BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA 665 of 2010  against C.C.  95/2008, Dist. Forum, Ongole.  

Between:

The New India Assurance,

Rep., by its Branch Manager,

Opp: Nellore Bus Stand,

Ongole.                                                       ***                           Appellant/

                                                                                                  O.P. No. 1

          .                                                       

                                                                   And

1)  Katta Krishna Rao,S/o Veeraiah,

Age 42 years, R/o Sundaranagar,

Singarayakonda, Prakasam District.           ***                         Respondent/

                                                                                                Complainant

2)  M/s Indus Ind Bank,

Rep., by its Branch Manager,

Office at ARN Complex,

Kurnool Road, Ongole.                               ***                         Respondent/

                                                                                                O.P. No. 2

Counsel for the Appellant:                          M/s.  Naresh Byrapaneni

Counsel for the Respondent:                       M/s.  N. Subba Rao (R1)

                                                                   M/s.  B. Srinivas Aditya (R2)

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

                                   SMT. M. SHREESHA, MEMBER

WEDNESDAY, THE EIGHTEENTH DAY OF  JANUARY TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 This is an appeal preferred by the  insurance company  (Op1) against the order of the Dist. Forum directing  it  to  pay Rs. 1,74,500/-     with interest @ 9% p.a., together with costs of Rs. 2,000/-.

2)                The case of the complainant in brief is that  he insured his  mini-lorry  with the appellant insurance company  with the financial assistance of Op2 bank  for Rs. 2,44,435/-  covering the period from  29.3.2007 to 28.3.2008.   While so, on 7.7.2007 when the vehicle was  stationed  on the

roadside margin  near Kondavalli  on NH-5  another lorry hit it,  and in the process his vehicle was damaged.    He lodged a complaint with the police.   Later when the vehicle was shown at  M.G. Brothers, Ongole,   they initially  assessed the damage at Rs.  3,53,421/- as such he intended to  purchase a new vehicle.    However, the insurance company  lured  him with a proposal  to give  Rs. 1,74,500/-  towards full and final settlement.  Under its influence and wrong impression  he executed  a letter.  However, finally they repudiated his claim on false and untenable grounds that the driver had no driving license.    He sustained loss  of Rs. 10,000/-  per month.   Therefore, he claimed Rs. 2,44,435/-  together with  Rs. 70,000/- towards loss of earnings, Rs. 50,000/- towards mental agony  and Rs. 10,000/- towards costs.   

3)                 The insurance company resisted the case.   While admitting issuance of policy it denied that the complainant was entitled to compensation.   The complainant himself gave report  alleging that one  Sandi Jayaraj Peterson  was the driver.    On receipt of claim, investigation was made.   It was found that the driver was not having valid driving license to drive the mini-lorry  a transport vehicle.  The transport licence was expired on 21.10.2005.  He got it renewed  on 3.1.2008 subsequent to the accident.   Since the driver was not having valid and effective driving license at the time of accident  and the claim

being own damage claim, the same  was repudiated rightly and therefore prayed for dismissal of the complaint with costs.    

4)                The complainant in proof of his   case filed  his   affidavit evidence and got Exs. A1  &  A2 marked, while the insurance company filed the affidavit evidence of its  Divisional Manager and  got Ex. B1  to B8 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that   the vehicle  of the complainant was  parked on the road side,  and  that the driver of  another  lorry  coming in  opposite direction  drove it in a rash and negligent manner,  dashed against the stationed lorry causing damage to the complainant’s vehicle.   There was no fault on the part of driver of the complainant’s vehicle.   Therefore  the question  whether the  complainant’s driver has  license or not  will not arise, and accordingly  directed the insurance company to pay  Rs. 1,74,500/-     with interest @ 9% p.a., together with costs of Rs. 2,000/-.

6)                Aggrieved by the said decision, the appellant insurance company preferred the appeal contending  that the Dist.  Forum did not appreciate  either  facts  or law in correct perspective.   It ought to have seen that the vehicle was moved and parked by driver,  who was not having valid and effective driving license,   at the time when the accident took place, and the claim being own damage, the complainant was not entitled to any compensation, and therefore prayed that the complaint be dismissed.      

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the  complainant insured his  mini-lorry  with the appellant insurance company  for Rs. 2,44,435/-  covering the period from  29.3.2007 to 28.3.2008.   During subsistence of the policy the vehicle met with accident on  7.7.2007.   It is not in dispute that the complainant gave a report to the policy under Ex. B7 alleging that while the driver  Sandi Jayaraj Peterson   was driving the vehicle  on 7.7.2007  at 4.00 a.m.  from  Tanuku to Mandapet and when he stationed the lorry at Khandavalli , the driver of another lorry bearing No.  TN 28 E 5218,   came from behind  and dashed against his lorry due to which his  lorry was damaged, and therefore requested  necessary action  be taken.   

9)                Obviously basing on Ex. B7 ,S.I. of Police,  investigated into the matter  and found that the lorry of the complainant was damaged when another lorry dashed it causing damage.    On that he made  enquiries and  imposed  and collected a fine of Rs. 500/- from the driver of the offending lorry bearing No. TN 28 E 5218.   It is important to note that the complainant did not allege that when his lorry was stationed  on the roadside  another lorry came from behind and dashed against it.   Importantly he did not deny the facts mentioned in Ex. B7 either in his complaint or in his affidavit evidence.   The appellant insurance company categorically stated  in its counter as well as affidavit evidence  that  Sandi Jayaraj Peterson   was driving  the vehicle at the time of accident. 

10)               The surveyor on receipt of claim  enquired into the matter and found that Sandi Jayaraj Peterson   was not having  valid and effective  driving license.  A perusal of  Ex. B6  issued by the Licensing Authority, Bhimavaram  shows that  he was having   both LMV  (Transport & Non-Transport)  driving licenses  issued on  1.9.1993.    He got the both non-transport  and transport licenses  renewed as shown hereunder :

Therefore  it is beyond doubt  that Sandi Jayaraj Peterson    was not having valid and effective driving license  at the time when the accident took place on  7.7.2007.    Obviously to get over the difficulty, for the first time while submitting his claim form  Ex. B3  on  27.8.2007,  fifty days after the accident  he mentioned that one Brahmaiah of Singarayakonda was  the driver at the time of accident.   In the complaint he did not even mention the name of the driver, obviously to get over  the question of  validity of the driving license of the driver.   Not only he did not mention the name of driver but also  had taken a plea that  it was a stationed lorry.   He intended to take the plea  that the question of  looking into the driving license will not arise.   These are all fallacy pleas . 

11)              The accident could not have occurred  at a far off place from his native  i.e., on NH5, if none of the persons drove the vehicle.     It could not have moved to the accident spot.  Had this vehicle been in the shed or in the premises of the complainant it could have been opined that no driver  was actually attending on the vehicle.   This introduction of  Brahmaiah  as driver in his letter of consent Ex. B2  agreeing to receive Rs. 1,74,500/-  towards full settlement  without raising any dispute is to get over all these legal implications.    When his own record shows that Sandi Jayaraj Peterson    was driving the vehicle and that he was not having valid and effective driving license on  the date of accident, and in fact it was expired it must be held that the  driver  was not having driving license to drive the vehicle.

12)              In  United India Insurance Company Ltd. Vs. Gian Chand reported in (1997) 7 SCC 558   the Hon’ble Supreme Court held that:  “where the insured alleged to have committed breach of the condition of insurance  policy, which required them not to permit  the vehicle to be driven  by an unlicensed driver, such a breach is held to be a valid defence  for the insurance company to get exonerated from meeting the claims.” 

13)               In  the result the appeal is allowed  setting aside the order of the Dist. Forum.   Consequently the complaint  is dismissed.  No costs. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

18/01/2012

*pnr