THOMAS MATHEW vs Oriental Insurance Co. Ltd.

THIS complaint is filed under Section 12 of the Consumer Protection Act claiming a compensation of Rs. 9,95,000/ alleging deficiency on the part of the first Opposite Party to settle an insurance claim.

BRIEFLY stated that material allegations, in the complaint are as follows: The complainant is an owner of a contract carriage bus bearing Reg. No. KL3/9399, which was purchased in the year 1991. The vehicle was insured for Rs. 7,50,000/ with the counter petitioner. While soon 14.5.1996 the vehicle met with an accident at an unmanned level cross at Evoor, Cheppad, while the vehicle was plying on contract basis by a marriage party. The bus was run over by an Express Train as the result of which the vehicle was totally damaged and 37 passengers including the driver were killed. Immediately the matter was intimated to counter petitioner alongwith quotations from established companies showing the value of the bus. A claim was preferred by the complainant on 22.5.1996 itself. On 24.5.1996 a Surveyor and Loss Assessor visited the spot of accident and conducted survey and as per the instruction received from the Surveyor, the wreck age was removed from the spot of accident to the place of residence of the complainant for safe custody. On 30.5.1996 again the Surveyor visited for inspection of the salvages and then most of the documents asked for were handed over to his custody. On 1.11.1996 the complainant received a letter showing that his claim has to be decided not by them but by the head office. From the conduct of the Opposite Party the complainant understands that they were dragging on the matter. On 29.10.1996 the complainant sent a legal notice through a Lawyer, requesting him to settle the claim but he received a reply through a Counsel which would reveal that there was no effective proceedings from the part of the counter petitioner for processing complainant''s claim and to settle it and even a vague attempt to evade from the liability can be traced from it. On account of failure to settle the claim the complain ant sustained financial loss of Rs. 25,000/ per month as expected income from the vehicle. He purchased vehicle by raising a loan from different sources, which is yet to be cleared. The complainant claimed a compensation of Rs. 9,95,000/ under different heads. A version was filed by the Opposite Party. It was admitted that there was valid insurance coverage during the relevant period. It was however stated that on 14.5.1996 the vehicle was carrying 70 persons of a marriage function in Error. 28 persons were reported to have got down from the vehicle and 42 persons were in the vehicle besides the cleaner and driver. When the vehicle reached Eroor Railway Crossing on the National Highway the driver of the bus unmindful of the warning given by the persons in the bus proceeded to drive forward the vehicle and a speeding train going to north dashed against the vehicle and the vehicle was ripe apart. Out of 42 passengers, 36 succumbed to the injuries sustained in the accident and 8 had miraculously escaped. The Opposite Party deputed a Surveyor and a survey was conducted on 15.5.1996 and his report was submitted on 21.5.1996. The complainant submitted a claim on 22.5.1996. Thereafter another survey was con ducted by an independent Surveyor K.J. Philip who inspected the spot on 24.5.96. He submitted his report on 2.8.1996. The Surveyor''s report indicated that the vehicle was driven by one P. Mohanan, who had a driving licence bearing No. AC 374/84 valid from 10.4.1984 to 12.4.96. It is further stated as per the terms, conditions and covenants of the policy of insurance general exception No. 3 reads as follows: "Persons or class of persons entitled to drive:-Any person including the insured provided that the person driving holds an effective and valid driving licence to drive the category of the vehicle insured here under at the time of accident and is not disqualified from holding or obtaining such licence. Provided also that a person holding effective and valid learner''s licence to drive the category of vehicle insured here under may also drive the vehicle and that the person satisfied the requirements of Rule 3 of Motor Vehicle Rules, 1989".

In view of the aforesaid terms of the policy, the Surveyor while carrying out the survey had requested the complainant to furnish more in formation and necessary documents in respect of licence of the driver of the vehicle. The complainant was also specifically requested to pro duce original driving licence of the driver of the vehicle. The Surveyor''s letter dated 25.5.1996 addressed to the complainant shows that the complainant had failed to provide necessary information or produce the documents called forthwith by the Opposite Party. In view of the serious nature of the accident an investigation was also conducted in respect of the accident by the Opposite Party through M/s. Scout. The investigation revealed that a Crime No. 105/96 of Karikulangara Police Station was still pending and that none of the details regarding the licence of the driver of the ill fated bus was available. The case was held up due to failure of furnishing necessary documents and details. The Opposite Party obtained driving licence particulars of the driver of ill-fated bus later and found that the driver originally possessed driving licence from 10.4.1982 to 10.4.1987 which was renewed upto 8.4.1990 and thereafter again it was renewed from 13.4.1990 to 14.4.1996. On the material date of the accident the driver of the ill fated bus employed by the complainant did not possess effective, valid and legal licence to drive the vehicle. The licence of the driver of the vehicle expired on 12.4.1996, about 3 months prior to the date of accident. Therefore, the driver P. Mohanan was legally not entitled to driver the vehicle. Under Section 15(1) of the Motor Vehicles Act, 1988 an application for renewal of licence has to be submitted within 30 days from the date of expiry. No application for renewal was pending within the stipulated period of 30 days from the date of expiry of driving licence. Even assuming that the driver if alive would have applied for renewal after the date of the accident that would not satisfy the requirement. It is also averred as per the Motor Vehicles Act, even if it is renewed after the expiry of the above period the renewal could only be from the date of application and would not trace back to the date of expiry, as the period prescribed under the said Act has expired. The complainant expressed his inability to produce copy of the driver''s licence. It is evidenced by his letter-dated 12.8.1996. It is in these circumstances the Opposite Parties repudiated the claim.

We directed the complainant to file an affidavit and to mark documents. Exts. P1 to P1 7 were marked. He also filed an affidavit reiterating what is stated in that complaint. The Opposite Party has also field an affidavit and produced a document marked as Ext. R 8. The case was posted for evidence on 21.3.1997 but on that day the complainant was not ready and we posted the case as last chance for 11.4.1997. On that day also as the complainant was not ready we adjourned the case for today, but today also neither the complainant nor his Counsel was present.

THE following points arise for consideration: 1. Whether the Opposite Party has committed any deficiency in service in not settling the claim? 2. If so, what is the relief to which the complainant is entitled? 3. THE order as to cost?

There is no dispute between the parties that during the relevant date of the accident, the bus of the complainant had valid insurance coverage. The main ground on which the claim is repudiated is that there is no valid driving licence for the driver of the vehicle on the date of the accident. In order to prove that there is valid driving licence the complainant has produced Ext. P8. In order to prove that there is no valid driving licence the Opposite Party has produced Exts. R10 and R11. Ext. P8 shows that the driving licence of the driver was finally renewed from 13.4.1993 to 12.4.1996. Driving licence particlulars issued by the Regional Transport Officer also shows that the licence of the driver was renewed from 13.4.1993 to 12.4.1996. The Opposite Party has also produced Ext. R10 a letter dated 15.2.1997 issued by the Joint Regional Transport Officer, Chengannur. It has been stated therein that the validity of the licence of P. Mohanan expired on 12.4.1996 and he has not applied for the renewal of the driving licence in time, and as per the licence records it had no validity on 14.5.1996. The vehicle in question is a transport vehicle. Section 14(2) of the Motor Vehicles Act reads as follows: "A driving licence issued or renewed under this Act shall- (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years; and (b) in the case of any other licence, (i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of forty years on the date of issue or, as the case may be, renewal, or (A) be effective for a period of twenty years from the date of such issue, or (B) until the date on which such person attains the age of forty years which ever is earlier, (ii) if the person referred to in Sub clause (i) attained the age of forty years on the date of issue or, as the case may be, renewal thereof, be effective for a period of five years from the date of the such issue or renewal. Provided that every driving licence shall, notwithstanding its expiry under this sub section, continue to be effective for a period of 30 days from such expiry".

The vehicle involved in the instant case is trans port vehicle. The driving licence issued to driver P. Mohanan expired on 12.4.1996 and by virtue of proviso to Section 14 it will continue to be effective only for a period of 30 days from 12.4.96. In the instant case no application was filed for renewal of the licence prior to the expiry and there was also no renewal prior to accident. In the circumstances we cannot find any deficiency on the part of the Opposite Party in repudiating the claim on the ground that the driver did not have a valid driving licence. The certificate of policy Ext. Rl while describing drivers clause clearly states that any person including the insured provided that the person who driving the vehicle holds a valid driving licence to drive the category of vehicle insured there under at the time of the accident and he is not disqualified from holding or obtaining such a licence. It is also stated in Ext. Rl under General Exceptions that the Company shall not be liable in respect of: "any accident loss damage caused, sustained or incurred whilst the motor vehicle is being driven by any person other than a driver as stated in driver''s clause."

AS pointed out already Ext. R 10 is the letter issued by the Joint Regional Transport Officer, Chengannur, and it clearly says that the validity of the driving licence expired on 1.4.96 and the driver had not applied for the renewal of the driving licence in time, and as per their office records the driving licence has no validity on 14.5.1996. The aforesaid discussion would show that it cannot be said that the Opposite Party has committed any deficiency in repudiating the claim. Of course if driver had applied for renewal of driving licence it would have been renewed. In the circumstances we can only direct the Opposite Party to consider whether the complainant can be given any ex gratia payment in the peculiar circumstances of the case. Subject to the above observation, we dismiss the complaint and direct the parties to bear their respective costs. Complaint dismissed. ______________