State Consumer Disputes Redressal Commission
Bharti Axa General Insurance Co. Ltd., vs Annasaheb Bapurao Ghandure on 30 July, 2013
1 F.A.No.:153-12
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing: 13.04.2011
Date of Order:30.07.2013
FIRST APPEAL NO. 153 OF 2012
IN COMPLAINT CASE NO. 262 OF 2010
DISTRICT CONSUMER FORUM: OSMANABAD.
Bharti Axa General Insurance Co. Ltd.,
Office No.1, Near Rubi Hall,
Dhole Patil Road, Pune. ... Appellant
VERSUS
Annasaheb Bapurao Ghandure
R/o. Amrutwadi, Tq. Tuljapur,
Dist. Osmanabad. ... Respondent
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. R. H. Dahat for appellant.
Adv. Shri. S. A. Wakure, for respondent.
- :: O R A L O R D E R :: -
(Delivered on 30.07.2013) Per Shri. K. B. Gawali, Hon'ble Member.
1. This appeal is filed by the original opponent (hereinafter termed as "opponent insurance company") against the judgment and order dated 08.02.2012 passed by the District Forum, Osmanabad in C.C.No.362/2010, whereby the appellant is held liable to pay the compensation to the complainant. The respondent hereinafter termed as "complainant".
2. Facts leading to the present appeal in a nutshell are that, the complainant had obtained insurance policy for his tractor bearing No. MH.25- H-284 which was effective for the period from 01.01.2010 to 31.12.2010. That, 2 F.A.No.:153-12 on 07.03.2010 while the said tractor was being driven to Tuljapur it met with an accident and was damaged. That, at that time of accident the said tractor was being driven by the driver namely Shri. Ramesh Ghogare who was holding the driving license for the tractor. That, the complainant had intimated the said fact to the opponent insurance company and filed the claim for damages. However, opponent insurance company avoided to sanction the claim for repairing of the said tractor hence the complainant got the tractor repaired for which he had to spend Rs.1,28,900/- The complainant again filed claim for the said amount of Rs.1,28,900/- with the opponent insurance company. However it has neglected the said claim and therefore the legal notice dated 10.11.2010 was also issued. That, in spite of issuance of the notice no steps were taken by the opponent insurance company to sanction the claim. Therefore the complainant filed present complaint before the District Forum seeking direction to the opponent insurance company to pay him the amount of Rs.1,28,900/- as spent by him towards repair of the said tractor and compensation of Rs. 10,000/- towards mental agony.
3. The opponent insurance company had appeared before the District Forum and resisted the claim. It was contended that on receiving the intimation about the accident of the said tractor, opponent insurance company had appointed surveyor Shri. D. S. Hiraskar to survey and assess the damages of the tractor. Accordingly the surveyor submitted the report on 20.05.2010 as per which the damages were assessed at Rs. 1,02,645/-. However it was contended that the driver was possessing the 'Licence' to drive only "Tractor" but at the time of accident the tractor was attached with two trolleys for the purpose of loading the sugarcane. Therefore, he was not qualified to drive the tractor with trolleys. Hence it was contended that as there was a breach of condition of the policy and also of the provisions of the Motor Vehicle Act the insurance claim of the complainant was rightly repudiated vide its letter dated 20.12.2010.
3 F.A.No.:153-124. The District Forum after the perusal of the record and hearing the parties by way of its impugned judgment and order partly allowed the complaint and directed the opponent insurance company to pay to the complainant insurance claim of Rs. 1,02,645/- as per the survey report along with interest @ 9 % p.a. from 10.12.2010 till the realization of the entire amount. In addition, it was also directed to pay Rs.2000/- as cost of the complaint. The District Forum while passing the impugned judgment and order, has observed that the opponent insurance company although contended that there were two trolleys attached with tractor at the time of accident, it had not submitted any cogent evidence to support its contention. The District Forum has therefore held that by not sanctioning the insurance claim of the complainant the opponent insurance company has committed deficiency in service and accordingly by way of its impugned judgment and order the opponent insurance company is held liable to pay the compensation.
5. Aggrieved by the said judgment and order the present appeal is filed in this Commission which was finally heard on 25.07.2013. Adv. Shri. R. H. Dahat was present for the appellant and Adv. Shri. S. A. Wakure was present for the respondent. We heard both counsels at length and the appeal was adjourned for judgment and order.
6. The learned counsel Shri. R. H. Dahat appearing for the insurance company submitted that at the time of accident the driver was driving the tractor with trolleys attached to the said tractor and hence it was a goods carrying vehicle. However, the concern driver Shri. Ramesh Ghogare was holding the licence to drive only the "tractor" and not "tractor with trolley". Hence he was not holding valid driving license. The learned counsel therefore contended that it was a breach of Sec. 3 of the Motor Vehicle Act as well as the general exclusion clause of the said insurance policy. He therefore averred that as there was a breach of condition of the policy, the opponent 4 F.A.No.:153-12 insurance company was not liable to pay any insurance claim. Therefore it had rightly repudiated the claim vide its letter dated 20.12.2010. Further it was also contended that these facts and legal provisions have not been appreciated by the District Forum & has wrongly passed the impugned judgment and order. The learned counsel Shri. Dahat in support of his contention relied on the following case laws:
i. United India Insurance Co. Ltd. Vs. Marappan and others, III 2008 CPJ 225 (Tamilnadu State Commission, Chennai) ii. National Insurance Company Ltd. Vs. Sushila and others, I (2011) ACC 54 Bombay High Court.
iii. Judgment and order dated 30.04.2010 passed by Hon'ble National Commission in R.P. No. 3981/2006 in case of United India Insurance Co. Ltd. Vs Vedprakash.
7. On the other hand, learned counsel Shri. S. A. Wakure submitted that even if the trolleys were attached to the tractor the concerned driver namely Shri. Ramesh Ghogare was holding the license to drive tractor and was qualified to drive the "tractor with trolleys" also. However the opponent insurance company has indulged in unfair trade practice and wrongly repudiated the claim of the complainant. He therefore contended that the District Forum has rightly passed the impugned judgment and order which be confirmed. In support of his contention learned counsel Shri. Wakure relied on following citations:
i. Nagashetti vs. United India Insurance Co. ltd and others, reported in AIR S.C. Software 1950-2011. ii. National Insurance Company Vs. Anappa Irappa Mesaria and others, AIR S.C. Software 1959-2011.
iii. Jitendra Kumar Vs. Oriental Insurance Company and other, AIR S.C. Software 1950-2011.5 F.A.No.:153-12
8. We have perused the record and also considered the oral submissions advanced by both the learned counsel along with the case laws referred by them. The only ground on the basis of which the opponent insurance company has repudiated the claim of the complainant is that the driver namely Ramesh Ghogare who was driving the tractor was not holding valid and effective driving license. It is the contention of the opponent insurance company that at the time of accident of the tractor, two trolleys were attached to it for loading sugarcane, for which the driving license as "tractor with trolleys" was required. However said driver namely Ramesh Ghogare was holding only the driving license of motorcycle and tractor.
9. It is observed that as per the survey report and police panchnama the opponent insurance company has made submission that the said tractor was toeing two trolleys at the time of accident. The copy of police panchanama or other relevant documentary evidence however does not appear to have been placed before the District Forum. Hence the District Forum did not consider this contention of the opponent insurance company.
10. Even if it is accepted that the tractor at the time of accident had two trolleys attached to it, as per the ratio given in the case law pertaining to the case of Nagashetti Vs. United India insurance Company Ltd., and other (Supra) as relied on by the learned counsel for the respondent, a person holding license to drive tractor is not disqualified to drive tractor with trailer attached to it. It is clearly observed by Hon'ble Apex Court in this case that merely because a trailer was attached to the tractor and the tractor was used for carrying the goods, a license to drive the tractor does not become ineffective and the insurance company can not be absolved from the liability.
11. Considering the view of the Hon'ble Apex Court in the case of Nagashetti Vs. United India Insurance Co. Ltd & others, as relied on by the 6 F.A.No.:153-12 learned counsel for complainant we find that the opponent insurance company has committed deficiency in service in repudiating the claim. The District Forum by way of its impugned judgment and order has awarded the compensation as per the surveyor's assessment report appointed by the opponent insurance company itself.
11. In view of the above said facts and observation we find no reason to interfere with the impugned judgment and order. In the result there being no merit in the present appeal we are inclined to dismiss the same. Hence we pass the following order.
-:: ORDER::-
1. The appeal is dismissed.
2. No order as to cost.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole) Member Member Presiding Judicial Member Kalyankar