed the same within a month, though the license had lapsed or expired on the date of the accident. in view of the above facts, concluding that on the date of the accident, the driver of the vehicle, who drove the vehicle, had no valid license or the license which he had, expired, not renewed in time, we have to proceed further, to see the legal impact, as well as its effect. 9. the main submission or the only the submission of the learned counsel for the appellant before us is, that the driver had no valid license on the date of the accident, and it is also not renewed within the grace period contemplated viz. 30 days, and in this view, as per the terms and conditions of the policy-agreement, the insurance company is not liable to answer the claimant, for the damages caused to the vehicle, at the time of the accident. per contra, it is the submission of the learned counsel for the respondent/ complainant, that though the license has not been renewed, the insurance company failed to prove that the driver is disqualified or incompetent to obtain a license on the date of the accident, and this being the position, as held by the district forum, placing reliance upon the decision passed an order, requires only confirmation, and not disturbance. 10. as rightly pointed out by the learned counsel for the appellant, the decisions relied on by the district forum, for passing an order in favour of the complainant, relate to the case between the insurance company and the third party. but the case on hand, awaiting our decision is between the insured and the insurer. therefore, according to the learned counsel for the appellant, there is lot of difference between the claims and when it is a question of damage by the insured for his own damage viz. the vehicle belongs to him, the terms and conditions of the agreement viz. the insurance policy, has to be considered strictly, for which in our opinion also, there may not be any difference of opinion. in support of the above submissions, out attention was drawn to various decisions. by going through the decisions and the ratio rendered therein, which has considered elaborately about the third party claim and the owners claim, we are constrained to follow the same, and if the ratio decidendi is followed, the unavoidable and ultimate result would be the success of the appeal, resulting dismissal of the complaint. 11. in oriental insurance co. ltd., vs. prithvi raj reported in 2008-2-law weekly-131 , the apex court had the occasion to consider chapter 9 of the motor vehicles act, on the question of insurers liability, such as the present case. while deciding that case, their lordships have distinguished the cases, involving damage to the property of third party, and damage to the property of the owner of the vehicle i.e., the insured, scanning sec.147 and 149 of the motor vehicles act, in addition to distinguishing the previous judicial precedents also, which related to third party claim, and not a own damage claim. 12. in the case involved in the above decision also, the insured approached the consumer forum, for damage of his own vehicle, which was repudiated on the ground that the driver of the vehicle did not have a valid and operating driving license. further, in that case, it seems that the complainant took a stand that there was a renewal of the driving license, which was valid and legal, and therefore the claim should not have been repudiated by the insurance company, which was rejected by the state commission, which was reversed or not accepted by the national commission, which was challenged before the apex court. the apex court, considering the rival contentions of the parties, and in view of sec.147, 150 etc., of motor vehicles act, where the word used “third party risk”, came to the conclusion that, though assuming that the driver had no valid license, or he failed to renew the license, on that ground alone, the insurance company cannot repudiate the claim, in view of the coverage given for the risk to be covered for the third parties. it seems that strong reliance was placed upon swaran singh and ors., case, which undisputedly relate to a case under sec.149 of the act, where the history of compulsory insurance, and the right of third parties, were analysed, then a decision has reached that the right of third parties cannot be taken away on the ground that the driver of the vehicle has no valid license or failed to renew the same, within the grace period. placing reliance, in this kind of decision alone, the district forum has come to the conclusion, as if the insurance company is answerable to the claim. 13. as seen from paragraph 19 of the above judgement, the primary stand of the insurance company was that the person driving the vehicle did not have a valid driving license. this is the situation prevails, in the case on our hand. as we have already adverted to above, that on the date of the accident, the driver of the complainant, has no valid license, in the sense it is not renewed, since already expired. the benefit conferred upon the third parties, cannot be extended to owners claim, as seen from paragraph 24 of the judgement, which reads “in the background of the statutory provisions, one thing is crystal clear i.e., the statute is beneficial one qua the third party. but that benefit cannot be extended to the owner of the offending vehicle. the logic of fake license has to be considered differently in respect of third party and in respect of own damage claims”. in the middle of paragraph 25 of judgement, it is said that “it will be seen that the liability extends to damage to any property of a third party and not damage to the property of the owner of the vehicle i.e., the insured” . in view of the above settled decision by the apex court, if there is any violation of the insurance policy, certainly on that ground, the insurance company can repudiate the claim, for that the approval of the forum also should be extended. on fact, on the date of the accident, the driver of the vehicle was not having valid license, and therefore applying the above principle laid down by the apex court, the irresistible conclusion that has to be drawn by this commission is that the repudiation by the insurance company, is absolutely legal, and at no stretch of imagination it can be described as against any provisions of law, which was not properly considered by the consumer forum, and in this view, we are constrained to interfere with the finding of the district forum. 14. in new india insurance co. ltd., vs. jadav narendrabhai jethabhai, reported in 1996 (1)cpr 78, it is held that if the driving license is not renewed within the grace period, or if the license is renewed later, the validity of the license would be only from the date of the renewal, and if the accident had taken place before renewal, then the insurance company is not liable to pay any loss to the insured. 15. the national commission, had an occasion to consider the effect of renewal 35 days after the accident in national insurance co. ltd., vs. manohar lal batra, reported in ii (2004) cpj 57 (nc), wherein it is held that the license would be deemed to have been renewed from the date of renewal of the risk under the policy not covered in the event of person driving the vehicle, not holding valid license at the time of accident, thus reaching the conclusion that the company is not liable to pay the damage also. 16. this commission also took the same view in new india insurance co. ltd., vs. s. arumugam, ii (2004) cpj 67, to which we have to subscribe our view. 17. the learned counsel appearing for the complainant/ respondent, though relied on the decisions cited by the district forum, which is improperly applied for the reasons assigned by us supra, has not brought anyother decisions to our notice, to over come or distinguish atleast the decision rendered by the apex court in oriental insurance co. ltd., vs. prithvi raj. thus, as guided by the apex court, being the settled law, it is to be held, that the district forum has not properly appreciated the case, as well also not properly applied the correct provisions of law, resulting injustice, causing genuine grievance to the appellant, which are to be redressed by this commission, by allowing the appeal. 16. in the result, the appeal is allowed. the order of the district forum in cop no.99/2004 dt.21.10.2005 is set aside, and the complaint is dismissed. the respondent/complainant, is directed to pay a sum of rs.1000/- as cost to the appellant/ opposite party in this appeal. the registry is directed to handover the fixed deposit receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the fdr.
Judgment:

HONBLE M. THANIKACHALAM J, PRESIDENT.

1. The opposite party on the file of the District Forum, Erode, is the appellant herein.

2. The respondent as complainant, approached the District Forum, Erode, claiming a sum of Rs.30,524/- with interest thereon, as if the opposite party/ appellant not only committed deficiency in service, but also neglected to pay the same, pursuant to the insurance policy No.650503/31/03/610571, contending that his vehicle bearing Reg.No.TN-36-E-5949, was insured with the opposite party for the period from 13.12.2003 and 12.12.2004, that the vehicle met with an accident, causing damage to the vehicle, which was repaired by spending a sum of Rs.30,524/-, that when the said amount was claimed under the policy, the same was repudiated, as if on the date of accident, the driver was not having valid license and in this view, the insurance company is not liable to pay the amount and the repudiation as well as non-payment of the amount, amounts to deficiency in service, and in this view, they should be directed to pay the claim.

3. The appellant / opposite party opposed the claim by filing written version stating that the petition is bad for non-joinder of necessary parties, that the complainant has violated the terms and conditions of the policy by entrusting the vehicle to a driver who has no valid and effective driving license on the date of the alleged accident, that there was no deficiency in service as far as the insurance company is concerned and that the insurance company is not answerable to the claim made by the respondent / complainant.

4. The District Forum, on the basis of the above averments, analysed the case, assessed the exhibits filed on behalf of the complainant as well as perused the affidavits. The evaluation of the above matters brought to surface, as held by the lower forum that the repudiation of the claim by the insurance company, as if that the driver of the vehicle was not having a valid license, is against the settled proposition of law, that the insurance company alone has failed to prove that the driver was not qualified from holding or obtaining a license, that there was deficiency in service, which should follow as per the terms and conditions of the policy, the insurance company has to pay the repair charges, thus taking the view, an order has been passed, directing the opposite party/ appellant to pay a sum of Rs.30524/- with interest thereon at 12% p.a., in addition to cost of Rs.2000/-, which is under challenge.

5. Heard the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and the order passed by the District Forum also.

6. The respondent/ complainant, insured his vehicle bearing Regn. No.TN-09-E-5949, with the appellant/ opposite party, paying a premium of Rs.6874/-, for the period from 13.12.2003 to 12.12.2004, is not under challenge before us. It is also more or less an admitted that the vehicle met with an accident at Coimbatore on 6.5.2004, during the currency of the policy. The vehicle owner, after informing the accident, repaired the vehicle with one Maruthi dealer, who had charged Rs.30524/-. Based upon the live policy, and under the assumption that the insurance company is bound to reimburse the said amount, a claim came to be filed, after repudiation as said above, which was opposed unsuccessfully.

7. The facts narrated in the complaint and the evidence adduced before the District Forum, as well as the written version, would disclose the fact that the driver Stephen, who was driving the vehicle, though had license, it lapsed on 7.2.2004, which was renewed only on 29.6.2004, i.e., after 112 days beyond the grace period. It is not the case before us, on behalf of the complainant, that the driver who driven the vehicle on the date of the accident, had the license, not expired, even on the date of accident. The District Forum also placing reliance upon the averments in the written version, concluded that the driver of the vehicle had his license upto 7.2.2004, and he renewed the same on 29.6.2004. Thus concluding, relying upon certain decisions, which we will discuss infra, came to the conclusion, as if the insurance company failed to prove that the driver was disqualified from holding or obtaining a license, and in this view, it ignored the lapse of the license and accepted the case of the complainant.

8. The learned counsel appearing for the respondent / complainant has also not advanced any case before us, such as, on the date of the accident, the driver of the vehicle had valid license or he renewed the same within a month, though the license had lapsed or expired on the date of the accident. In view of the above facts, concluding that on the date of the accident, the driver of the vehicle, who drove the vehicle, had no valid license or the license which he had, expired, not renewed in time, we have to proceed further, to see the legal impact, as well as its effect.

9. The main submission or the only the submission of the learned counsel for the appellant before us is, that the driver had no valid license on the date of the accident, and it is also not renewed within the grace period contemplated viz. 30 days, and in this view, as per the terms and conditions of the policy-agreement, the insurance company is not liable to answer the claimant, for the damages caused to the vehicle, at the time of the accident. Per contra, it is the submission of the learned counsel for the respondent/ complainant, that though the license has not been renewed, the insurance company failed to prove that the driver is disqualified or incompetent to obtain a license on the date of the accident, and this being the position, as held by the District Forum, placing reliance upon the decision passed an order, requires only confirmation, and not disturbance.

10. As rightly pointed out by the learned counsel for the appellant, the decisions relied on by the District Forum, for passing an order in favour of the complainant, relate to the case between the insurance company and the third party. But the case on hand, awaiting our decision is between the insured and the insurer. Therefore, according to the learned counsel for the appellant, there is lot of difference between the claims and when it is a question of damage by the insured for his own damage viz. the vehicle belongs to him, the terms and conditions of the agreement viz. the insurance policy, has to be considered strictly, for which in our opinion also, there may not be any difference of opinion. In support of the above submissions, out attention was drawn to various decisions. By going through the decisions and the ratio rendered therein, which has considered elaborately about the third party claim and the owners claim, we are constrained to follow the same, and if the ratio decidendi is followed, the unavoidable and ultimate result would be the success of the appeal, resulting dismissal of the complaint.

11. In Oriental Insurance Co. Ltd., Vs. Prithvi Raj reported in 2008-2-Law Weekly-131 , the Apex Court had the occasion to consider chapter 9 of the Motor Vehicles Act, on the question of insurers liability, such as the present case. While deciding that case, their Lordships have distinguished the cases, involving damage to the property of third party, and damage to the property of the owner of the vehicle i.e., the insured, scanning Sec.147 and 149 of the Motor Vehicles Act, in addition to distinguishing the previous judicial precedents also, which related to third party claim, and not a own damage claim.

12. In the case involved in the above decision also, the insured approached the Consumer Forum, for damage of his own vehicle, which was repudiated on the ground that the driver of the vehicle did not have a valid and operating driving license. Further, in that case, it seems that the complainant took a stand that there was a renewal of the driving license, which was valid and legal, and therefore the claim should not have been repudiated by the insurance company, which was rejected by the State Commission, which was reversed or not accepted by the National Commission, which was challenged before the Apex Court. The Apex court, considering the rival contentions of the parties, and in view of Sec.147, 150 etc., of Motor Vehicles Act, where the word used “third party risk”, came to the conclusion that, though assuming that the driver had no valid license, or he failed to renew the license, on that ground alone, the insurance company cannot repudiate the claim, in view of the coverage given for the risk to be covered for the third parties. It seems that strong reliance was placed upon Swaran Singh and Ors., case, which undisputedly relate to a case under Sec.149 of the Act, where the history of compulsory insurance, and the right of third parties, were analysed, then a decision has reached that the right of third parties cannot be taken away on the ground that the driver of the vehicle has no valid license or failed to renew the same, within the grace period. Placing reliance, in this kind of decision alone, the District Forum has come to the conclusion, as if the insurance company is answerable to the claim.

13. As seen from paragraph 19 of the above judgement, the primary stand of the insurance company was that the person driving the vehicle did not have a valid driving license. This is the situation prevails, in the case on our hand. As we have already adverted to above, that on the date of the accident, the driver of the complainant, has no valid license, in the sense it is not renewed, since already expired. The benefit conferred upon the third parties, cannot be extended to owners claim, as seen from paragraph 24 of the judgement, which reads “In the background of the statutory provisions, one thing is crystal clear i.e., the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake license has to be considered differently in respect of third party and in respect of own damage claims”. In the middle of paragraph 25 of judgement, it is said that “It will be seen that the liability extends to damage to any property of a third party and not damage to the property of the owner of the vehicle i.e., the insured” . In view of the above settled decision by the Apex Court, if there is any violation of the insurance policy, certainly on that ground, the insurance company can repudiate the claim, for that the approval of the Forum also should be extended. On fact, on the date of the accident, the driver of the vehicle was not having valid license, and therefore applying the above principle laid down by the Apex Court, the irresistible conclusion that has to be drawn by this Commission is that the repudiation by the insurance company, is absolutely legal, and at no stretch of imagination it can be described as against any provisions of law, which was not properly considered by the Consumer Forum, and in this view, we are constrained to interfere with the finding of the District Forum.

14. In New India Insurance Co. Ltd., Vs. Jadav Narendrabhai Jethabhai, reported in 1996 (1)CPR 78, it is held that if the driving license is not renewed within the grace period, or if the license is renewed later, the validity of the license would be only from the date of the renewal, and if the accident had taken place before renewal, then the insurance company is not liable to pay any loss to the insured.

15. The National Commission, had an occasion to consider the effect of renewal 35 days after the accident in National Insurance Co. Ltd., Vs. Manohar Lal Batra, reported in II (2004) CPJ 57 (NC), wherein it is held that the license would be deemed to have been renewed from the date of renewal of the risk under the policy not covered in the event of person driving the vehicle, not holding valid license at the time of accident, thus reaching the conclusion that the company is not liable to pay the damage also.

16. This Commission also took the same view in New India Insurance Co. Ltd., Vs. S. Arumugam, II (2004) CPJ 67, to which we have to subscribe our view.

17. The learned counsel appearing for the complainant/ respondent, though relied on the decisions cited by the District Forum, which is improperly applied for the reasons assigned by us supra, has not brought anyother decisions to our notice, to over come or distinguish atleast the decision rendered by the Apex Court in Oriental Insurance Co. Ltd., Vs. Prithvi Raj. Thus, as guided by the Apex Court, being the settled law, it is to be held, that the District Forum has not properly appreciated the case, as well also not properly applied the correct provisions of law, resulting injustice, causing genuine grievance to the appellant, which are to be redressed by this commission, by allowing the appeal.

16. In the result, the appeal is allowed. The order of the District Forum in Cop No.99/2004 dt.21.10.2005 is set aside, and the complaint is dismissed. The respondent/complainant, is directed to pay a sum of Rs.1000/- as cost to the appellant/ opposite party in this appeal.

The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.