State Consumer Disputes Redressal Commission
The New India Assurance Co.Ltd., vs Sri Vinod Kashiwale S/O Dhondiba ... on 27 January, 2012
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.280 OF 2009 AGAINST C.C.NO.213 OF 2008 DISTRICT FORUM-III HYDERABAD Between The New India Assurance Co.Ltd., Rep. by its Divisional Manager, Divisional office (Code No.610100) Anasuya Complex, Himayat Nagar, Hyderabad.29 Appellant/opposite party A N D Sri Vinod Kashiwale S/o Dhondiba kashiwale Aged 38 years C/o Padma Road Lines HNo.8.4.394/8 & 9/3, Opp: FCI Godown Erragadda, Hyderabad.018 Respondent/complainant Counsel for the appellant Smt A.Jayanthi Counsel for the Respondent Sri N.Venkateswara Rao QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The appeal is filed by New India Assurance Company Ltd questioning the legality of the order directing it to pay an amount of `1,08,400/- with interest @ 9%p.a. and costs.
2. The respondent insured his Lorry bearing number AP.9U.8166. The appellant insurance company issued insurance policy bearing No. 610100/31/04/06699 for the period commencing from 24.07.2004 till 23.07.2005. The lorry met with an accident on 21.05.2005 when the driver of a Truck tried to overtake another Truck and the driver of the Lorry attempted to avoid collision with Motor Cycle, the Lorry turned turtle and the inmates sustained injuries as also the Lorry suffered damage.. The lorry sustained damage in the accident. The Police, Yenagam, Maharashtra, registered a case in crime number 70 of 2005 under sections 279,337,338,427, of the IPC 118,117,119,134-A and 177 of the M.V. Act. The respondent claimed a sum of `1, 46,511/. .The respondent addressed letter dated 15.09.2006 with a request to the appellant insurance company to settle the claim.
3. After receiving intimation of the accident, the appellant insurance company appointed surveyor who estimated the loss to the tune of `1,20,590/-. The appellant repudiated the claim and informed its decision through letter dated 24.08.2006 on the grounds that in violation of the terms and conditions of the insurance policy the vehicle was carrying passengers and as per the contents of the registration certificate, the vehicle was registered as a goods vehicle. And the driver of the lorry was not authorized to drive the goods vehicle. The condition of the insurance policy prohibits carrying of any other persons except the driver as the insured vehicle is a goods vehicle. It is contended that the lorry was carrying four persons and the permit was expired on 31.03.2005. It is contended that the claim was repudiated basing on the documents and after taking in to consideration of all the circumstances.
4. The respondent had filed his affidavit and the documents, ExA1 to A8. The Divisional Manager of the appellant insurance company had filed his affidavit and the documents, Ex B1 and B2.
5. The District Forum allowed the complaint on the premise that the appellant insurance company failed to examine the driver to show that he was not authorized to drive the vehicle and that in absence of permit; it held that the vehicle cannot be treated as transport vehicle. The District Forum opined that the vehicle carrying four persons against the permitted capacity of three persons amounted to violation of the condition of the insurance policy as to the limitation to use the vehicle and awarded an amount of `1,08,400/- on non-standard basis.
6. Aggrieved by the order of the District Forum, the opposite party has filed the appeal contending that the respondent had committed fundamental breach of the terms of the insurance policy by allowing unauthorized persons to travel in the lorry and allowing ineligible driver to drive the lorry as also on the date of accident there was no permit in force as the permit issued was valid till 31.03.2005. It is contended that the surveyor report showing the loss assessed at `55,000/- is filed as additional evidence in the appeal.
7. The points for consideration are:
i) Whether the driver of the Lorry held valid and effective driving licence to drive the vehicle at the time of the accident?
ii) Whether the permit was in force at the time of the accident?
iii) Whether the persons travelling in the vehicle are permitted to be carried in the lorry?
iv) To what relief?
8. POINT NO 1 to 3: The vehicle belonging to the respondent and its insurance coverage by the insurance policy as also the vehicle meeting with an accident on 21.05.2005 in Maharashtra are not disputed. The respondent claimed for the repairs of an amount of `2,75,535/-. One of the grounds of repudiation of the claim is the driver not possessing driving licence to drive the Lorry. The copy of the driving licence marked as ExB1 would show that he was authorized to drive Light Motor Vehicle from 28.10.1991 to 31.05.2006 and he was authorized to drive transport vehicle from 2.12.1993 till 1.12.1996. After 1.12.1996 the driver had not got renewed his licence to drive transport vehicle. On the date of the accident, the driver of the vehicle was authorized to drive Light Motor Vehicle. Thus, the repudiation of the claim on the ground of the driver not holding valid driving licence is valid and sustainable. The learned counsel for the appellant insurance company before the District Forum has relied upon the following decisions:
1.Oriental Insurance Company Ltd vs Prithvi Raj 2008(2)SCJ 299.
2. New India Assurance Co .Ltd., Vs Prabhulal 2008 ACJ 627.
3.United India Insurance Co.Ltd vs Davender Singh 2008AIR SC 329.
4.New India Assurance Company Ltd vs Vedwathi. 2007 ACJ 1043.
5.Santosh vs National Insurance Company Ltd 2008(2)CPR 140.
9. The learned counsel for the appellant insurance company has placed reliance on the decisions of Prabhlal, Prilthviraj and the decision of the National Commission in Santosh(supra).
10. The Honble Supreme Court in New India Assurance Co .Ltd., Vs Prabhulal 2008 ACJ 627 held in that the insurance company is not liable to pay any amount in respect of own property damage claim in case the driver of the vehicle did not possess valid and effective driving licence at the time of the accident.
11. The law laid in the aforementioned decision is applicable to the facts of the present case as in the case on hand, the driver was not authorized to drive a transport vehicle and he did not possess a driving licence which authorized him to drive a light motor vehicle.
12. Another ground of repudiation of the claim is the lapse of permit. The contention of the insurance company is that the permit issued in respect of the Lorry was expired on 31.5.2006. The accident occurred on 21.05.2006. Therefore, the date of expiry as contended should be 21.05.2005. The insurance policy issued in respect of the vehicle is Commercial Vehicle Carriage Policy and the insurance policy was issued with specific endorsement that the risk would be only under a permit within the meaning of Section 64(3) of the Motor Vehicles Act. Oblivious of the endorsement and the condition to the use of the vehicle for the purpose of coverage of the risk, the District Forum came to the conclusion that the appellant company failed to prove the vehicle as a transport vehicle. The copy of the permit produced by the Insurance Company is not legible. However, the respondent has not denied that the permit was expired prior to the date of the accident. Thus, it can be held that the vehicle was used at the time of the accident without any valid permit issued by the authority concerned.
13. For the foregoing reasons, we hold that the respondent violated the terms and conditions of the insurance policy whereby he is disentitled to claim for reimbursement of the amount stated to have been incurred for getting repaired the Lorry. The order of the District Forum is liable to be set aside as the question of settlement of the claim on non-standard basis comes to the fore subject to the insured meeting the requirement of the terms of the policy with reference to the driving licence clause.
14. In the result, the appeal is allowed by setting aside the order of the District Forum. Consequently, the complaint is dismissed. There shall be no order as to costs.
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MEMBER Dt.27.01.2012 KMK*