State Consumer Disputes Redressal Commission
The National Insurance Company Ltd., ... vs S. Mahaboob Basha Kadapa on 5 February, 2009
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 1513/2006 against C.C. No. 25/2006, Dist. Forum, Kadapa Between: The National Insurance Company Ltd., Rep. by its Sr. Divisional Manager Bangalore, Divisional Office: 1, 3rd Floor, Unity Building 72- Million Road, Bangalore-560 021. *** Appellant/ Opposite Party And S. Mahaboob Basha S/o. Silsan Saheb 1-38, Gorlamudi Veedu Rayachoty, Kadapa Dist. *** Respondent/ Complainant Counsel for the Petitioner: M/s. Naresh Byrapaneni Counsel for the Respondent: Paper Publication. QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. & SMT.M.SHREESHA, LADY MEMBER. THURSDAY THIS THE FIFTH DAY OF FEBRUARY TWO THOUSAND NINE ORAL ORDER:
(Per Honble Sri Justice D.Appa Rao, President.) *** This is an appeal preferred by the insurance company against the order of the Dist. Forum in directing it to pay Rs. 37,830/- together with compensation and costs.
The case of the complainant in brief is that he is the owner of Tata Sumo bearing No. A.P. 21-U 7371 insured with the appellant insurance company covering the period from 7.3.2005 to 20.11.2005. While so on 18.6.2005 it met with an accident at Elakela Bailu cross roads, Kallur on which a case was registered in Crime No. 26/2005 vide FIR Ex. A2. He got it repaired at Tirupathi by spending Rs. 57,650/-. When he claimed the amount, the insurance company requested to produce driving license of the driver which he submitted. However, the claim was repudiated on the ground that he has no badge. It is a Light Motor Vehicle, and the driver was having a valid driving license. The repudiation was unjust. He claimed Rs. 57,650/- together with Rs. 10,000/- towards expenses, Rs. 20,000/- towards mental agony and Rs. 2,000/- towards costs.
The insurance company resisted the case. It alleged that the charge sheet filed by the complainant disclose that there was no damage to the vehicle. The claim was repudiated as the driver was having LMV license but does not have passenger vehicle badge, as provided under Rule 37 of A.P. Motor Vehicle Rules. He was not having valid driving license, and therefore prayed for dismissal of the complaint.
The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A6 marked while the appellant filed Exs. B1 to B4.
The Dist. Forum after considering the evidence placed on record opined that the driver was having valid driving license and opined that the complainant had spent Rs. 37,880/- towards repairs and therefore he was entitled to the said amount together with expenses of Rs. 3,000/- and Rs. 2,000/- towards costs.
Aggrieved by the said decision, the insurance company preferred this appeal contending that the Dist. Forum did not consider that the vehicle was carrying more than the permissible number and the driver has no valid driving license and therefore the claim was unjust.
It is an undisputed fact that the complainant is the owner of the passenger vehicle obtained a policy under Ex. B1 covering the period from 21.11.2004 to 20.11.2005. It is also not in dispute that the said vehicle met with an accident on 18.6.2005 during the subsistence of policy period, and was damaged.
The fact that the vehicle was damaged was made a mention in FIR Ex. A3. A perusal of FIR discloses that about 10 persons were travelling in the vehicle beyond its capacity. The vehicle could only carry six persons in all including the driver as evidenced under Ex. B1 terms of the policy. When the complainant claimed the amount, the insurance company appointed one Sri S. Kuldeep, insurance surveyor who after verifying the particulars opined that it was LMV cab and that the driver was having license to drive the vehicle. What all the surveyor noticed was that the driver was not having the badge. The surveyor assessed the loss at Rs. 37,880/-. The insurance company repudiated the claim solely on the ground that he was not having the badge, forgetting the fact that he was having effective driving license. In fact, there is no proof that the driver was not having the badge to drive the vehicle. Since he was having requisite license to drive the vehicle, it could not have been repudiated on some ground or other, more so, when the insurance company could not prove by getting an authenticated certificate from the RTA authorities that he was not having the badge.
The other contention that was taken was that the vehicle was carrying more than the permissible number viz., six persons. The FIR discloses that 10 persons were travelling in the vehicle at the time of accident.
It is almost settled proposition of law that when persons travelling more than the requisite number it cannot be termed as violation, which is of fundamental nature amounting to violation of terms of the policy National Insurance Company Ltd. Vs. Gobind Chandra Nayak vide IV (2008) CPJ 67 (NC) . following the decision reported in B.V. Nagaraju Vs. Oriental Insurance Company Ltd. Divisional Office, Hassan, (1996) 4 SCC 647, where it was held. .
It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contribued to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. The exclusion term of the insurance policy must be read down as to as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle.
In the light of settled law, we do not see any flaw either in appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
In the result the appeal is dismissed with costs computed at Rs. 1,000/-. Time for compliance four weeks.
PRESIDENT LADY MEMBER Dt. 05. 02. 2009.